Fuller v Avichem Pty Ltd t/as Adkins Building & Hardware

[2019] NSWCA 305

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Fuller v Avichem Pty Ltd t/as Adkins Building & Hardware [2019] NSWCA 305
Hearing dates:	17 September 2019
Date of orders:	13 December 2019
Decision date:	13 December 2019
Before:	Macfarlan JA at [1]; Payne JA at [76]; White JA at [107]
Decision:	(1)   Allow the appeal. (2)   Set aside the monetary judgment entered in the District Court. (3)   Direct that the parties attempt to agree within 14 days of this judgment as to the form of the remaining orders that the Court should make and, if they are able to agree, that they submit draft Short Minutes of Order to the Court within seven days thereafter. (4)   Direct that, failing agreement in accordance with Order (3): (a)   the appellant within 21 days of this judgment file and serve short written submissions as to the remaining orders that should be made; (b)   the respondent file and serve its response within seven days thereafter; and (c)   the appellant file and serve any reply within a further seven days.
Catchwords:	NEGLIGENCE – damages – residual earning capacity – plaintiff injured in course of employment – plaintiff completely incapacitated for work from date of injury until conclusion of hearing – whether plaintiff has residual earning capacity of eight hours per week – vicissitudes - whether case warranted greater than usual discount for vicissitudes of 15 per cent   EVIDENCE – opinion evidence – expert opinion of clinical psychologist concerning residual earning capacity of plaintiff – whether clinical psychologist was sufficiently qualified to give expert evidence
Legislation Cited:	Evidence Act 1995 (NSW), s 79 Long Service Leave Act 1955 (NSW) Workers Compensation Act 1987 (NSW), s 151G
Cases Cited:	Chung v Anderson [2004] NSWCA 321 Dal v Chol [2018] NSWCA 219 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 FAI Allianz Insurance Ltd v Lang [2004] NSWCA 413 Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29 Mead v Kerney [2012] NSWCA 215 Moran v McMahon (1985) 3 NSWLR 700 Nominal Defendant v Livaja [2011] NSWCA 121 State of New South Wales v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133 Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485; [1995] HCA 53
Texts Cited:	H Luntz, Assessment of Damages for Personal Injury and Death (4th ed, 2002)
Category:	Principal judgment
Parties:	David Fuller (Appellant) Avichem Pty Ltd t/as Adkins Building & Hardware (Respondent)
Representation:	Counsel: G J Parker SC / J de Greenlaw (Appellant) J Turnbull SC / J Sleight (Respondent)   Solicitors: Gerard Malouf & Partners (Appellant) Turks Legal (Respondent)
File Number(s):	2019/147143
Decision under appeal	Court or tribunal: District Court Jurisdiction: Civil Citation: [2019] NSWDC 114; [2019] NSWDC 125 Date of Decision: 4 March 2019; 12 April 2019 Before: Scotting DCJ File Number(s): 2017/359791

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 11 August 2009 Mr Fuller, the appellant, sustained injuries including to his back and left shoulder as a result of lifting fibreboard sheets in the course of his employment. Mr Fuller claimed damages from his employer, the respondent, on the basis that it had breached its duty of care to him. The primary judge upheld Mr Fuller’s claim and rejected the respondent’s contributory negligence defence. His Honour awarded Mr Fuller damages totalling $421,652 for past and future economic loss.

The primary judge found that whilst Mr Fuller was completely incapacitated for work from the date of his accident until the conclusion of the hearing, he had from that time a residual earning capacity “to work eight hours a week, being two shifts of no more than four hours”. This was equivalent to $200 net per week. His Honour also found that Mr Fuller’s damages for future economic loss should be discounted by 25 per cent for vicissitudes rather than the conventional discount of 15 per cent.

In assessing damages, the primary judge relied on an earning capacity assessment by Ms Amber Owen, a clinical psychologist. This assessment identified roles that she said that Mr Fuller would be able to undertake, including customer service-call centre roles.

The issues on appeal were:

1. whether the primary judge erred in finding that Mr Fuller had a residual earning capacity of eight hours per week;

2. whether Ms Owen was sufficiently qualified to give expert evidence on the matters with which her report dealt;

3. whether the primary judge erred in determining the percentage discount for vicissitudes at 25 per cent; and

4. whether the primary judge erred in failing to award, and/or consider, damages for a lost opportunity to qualify for long service leave.

The Court (Macfarlan, Payne and White JJA) upheld the appeal:

In relation to Question 1:

(Per Macfarlan and Payne JJA, White JA agreeing):

The respondent did not discharge its onus of demonstrating the likelihood of Mr Fuller obtaining employment in the future. The primary judge should have assessed damages on the basis that Mr Fuller will remain totally incapacitated for work for the remainder of his working life and that he therefore has no residual earning capacity: [60]; [97]-[98]; [107].

Dal v Chol [2018] NSWCA 219; Nominal Defendant v Livaja [2011] NSWCA 121, referred to.

In relation to Question 2:

(Per Payne JA, White JA agreeing):

The primary judge did not err in admitting the evidence of Ms Owen. Ms Owen demonstrated relevant specialised knowledge in vocational rehabilitation and the safe return to work of injured workers acquired through her training, study or experience in those fields over many years: [89], [107].

Dasreef Pty Limited v Hawchar (2011) 243 CLR 588; [2011] HCA 21, referred to.

(Per Macfarlan JA, contra):

Ms Owen did not have the expertise to enable her to express opinions as to what specific jobs were available that Mr Fuller would or would not be able to undertake: [41]-[42].

In relation to Question 3:

(Per Macfarlan and Payne JJA, White JA agreeing):

In New South Wales, 15 per cent is the conventional allowance for vicissitudes. This was not a case where a greater than usual discount for vicissitudes should have been allowed: [63], [105], [107].

FAI Allianz Insurance Ltd v Lang [2004] NSWCA 413; State of New South Wales v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133; Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485; [1995] HCA 53; Moran v McMahon (1985) 3 NSWLR 700, referred to.

In relation to Question 4:

(Per Macfarlan JA, Payne and White JJA agreeing):

The primary judge’s finding that, but for the accident, Mr Fuller would have remained in the respondent’s employment until his retirement supported Mr Fuller’s claim in respect of loss of the value of future long service leave entitlements. This indicated a probability that Mr Fuller would have satisfied the requirements under the Long Service Leave Act to qualify for entitlements to Long Service Leave. [72], [106], [107].

Judgment

1. MACFARLAN JA: On 11 August 2009 Mr David Fuller, the appellant, sustained injuries including to his back and left shoulder as a result of lifting fibreboard sheets in the course of his employment as a hardware technician and customer service assistant at a hardware store in Broken Hill.

2. In proceedings in the District Court, Mr Fuller claimed damages from his employer, the respondent, on the basis that it had breached its duty of care to him.

3. Mr Fuller’s claim was upheld by Scotting DCJ in a judgment of 4 March 2019. His Honour rejected the respondent’s contributory negligence defence and awarded damages totalling $421,652 to Mr Fuller. It being accepted that s 151G of the Workers Compensation Act 1987 (NSW) limited the damages that Mr Fuller could obtain, his Honour awarded damages only in respect of past and future economic loss. In doing so, his Honour found that, whilst Mr Fuller was completely incapacitated for work from the date of his accident until the conclusion of the hearing in the District Court (21 November 2018), he had from that time a residual earning capacity “to work eight hours a week, being two shifts of no more than four hours”, equivalent to $200 net per week (at [151]).

4. Mr Fuller’s grounds of appeal are as follows:

“1.   His Honour erred in finding that the Appellant had a residual earning capacity of 8 hours per week his Honour should have found the Appellant had no residual earning capacity in any labour market reasonably available to him:

Particulars

1)   His Honour held the Appellant was completely incapacitated for work from the date of the accident (11 August 2009) until the date of the trial (21 November 2018).

2)   His Honour accepted the evidence of the defendant’s expert Ms Owen including her conclusion that to enable the Appellant to return to employment he would need to participate in a multidisciplinary pain management program to increase his capacity and receive vocational counselling to enhance and develop his job seeking skills.

3)   His Honour found that to obtain employment the Appellant would need to be supported by a structured rehabilitation program and education on applying for jobs.

4)   The appellant had not participated in a structured rehabilitation program; a multidisciplinary pain management program; had received no vocational counselling or education in applying for jobs.

5)   Furthermore His Honour did not find and there was no evidence that such necessary preconditions to finding further employment were likely to be available to the Appellant in the future.

2.   His Honour erred [in] admitting and relying on the evidence of Ms Amber Owen.

i who was not sufficiently qualified to give such expert evidence; s 79 [of the Evidence Act];

ii   whose opinion was limited to the availability to work [in] Adelaide, whereas his Honour found that but for [the] injury, the appellant would have remain[ed] employed by the respondent, in Broken Hill.

3.   His Honour erred in determining the percentage of vicissitudes at 25%. When assessing future economic loss his Honour should have discounted the amount allowed for future impaired earning capacity by the conventional 15%:

a.   His Honour accepted the Respondent’s submission that a higher allowance was required because of the Appellant’s prior injury and work history but his Honour did not provide sufficient or adequate reasons explaining how these matters operated to require a higher discount.

b.   There was no evidence to support the conclusion that a higher discount was required.

4.   His Honour erred failing to award damages and/or not providing reasons why not, for long service leave.”

5. For the reasons given below, I consider that Mr Fuller’s appeal should be upheld and his award of damages increased in the respect for which Mr Fuller contended.

RELEVANT FACTUAL CIRCUMSTANCES

6. Mr Fuller was 57 years of age at the time of the hearing in the District Court. He left school in 1977 after completing Year 10 at Broken Hill High School. The primary judge described his subsequent work history to June 2007 as follows:

“9 He worked as a car salesman for two years before being employed as a drilling offsider in mining. The plaintiff was then employed in the hospitality industry for about five years, before being employed as a trainee manager with Big W. For about 12 months the plaintiff also worked as a night fill manager at Woolworths. In 1988 the plaintiff took up a position as a pasteuriser, supervisor and manager at a dairy for two years. The plaintiff then took up a position at the Highway Deli in Broken Hill establishing a series of mobile vans for morning tea and lunch deliveries. In 1991 the plaintiff was employed as an assistant manager at Hungry Jacks for two years, before returning to the Highway Deli. In 1995, the plaintiff was employed at the Mulga Hill Tavern as a bar, bottleshop and gaming attendant for about six years.

10 On or about 11 November 2001 the plaintiff was involved in a serious motor vehicle accident. In or about November 2003 the plaintiff underwent an L5-S1 laminectomy and spinal fusion at that level. The plaintiff was off work from the date of the motor vehicle accident until being employed by the defendant.”

7. In June 2007 Mr Fuller commenced employment at the respondent’s hardware store. His duties included stocking shelves, ordering plumbing lines, processing orders and assisting customers. As part of his job, he was required to transport stock across a road using a trolley and to lift some heavy products from low shelves.

8. On 11 August 2009 Mr Fuller was required to move and load approximately six medium density fibreboard sheets from a storage space into a customer’s vehicle. As he lifted the first sheet, he experienced “pain in his shoulders and middle to lower back” (at Judgment [20]). As he repeated the process with the remaining sheets, he experienced “pain in his back [which] was radiating into his right hip, buttock and calf, and he experienced pain at the top of his left shoulder” (at Judgment [21]).

9. After his accident, Mr Fuller underwent a number of medical procedures and attended many medical consultations. The primary judge summarised the evidence concerning his post-accident fitness for work as follows:

“130 … The plaintiff suffered injuries to his left shoulder and spine that have each required surgery on a number of occasions. I am satisfied that there was a significant continuous period between the date of the incident and about August 2012 during which the plaintiff was receiving treatment for either his shoulder injury or his spine injury and during which time the conditions had not stabilised. The plaintiff continued to have injections in his lumbar spine to control the pain in 2013 and in about June 2017 suffered a second re-tear of his supraspinatus tendon. In 2018 the plaintiff consulted pain specialists, who both considered his continuing complaints of significant and debilitating back pain to be reasonable.

131 Since about August 2013, the plaintiff has suffered some depression as a result of the impact of his disabilities. This condition made him unfit to work between March 2014 and March 2016.

…

133 The doctors all agree that the plaintiff is unfit for his pre-injury employment and that he is precluded from employment requiring lifting of more than 5kg in one hand, lifting more than 10kg in both hands, overhead lifting, bending, twisting or squatting and standing or sitting for extended periods, with a 30 minute limitation on driving.

134 The plaintiff tendered medical certificates prepared by his treating general practitioners. Those certificates indicate that he was unfit for any work from 11 August 2009 to 2 April 2012. On 2 April 2012 he was certified as fit for modified duties as described in Dr Osti’s reports and set out in paragraph 43 above for the period 2 April 2012 to 25 October 2013. From 25 October 2013 to 6 December 2018 the plaintiff was certified as unfit to perform any work.

135 The plaintiff was assigned a rehabilitation provider by the workers compensation insurer. As part of that service the plaintiff was required to apply for 10 jobs per fortnight. The plaintiff tendered records relating to more than 400 positions he applied for on the ‘Seek’ website, in the relevant period. The plaintiff received two responses to his applications and was unsuccessful in getting employment.”

THE MEDICAL EVIDENCE

10. Considerable medical evidence was tendered at the trial. That which is relevant to the grounds of appeal is as follows:

Dr David Cherry

11. Dr Cherry is a pain medicine specialist who assessed Mr Fuller on 8 February 2018. In his report of 13 February 2018, Dr Cherry summarised his observations of Mr Fuller’s condition as follows:

“In summary, this 55-year-old man is suffering from severe central back pain radiating into his right pelvis and into both buttocks. He has already had extensive spinal surgery and no further spinal surgery is contemplated.”

12. Dr Cherry did not recommend that any further surgical or other procedures, or investigations, be undertaken.

Dr Dilip Kapur

13. Dr Kapur is a specialist pain medicine physician. His report dated 30 April 2018 included the following opinions:

“David presents a history of longstanding multisite pain. Regrettably, his surgical outcomes have not been particularly favourable and treatment options are extremely limited. For the reasons I have outlined above, I do not believe that spinal cord stimulation is likely to help him. Additionally, in this type of setting there are really no effective medication options.

The one option that may assist him would be participation in a multidisciplinary pain management program. Intriguingly, he has never been involved in a specific coordinated program of active rehabilitation and this may offer a useful avenue. I would emphasise that the purpose of him participating in such a program would really be to separate him from the general sphere of secondary medical care with its attendant risks of over investigation and latrogenesis. David certainly seemed interested in the prospect. An appropriate program could be coordinated here at Corporate Health Group or alternatively, I could approach my excellent colleague, Ms Maria Polymeneas who runs a similar program in the city.”

Dr Mohammed Assem

14. Dr Assem is a rehabilitation specialist who saw Mr Fuller on 21 September 2013 and 11 May 2018. His report of 11 May 2018 included the following observations and opinions:

“Mr Fuller has remained off work since the injury described on 11 August [2009]. He attempted to return to work on suitable duties with the assistance of a rehabilitation provider without success. He obtained further qualifications but still had difficulty securing suitable employment.

The predominant barriers are his age, complaints involving his left shoulder requiring him to have two surgical procedures. He also has persistent pain in his lower back, stiffness and right sided L5 radiculopathy. In addition, he has pre-existing constitutional problems involving both knees that prevent him kneeling or squatting. He is unable to engage in any tasks that involve bending or stooping. He is unable to lift any heavy items or perform any repetitive or sustained overhead activities. Although he could theoretically perform suitable duties, there are no realistic vocational options available, given the numerous barriers identified. For practical purposes, he can be considered to be totally and permanently incapacitated.

…

His prognosis is guarded. With time, there will be a gradual progression of the pathology involving his left shoulder and lower back that will cause increasing symptoms and limitations.

…

It is unlikely that his condition will improve regardless of the treatment provided. He does not require any further intervention at this stage.

…

Mr Fuller will obtain symptomatic relief with analgesia and occasional sessions of physiotherapy treatment. Otherwise, he will need to develop strategies in self managing his condition by modifying his activities, pacing himself throughout the day and engaging in graded therapeutic low impact water-based exercises at his own volition.”

Dr Cynthia Young

15. Dr Young is a general practitioner who has been treating Mr Fuller regularly since May 2015 at the Glenelg Family Practice. Mr Fuller was seen at the practice once every two or three months at least until the end of 2018.

16. On 6 June 2018 Dr Young provided a medical “certificate of capacity” to WorkCover NSW in relation to Mr Fuller. The copy of the certificate in evidence is incomplete but it is at least clear that the following words appear in relation to Mr Fuller:

“… to undergo active rehabilitation in a multidisciplinary pain management program run by Maria Polymeneas as recommended by Dr Dilip Kapur in his recent report to you.”

17. Dr Young stated in that certificate that Mr Fuller had “no current work capacity for any employment” from 6 June 2018 to 6 December 2018.

18. Dr Young’s report dated 26 October 2018 concluded with the following opinions:

“Mr Fuller has been reviewed by the Pain Specialist Dr Dilip Kapur who has suggested that he may be helped by undertaking a multidisciplinary pain management program for the purpose of helping him to manage and live with his pain and disability in a better way and certainly this could have a beneficial effect on his mood and well being.

I have looked at the proposed possible forms of employment for Mr Fuller and do not believe any would be suitable for him.

In general a person who is in chronic pain and with depression, who is irritable, has poor concentration, low tolerance for stress, can not sit still for long and whose symptoms get worse as the day goes on and furthermore requires assistance and support themselves to get through the day is unlikely to be any sort of a manager for anyone else.

These symptoms would also rule out any of the jobs suggested.

In conclusion as a result of his workcover injury in 2009 I do not believe that Mr Fuller has the physical or mental capacity for any type of work.”

MS AMBER OWEN’S EARNING CAPACITY ASSESSMENT

19. Ms Amber Owen is a clinical psychologist who works for a company named Activ8 Mind. Her “Earnings Capacity Assessment” dated 24 August 2018 that the respondent tendered at first instance did not contain any statement of her qualifications to prepare the assessment other than a reference to her being a clinical psychologist.

20. In oral evidence-in-chief on the voir dire, Ms Owen said that she had been registered as a clinical psychologist for 10 years and as part of her practice she had regularly provided earning capacity assessments. She said that she had received “[o]n the job training” to enable her to prepare these assessments and that this training involved “being employed in the industry working with other psychologists and being provided with supervision in the preparation of such reports”.

21. She stated that her methodology first involved assessing and interviewing the person who was the subject of the report, including administering psychometric tests. She would then undertake research on the labour markets using “numerous online resources”. She said that she would look at the person’s “physical psychological capacity as well as their transferable skills, their interests and their abilities and then [make] an informed decision based on that about whether [a particular] job option would be suitable for them”.

22. In cross-examination on the voir dire, Ms Owen accepted that she did not practice in “job placement” but had done so in the past, her last full-time work of that type having been three years earlier. That work had involved “[w]orking for a vocational rehabilitation company and providing vocational rehabilitation support for people returning to work”.

23. Ms Owen’s Earnings Capacity Assessment of Mr Fuller commenced by describing the injuries that he sustained in his work accident and listing the medical reports that she had reviewed. That list included the reports to which I have referred above other than the subsequently prepared report of Dr Young of 26 October 2018. These were the most recent medical reports that were available to Ms Owen.

24. In her “Assessment Summary”, Ms Owen referred to Dr Kapur’s report of 30 April 2018. She did not however refer to his opinion that “there are really no effective medication options” for what Dr Kapur referred to as “a history of longstanding multisite pain” (see [13] above).

25. Ms Owen also referred to Dr Assem’s report of 11 May 2018 but not to Dr Assem’s opinion that “[a]lthough [Mr Fuller] could theoretically perform suitable duties, there are not realistic vocational options available, given the numerous barriers identified. For practical purposes, he can be considered to be totally and permanently incapacitated”. Nor did Ms Owen refer to Dr Assem’s opinion that there will be a “gradual progression” of Mr Fuller’s pathology that will cause “increasing symptoms and limitations” (see [14] above).

26. Ms Owen also referred to Dr Young’s certification of 6 June 2018 that Mr Fuller had “no current work capacity from June 6 2018 to December 6 2018” but, because it was not prepared until after Ms Owen’s report, she was not able to refer to Dr Young’s report of 26 October 2018 which referred to the possibility of Mr Fuller undertaking “a multidisciplinary pain management program” for the “purpose of helping him to manage and live with his pain and disability in a better way”. Dr Young said that this could have a “beneficial effect on his mood and well being”. That report also contained Dr Young’s opinion that Mr Fuller did not have “the physical or mental capacity for any type of work” (see [18] above).

27. Having described Mr Fuller’s education and employment history, Ms Owen concluded that he had a number of “transferable skills” including “[s]trong interpersonal and communication skills” and “[m]anagement of staff and business operations”.

28. Ms Owen then stated the results of her psychometric testing of Mr Fuller and expressed her views as to the types of work for which Mr Fuller might be suited.

29. In her “Vocational Options and Labour Market Analysis” Ms Owen stated six vocational options that she had identified by reference to her internet research.

30. The first option was “Customer Service – Contact Centre”, in relation to which Ms Owen said the following under heading “Medical Suitability”:

“Mr Fuller would be able to undertake a customer service-call centre role as the role is undertaken primarily seated. Ergonomic workstation equipment could easily be supplied, inclusive of a sit stand desk and ergonomic mouse to minimise arm / should[er] extension, such equipment is commonly in place for call centre work environments. There is no lifting or manual handling of items or equipment and no over head work. There is no physical activity which is likely to exacerbate Mr Fullers pain [sic]. Mr Fuller has advised that he is able to sit for prolonged periods [providing] he is able to adjust his posture or stretch regularly.

Generally such roles are available within the CBD – travel time from Mr Fullers [sic] current residence is approx. 30 – 40 mins in peak traffic, falling within stated driving tolerance.”

31. Ms Owen said that she had identified 48 advertised positions for work in “customer service – call centre” positions in the Adelaide area. She listed four such positions, one of which was described as “[f]ull time”, another as “[c]asual – [f]ull time hours” and two others as having “[p]art time and [f]ull time positions available”.

32. Ms Owen provided similar information in respect of the other options that she identified.

33. She made the following recommendations in her “Assessment Overview”:

“Based on the assessment of job seeking skills, it is reasonable to expect that Mr Fuller could undertake independent job seeking, however would benefit from some additional support in this area.

It is recommended that Mr Fuller participate in an active multidisciplinary pain management program to increase his capacity, as per Dr Young’s recommendation. Vocational counselling is recommended in order to develop Mr Fuller’s competency in developing job seeking materials, such as resumes and cover letters, as well as in participating in active job seeking” (emphasis added).

34. In cross-examination, Ms Owen said that her recommendations “were based on Dr Young’s recommendations from 2018 which were that Mr Fuller required participation in an active multi-disciplinary pain management program to increase capacity” (emphasis added). She also emphasised that her report “was not about work capacity but about earnings capacity” and that she was not able to assess Mr Fuller’s “physical capacity”.

35. Mr Fuller’s counsel objected to the admission of Ms Owen’s Earning Capacity Assessment into evidence on the bases that Ms Owen was “not properly qualified” and that the report did not “contain any expertise”. The primary judge admitted the report but did not provide reasons as Mr Fuller’s counsel said that he did not require them. His Honour also admitted the voir dire evidence as evidence at the trial.

THE JUDGMENT AT FIRST INSTANCE

Past economic loss

36. The primary judge awarded Mr Fuller $386,711 (plus loss of superannuation entitlement) in respect of past economic loss, on the bases that he was completely incapacitated for work to the date of the District Court hearing and, but for his work accident, would likely have continued in employment with the respondent (at [144]-[145]).

Future economic loss

37. The primary judge awarded Mr Fuller $247,740 (plus loss of superannuation entitlement) in respect of future economic loss, on the basis that he retained a residual earning capacity to earn $200 net per week by working eight hours a week in two shifts of no more than four hours. His Honour’s reasoning was as follows:

“147 I have had regard to the evidence of Ms Owen. Her evidence is that the plaintiff is suited to certain types of employment with expected earnings of between $53,000 and $71,000 per annum gross. The average of those figures is $62,000 per annum gross or $1,192 per week gross ($943 nett). This figure coincides with the earlier calculation of past loss.

148 I am cognisant of the fact that the jobs suggested by Ms Owen are limited by the plaintiff’s restrictions and that if he was unrestricted that he may have been capable of earning more in other types of jobs, for which he is now unfit.

149 Taking into account all of the evidence, I am of the view that the plaintiff had a total earning capacity at the time of trial of $1,000 per week nett.

150 I am satisfied that the plaintiff has some residual earning capacity. The plaintiff is an intelligent man and as recently as 2014 and 2015 completed further tertiary studies. In my view, he is able to work in a customer service position with no manual handling or in a gaming room or TAB or in a telephone-based customer service role, where he could sit or stand as required. The plaintiff has previously held a responsible conduct of gaming certificate and modern gaming operations do not involve the handling of coins.

151 It would be reasonable for the plaintiff to work eight hours a week, being two shifts of no more than four hours. On a 40 hour week this amounts to a residual earning capacity of $200 nett per week.

152 I have also considered the availability of this type of work and the chances of the plaintiff finding work. The plaintiff has had some difficulty in obtaining employment after making a considerable number of applications. He needs further support in the form of a structured rehabilitation program and education on applying for jobs. Overall, I am satisfied on the balance of probabilities that the plaintiff could find such work.

153 The residual weekly loss for the future is $800 per week, until the plaintiff reaches 67 years of age. The defendant submitted that I should apply a higher than normal discount for vicissitudes of 25% because of the plaintiff’s prior injury and his work history. I am satisfied that this is an appropriate case to make a higher allowance.

154 The future economic loss award is $800 multiplied by 412.9 less 25% amounting to a loss of $247,740.

155 The plaintiff is also entitled to a loss of superannuation calculated at 11% of the net loss, being an award of $27,251.”

DISPOSITION OF THE APPEAL

38. It is convenient to deal with Ground 2 before dealing with Ground 1.

GROUND 2 – THE ADMISSIBILITY AND WEIGHT OF MS OWEN’S EVIDENCE

39. Section 79(1) of the Evidence Act 1995 (NSW) states the following three conditions for the admissibility of expert opinion evidence:

1. the person expressing the opinion must have “specialised knowledge”;

2. the specialised knowledge must be “based on the person’s training, study or experience”; and

3. the person’s opinion must be “wholly or substantially based on that knowledge”.

See Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 and Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29.

40. Ms Owen’s opinions as to Mr Fuller’s personality and aptitudes were in my opinion admissible because her training and practice as a clinical psychologist enabled her, first, to interview Mr Fuller and assess his responses to her questions and, secondly, to administer and interpret the results of the psychometric tests that she administered to him. By these means, based on her training, study and experience, she acquired specialised knowledge concerning Mr Fuller upon which her opinions as to his personality and work skills were based. It was therefore for good reason that Mr Fuller’s counsel told the primary judge that his objection did not extend to this aspect of Ms Owen’s report.

41. As I read counsel’s submissions, his objection also did not extend to Ms Owen’s assertions that the employment positions she described in general terms were advertised on the internet. Rather, the gravamen of the objection was that s 79 of the Evidence Act did not permit Ms Owen to express opinions as to what specific jobs were available that Mr Fuller would or would not be able to undertake. An example of such an opinion is Ms Owen’s statement in her report that “Mr Fuller would be able to undertake a customer service – call centre role as the role is undertaken primarily seated” (see [30] above). Another is her opinion given in relation to her “Vocational Option 2: Department Manager” that “Mr Fuller would be able to undertake a Department Manager role that required occasional light lifting and did not require overhead work or lifting from ground level”.

42. Ms Owen did not in my view have the expertise to enable her to express these opinions. As she recognised in cross-examination (see [34] above) she did not have the expertise to assess a client’s “physical capacity”. Nor did the evidence indicate that her training, study or experience gave her expertise in interpreting medical reports, interpreting information obtained from the internet about job positions or, by drawing on her conclusions in those two respects, in expressing opinions as to the capacity of a person to perform advertised jobs.

43. For these reasons, I consider that the primary judge was in error in admitting Ms Owen’s written assessment into evidence, and in relying upon it, save in the limited respects that I have identified above in [40] and [41] above.

44. I would therefore uphold the first aspect of Ground 2. I would however reject the second aspect which asserts that Ms Owen’s assessment was irrelevant because it only related to work available in Adelaide when, in accordance with the primary judge’s findings, but for his injury, Mr Fuller would have remained employed by the respondent in Broken Hill. Ms Owen was correct to consider job positions in Adelaide as Mr Fuller moved there after his injury and appears to intend to remain there. Where he would have been if he had not been injured was irrelevant to Ms Owen’s assessment. The question was whether in his injured state, and at his then and any future location, he would be likely to be able to obtain work.

GROUND 1 – WHETHER MR FULLER HAS RESIDUAL EARNING CAPACITY

45. The following principles are applicable to the determination of whether a plaintiff such as Mr Fuller has residual earning capacity:

“Because an individual has a physical and mental ability to undertake certain tasks, it does not necessarily follow that he has a significant residual earning capacity. Earning capacity must be measured by reference to the individual, when viewed with all his or her characteristics, in the labour market. When a person in middle age has spent all his or her life in a skilled or semi-skilled occupation which, as a result of injury, is no longer available, the identification of occupations which are theoretically available is only part of the task. There must also be a practical assessment of the likelihood of the individual obtaining employment in some such occupation” (Nominal Defendant v Livaja [2011] NSWCA 121 at [65], followed in Mead v Kerney [2012] NSWCA 215 at [18] and Dal v Chol [2018] NSWCA 219 at [9]).

46. Further, White JA stated in Dal v Chol, a defendant employer has “the evidentiary burden of adducing evidence not only of what kind of work the [plaintiff] is capable of performing, but what jobs are open to a person with such capacity” (at [9]).

47. Assessment in the present case of Mr Fuller’s future earning capacity required consideration of at least the following matters.

48. First, the expert medical evidence of Drs Kapur, Assem and Young painted a bleak picture as to Mr Fuller’s medical condition, capacity to work and prospects of improvement. Their evidence was not challenged or qualified by any other medical evidence.

49. In his report of 30 April 2018, Dr Kapur referred to Mr Fuller’s “longstanding multisite pain” and indicated that surgical or medication options were “extremely limited”. He suggested that Mr Fuller participate in a “multidisciplinary pain management program” but did not suggest that this would be a panacea for his medical problems. Dr Kapur described the limited purpose of such participation as to separate Mr Fuller “from the general sphere of secondary medical care with its attendant risks of over investigation and latrogenesis”.

50. Dr Assem’s opinion was to a similar effect. He said that “there are no realistic vocational options available” and Mr Fuller “can be considered to be totally and permanently incapacitated” (at [14] above).

51. Dr Assem thought that it was unlikely that Mr Fuller’s condition would improve. In fact, he suggested that Mr Fuller would experience increasing “symptoms and limitations” over time (see [14] above).

52. Dr Young’s report of 26 October 2018 (prepared after Ms Owen’s Earnings Capacity Assessment) painted a similarly pessimistic picture. Dr Young’s conclusion was that Mr Fuller did not have “the physical or mental capacity for any type of work” (see [18] above).

53. The primary judge stated that he “had regard to” the evidence of Ms Owen that Mr Fuller would be able to obtain employment but, as I have indicated above, that was, in relevant respects, inadmissible and in any event it was prepared without the benefit of Dr Young’s report of 26 October 2018 which accorded with the earlier expressed views of Drs Kapur and Assem. As well, in referring to the reports of Drs Kapur and Assem, Ms Owen did not refer to important, relevant opinions that they expressed (see [24] and [25] above).

54. Moreover, Ms Owen’s assessment was prepared on the basis that Mr Fuller’s participation in a pain management program would increase his earning capacity (see [34] above). Ms Owen wrongly interpreted Dr Young’s reference in her certificate of 6 June 2018 to a pain management program as one designed to increase Mr Fuller’s earning capacity. In this respect, Dr Young simply referred to the earlier report of Dr Kapur. This did not suggest that participation in the program would increase Mr Fuller’s earning capacity. Rather, Dr Kapur saw the purpose of the program to be as described in [13] above. Likewise, Dr Young’s subsequent report of 26 October 2018 did not suggest that participation in the program would increase, or indeed produce, earning capacity. Rather, it described the purpose of that participation in the way that I have quoted it in [18] above.

55. The primary judge must have acted on a similarly erroneous assumption as to the purpose of the pain management program because, first, he said that he relied on Ms Owen’s evidence and, secondly, he found that Mr Fuller had some residual future earning capacity notwithstanding that he found that Mr Fuller had none at the date of trial. His Honour assumed that this newly-acquired capacity would come from participation in a “structured rehabilitation program” or “education on applying for jobs” (see Judgment [152] quoted in [37] above). The former was however a reference to “the multidisciplinary pain program” which Dr Kapur referred to as a rehabilitation program (see [13] above to which the observations in [54] above are applicable). The latter was a reference to a recommendation of Ms Owen that Mr Fuller participate in vocational counselling “to develop and enhance his job seeking skills”. Ms Owen did not however provide any properly founded expert opinion to the effect that such counselling would create any earning capacity that Mr Fuller did not otherwise have.

46. Secondly, the practicality of Mr Fuller obtaining employment and the type of jobs that might be open to him needed to be considered in the context of the physical limitations that he had. The primary judge appears to have accepted Mr Fuller’s evidence on this topic. His Honour summarised it as follows:

“69 The plaintiff gave evidence that he suffers pain in his back on a daily basis that radiates down through his pelvis into his right leg. He is limited in his movement and can only bend forward to reach his knees. He can lift 5kgs in each hand to a maximum of 10kgs, with no overhead lifting. The pain is eased to some extent by taking Panadeine Forte and it often affects his sleep, making him tired during the day. He has trouble getting into a comfortable position to sleep and usually gets about two hours continuous sleep at any one time. He can sit for 15-30 minutes before he has to stretch his back. The plaintiff gave evidence that he was uncomfortable sitting in the witness box. The pain is constant but is aggravated by long periods of sitting or standing. He can stand for 15-30 minutes at a time. He spends about three to four hours per day on the lounge. He is able to go shopping, but can only carry the shopping bags short distances. He is unable to lift with his left arm and is restricted by pain, weakness and limited movement in the left shoulder. He continues to suffer the symptoms of depression.”

57. Clearly, a man aged 57 (or older, as the years passed after the District Court hearing) presenting to prospective employers with these limitations on his capabilities would not be a realistic candidate for many jobs. Also relevant to prospective employers would likely be the fact that Mr Fuller had been out of the workforce for approximately 15 of the 17 years prior to the District Court hearing in 2018. As to this, he was off work from 11 November 2001 which was the date of his motor vehicle accident (see [6] above) until he was employed by the respondent in June 2007 and he did not work after the subject accident occurred on 11 August 2009.

58. In these circumstances, the respondent’s discharge of its onus of demonstrating that Mr Fuller was likely to be able to obtain employment in my view required evidence of job availability of much greater specificity than that contained in Ms Owen’s report.

59. The primary judge found that Mr Fuller was capable of working “two shifts of no more than four hours” per week and presumably his Honour was contemplating that these shifts would be separated in time and not fixed to be undertaken one after the other. Ms Owen’s assessment however predominantly referred to full-time work. In respect of her six options, she listed 19 advertised full-time positions in total but referred to only four part-time and three casual positions. Whether any of these part-time or casual positions would have allowed for work limited to “two shifts of no more than four hours” per week as contemplated by the primary judge was left by the evidence in the realm of speculation.

60. For these reasons, the primary judge should in my view have concluded that the respondent had not discharged its onus of demonstrating the likelihood of Mr Fuller obtaining employment in the future. As a result, his Honour should have assessed damages on the basis that Mr Fuller will remain totally incapacitated for work for the remainder of his working life and that he therefore has no residual earning capacity.

61. For these reasons, I would uphold Ground 1.

GROUND 3 – PERCENTAGE REDUCTION FOR VICISSITUDES

62. Mr Fuller challenges the primary judge’s finding that his damages for future economic loss should be discounted by 25% for “vicissitudes” rather than the conventional discount of 15% being made. In this respect, his Honour simply said:

“153 …The defendant submitted that I should apply a higher than normal discount for vicissitudes of 25% because of the plaintiff’s prior injury and his work history. I am satisfied that this is an appropriate case to make a higher allowance.”

63. A discount for vicissitudes provides for the possibility that adverse events, unrelated to a plaintiff’s accident, may occur after the trial and affect a plaintiff’s income earning capacity. The principal possibilities are sickness, accident, unemployment and industrial disputes (H Luntz, Assessment of Damages for Personal Injury and Death (4th ed, 2002) at [6.4.6]; Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485 at 497; [1995] HCA 53). In New South Wales, 15% is a conventional allowance for such vicissitudes. As Bryson JA (with the concurrence of Santow JA and Young CJ in Eq) said in FAI Allianz Insurance Ltd v Lang [2004] NSWCA 413 at [18] in relation to this discount:

“[i]t is an expedient and approximate resolution of many imponderables, and the difficulty of producing a justification for any greater or lower figure in a particular case tells strongly against departing from the conventional figure.”

64. In State of New South Wales v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133, Heydon JA said at [100], “[w]hile 15 per cent is the starting point, and, indeed, as the figure [is] used in most cases, usually the finishing point as well, it can be departed from in an appropriate case”.

65. On appeal, the respondent contended that it was not open to Mr Fuller to rely on this ground as “no point was taken in the Court below” In the District Court, Mr Fuller however provided in his Schedule of Damages for the conventional deduction of 15%. Whilst he did not reply to the respondent’s submissions contending for a 25% deduction, it would have been clear to the primary judge throughout the hearing that Mr Fuller’s position was that the conventional deduction should be made. This Court should therefore entertain this ground of appeal.

66. The first matter to which the primary judge referred as justification for making a greater than normal discount was “the plaintiff’s prior injury” (at [153]). This was a reference to the injury that Mr Fuller suffered in the motor vehicle accident that occurred on 11 November 2001. Whilst it had considerable impact on his life for a number of years after it occurred, there was no medical evidence to suggest that this earlier injury might have an impact on Mr Fuller’s employment after the November 2018 District Court hearing. Moreover, the primary judge made the following finding concerning Mr Fuller’s motor accident injury (at [126]):

“I accept his evidence that he was not suffering any adverse effects of that injury in August 2009 and that he was completing his usual duties with the defendant without difficulty.”

67. The other matter to which the primary judge referred was Mr Fuller’s “work history” (at [153]).

68. Prior to his 2001 motor vehicle accident, Mr Fuller had consistent employment in a variety of different jobs. His last employment before that accident lasted for six years. As a result of the accident, he had surgery in 2003 and took two to three years to recover fully. He started to look for work again in about 2006 but did not find work until he was employed by the respondent in 2007. Mr Fuller remained in the respondent’s employ until his accident on 11 August 2009 and the primary judge found that it was likely that, but for that accident, Mr Fuller would have remained employed by the respondent until his retirement age of 67.

69. That employment history did not in my view suggest that Mr Fuller’s future income was likely to be affected by contingencies of any different or greater degree than normal. Certainly, he suffered the misfortune of having a motor vehicle accident which led to the disruption of his working life, and of having a period of unemployment, but his work history did not suggest that he was someone who, given the physical capacity to do so, would not have sought and retained employment in the future other than in a normal fashion. Indeed, the primary judge’s finding that, but for his 2009 accident, Mr Fuller would have been likely to remain in the respondent’s employ until he reached retirement age tends to confirm that.

70. In these circumstances, this Court should substitute a discount of 15% for vicissitudes for that of 25% applied by the primary judge. Although the Court is, and should be, reluctant to interfere with what is undoubtedly an evaluative, and perhaps even “impressionistic” opinion (see Chung v Anderson [2004] NSWCA 321 at [81]), the lack of detail in his Honour’s reasons on this topic renders his conclusion more amenable to appellate intervention as the precise matters that his Honour had in mind are not known.

GROUND 4 – LONG SERVICE LEAVE

71. In the Court below, Mr Fuller made a claim in respect of loss of the value of future long service leave entitlements in both his Particulars and Schedule of Damages. He claimed the value of the long service leave to which he would have become entitled under the Long Service Leave Act 1955 (NSW) if, but for his accident, he had remained in the respondent’s employment. He recognised that the amount so calculated should be discounted by 50% for vicissitudes.

72. The primary judge appears to have overlooked the claim as he did not address it. His finding that it was likely that, but for the accident, Mr Fuller would have remained in the respondent’s employment until his retirement however gave merit to the claim. Whilst it was of course possible that the respondent might not have continued in business or that for some other reason Mr Fuller might have ceased to be employed by it (and a discount of 50% for vicissitudes was therefore appropriate), the likely future non-accident employment found by his Honour indicated a probability that Mr Fuller would have satisfied the requirements under the Long Service Leave Act to qualify for his entitlement to long service leave.

73. Although the respondent complained on appeal that Mr Fuller’s senior counsel did not refer to the claim in the District Court, its inclusion in Mr Fuller’s Particulars and Schedule of Damages was sufficient to require its determination by his Honour, especially bearing in mind the small amount ($5,856) of the claim.

CONCLUSION AND ORDERS

74. For the reasons given above, each of Mr Fuller’s four grounds of appeal should be upheld, with the result that his damages require recalculation. The parties should attempt to agree as to the orders that the Court should make in this respect.

75. I propose the following orders:

1. Allow the appeal.

2. Set aside the monetary judgment entered in the District Court.

3. Direct that the parties attempt to agree within 14 days of this judgment as to the form of the remaining orders that the Court should make and, if they are able to agree, that they submit draft Short Minutes of Order to the Court within seven days thereafter.

4. Direct that, failing agreement in accordance with Order (3):

1. the appellant within 21 days of this judgment file and serve short written submissions as to the remaining orders that should be made;

2. the respondent file and serve its response within seven days thereafter; and

3. the appellant file and serve any reply within a further seven days.

76. PAYNE JA: I have read the judgment of Macfarlan JA in draft and gratefully adopt his Honour’s summary of the relevant facts. I agree with the orders proposed by his Honour, but prefer to express my own reasons for joining in those orders.

77. It will be recalled ground 2 of the notice of appeal contained two sub-grounds:

“2 His Honour erred admitting and relying on the evidence of Ms Amber Owen.

i. who was not sufficiently qualified to give such expert evidence; s.79 [Evidence Act];

ii. whose opinion was limited to the availability of work to Adelaide, whereas His Honour found that but for injury, the appellant would remain employed by the respondent, in Broken Hill [137].”

78. I agree with Macfarlan JA that ground 2 (ii) must be dismissed. Ms Owen’s opinion about the availability of employment in Adelaide was both relevant and admissible as opinion evidence.

79. I have concluded that the primary judge did not err as alleged in ground 2 (i) in admitting the evidence of Ms Owen. Section 79 of the Evidence Act (1995) (NSW) provides, relevantly:

79 Exception: opinions based on specialised knowledge

(1) If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.

80. A failure to demonstrate that an opinion expressed by a witness is based on the witness's specialised knowledge, which knowledge is in turn based on the witnesses’ training, study or experience is a matter that goes to the admissibility of the evidence, not its weight: Dasreef Pty Limited v Hawchar (2011) 243 CLR 588; [2011] HCA 21. On the other hand, the plurality in Dasreef rejected the “basis” rule as a test for admissibility under s 79. Their Honours said:

“[41] Contrary to submissions on behalf of Mr Hawchar, this analysis does not seek to introduce what has been called ‘the basis rule’: a rule by which opinion evidence is to be excluded unless the factual bases upon which the opinion is proffered are established by other evidence. Whether that rule formed part of the common law of evidence need not be examined. It may be accepted that the Law Reform Commission’s interim report on evidence denied the existence of such a common law rule and expressed the intention to refrain from including a basis rule in the legislation the Commission proposed and which was later enacted as the Evidence Act 1995 (Cth) and the Evidence Act 1995 (NSW). What has been called the basis rule is a rule directed to the facts of the particular case about which an expert is asked to proffer an opinion and the facts upon which the expert relies to form the opinion expressed. The point which is now made is a point about connecting the opinion expressed by a witness with the witness's specialised knowledge based on training, study or experience.” (footnote omitted)

81. The objection to the admissibility of Ms Owen’s report taken by the appellant at the trial was opaque. The transcript records that the objection was that Ms Owen was “not properly qualified” and secondly, the report does not “contain any expertise”. The objection was elaborated upon to mean that what Ms Owen had done was “not the application of her expertise as a clinical psychologist, to support her opinion” and “she has no expertise except in writing reports in this area.”

82. After hearing evidence on the voir dire directed to Ms Owen’s “specialised knowledge” and “training, study or experience” the primary judge ruled that Ms Owen’s report was admissible. The parties did not ask the primary judge to give reasons for this ruling.

83. In the appellant’s written submissions in this Court the essence of the complaint about admissibility was recast, relevantly, as follows:

“38. The Appellant submits the report and the witness’s evidence should have been rejected for the following reasons:

(i) The academic qualifications of the Clinical Psychologist and the preparation of reports did not qualify the author of the Earnings Capacity Assessment by reference to training, study or experience, to provide the report.

(ii) The obtaining of occupations by Internet searches did not qualify as an opinion ‘wholly or substantially based’ on Ms Owen’s knowledge as a Clinical Psychologist.

….”

84. The first aspect of the complaint takes an unduly narrow view of the bases in s 79 of the Evidence Act upon which “specialised knowledge” may be founded. Even assuming that Ms Owen’s “academic qualifications” and “the preparation of reports” of itself provided an insufficient basis for her “specialised knowledge” it was clearly demonstrated in the voir dire that Ms Owen’s specialised knowledge in her report was based on her “training” and “experience”. Ms Owen had previously worked full time for a vocational rehabilitation company in Adelaide providing vocational support for people returning to work. That is, Ms Owen demonstrated that she had extensive professional experience in Adelaide of placing workers who had been injured back into employment. For that purpose she had regularly prepared reports about her clients’ “earning capacity” for about 10 years. Ms Owen would then make an assessment of the capacity of the client and their “transferable skills, their interests and their abilities” and prepare her report accordingly. Ms Owen had produced over 50 “earning capacity assessment” reports by the method she described. It is true, as Ms Owen accepted, that she could not “assess the physical capacity” of her clients, but as I will explain below that was not fatal to the admissibility of the report. I reject the first part of the appellant’s complaint, that Ms Owen’s academic qualifications and the preparation of reports did not qualify her by reference to training, study or experience, to provide the report.

85. The second aspect of the appellant’s complaint should also be rejected. It was clearly demonstrated in the voir dire that in preparing the reports about her clients’ “earning capacity” for over 10 years Ms Owen regularly consulted public internet sites on which potentially relevant jobs were advertised. Ms Owen had produced over 50 “earning capacity assessment” reports by the method she described. In oral address in this Court Senior Counsel for the appellant objected to the evidence of positions advertised on the internet as “hearsay”. This was not an objection taken before the primary judge. The question was not investigated below and I would refuse leave for the matter to be ventilated in this Court. The potential for evidence to have been led relevant to this issue is obvious. I doubt, in any event, that the objection was well founded. Even if the evidence were hearsay, I would have dispensed with the rules of evidence on this topic as there can be no serious dispute that the website evidence contained advertisements for positions vacant in Adelaide at the relevant time. Senior Counsel for the appellant did not suggest any basis to think there was a genuine dispute about that matter.

86. I am prepared to assume that in oral address in this Court the appellant took a further point about admissibility, namely that Ms Owen’s report impermissibly addressed a topic she accepted in the voir dire was outside her “specialised knowledge” namely the physical capacity of the appellant.

87. As I have said, Ms Owen accepted that the question of physical capacity for work (as opposed to his earning capacity) was not a subject she was expressing her own opinion about in her report. In this regard, for the purposes of her report Ms Owen was provided with all of the available medical reports. Ms Owen in her report set out at some length the contents of those reports. Whilst perhaps it would have been preferable for Ms Owen to more clearly have expressly identified her assumptions, it is tolerably clear that Ms Owen treated the medical assessment of the appellant’s physical capacity for work as an assumption she made for the purposes of her report. In addressing that topic Ms Owen described the appellant’s “current work capacity and restrictions as per medical certificates”, making clear that the subject matter of the appellant’s current work capacity and restrictions was a matter of assumption.

88. In her report Ms Owen described what she had done, including the assumptions she had made about the appellant’s physical capacity for work (based on the medical reports she had been given) before describing the results of various psychometric and skills tests she administered on the appellant. Having set those matters out, Ms Owen’s report described the “vocational options and labour market analysis” for the appellant. This comprised results of internet searches about available positions, the appellant’s knowledge and skills that responded to that position, his vocational suitability (based on interviews and tests administered by Ms Owen) and medical suitability (based on assumptions she made derived from the medical reports). Ms Owen made it clear in her evidence that she had assumed that the report and recommendations of Dr Young in 2018 about the work capacity of the appellant provided that the appellant’s capacity for work would be enhanced by participation in an “active multi-disciplinary pain management program to increase his capacity”.

84. If the assumptions Ms Owen made about the appellant’s current work capacity and restrictions were not made good by appropriate medical evidence her report would be of little if any weight. That does not, however, mean that her report was inadmissible. Dasreef made clear that opinion evidence is not to be excluded solely because the factual bases upon which the opinion is proffered is not established by other evidence. Ms Owen made assumptions based on medical reports about the appellant’s ability to lift, to carry, to bend, to twist and to sit. Ms Owen demonstrated relevant specialised knowledge in vocational rehabilitation and the safe return to work of injured workers by her training, study or experience in that topic over many years. I would dismiss ground 2 of the appeal.

85. It will be recalled that the appellant’s case on ground 1 was that his Honour ought to have found that the appellant had no residual earning capacity in any labour market reasonably available to him. The primary judge concluded that:

“[152] I have also considered the availability of this type of work and the chances of the plaintiff finding work. The plaintiff has had some difficulty in obtaining employment after making a considerable number of applications. He needs further support in the form of a structured rehabilitation program and education on applying for jobs. Overall, I am satisfied on the balance of probabilities that the plaintiff could find such work.”

91. In Dal v Chol [2018] NSWCA 219 White JA explained the evidential burden facing the respondent seeking to assert that an injured worker has a residual earning capacity despite the injuries suffered:

“[9] The appellant had the evidentiary burden of adducing evidence not only of what kind of work the respondent is capable of performing, but what jobs are open to a person with such capacity (Rabay v Bristow [2005] NSWCA 199 at [73]-[74]; Linsell v Robson [1976] 1 NSWLR 249 at 254-255 per Glass JA; Yammine v Kalwy [1979] 2 NSWLR 151; Nominal Defendant v Livaja [2011] NSWCA 121 at [65] (“There must be a practical assessment of the likelihood of the individual obtaining employment in some such occupation.”); Mead v Kerney [2012] NSWCA 215 at [25]-[27]; South Western Sydney Local Health District v Sorbello [2017] NSWCA 201 at [72]-[74]; Smith v Alone [2017] NSWCA 287 at [46]).”

92. Specifically on the subject of residual earning capacity (in the context of a Motor Accident claim but no relevant difference arises on this question here) in Nominal Defendant v Livaja [2011] NSWCA 121 this Court, per Basten and Campbell JJA and Rothman J, held:

“[65] There are distinctions to be drawn between injury and impairment or disability consequent upon injury, and between impairment or disability and diminished earning capacity. Because an individual has a physical and mental ability to undertake certain tasks, it does not necessarily follow that he has a significant residual earning capacity. Earning capacity must be measured by reference to the individual, when viewed with all his or her characteristics, in the labour market. When a person in middle age has spent all his or her life in a skilled or semi-skilled occupation which, as a result of injury, is no longer available, the identification of occupations which are theoretically available is only part of the task. There must also be a practical assessment of the likelihood of the individual obtaining employment in some such occupation. …”

93. In this case the medical evidence was assessed by the primary judge. His Honour noted that “[t]here is very little dispute on the medical evidence”: at [130]. The primary judge made findings, not challenged on the appeal, that “[t]he doctors all agree” that the appellant is unfit for his pre-injury employment and that:

1. The appellant is precluded from lifting more than 5kg in one hand and 10kg in both hands;

2. The appellant cannot bend, lift overhead, twist or squat;

3. The appellant cannot sit or stand for extended periods and can only drive for 30 minutes at a time.

94. It appears that the critical medical evidence identified by the primary judge was contained in a report by the appellant’s general practitioner, Dr Young, who opined that the appellant’s injuries, disabilities and depression made him currently unfit for work. Dr Young recommended that the appellant participate in a multidisciplinary pain management program “to increase his capacity”. The appellant was referred to participate in such a program but for reasons not disclosed in the evidence had not yet participated in such a program by the time of the trial. The primary judge found that:

1. On the basis of Ms Owen’s evidence that the appellant is suited to certain types of employment with expected earnings of between $53,000 and $71,000 per annum gross and that the average of those figures is $62,000 per annum gross or $1,192 per week gross ($943 nett);

2. The appellant is an intelligent man and as recently as 2014 and 2015 completed further tertiary studies. He is able to work in a customer service position with no manual handling or in a gaming room or TAB or in a telephone-based customer service role, where he could sit or stand as required. The appellant has previously held a responsible conduct of gaming certificate and modern gaming operations do not involve the handling of coins;

3. It would be reasonable for the appellant to work eight hours a week, being two shifts of no more than four hours. On a 40-hour week that amounted to a residual earning capacity of $200 nett per week; and

4. The appellant needs further support in the form of a structured rehabilitation program and education on applying for jobs but on the balance of probabilities, the appellant could find such work.

95. The primary judge’s reference to “further support in the form of a structured rehabilitation program and education on applying for jobs” may be a reference to Dr Young’s recommendation, based on a review of the appellant by a pain specialist, that the appellant “may be helped by undertaking a multidisciplinary pain management program for the purpose of helping him to manage and live with his pain and disability in a better way and certainly this could have a beneficial effect on his mood and well being.” As I have said when dealing with ground 2, the assumption underpinning Ms Owen’s report was squarely based on what Ms Owen understood to be Dr Young’s recommendation. Whilst admissible, the weight to be attached to Ms Owen’s opinion about suitability for employment was in large measure contingent upon acceptance of other evidence providing support for the assumption made by Ms Owen about the appellant’s medical capacity to perform those jobs.

96. The high point of the respondent’s case on the issue of residual capacity to engage in paid employment is that despite the appellant’s injuries, disabilities and depression he had been able successfully to complete tertiary studies in Business and Management since the accident. It is also correct that the jobs that Ms Owen suggested were available to the appellant required relatively limited physical ability.

97. It may be, had the issue been explored properly at the trial, that the evidence would have risen to the level of proving that should the appellant participate in a multi-disciplinary pain management program his capacity to work would have increased to the level found by the primary judge. The issue, however, was not adequately explored on the evidence. Quite what Dr Young had in mind about possible changes in the appellant’s capacity to work following his participation in a multidisciplinary pain management program was not explained. The evidence as a whole did not address the question of the appellant’s capacity to work, on the assumption that the multi-disciplinary pain management program had been completed. As the respondent bore the onus on this issue, that conclusion should have led the primary judge to reject the respondent’s case about residual earning capacity.

98. Whilst the primary judge was entitled to accept Ms Owen’s evidence that jobs of the sort she described were available in Adelaide, the assumption she made that the appellant was physically able to perform those jobs was not proven. It follows that there was not the required practical assessment of the likelihood of the appellant obtaining employment in any of the identified occupations: Livaja. I would allow ground 1 of the appeal.

99. In relation to ground 3, the primary judge made an allowance for vicissitudes of 25 per cent. His Honour only made only a brief specific reference to the subject of vicissitudes as follows:

“[153] The residual weekly loss for the future is $800 per week, until the plaintiff reaches 67 years of age. The defendant submitted that I should apply a higher than normal discount for vicissitudes of 25% because of the plaintiff’s prior injury and his work history. I am satisfied that this is an appropriate case to make a higher allowance.

[154] The future economic loss award is $800 multiplied by 412.9 less 25% amounting to a loss of $247,740.”

100. In Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485 at 497-498; [1995] HCA 53 the High Court, per Dawson, Toohey, Gaudron and Gummow JJ, said:

“[T]he practice in New South Wales is to proceed on the basis that a 15 per cent discount is generally appropriate, subject to adjustment up or down to take account of the plaintiff's particular circumstances.” (Footnote omitted.)

101. The cases cited by the High Court for this proposition included Moran v McMahon (1985) 3 NSWLR 700 at 713-714, noting the criticism of Kirby P at 706 who said:

“The consequence of the dicta in Planet Fisheries [Pty Ltd v La Rosa (1968) 119 CLR 118] may be to save appeal courts from the tedious and often unpromising examination of allegedly comparable awards of damages. But they have also tended to produce, in these cases, advocacy of unhelpful generality and the development of rules of thumb which, without the merit of being subjected to rigorous scrutiny, have acquired by repeated observance the force of convention.

Three such ‘conventional’ rules may be mentioned. The first is the conventional discount of 15 per cent from the award of general damages for the viscissitudes of life. Why there should be any conventional discount, and why it should be 15 per cent regardless of the infinite variety of chances which may befall an injured party, has never been adequately debated. In Mae v McDonnell (Court of Appeal, 12 August 1985, unreported), I reserved the consideration of this convention whilst acknowledging that, whatever appeal courts said, conventional rules of thumb would be derived, if only from the aggregation of awards made over time.”

102. In New South Wales v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133, Mason P, Handley JA agreeing said:

“[32] The appellant relies upon the following passage in the judgment of Beazley JA (with whom Powell JA and I agreed) in Nestle Australia Ltd v

McDougall (Court of Appeal, 24 June 1998, unreported):

“It is accepted that the ‘usual deduction’ for contingencies is 15 per cent. This percentage was accepted by the High Court as ‘the practice’ in New South Wales, ‘subject to adjustment up or down to take account of the plaintiff’s particular circumstances’: see Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485 at 498. See also Moran v McMahon [1985] 3 NSWLR 700 at 713-714; Burnicle v Cutelli [1982] 2 NSWLR 26 at 30; Commercial Union Assurance Co of Australia Ltd v Pelosi (Court of Appeal, 2 February 1996, unreported). See also Government Insurance Office of NSW v Wojnar (Court of Appeal, 15 December 1988, unreported) at 13, where Kirby P stated:

‘A conventional discount of 15 per cent … is allowed in many cases, although this Court has been at pains to say that there is no warrant for inflexibility in fixing the appropriate deduction. The eventualities which people, individually, are likely to face in their lives necessarily vary enormously. They are particular to each injured claimant.’

A survey of the authorities reveals that discounts of up to 40 per cent have been applied for vicissitudes. Urban Transit Authority of New South Wales v Seitis (Court of Appeal, 17 May 1995, unreported) was one such case, where this Court increased the discount for vicissitudes from 25 per cent to 40 per cent where the plaintiff had cerebral palsy. It should be noted, however, that a 40 per cent discount has been described as ‘high’: New South Wales Insurance Ministerial Corporation v Sprengnagel (Court of Appeal, 28 March 1995, unreported) at 8, per Priestley JA.”

[33] The principal negative contingencies or ‘vicissitudes” that are normally taken into account are sickness, accident, unemployment and industrial disputes (Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485 at 497). The latter two considerations were unlikely to impact markedly upon the trade of female hairdressing, assuming (as was the case presented) that the respondent was effectively locked into this perspective. This left sickness or accident and they were covered by the trial judge’s directions.”

103. Heydon JA at [100] said:

“While 15 per cent is the starting point, and, indeed, as the figure used in most cases, usually the finishing point as well, it can be departed from in an appropriate case. The drive, energy and determination of the plaintiff and her family are such that she is much likelier than most plaintiffs to overcome the vicissitudes of life and exploit what remained of her earning capacity to an extent reflected better by a 10 per cent discount rate than a 15 per cent discount rate.”

104. I agree with what Kirby P said over 30 years ago on this subject – the “conventional” allowance for vicissitudes of 15 per cent is a rule of thumb which is rarely subjected to rigorous scrutiny. I agree that it remains true that the question of “why it should be 15 per cent, regardless of the infinite variety of chances which may befall an injured party, has never been adequately debated”. Neither party set out here to argue for any fundamental reconsideration of this issue. In those circumstances I will proceed on the basis assumed by the parties that a 15 per cent discount for vicissitudes, subject to adjustment upwards and downwards in a particular case, remains generally appropriate.

105. I was initially attracted to the submission that the primary judge’s discretionary decision to adjust the usual discount to the award for vicissitudes upwards in this case was justified by the findings about the appellant’s time out of the paid workforce prior to his injury. Upon further consideration, however, I am persuaded that the discretion miscarried in that the appellant’s break from the paid workforce was part of a planned profitable enterprise in renovating his residential property. In the course of that enterprise the appellant also learned valuable skills which he could use in future employment. This was not a case where a greater than usual discount for vicissitudes should have been allowed. I would allow ground 3.

106. I agree with Macfarlan JA in relation to ground 4.

107. WHITE JA: In relation to ground 2 of the notice of appeal I agree with Payne JA. In relation to the other grounds I agree with Macfarlan JA and with the additional reasons of Payne JA. I agree with the orders proposed by Macfarlan JA.

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Decision last updated: 13 December 2019