Keith v Gal

[2016] NSWCA 152

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Keith v Gal [2016] NSWCA 152

Hearing dates:

30 November 2015

Decision date:

04 July 2016

Before:

Meagher JA at [1];
Gleeson JA at [2];
Tobias AJA at [178]

Decision:

(1)   appeal allowed;

 

(2)   set aside the orders of the primary judge made on 5 December 2014 and Order 1 made on 25 February 2015;

 

(3) direct the parties to bring in Short Minutes of Order within 28 days of the date of these reasons in respect of the amount of the judgment to be entered in favour of the appellant consistently with these reasons, including any necessary orders under s 151Z of the Workers Compensation Act 1987 (NSW);

 

(4) reserve the question of interest on damages under s 137 of the Motor Accidents Compensation Act 1999 (NSW);

 

(5)   in the event that the appellant claims interest on damages:

 

(a)   the appellant file and serve within 14 days brief written submissions not exceeding 3 pages, together with any affidavit in support;

 

(b)   the respondents file and serve within a further 14 days brief written submissions in response not exceeding 3 pages, together with any affidavit in support;

 

(c)   direct that the issue of interest on damages be dealt with on the papers;

 

(6)   reserve the question of costs in this Court and in the District Court;

 

(7)   in default of agreement on costs:

 

(a)   the appellant file and serve within 14 days of these reasons proposed short minutes of order, together with brief written submissions in support not exceeding 3 pages;

 

(b)   the respondents file and serve within a further 14 days their proposed short minutes of order, together with brief written submissions in support not exceeding 3 pages;

 

(c)   the appellant file and serve within a further 7 days any brief written submissions in reply not exceeding 2 pages;

 (d)   direct that the issue of costs be dealt with on the papers.

Catchwords:

TORTS - Negligence - Road accident cases – personal injury – damages governed by Motor Accidents Compensation Act 1999 – where appellant had extensive pre-existing and post-accident medical history – where employment terminated over three years after accident – where liability admitted and first appeal remitted the issue of damages – appeal from second trial – reassessment of damages – where doctors not provided with appellant’s full medical history – conflicting medical opinions – whether incomplete history materially impacted upon expert opinions – whether incomplete history justified rejection of expert opinion – whether aggravation of appellant’s pre-existing injuries continued after termination of appellant’s employment – whether trial judge in error in finding that any diminished capacity was not attributable to the injury – past economic loss – where residual earning capacity conceded by appellant in respect of claim for future economic loss – whether medical evidence demonstrated diminished earning incapacity independently of accident due to pre-existing symptoms and condition – attendant care services claim subject to s 141B MACA – whether temporal thresholds met – whether evidence established domestic assistance was required – interest on damages –– submissions not made – whether criteria of s 137(4) MACA satisfied

Legislation Cited:

Civil Liability Act 2002 (NSW), s 5E
Civil Procedure Act 2005 (NSW), s 100
Motor Accidents Compensation Act 1999 (NSW), ss 131, 141B
Workers Compensation Act 1987 (NSW), s 151Z

Cases Cited:

Glen v Sullivan [2015] NSWCA 191
Graham v Baker [1961] 106 CLR 340
National Insurance Co. of New Zealand Ltd v Espangne [1961] HCA 15; 105 CLR 569
Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164
Ridolfi v Hammond [2012] NSWCA 3
Watts v Rake [1960] HCA 58; (1960) 108 CLR 158
White v Benjamin [2015] NSWCA 75

Texts Cited:

H Luntz, Assessment of damages for personal injury and death, 4th edition, Lexis Nexis Butterworths 2002

Category:

Principal judgment

Parties:

Clifford Keith (Appellant)
Adrian Gal (First Respondent)
Carol Lee Armstrong and Darren Allan Armstrong t/as Pringle Road Smash Repairs (Second Respondent)

Representation:

Counsel:
R Sheldon SC / V Tzatzagos (Appellant)
P Deakin QC / J Turnbull SC (Respondents)

  Solicitors:
Brydens Compensation Lawyers (Appellant)
Curwoods Lawyers (Respondents)

File Number(s):

2014/372593

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Civil

Citation:

[2015] NSWSC 1617

Date of Decision:

05 December 2014

Before:

Maiden DCJ

File Number(s):

2008/316397

HEADNOTE

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

1.   In 2001, the appellant, Mr Clifford Keith, was injured when the vehicle he was driving collided with the rear of a tow truck driven by the respondent, Mr Adrian Gal, which pulled abruptly into the lane in which Mr Keith was driving. Prior to the accident, the appellant was head teacher of painting and decorating at the TAFE Illawarra Institute. He had an extensive pre-accident medical history, including multiple injuries arising from: a circular saw severing his fingers, passing his left arm though a glass door, at least 30 – including one major (in 1991) – motorcycle accidents, and a previous motor vehicle accident, which had caused, amongst other issues, neck injuries. The appellant’s neck was also injured in the 2001 accident. He continued working until May 2004 and, in December 2004, moved to the Gold Coast to live with his partner, Ms Freilich, at around the same time that his employment at the TAFE Institute was terminated on the basis of his medical retirement.

2.   Since the 2001 accident, the appellant has suffered other injuries, including to his right wrist, had surgery on his hip and right foot, and, overall, experienced a “constellation of other problems”. In May 2007, he commenced proceedings in the District Court for recovery of damages. Liability was admitted and the only issue for determination was the assessment of damages. The appellant successfully appealed the damages awarded at the first trial and the issues of damages was remitted for retrial.

3.   On the retrial, the primary judge rejected the appellant’s medical evidence because the opinions expressed had been based on an incomplete medical history. His Honour found that the aggravation of the appellant’s pre-existing neck pain and radiation into his right arm which resulted from the 2001 accident had resolved by May 2004. The primary judge also made adverse credit findings in relation to the appellant’s true reason for leaving employment in 2004; found that he did not require domestic assistance; and determined that, in respect of future economic loss, the appellant could have sought work as a teacher or supervisor. His Honour rejected the appellant’s claims under all heads of damages and the appellant appealed.

4.   The issues on appeal included:

(1)   whether his Honour erred in entering a verdict in favour of the respondents because it was agreed that the appellant had sustained some past economic loss (ground 1);

(2)   whether his Honour erred in concluding that there was no aggravation of the appellant’s pre-existing problems and that the appellant was able to work as well after, as before, May 2004 and the 2001 accident (grounds 2, 5 and 7);

(3)   whether his Honour erred in his approach to the assessment of economic loss because he should have found that the appellant, as a result of the 2001 accident, was markedly worse off in terms of his capacity to work, to do domestic chores and was in need of medication (grounds 3, 6 and 10);

(4)   whether his Honour erred in rejecting the medical evidence relied upon by the appellant and failed to deal with the whole of the appellant’s case (grounds 8 and 9);

(5)   whether his Honour’s contingent approach that the benefit received by the appellant under his superannuation policy is to be offset against any future economic loss is correct (ground 4).

Held per Gleeson JA (Tobias AJA agreeing at [178])…[Meagher JA]:

In relation to the medical evidence

(1)   The primary judge’s finding that the appellant’s injuries from the 2001 accident had resolved by May 2004 should be set aside because it was based on a medical opinion inconsistent with a later opinion provided by the same doctor. The evidence established that the aggravation of the appellant’s 1991 neck injury and pre-existing right shoulder injury continued to, at least, January 2006, and that the aggravation of his right shoulder injury had not satisfactorily resolved until about mid-2008. The appellant experienced a diminished earning capacity after 2004 up until mid-2008 which was attributable to the 2001 injury. However, from mid-2008 onwards, the appellant’s diminished earning capacity was no longer attributable to the 2001 injury. [125]-[126]

In relation to the appellant’s superannuation policy

(2)   The primary judge did not find that the superannuation policy benefits received by the appellant should be taken into account in the reduction of any damages for diminished earning capacity. Payment of superannuation benefits to the appellant should be ignored when assessing any damages for loss of earning capacity. [132]-[133]

Referred to: Graham v Baker [1961] 106 CLR 340 at 343; National Insurance Co. of New Zealand Ltd v Espangne [1961] HCA 15; 105 CLR 569 at 573

The nature of the onus of proof

(3) Section 5E of the Civil Liability Act 2002 (NSW) makes clear that the legal burden of proof, on the balance of probabilities, falls on the plaintiff. This is different from the evidential burden which is considered at different points in time during the trial as evidence is adduced. [144]

Referred to: Watts v Rake [1960] HCA 58; 108 CLR 158; Purkess v Crittenden [1965] HCA 34; 114 CLR 164; Varga v Galea [2011] NSWCA 76; Glen v Sullivan [2015] NSWCA 191; Woolworths v Strong [2010] NSWCA 282 at [59]; Zanner v Zanner [2010] NSWCA 343; 79 NSWLR 702 at [7]

In relation to past economic loss

(4)   The assessment of the appellant’s diminished earning capacity should be approached on the basis of the comparable earnings (agreed at trial) at the time the appellant’s employment was terminated in December 2004, with deductions for residual earning capacity and vicissitudes. Lost superannuation entitlements should be calculated on the conventional approach. [153]

In relation to future economic loss

(5)   In light of the conclusion that there is no diminished earning capacity attributable to the 2001 injury beyond mid-2008, the claim for future economic loss should be rejected. Any diminution in the appellant’s earning capacity after December 2014 was attributable to a combination of his injuries prior to the 2001 accident, superimposed degenerative changes that had developed since then, the re-injury of his right wrist in 2005, the pain experienced in his left arm in 2007 and 2008, the problems with his right foot, and the need for hip surgery in 2011. [156]

In relation to domestic assistance:

(6) Ms Freilich’s provision of domestic assistance from October 2002 – December 2003 did not satisfy the temporal threshold requirements of s 141B(3). There should be a finding that the threshold requirements of s 141B(3) were satisfied during 2004. [167]

(7)   For the years 2005 to mid-2008, the appellant’s claim for domestic assistance must be limited to the period of the 2 years during which Ms Freilich lived with him at Lower Beechmont and the further period of about 9 months, from late 2007 (after 8 or 9 months’ separation in 2007) to mid-2008, when the appellant lived alone at Molendinar. In accordance with s 141(2) MACA, no claim for domestic assistance should be allowed post mid-2008 as assistance provided after that time would have been required by the appellant even if he had not been injured by the 2001 accident. [169]-[170]

Referred to: White v Benjamin [2015] NSWCA 75 at [62]; Hodges v Frost (1984) 53 ALR 373 at 380

Judgment

1. MEAGHER JA: I agree with Gleeson JA.

2. GLEESON JA: This is an appeal against an assessment of damages for personal injuries suffered by the victim of a motor vehicle accident in 2001. That assessment followed a decision of this Court setting aside an earlier decision of the District Court (which had assessed damages in the sum of $3,148.70) and remitting the matter for a new trial on damages: Keith v Gal [2013] NSWCA 339.

3. On the retrial, the primary judge found that the appellant had suffered no assessable injury in the 2001 accident and therefore entered a verdict in favour of the respondents: Keith v Gal (District Court (NSW), Maiden DCJ, 5 December 2014, unrep).

Background

4. The appellant, Mr Clifford Keith, was injured on 25 July 2001 when the vehicle he was driving collided with the rear of a tow truck that pulled abruptly into the lane in which he was driving. The tow truck was driven by the first respondent, Mr Adrian Gal. At that time, the tow truck was owned and operated by the second respondents, Carol and Darren Armstrong.

5. The appellant commenced proceedings in the District Court in May 2007 for recovery of damages for his injuries. Liability was admitted and the only issue for determination was the assessment of damages. The proceedings have an unfortunate lengthy history, particularly due to the necessity for a re-trial on damages and now a second appeal to this Court.

6. As the appellant was injured in a motor vehicle accident his claim was governed by the Motor Accidents Compensation Act 1999 (NSW) (MACA) and, in so far as it applies, the Civil Liability Act 2002 (NSW) (Civil Liability Act). It was common ground that the appellant was not entitled to damages for non-economic loss as he did not satisfy the statutory threshold: MACA, s 131.

The appellant’s case at trial

7. The appellant had been a TAFE teacher since July 1990. Prior to that he had undertaken a trade as a painter and decorator for many years and had also obtained various qualifications: as a scaffolder, rigger and dogman, and building foreman during a period of employment at the Sydney Opera House. He was qualified in and able to teach painting, decorating, signwriting, show card writing and ticket writing, and had done so prior to the 2001 accident.

8. At the time of the 2001 accident, the appellant (then aged 46 years) held the position of head teacher in the Painting and Decorating School at the TAFE Illawarra Institute. The appellant lived near Campbelltown. He was working full-time in addition to undertaking WorkCover assessments. He generally left home for work before 6.00 am and left work at 9.30 pm. At the time of the accident he was living alone.

9. The appellant claimed damages for past economic loss; future loss of economic capacity; past and future domestic assistance; out-of-pocket expenses; and past and future superannuation loss. His claimed injuries were to his neck, his right shoulder and arm, a blow to the head, bruises and abrasions, together with shock. The appellant’s case was that, over time, the symptoms of pain and restricted movement in his neck and right shoulder, arm and hand worsened. He also experienced problems with psychological changes and with his left brachial artery (which he had injured in 1977). He found it difficult to focus at work. He left work in May 2004 to recuperate but never returned. The complicating factor for the appellant’s damages claim was that he had suffered a number of other significant injuries prior to the 2001 accident, including serious neck injuries from a 1991 motorcycle accident which required a cervical fusion.

10. The trial occupied three days. The appellant was the only witness to give oral evidence. The transcript of evidence given by three lay witnesses at the first damages hearing before O’Toole DCJ was tendered; relevantly, Mr Allan Miller, Mr John Podmore and Ms Evor Freilich. In addition, there was a large volume of documentary medical evidence to which reference is made below, including the transcript of the oral evidence of Dr Max Ellis before O’Toole DCJ. Dr Ellis had died before the second hearing.

The appellant’s pre and post-accident history

Pre-accident history

11. The appellant had an extensive pre-accident medical history, including being involved in about 30 motorcycle accidents (or “possibly more”) before giving up riding. The primary judge recorded the following major injuries suffered by the appellant:

• In 1973 he received severe injuries to his left, middle and index finger and his right small finger when he was cut by a circular saw. Surgery to re-attach the fingers was successful.

• In about 1976, he broke a bone in his right wrist – it seems a scaphoid bone – as a result of a fall and he re-injured his right wrist in about 1987. The appellant agreed that it was “highly possible” that he was diagnosed with severe arthritis in his right hand in 1999.

• In 1977, he cut his left arm when it passed through a glass door, severing the brachial artery. That was satisfactorily repaired at the time.

• In the late 1970s, he fractured the L4 vertebrae of his lower back and spent time in hospital and six weeks in a spinal brace.

• In 1991, he was involved in a major motorcycle accident. His left arm and right collar bone were broken. He also fractured the vertebrae in his neck from the C2 to C4 levels. It required a two-level cervical spinal fusion performed by Dr John Segelov and two clamps known as “Halifax clamps” were affixed to his vertebrae. The appellant resumed full-time work after that surgery and gave evidence that he was able to manage his day-to-day life with “some minor problems occasionally”. He said that he undertook long distance running, swimming and study, and looked after himself and his garden.

• In 1997, he was involved in a rear end collision in which he was the driver of the front car. It seems that, at the insistence of his young daughter, the appellant was taken by ambulance to Liverpool Hospital for examination. He spent three days under observation. The hospital admission records show the appellant’s problems on admission as being “neck pain after MVA”. The principal diagnosis was “investigation of spinal fracture (cervical, thoraco lumbar)”. The secondary diagnosis was “back pain”. The hospital notes for 29 January 1997 record “Initial pain in neck, now eased off. No pain elsewhere”. Further notes on 30 January 1997 record the appellant “[d]enied any tenderness in the neck region at present. Back pain only experienced when arching backward (which was present prior to MVA)”. Examinations showed cervical spondylitic change between the C6 and C7 vertebrae with osteophyte formation anteriorly. There was, however, no fracturing in his neck or spine and the primary judge found that the appellant made, it would appear, a quick recovery.

12. In cross-examination, the appellant initially said that he could not recall developing episodes of tingling in three fingers on his right hand from about 1997, that he did not recall giving such a history to Dr Teychenne and that he did not recall telling Dr Teychenne that the tingling would occur throughout the night lasting about 30 seconds, or that the tingling in the right hand would clear for six months and recur. Later the appellant agreed that he told Dr Teychenne of the “recurrent episodes of tingling in the right, second, third and fourth fingers up until 25 July 2001, … because that’s the truth”. He said that the tingling in the right hand changed after the 2001 accident - that it was a totally different lot of sensations and much more severe.

13. On 23 May 2001, the appellant attended Campbelltown Medical Centre complaining of neck pain during movement of his neck and an unusual sensation from the neck down. The appellant also told Dr Ghaly about some sensations in his fingers. On examination there was limited movement of the appellant’s cervical spine, and tenderness in the muscle. The appellant gave evidence that those problems were not really interfering with his work. An X-ray taken on 23 May 2001 showed “marked disc narrowing with disc degeneration at C5-6, C6-7 with anterior osteophyte formation at C6-7”. On 25 May 2001, the appellant was referred by Dr Farag of the Campbelltown Medical Centre to Associate Professor Zagami, a consultant neurologist (Professor Zagami).

12. On 10 July 2001, Professor Zagami examined the appellant regarding his “unusual sensation from the neck down” and provided a report to Dr Farag, which:

• noted the appellant’s history of the 1991 injury, the cervical fusion and a couple of episodes in the nature of “funny turns”;

• described the history given by the appellant of an “ugly feeling as if his veins have turned to metal” and “another unusual episode where when he turned his neck to the right he would develop a headache over his whole head and if he turned to the left he had then sensation of being knocked out as he put it”; and

• recorded that the appellant took Panadeine Forte from time to time for pain in his neck.

15. Professor Zagami did not detect any neurological abnormalities and expressed the view that the appellant did not demonstrate an L’Hermitte’s phenomenon. He concluded:

These funny turns are very difficult to explain. He has no evidence clinically of myelopathy or radiculopathy, however given his serious previous cervical pathology, I think it necessary to exclude a lesion in the neck and therefore I suggest that he should have a CT scan of the cervical spine.

25 July 2001 accident

16. The accident on 25 July 2001 involved an impact with the rear of the appellant’s tow truck at “about 35 miles per hour”. The appellant was immediately aware of neck pain and by the time he drove home he was cold, wet, shivering, with neck pain and had a headache. He took some Panadol and went to bed.

Post-accident history

17. The appellant attended work at the TAFE Illawarra Institute on 26 July 2001, the day following the accident. He thought things would settle down. He gave evidence that he had a lot of neck pain and headaches and started to notice that his right arm was not very strong. He took medication that he had at home, including Vioxx, Panadol and Panadol Forte. He said he had difficulty conducting wallpaper and painting demonstrations for the students because he kept dropping things which he did not have the strength to hold.

18. Five days later, on 30 July 2001, the appellant attended Campbelltown Medical Centre and was referred to Campbelltown Hospital’s Emergency Centre. In a report to the third party insurer dated 23 April 2002, Dr Ghaly noted that the appellant gave a history that he was wearing a seatbelt when he hit the tow truck. There was no head trauma, but he started to feel neck pain which got worse the following day. He also felt numbness and a tingling sensation in the right arm. Dr Ghaly diagnosed a soft tissue injury in the neck and an aggravation of pre-existing problems in the appellant’s neck.

19. The appellant consulted Professor Zagami on two further occasions. In his report of 28 August 2001, Professor Zagami recorded the appellant’s history of “new symptoms” following the 2001 accident as follows:

However that night, he developed neck pain and felt unwell. He took Panadeine forte for the pain, which relieved it somewhat. He thereafter had to take it daily because of the pain. A few days later he went to see a doctor. He was subsequently seen in Campbelltown Hospital. He denied any radiation of the pain from the neck, however, he did complain of numbness, which was persistent, radiating down the back of his right arm into the first 3 digits in that hand. He also felt that his right arm was weaker than normal. His left arm was unaffected, as were his legs. He had had no sphincter disturbance that was new.

20. Significantly, Professor Zagami noted that the symptoms, of which the appellant had previously complained (a headache on turning his head to one side and a presyncopal feeling on turning to the other side), had now resolved. However, the appellant’s other abnormal sensation, which he had previously described as “like the blood in his veins turning to metal”, was occurring more frequently and lasting longer. He recorded that the neck pain was starting to settle down and the appellant continued to use Panadeine Forte.

21. Professor Zagami observed a marked reduction in the appellant’s neck flexion. There also appeared to be reduced sensation in the appellant’s C6 and probably C7 dermatomes on the right. The appellant had signs and symptoms consistent with radiculopathy, probably of the C7 and possibly the C6. X-rays obtained prior to the 2001 accident showed extensive changes, as well as the post-operative changes. Professor Zagami expressed the opinion that there was evidence of mild radiculopathy. He was hopeful that the appellant would continue to improve but opined that the appellant may continue to have pain from time to time. He recommended the appellant use Vioxx. He could not explain the other symptoms of abnormal sensations. He speculated that it may have something to do with the appellant’s previous panic attacks and arranged for an EEG examination.

22. In his further report of 11 September 2001, Professor Zagami recorded that the appellant’s neck pain had lessened and there was no radiation of pain into his arm. The appellant had begun taking Vioxx as recommended as well as Panadeine Forte at night. The appellant complained of pins and needles on the dorsum of his first three digits in the right hand, lasting for up to 30 minutes at a time. Professor Zagami noted that the appellant’s unpleasant turns were occurring less frequently. (The appellant gave evidence that after the 2001 accident, the cold metallic feeling from his neck down stopped and that it no longer occurs.). Upon examination, Professor Zagami could no longer detect any sensory abnormality in the C6 - 7 dermatome. He noted that the recent ECG was normal. He expressed the view that the appellant appeared to be objectively and subjectively recovering from the recent exacerbation of his neck problem.

23. The appellant said that, after the 2001 accident, he reprogrammed his teaching duties so that he was doing less physical activity and more teaching of theory. He said that before the accident there were times when he had some neck pain but most of the time he was pain free. He rarely took painkillers before the accident. After the accident he used painkillers as part of his daily regime to keep the pain down. He said that his ability to concentrate on his work was not as strong after the accident. He took some time off for study leave for a Masters in Education degree in the second half of 2001, which he finished that year.

24. In December 2002, the appellant was approved for admission into a doctorate program in Education at the University of Technology, Sydney. He withdrew from that program after one year. The primary judge found that the reason the appellant withdrew from his PhD studies was unrelated to any disability from the 2001 accident; it was because of the pressure to effectively work part-time, and perhaps was also related to his move to Queensland at the end of 2004. This finding is not challenged.

25. The appellant described his neck pain as “major” in 2002, compared with “minor” pain before July 2001, and “very heavy” in 2003 and 2004. The appellant described his right arm as “weak and insensate, partially insensate” in 2002. He said he could lift his arm up but “direction and that sort of thing” was limited. He encountered pins and needles. He said that his right arm did not get better in 2003 and 2004 and that this limited his teaching of skills requiring the use of both hands and arms, such as brush skills, roller skills and wallpaper hanging skills.

26. The clinical notes of Dr Ghaly record that on 4 May 2004, when the appellant left work, he complained of neck pain, stating that he was “not on painkillers for four months” before this date. The appellant denied giving that history to Dr Ghaly. The appellant said that that he ceased work because of continuous problems with neck pain and headaches and difficulties in performing his work duties which required physical strength and coordination, such as practical skills demonstrations, and his health was just not improving.

27. In December 2004, the appellant’s employment was terminated on the basis of his medical retirement by the TAFE Illawarra Institute, effective 1 January 2005. This followed certification by the medical director of HealthQuest, Dr A Casolin, that the appellant “was suffering from a condition that will, in all likelihood, prove permanent” and “is unable to perform the inherent requirements and job demands of the position of a Head Teacher …”. The appellant gave evidence that he did not look for other work after this time because “[i]f I couldn’t complete that job, what hope is there of me doing any other work substantially regularly without consequences?”.

28. The appellant had commenced a relationship with Ms Freilich in about 2002 or 2003. He commenced living with her in 2004 at his home at Eschol Park. After about 3 months, Ms Freilich moved to Casula. Towards the end of 2004, she moved to the Gold Coast. At around this time, the appellant also moved to the Gold Coast to live with her. He purchased a unit at Nerang. The primary judge found that the reason the appellant left his employment at TAFE was entirely related to his wish to continue his relationship with Ms Frielich who had told him she was going to Queensland with or without him and that they should purchase a property together, all of which occurred. This finding is not challenged.

The appellant’s circumstances after leaving TAFE in 2004

29. In the second half of 2005, the appellant and Ms Freilich purchased a house at Lower Beechmont in Queensland. They began renovating the house. The appellant was cross-examined in relation to his ability to undertake renovation works and gardening at this house, having regard to the investigation film obtained by MJA Investigations on 1 and 2 December 2005 and also on 28 and 29 November 2006. This issue was also the subject of opinion in some of the medical reports. His Honour did not make any specific findings with respect to this evidence.

30. A number of other significant events occurred after the appellant ceased work in 2004. The first was that the appellant re-injured his right wrist in 2005. He seems to have given differing accounts as to how this injury occurred. Dr Michael Lim recorded that the appellant twisted his right wrist using an electric drill. Dr Max Ellis recorded that the appellant injured his wrist while digging in the garden at home. Dr Tong performed a partial wrist fusion in 2005.

31. Next, in 2006, the appellant was involved in an altercation with a neighbour, who head-butted the appellant a number of times and also punched him in the head. The appellant agreed in cross-examination that each of the head-butts and punches forced his head “violently backwards”. He said that he only suffered a little pain, less than that involved in the 2001 accident. The primary judge found that the appellant made no complaint of any discomfort as a result of this assault notwithstanding that he would have expected there to have been some discomfort given the appellant’s claimed disability in his neck. There is no challenge to this finding.

32. The appellant gave evidence that his left arm in 2007 and 2008 was “very painful”. He said that from 2002 the lump in his venous graft started to subside and then he realised that it was “plaquing up” inside and shrinking. In January 2008, the appellant consulted a vascular surgeon at the Gold Coast Hospital and underwent an arterial Doppler of his left arm. This showed a complete occlusion of his left brachial artery, which was markedly calcified, along the length of 8.6 cm and which he had severed in 1977: see [11] above. The surgeon, Dr Graeme Barber, recommended that the appellant continue with conservative management; he advised against attempting a revision of the arterial graft. The appellant said that once he commenced taking tablets to reduce his cholesterol as prescribed by Dr Abbas his left arm was “over 75% better than it was”.

33. On 23 September 2011, the appellant was referred to Dr Campbell, for lower back pain and on the same date he was referred to Dr Hugh Won, because of problems with his right foot. The appellant gave evidence that the problems in his right foot had progressively become worse, causing him difficulty in walking over a number of years.

34. On 10 November 2011, the appellant was referred to Dr Nicholl for hip pain. Subsequently, on 31 May 2012, Dr Nicholl performed left hip surgery and approximately one month later, the appellant had surgery on his right foot, performed by Dr Won. The appellant agreed in cross-examination that over the last six months of 2012 he consulted his general practitioner, Dr Bromberg, or another medical practitioner from the same medical centre, more than 60 times in respect of his right foot.

35. On 16 October 2013, the appellant was referred to Dr Rango for problems with his right wrist. An MRI of the wrist disclosed extensive rheumatic changes.

36. In cross-examination, the appellant acknowledged that he had a “constellation” of other problems not related to the 2001 accident. He said that, on their own, those problems would not have caused him difficulties in doing his duties at TAFE, but acknowledged that if they were all happening together they would have caused him difficulties.

37. One further matter should be mentioned. In 2007, the appellant separated from Ms Frielich for about 8 or 9 months. Later in 2007, the appellant and Ms Frielich sold the house at Lower Beechmont and the appellant moved to Molendinar in Queensland. It seems that the appellant has lived alone since that time notwithstanding that he resumed his relationship with Ms Freilich for a period of time until about the middle of 2012.

The medical evidence at trial

38. The treating doctors whose reports were tendered were: Dr R Ghaly, the appellant’s general practitioner at Campbelltown Medical Centre; Professor Alessandro Zagami, neurologist; Dr V Giang, Emergency Department, Campbelltown Hospital; Dr Sergey Bromberg, the appellant’s general practitioner at Nerang, Queensland; Dr Manzoor Abbas, vascular registrar, Gold Coast Hospital; and Dr Graeme Barber, consultant vascular surgeon, Gold Coast Hospital; and Dr Angus Nicoll, orthopaedic surgeon, Benowa, Queensland.

39. The appellant relied upon medico-legal reports from: Dr Max Ellis, a fellow of the Royal Australasian College of Surgeons and a WorkCover and Motor Accidents Authority assessor; Dr Peter Conrad, a fellow of the Royal Australasian College of Surgeons; Dr Teychenne, a consultant neurologist; Dr Jim Ellis, orthopaedic surgeon; Dr Parmegiani, a consultant psychiatrist; and Mr S Anthony, clinical psychologist.

40. The respondents relied upon medico-legal reports from: Dr Michael Ryan, Clinical Associate Professor of Surgery, Orthopaedics and Spinal Surgery; Dr Michael Lim, occupational physician; Dr Ross Mellick, a consultant neurologist; Dr Robert Reid, a Medical Assessment Service (MAS) assessor who provided a report in relation to a 2004 medical dispute; Dr James McLeod, neurologist, a MAS assessor; and Dr Leonard Lee, a consultant medico-legal psychiatrist.

41. In total, the medical evidence tendered before the primary judge by the parties comprised nearly 800 pages. It included no fewer than 124 reports. In addition, there were numerous radiological reports, hospital notes, clinical notes of general practitioners, and multiple MAS certificates issued by various assessors. The essential medical issues in the proceedings were whether the appellant aggravated his pre-existing condition in the 2001 accident and, if so, whether any temporary disability had resolved either by the time he left TAFE in May 2004 or some later date. However, no attempt was made by the legal representatives of either of the parties to select the medical evidence relevant to those issues. As Simpson JA recently remarked in Australia and New Zealand Banking Group Ltd v Haq [2016] NSWCA 93 at [139]:

Yet again, it is necessary to observe that counsel are under a duty to present cases in such a way as will assist the trial judge to arrive at the correct result. Bombardment with hundreds of pages of irrelevant material does not achieve that.

The primary judgment

42. His Honour accepted that the appellant continued working after the 2001 accident, mostly on a full-time basis, possibly with some days off until May 2004. He recorded the respondents’ case to be that this demonstrated that the appellant’s condition involving neck pain and radiation into part of the right arm had resolved and that he would have had episodic complaints as he got older because of the underlying degeneration and the 1991 injury.

43. His Honour did not accept that the appellant had suffered a brain injury through impact with any part of his vehicle. This finding is not challenged on appeal. However, his Honour did accept the existence of the appellant’s psychological issues, involving depression and anxiety, which had continued for many years.

44. His Honour referred to the ten reports of Dr Conrad and extracted the history recorded in his first report of 31 October 2003. His Honour observed that “[a]ll the investigations had failed to identify any new injury that could be related to the accident in July 2001”, and thus, the issue was whether the history given by the appellant to various medical practitioners was reliable.

45. His Honour observed that Dr Conrad’s reports had failed to take into account that the appellant had attended his general practitioner and Professor Zagami (reporting neck related problems) before the 2001 accident. By contrast, his Honour accepted that Professor Ryan and Dr Mellick had each given opinions based on the history which his Honour found to be correct and adequate. His Honour concluded:

Effectively, the plaintiff is left without any medical report that has a correct history upon which the opinion of the medical practitioner can be based.

46. His Honour briefly referred to the histories recorded in the reports of Dr Max Ellis, Dr Teychenne, Dr Jim Ellis and Dr Bromberg. He found that the first report of Dr Max Ellis of 8 May 2004 was not based upon a correct history because it referred to the appellant being “subsequently” referred to Professor Zagami after the 2001 accident.

47. His Honour found that the report given by Dr Teychenne dated 12 April 2005 was not based upon an appropriate history, because Dr Teychenne was also not given the history of the appellant’s complaints made to his general practitioner prior to the 2001 accident. For similar reasons, his Honour did not give weight to the reports of Dr Jim Ellis and Dr Bromberg.

48. Relying upon Dr Ryan’s report, his Honour found that the appellant’s symptoms of “neck and discomfort in his right arm” were related to an exacerbation of his condition following the surgery of 1991, that that condition subsided before he stopped working in May 2004, and that it is likely that the appellant’s continuing complaints from 2003/2004 onwards were related to his underlying condition from the 1991 accident and were not in any way affected by the 2001 accident.

49. His Honour did not accept that the evidence of Ms Freilich, Mr Miller or Mr Podmore (given at the first District Court trial) supported the appellant’s case that there was a physical injury flowing from the 2001 accident which had continued unabated. His Honour also made the adverse credit findings referred to above in relation to the appellant’s true reasons for leaving his employment with TAFE in 2004, not continuing with his PhD studies, and not making any complaint of any discomfort following the head-butting incident in 2006.

50. In determining future economic loss (s 126 of the MACA), his Honour considered the appellant’s likely future prospects and found that, given his numerous qualifications, the appellant could have sought other work as a teacher or a supervisor - as he had been at the Sydney Opera House - when he moved to Queensland.

51. In relation to domestic assistance, his Honour found that the appellant was able to care for himself and that it was not required.

46. His Honour concluded that the entirety of the appellants’ claim for damages should be rejected on the basis that “if the condition does exist it relates to the 1991 condition and not in any way to the 2001 condition”.

47. His Honour added that that there was insufficient evidence to make a finding as to whether the receipt of the benefits of a superannuation policy paid to the appellant following his retirement should be taken into account if the appellant was otherwise entitled to damages. Nonetheless, he expressed the view (contingently) that if the policy was part of a scheme controlled by trustees who were presumably given various discretions as to payment, such as on certain conditions before the normal retiring age, then that would reinforce that there is no loss of earning capacity.

Issues on appeal

54. In oral argument, the issues raised by the grounds of appeal were grouped by the appellant’s counsel as follows:

1. whether his Honour erred in entering a verdict in favour of the respondents because it was agreed that the appellant had sustained past economic loss (ground 1);

2. whether his Honour erred in concluding that there was no aggravation of the appellant’s pre-existing problems and that the appellant was able to work as well after, as before, May 2004 and the 2001 accident (grounds 2, 5 and 7);

3. whether his Honour erred in his approach to the assessment of economic loss because he should have found that the appellant, as a result of the 2001 accident, was markedly worse off in terms of his capacity to work, to do domestic chores and was in need of medication (grounds 3, 6 and 10);

4. whether his Honour erred in rejecting the medical evidence relied upon by the appellant and failed to deal with the whole of the appellant’s case (grounds 8 and 9);

5. Whether his Honour’s contingent approach that the benefit received under the superannuation policy is to be offset against any future economic loss is correct (ground 4).

Disposition of the appeal

Issue 1: Past Economic Loss

55. There are three parts to the appellant’s claim for past economic loss. The first relates to the period from the 2001 accident (25 July 2001) until 4 May 2004 ($1,681); the second relates to the period 5 May 2004 to 31 December 2004 ($8,567); and the third relates to the period 1 January 2005 to the date of judgment (5 December 2014) ($660,337).

56. As to the first period, the appellant contended that it was common ground at trial that he had sustained some past economic loss, being $1,681 up until May 2004 and accordingly his Honour erred in entering a verdict for the defendants.

57. The amount of $1,681 had been claimed in the appellant’s particulars of economic loss in respect of workers compensation payments received up to the time he left work in “June 2004” (more accurately “May 2004”). In closing submissions at trial, the appellant’s counsel sought to claim a higher amount of $10,248 in respect of workers compensation payments received by the appellant. Counsel for the respondents objected on the ground that such a claim had not been particularised. His Honour upheld this objection and did not permit this new claim to be advanced.

58. Although the lesser amount of $1,681 was agreed by counsel for the respondents, the primary judge seems to have overlooked this agreement when he awarded no damages for past economic loss. That was an error. Counsel for the respondents accepted so much in this Court.

59. It follows that ground 1 of the appeal has been made out. The verdict in favour of the respondents should be set aside and the past economic loss up until May 2004 should be assessed at the agreed amount of $1,681.

60. With respect to the period 5 May 2004 to 31 December 2004, the basis of the claim for $8,567 was left unexplained. It seems, however, that this amount is the balance of the amount of workers compensation payments received by the appellant up to the end of May 2004, which the appellant had unsuccessfully sought to claim in closing submissions at trial. There is no challenge to his Honour’s decision not to permit this late amendment of the appellant’s particulars. Nor is there any evidence supporting this claim. The appellant should not be permitted to raise this claim as a new point on appeal: Whisprun v Pty Ltd v Dixon [2003] HCA 48; 200 ALR 447 at 461.

61. With respect to the period 1 January 2005 until the date of judgment (5 December 2014), the claim for $660,377 was advanced on the basis that the appellant was totally incapacitated from work as a teacher. This amount was based on the average weekly earnings over the period of $1,198 per week net, it being agreed at trial that on cessation of employment the appellant was earning $1,052 per week net and taking into account CPI increases, the average weekly earnings were $1,345 per week net at the date of trial. The respondent agreed with the mathematics of this calculation at trial, but disputed that the appellant left work at the TAFE Illawarra Institute in May 2004 as a result of any continuing disability arising from the 2001 accident.

62. The claim for past economic loss from 1 January 2005 to the date of judgment depends upon the outcome of the appellant’s challenge to his Honour’s rejection of the appellant’s medical case and the impact of the 2001 accident on his ability to work. I now turn to those issues.

Issue 2: The appellant’s medical case and the impact of the accident on his ability to work

63. As mentioned, his Honour found that the appellant’s injuries from the 2001 accident had resolved by May 2004, based on the evidence of Dr Ryan. This may be taken to be a reference to Dr Ryan’s initial report of 5 August 2004. His Honour attributed any disability after May 2004 to the appellant’s condition caused by the 1991 injury to his cervical spine.

64. Grounds 2, 5 and 7 relate to his Honour’s rejection of the medical case advanced by the appellant. Grounds 8 and 9 relate to his Honour’s approach to the medical evidence. It is convenient to deal with these grounds together.

Submissions

65. The appellant submitted that a proper comparison of the evidence of the appellant’s condition prior to the 2001 accident with his post-accident condition would have revealed a quite marked difference in his symptoms and his level of functioning. Reference was made to Dr Ghaly’s reports and clinical notes which recorded complaints of worsening pain in July 2003 and the appellant’s numerous attendances at his practice during 2004. The appellant also pointed to the report of Professor Zagami of 11 August 2001, which referred to the appellant’s “new symptoms” after the July 2001 accident, namely, numbness radiating down his right arm into the first three fingers in that hand.

66. It was submitted that his Honour erred in rejecting the appellant’s medical case on the ground of inadequate and incomplete histories given to the appellant’s medico-legal experts, in particular Dr Max Ellis, Dr Conrad and Dr Teychenne. In written submissions, the appellant complained that his Honour failed to consider whether the facts proved or found were “sufficiently like” those on which the opinions of Dr Ellis, Dr Conrad and Dr Teychenne were based: Nominal Defendant v Saleh [2011] NSWCA 16 at [263].

67. However, in oral argument, counsel for the appellant accepted that the opinions of Dr Conrad and Dr Teychenne did suffer from a problem regarding the appellant’s history (T 2, lines 28-30). No oral argument was advanced challenging his Honour’s rejection of the reports of Dr Conrad on the ground that he was not provided with a history of the appellant’s complaint of neck pain to Dr Ghaly in May 2001, or the similar complaints to Professor Zagami in early July 2001. The appellant contended that the history provided to Dr Teychenne was substantially correct. It was further contended that Dr Max Ellis was aware of the correct medical history (T 2, lines 20-23).

68. The appellant further argued that there were shortcomings in the respondents’ medical reports, which were accepted by the primary judge, in particular that Dr Ryan’s report only dealt with the appellant’s right wrist problem and did not address his neck problem (T 4, lines 1-5). It was contended that if his Honour had properly reviewed the materials, those reports would have been put to one side and ultimately the opinion of Dr Max Ellis would stand without direct contradiction (T3, lines 41-46).

69. Against this, counsel for the appellant acknowledged that no challenge was directed to the opinion of Dr Michael Lim, occupational physician, which is referred to below.

70. In oral argument, counsel for the respondents identified the inaccuracies in the history given to the appellant’s medico-legal experts as being the failure to inform those experts of: (a) the complaint of neck pain reported by the appellant to Dr Ghaly in May 2001 and to Professor Zagami in early July 2001; (b) tingling in the fingers in the appellant’s right hand prior to the 2001 accident; and (c) the appellant felt numb all over from the neck down prior to the 2001 accident.

Determination

71. The challenge to his Honour’s rejection of the appellant’s medical case requires an examination of the relevant medical reports.

Dr Ghaly

72. Dr Ghaly was the appellant’s general practitioner at the Campbelltown Medical Centre, who had examined the appellant on 23 May 2001 when he complained of neck pain and some sensations in his fingers (see [13] above). Dr Ghaly provided a report dated 18 December 2004 which stated that, since the 2001 accident, the appellant had attended complaining of recurring neck pain, numbness and a tingling sensation in his right arm. Specific reference was made to an attendance on 25 July 2003 when the appellant mentioned the pain getting worse. The clinical notes, which were in evidence, recorded complaints and symptoms of neck pain in October and November 2003, and January, April, May, June, July and November 2004. Dr Ghaly expressed the opinion that the appellant’s neck symptoms were made worse by the 2001 injury and that he was not suitable for his head teaching duties of painting and decorating.

Dr Max Ellis

73. Dr Ellis, a general surgeon, initially diagnosed the appellant’s symptoms in his report dated 28 May 2004, as a musculo-ligamentous contusion, aggravation of degenerative change in his neck, with secondary effects of referred pain and intermittent neurological deficiency in the right upper limb. Importantly, the history recorded by Dr Ellis included the neck injury suffered in the 1991 accident and that “there was slight persisting pain in his neck after this accident, but he was able to work physically and teach martial arts without difficulty”. Dr Ellis expressed the opinion that the previous injury to the appellant’s neck in 1991 had improved considerably and “almost resolved”. Dr Ellis considered that the appellant was likely to remain employed as a teacher at TAFE, but was disadvantaged particularly in the demonstration of physically demanding aspects of the trade he teaches.

74. In his second report dated 14 April 2008, Dr Ellis observed that the appellant’s condition was worse, “particularly in relationship to his neck and right arm and mental state impairment”. In contrast to his first report, Dr Ellis expressed the opinion that the appellant had suffered a cerebral concussion as a consequence of a whiplash injury in the 2001 accident resulting in periodic impairment of his level of consciousness and impaired cognitive abilities associated with decreased concentration of ability and impaired memory. Having noted that the appellant had lost his employment with TAFE due to being medically retired unfit to continue, Dr Ellis expressed the opinion that:

… [i]t is unlikely now he will achieve re-employment in any capacity. Physical work is impossible with the pain and disability in his right arm.

75. In a supplementary report dated 24 November 2008, Dr Ellis reviewed the “surveillance video by MJA Investigation” taken of the appellant on 1 and 2 December 2005 and 28 and 29 November 2006. He noted that the first video on 1 December 2005 showed a shirtless man interviewing briefly another man on the verandah of a home at the entrance door, and the second video on 2 December 2005 showed a shirtless man, presumed to be the appellant, leaning over a balcony assisting a woman on a ladder in what appeared to be the construction of a wooden balcony. The man was seen using a light plane to smooth the wooden balcony frame over a period of a few minutes. The man was also seen standing on the second step of an A-frame ladder, planing the corner of a balcony and talking to a neighbour. In the third film on 28 November 2006, the man was seen hosing a garden. In the fourth film on 29 November 2006, the man was again seen watering the garden. He also walked up some steps briskly, walked to a car and bent down to something on the ground. Dr Ellis expressed the opinion that nothing in the surveillance film altered in any way his assessment of the appellant in his report of 28 May 2004.

76. In his third report dated 18 December 2009, Dr Ellis reiterated his earlier diagnoses and opinion, and recommended that the appellant’s solicitor arrange further neurological investigations.

77. At the first damages hearing, Dr Ellis was cross-examined on whether any temporary disability consequent upon aggravation of the appellant’s pre-existing neck and right arm injuries in the 2001 accident, had subsequently resolved.

78. Dr Ellis described the appellant’s history after the 2001 accident as one of general deterioration onwards. He disagreed with the cross-examiner’s proposition that if there was evidence of the appellant’s neck pain lessening after the 2001 accident, that would change his opinion. Dr Ellis explained:

No, the neck pain and disability from a neck injury such as this with a previous fusion is likely to vary with the activities of daily living and a temporary resolution or improvement is irrelevant. I mean, his pain and disability have recurred to the point where in 2004 he was medically retired unfit from his work.

79. Dr Ellis continued:

His symptoms varied like anyone else who has a bad cervical spine injury. There was nothing abnormal or suspicious in the history he gave me.

80. When questioned on the diagnosis of traumatic brain injury following the 2001 accident, Dr Ellis acknowledged:

His clinical course and his ability to work and study and demonstrate in TAFE are very clear indications that his cognitive ability was not significantly impaired.

81. Dr Ellis rejected the cross-examiner’s proposition that the appellant’s injury to his neck was relatively “mild”, explaining:

A:   Well, the effects have not been a minor degree at all. He has evidence of radiculopathy in his right arm and he has mental status impairment, which can't be regarded as minimal seeing that they were the cause of the loss of his employment. He had a successful career which has gone.

Q.    I in fact asked you about his neck, I wonder if you could comment in relation to his neck and what I've suggested, that his injuries were relatively minor?

A.   He'd had a previous operation on his neck, a cervical fusion; it doesn't take much to aggravate things.

82. In his fourth report dated 8 April 2014 given after his cross-examination at the first damages hearing, Dr Ellis noted, importantly, that the appellant had been assessed by the Professor Zagami on three occasions. Dr Ellis observed that although Professor Zagami was unable to make a definitive diagnosis, he had “found radiculopathy in the right arm consequent on the effects of the motor vehicle accident”.

83. Dr Ellis continued:

The previous injury to his neck in 1991 had improved considerably and almost resolved. There was only slight persisting neck pain, he was able to work in heavy work effectively and compete competitively in sporting and recreational activities prior to the motor vehicle accident of 2001.

84. Counsel for the respondents fairly accepted in oral argument that Dr Max Ellis must have had access to the three reports of Professor Zagami at the time of his report of 8 April 2014 (T38, lines 40-48). That concession was properly made. It seems that his Honour overlooked Dr Ellis’ report of 8 April 2014, when finding that Dr Ellis’ opinion was not based on a correct history. In my view, his Honour erred in rejecting the opinion of Dr Max Ellis on this ground. The consequence of this error is considered below.

Dr Teychenne

85. Dr Teychenne, a neurologist, provided five reports between April 2005 and May 2014. The focus of submissions in this Court was on Dr Teychenne’s final report of 25 May 2014, to which his Honour referred in his reasons. This report largely incorporated the opinions expressed in Dr Teychenne’s earlier reports.

86. As mentioned above, the history recorded by Dr Teychenne was that six years after the 1991 accident, the appellant had episodes of tingling within the right third, fourth and fifth fingers and occasionally the right second finger, and the appellant ultimately agreed in cross-examination that he gave this history to Dr Teychenne.

87. Dr Teychenne noted that when he had first examined the appellant on 12 April 2005, he considered that the appellant had mechanical disruption of the cervical spine as a result of the 2001 accident and this had resulted in an exacerbation of the right cervical radiculopathy with neurophysiologic evidence of a right C5/C6/C7 radiculopathy. Dr Teychenne also observed: decreased pain and decreased touch sensation over the lower left arm down into the medial fingers of the left hand due to an old laceration of the left brachial artery (in 1977); numbness to pain and touch sensation over the right lower arm extending into the right hand and over the lateral aspect of the right upper arm (which the appellant thought may have occurred as a result of the 1991 injury); a frozen right shoulder (and the appellant stated that he had osteoarthritis of the right shoulder); right carpal tunnel syndrome, as well as mild left carpal tunnel syndrome.

88. Dr Teychenne recorded that the appellant considered that he had sustained a head injury in the 2001 accident, that he thought he hit his head on the steering wheel, although he did not recall hitting his head. Dr Teychenne referred to his first assessment of the appellant on 12 April 2005 in which the appellant stated that, subsequent to the injury, he had episodes of dizziness and imbalance, difficulty controlling his balance for up to 20 seconds, and difficulty in concentrating.

89. However, and importantly, his Honour rejected the appellant’s claim that he suffered any brain injury through impact with part of the vehicle, either windscreen, steering wheel or somewhere else. Accordingly, no weight should be given to the opinion of Dr Teychenne that the appellant’s prognosis “in regard to the traumatic brain injury was poor”.

90. As indicated, his Honour rejected Dr Teychenne’s opinion on the ground that he was not given the history of (neck pain) complaints by the appellant to his general practitioner (Dr Ghaly) in May 2001. His Honour also noted that Dr Teychenne’s reports did not contain any reference to the 1997 rear-end motor accident.

91. In my view, the substance of the appellant’s neck related complaints as made to Dr Ghaly in May 2001, were conveyed to Dr Teychenne, who observed in his report of 25 May 2014 that he had reviewed the report by Professor Zagami dated 28 August 2001. That report of Professor Zagami (which was addressed to Dr Ghaly), referred to his examination of the appellant on 10 July 2001, which was before the date of the subject accident. Professor Zagami’s report expressly dealt with the two complaints which the appellant had reported to Dr Ghaly. These were the symptoms of a headache when turning his neck to one side, which Professor Zagami noted had now resolved, and the abnormal sensation from the neck downward, which Professor Zagami was not able to diagnose, and which he noted had occurred more frequently and was lasting longer than before the 2001 accident.

85. It may be accepted that the history provided to Dr Teychenne does not appear to have included the appellant’s 1997 motor vehicle accident. It is apparent, however, that Dr Teychenne was provided with the CT-scan of the appellant’s cervical spine performed on 29 January 1997 and a further CT-scan on 30 January 1997. Although the respondents placed great emphasis in oral argument on this omission, its significance needs to be placed in context. His Honour found that the appellant made, it would appear, a quick recovery from the 1997 accident. Further and importantly, his Honour did not reject the report of Dr Teychenne on the basis of the omission of reference to the 1997 accident.

86. The appellant referred to Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 62 ALR 85 at 87 where the High Court observed, citing Ramsay v Watson [1961] HCA 65; 108 CLR 642, that for expert medical opinion to be of any value the facts upon which it is based must be proved by admissible evidence. The High Court continued, however, explaining “[b]ut this does not mean that the facts so proved must correspond with complete precision to the proposition on which the opinion is based.” The High Court cited with approval a passage from Wigmore on Evidence (2 Wigmore, Evidence 680 (Chadbourn rev 1979) (941-942)), that “the failure which justifies rejection must be a failure in some one or more important data, not merely in a trifling respect”.

87. Given his Honour’s finding that the appellant made a quick recovery from the 1997 accident, the failure to provide this part of the appellant’s history to Dr Teychenne, does not justify rejection of his reports as contended for by the respondents. Nor do I consider that it materially impacts upon the weight that may be given to his opinion. In my view, his Honour erred in rejecting the reports of Dr Teychenne, in particular, his final report of 25 May 2014 on the basis of an incomplete or inadequate history of the appellant’s neck-related complaints prior to the 2001 accident.

88. In summary, I conclude that his Honour erred in rejecting the appellant’s medical case insofar as it was based on:

1. the reports of Max Ellis and his cross-examination at the first damages hearing;

2. the reports of Dr Teychenne, except insofar as those reports contained opinions of the appellant’s disability and prognosis in regard to the traumatic brain injury diagnosed by Dr Teychenne. The factual premises of those opinions were not established in the evidence, and is inconsistent with his Honour’ unchallenged finding that the appellant did not hit his head on any part of the vehicle.

96. It follows, in my view that grounds 8 and 9 have been made out to the extent indicated above.

97. The next question is whether his Honour erred in concluding that the exacerbation of the respondent’s pre-existing cervical spine conditions from the 1991 injury had subsided by May 2004 and that the appellant’s continuing complaints related to the 1991 injury, not the 2001 accident. This requires a consideration of the respondents’ medical case, which his Honour accepted, and the competing opinions of Dr Max Ellis and Dr Teychenne referred to above.

Dr Ryan

98. In his first report of 5 August 2004, Dr Ryan expressed the opinion that the degree of impairment of the appellant’s neck and right arm was present before the 2001 accident and that he did not consider his level of impairment had changed (after the 2001 accident).

99. The difficulty with his Honour’s finding based on Dr Ryan’s first report, is that it ignored Dr Ryan’s later opinion, following his reassessment of the appellant on 30 March 2010. In his report of 8 April 2010, Dr Ryan accepted that the aggravation of the appellant’s pre-existing neck injury continued until 2006. Dr Ryan said:

Based on historical data, I am of the opinion that Mr Keith, on the balance of evidence, reinjured his cervical spine in the subject accident and he developed transient right C6 and C7 symptoms. However by 2006 these had resolved.

100. The basis of Dr Ryan’s opinion (given in April 2010) that the appellant’s cervical spine symptoms had resolved by 2006, seems to be the assessment of Dr Jim Ellis in January 2006. Dr Ryan observed that Dr Jim Ellis had noted in January 2006 that the appellant’s C6 and C7 symptoms, which had developed following the 2001 accident, had “settled down”.

101. Dr Ryan concluded that the appellant was not fit for work because of two matters unrelated to the 2001 accident. These were the condition of his left arm (relevantly, the gradual deterioration in the vascular function following the injury to the left brachial artery in 1977), which Dr Ryan considered was most likely a consequence of his original vascular injury, aging and his continued smoking) and the condition of his right wrist following the removal of fixation and debridement of the right wrist by Dr Tong in 2005, which the appellant had broken in about 1976 (and re-injured in about 1987).

102. Contrary to the appellant’s submissions, Dr Ryan addressed the status of the appellant’s right shoulder, which he acknowledged was the most difficult to assess. Upon examination in April 2010, he observed marked variability of voluntary movement and marked resistance to any passive movement. Dr Ryan noted that Dr Jim Ellis’ opinion about the appellant’s right shoulder range was “the only one up to that point” (being January 2006). Dr Ryan proffered as one possible explanation that the appellant had developed some degree of right frozen shoulder simply as a consequence of disuse associated with the condition of his right wrist, in which case he considered that the condition of the appellant’s right shoulder was unrelated to the 2001 accident. However and importantly, Dr Ryan qualified this suggested explanation, when he added:

However, as he had developed right C6 and C7 symptoms which resolved, I cannot deny that those symptoms may have in some way contributed to his current shoulder limitations.

103. Dr Ryan’s prognosis was that as the appellant had been off work for 6 years following the 2001 injury, the chance of his ever returning to any form of work was 0%.

104. In a further report dated 26 July 2010, Dr Ryan repeated the view expressed in his April 2010 report that the appellant’s limitation now mainly related to his left arm, which the appellant had described as “really bad’. Dr Ryan noted that the appellant had stated that he had had extreme pain (in his left arm) since 2007.

Dr Jim Ellis

105. Dr Jim Ellis provided a report (to the appellant’s solicitors) dated 19 January 2006, having assessed the appellant the previous day. As indicated above, the primary judge rejected the opinion of Dr Jim Ellis on the ground that he had not been provided with the correct history of the appellant’s complaints of neck pain to his general practitioner in May 2001, and to Professor Zagami in early July 2001 (shortly prior to the 2001 accident). Nonetheless, the report of Dr Ellis of 19 January 2006 is relevant to the question of whether the appellant’s symptoms following the 2001 accident had resolved by January 2006, as Dr Ryan had concluded based on the report of Dr Ellis.

106. Dr Ellis noted the appellant’s present complaints in order of importance were:

1. pain in the neck, which he described was constantly present although varying in degree;

2. when his neck pain is bad he gets an occipital headache which passes a little more to the left side than the right;

3. the weakness in his right arm which has come on only since the 2001 accident and is slowly becoming worse;

4. a “numb deadness” in his right arm. Prior to 2001 he had tingling and a little numbness sometimes in the right middle and ring fingers. He now had no tingling in his fingers;

5. odd sensations which may occur up to two to three times daily. Prior to the 2001 accident he had cold sensations in his neck and chest and down his body to his legs and his knees, which lasted 15 to 30 seconds. He had not had these “cold metal” sensations since the 2001 accident; and

6. poor memory.

107. Dr Ellis could not find any evidence of radiculopathy upon examination. He described the appellant’s right shoulder as much limited in movement range and noted that there was some mild neck tenderness of the upper cervical region, mainly around the muscle region. Dr Ellis observed that the appellant’s right upper limb had multiple surgical scars from a previous reconstructive operation. Having noted that the appellant had told Dr Teychenne (in 2005) that he had osteoarthritis in his right shoulder, Dr Ellis considered that this would not explain the limitation of movement in his right shoulder which was almost certainly due to a rotator cuff lesion. Dr Ellis observed that the “C6-7 has had degenerative changes noted since 1991 and this joint certainly could have been aggravated and caused to be more symptomatic by the [2001] accident”.

108. In answer to specific questions posed to him by the appellant’s solicitors, Dr Ellis expressed the following opinions:

1.   He has had aggravation of the C6-7 intervertebral disc lesion as a result of the motor vehicle accident 25.07.01 but the majority of his pathology is due to injury sustained prior to that date.

He has right shoulder limitation of movement and pain on movement which is recorded as being present only since the accident 25.07.01.

…

3.   He is unfit for his work as a teacher, he is unfit for work requiring strenuous use of his right arm or strenuous use of his neck. His right arm disability is chiefly due to his right shoulder disability.

I cannot satisfy myself that there is an organic cause of the weakness that he demonstrates on testing of his right grasp.

4.   Prognosis: He is certainly fit for some clerical duties and has a wide experience in the subjects that he taught in TAFE, painting and decorating. I think it reasonable that at the end of his legal action, a good rehabilitationist could help him find some work which would be suitable for him.

Dr Michael Lim

109. Dr Michael Lim, occupational physician, gave three reports between September 2004 and February 2014. In his first report dated 7 September 2004, Dr Lim expressed the opinion that the appellant had sustained a minor soft tissue injury to his neck in the 2001 accident, which included an aggravation of pre-existing disorders. Dr Lim concluded that the appellant’s injury had resolved satisfactorily at the time of his assessment in September 2004 and that ongoing symptoms in the appellant’s neck and referred symptoms in his right arm reflected the earlier injury in 1991, plus superimposed degenerative changes that had developed since then.

110. In his report of 25 June 2010, Dr Lim referred to the further information which had been provided concerning the appellant’s progressive ischemic symptoms in his left arm including: in 2006, discomfort and cramping in his left arm below the elbow; in 2007 extreme pain in his left arm which went up into his neck and sternum and he thought he was having a heart attack and spent a day in hospital; and in 2008 his discovery of a complete occlusion of his left brachial artery about a length of 3.5 inches.

111. Dr Lim recorded the appellant’s description of his ongoing symptoms as being: neck pain; weakness in loss of sensation in his right arm; intermittently experiencing a weird sensation is in his neck, back, arms and legs, which he described as “like body going to shut down”. Dr Lim concluded that he had no reason to change his initial opinion.

112. In his third report dated 24 February 2014, Dr Lim recorded the appellant’s ongoing symptoms, including that both of his arms were weak, the right arm since 2001 and the left arm since 2007; that he experienced numbness in his right arm, the distribution varying within the arm and on the day of assessment; and the tips of all the fingers of his right hand were numb. Dr Lim noted that the appellant did not report out-of-body experiences, although the weird sensations were ongoing and still without explanation; and that he no longer reported bilateral shoulder pain and instead complained that movements of his right shoulder produced neck pain. Dr Lim observed that the appellant “demonstrated reduced active ROM in his right shoulder, consistent with his old injury (1990) and superimposed degenerative changes”.

113. Dr Lim observed that an MRI of the appellant’s right wrist showed extensive synovitis, collapse of the carpus and the presence of multiple cysts and that these features were consistent with advanced degenerative change secondary to old injuries in about 1980 and 2005. The appellant also reported ongoing symptoms attributable to the failure of the venous graft to his left brachial artery, and other problems with his hips.

114. Dr Lim’s diagnosis remained unchanged from his earlier reports. The appellant’s ongoing disabilities were attributable to: the effects of previous neck injury and neck fusion; previous injury to right shoulder and subsequent degenerative changes in the shoulder; previous injuries to right wrist and subsequent collapse of the carpus, with extensive degenerative change; previous laceration of the left brachial artery, venous graft and subsequent graft failure; bilateral hip pathology; and injuries to right foot and degenerative change, requiring surgical fusion.

Dr Mellick

115. Dr Ross Mellick, consultant neurologist, gave a report dated 4 August 2008, having first examined the appellant on 29 July 2008. He could not identify any evidence of a recent cervical injury arising as a result of the 2001 accident. His Honour referred to Dr Mellick’s report briefly, finding that it was based on a correct and adequate history.

116. Dr Mellick expressed the opinion that it was likely that the appellant’s “out of body experiences” represented dissociative phenomena, that is, an expression of a psychologically based disorder. He accepted that the psychologically based phenomena is likely to have been exacerbated to some extent by the 2001 accident, but concluded that it was not likely that any mood disorder that may have been present in a close temporal relationship to the 2001 accident was now causing any significant psychological disorder.

117. In his subsequent report of 28 March 2014, having examined the appellant again on 11 February 2014, Dr Mellick adhered to the conclusions in his earlier report. He noted that there was global weakness of both upper extremities and variable impairment of movement of the right shoulder. He concluded that the appellant was not fit for work, but this was not specifically related to injuries emanating from the 2001 accident.

Assessment of the Medical Evidence

118. The following conclusions can be drawn from the competing medical evidence.

119. First, the appellant re-injured his cervical spine in the 2001 accident. His reported symptoms of pain and difficulty in movement of his neck resulted from an aggravation of the pre-existing C6-C7 intervertebral disc lesion from the 1991 injury. However, by August 2001, the headaches previously experienced by the appellant on turning his neck to the side, had resolved. Further, whilst initially the episodes of an unusual sensation of “cold metal” passing from the neck through the body, down into the arms and into the legs occurred more frequently and lasted longer after the 2001 accident, by September 2001, these unpleasant turns were occurring less frequently. In April 2005, the appellant was not reporting any further similar episodes.

120. Secondly, the appellant also suffered some degree of impairment of his right shoulder following the 2001 accident, involving limitation in movement and pain on movement of his right shoulder. This resulted from a combination of aggravation of pre-existing shoulder injuries and degenerative changes in the appellant’s right shoulder, including, probably, a rotator cuff lesion.

121. Thirdly, the appellant had experienced recurrent tingling sensations in his second, third and fourth right-hand fingers from about 1997, which seem to have been related to his 1991 neck injury. After the 2001 accident, the weakness in the appellant’s right arm and tingling sensations in at least three fingers of his right hand was initially more frequent and severe. However, when reviewed by Professor Zagami in September 2001, the appellant was no longer reporting pain radiating into his right arm. The appellant had numbness in his right arm when examined by Dr Teychenne in April 2005 and by Dr Jim Ellis in January 2006, but no tingling in his fingers in his right hand in January 2006.

122. Fourthly, the clinical notes of the appellant’s general practitioner, which his Honour seems to have overlooked, record ongoing complaints and symptoms of neck pain in October and November 2003 and January, April, May, June, July and November 2004. Although the appellant’s transient right C6 and C7 symptoms had “settled down” by January 2006 that improvement did not exclude, as Dr Max Ellis explained, continuing symptoms varying day-to-day and month-to-month. However, the preponderance of medical opinion (Dr Ryan, Dr Mellick, Dr Lim and Dr Jim Ellis), which is unchallenged, supports the view that:

1. the aggravation of the appellant’s 1991 cervical injury had resolved by early 2006. Thereafter, the on-going symptoms in the appellant’s neck and referred pain in his right arm was caused by the earlier 1991 injury, together with superimposed degenerative changes that had developed since then; and

2. the weakness and numbness in the appellant’s right arm after the 2001 accident was chiefly due to his right shoulder disability which reflected degenerative changes in the appellant’s shoulder and probably aggravation of pre-existing shoulder injuries. The aggravation of the appellant’s right shoulder condition which was diagnosed as present in January 2006 had satisfactorily resolved by mid-2008, at the latest. Thereafter, the on-going symptoms in the appellant’s right arm reflected his pre-existing shoulder injuries, superimposed degenerative changes and most likely a rotator cuff lesion not attributable to the 2001 injury.

123. Fifthly, it may be accepted, as Dr Jim Ellis concluded, that the appellant was unfit for his work as a teacher, because he was unfit for work requiring strenuous use of his right arm or strenuous use of his neck and that his right arm disability was chiefly due to his right shoulder disability.

124. However by mid-2008 the appellant was unfit for work as a teacher, for reasons not attributable to the 2001 injury. That conclusion is based on the unchallenged opinion of Dr Ryan that the appellant was incapable of work as a teacher because of the condition of his left arm, in particular his left brachial artery, and the condition of his right wrist. That conclusion is also supported by the unchallenged opinions of Dr Lim and Dr Mellick.

125. Accordingly, his Honour’s finding that the appellant’s injuries from the 2001 accident had resolved by May 2004 should be set aside. That finding, which was based on the evidence of Dr Ryan, was inconsistent with the later opinion of Dr Ryan. That error was material. His Honour also erred in concluding that the continuing complaints that the appellant had in 2003/2004 and onwards were related to his underlying condition from 1991, and “are not in any way affected by the [2001] accident”. That finding ignored the evidence that the aggravation of the appellant’s 1991 neck injury and pre-existing right shoulder injury continued to at least January 2006, and that the aggravation of the right shoulder injury had not satisfactorily resolved until about mid-2008. The finding which should be made is that the continuing complaints that the appellant had in relation to his neck and his right shoulder and arm after mid-2008 were not attributable to the 2001 injury.

126. There should be a finding that the appellant experienced a diminished earning capacity after 2004 up until mid-2008, which was attributable to the 2001 injury. However, by no later than mid-2008, the appellant’s diminished earning capacity was no longer attributable to the 2001 injury. In my view, the appellant has made out grounds 2, 5 and 7.

Issue 3: Superannuation policy benefits

127. At trial, counsel for the respondents expressly stated that no submission was made that superannuation policy benefits received by the appellant should be deducted from any award of damages for loss of earning capacity. However, two days after closing submissions, the appellant was granted leave to re-open his case to tender a document from the State Super SAS Trustee Corporation. On that occasion, the parties’ respective solicitors appeared. Brief submissions were made concerning whether a superannuation payment to the appellant precluded a claim for loss of earning capacity. The appellant’s solicitor, when referring to the significance of the superannuation payment, acknowledged that this did not preclude his Honour finding that there had been no economic loss because the appellant had chosen to exit the workforce. His Honour proceeded to address the question of deductibility of superannuation benefits from damages contingently against the possibility that he was wrong in rejecting the appellant’s claim for damages.

128. Appeal ground 4 contended that his Honour conflated loss of economic capacity with loss of income. The argument is that accepting there was a continuing diminished work capacity (after December 2004), his Honour erred in finding that there was no loss because the superannuation payments were received by the appellant in reduction of any loss due to that diminished capacity. In my view, the premise of this ground is incorrect, because his Honour’s reasons do not go so far.

129. The evidence concerning the receipt of superannuation policy benefits was limited to the advice dated 14 February 2005 from the appellant’s employer, NSW TAFE Commission, to the trustee of the appellant’s superannuation fund. The relevant superannuation policy itself was not in evidence. The appellant acknowledged in cross-examination that he was in receipt of superannuation policy benefits.

130. In general, when an injured person become entitled to a payment of a pension or superannuation benefits from the employer or private or statutory fund, payments are ignored when assessing damages for loss of earning capacity: H Luntz, Assessment of damages for personal injury and death (4th edition, 2002, Lexis Nexis Butterworths) at [8.4.1].

131. In Graham v Baker [1961] 106 CLR 340 at 343, Dixon CJ, Kitto and Taylor JJ said that no such account should be taken when assessing damages for personal injuries of pension payments which accrued and were paid to the injured plaintiff between the date of compulsory retirement due to his injuries and the date on which he would have retired in the ordinary course of events. In the language of Dixon CJ in National Insurance Co. of New Zealand Ltd v Espangne [1961] HCA 15; 105 CLR 569 at 573, pension rights under social security legislation should not be taken into account in reduction of damages, because such advantages accrue to the injured plaintiff:

… have this distinguishing characteristic, namely they are conferred on him not only independently of the existence in him of a right of redress against others but so that they may be enjoyed by him although he may enforce that right: they are the product of a disposition in his favour intended for his enjoyment and not provided in relief of any liability in others fully to compensate him.

132. I do not read his Honour’s reasons as making a clear finding that the superannuation policy benefits received by the appellant should be taken into account in reduction of any damages. Unsurprisingly, the respondents did not advance any written or oral submissions in this Court to the contrary.

133. The appellant’s submission should be accepted. Payment of superannuation benefits to the appellant should be ignored when assessing any damages for loss of earning capacity.

Issue 4: Re-assessment of damages

134. In his notice of appeal, the relief sought by the appellant was that this Court assess damages, or alternatively, remit the matter to the District Court for the reassessment of damages. In oral argument, counsel for the appellant submitted that the credit issues relating to the appellant did not preclude this Court assessing damages itself because the appellant did not contest his Honour’s credit findings. The appellant contended that, notwithstanding those credit findings, but for the 2001 injury, he would have had the work capacity to undertake the same sort of teaching in Queensland, as he did at the Illawarra TAFE Institute.

135. The respondents urged the Court to assess damages rather than remit the matter for a retrial on damages. It was contended that the award of a nominal lump sum by way of a buffer for economic loss would be appropriate. In this regard, the respondents invited the Court to review the investigative film of the appellant’s activities at his Queensland home in December 2005 and November 2006.

136. In view of the appellant’s concession that he does not challenge the adverse credit findings, the Court should assess damages rather than remit the matter for a third hearing on damages. This Court is in as good a position as the primary judge to make the necessary findings on the evidence given at trial. In this regard, I have reviewed and taken into account the investigative film, which shows the appellant performing the tasks broadly described in the supplementary report of Dr Max Ellis dated 24 November 2008, (set out at [75] above).

Nature of onus of proof

137. One preliminary matter should be mentioned concerning the appellant’s onus to prove the extent of his economic loss. The respondents submitted that s 5E of the Civil Liability Act rendered the principle in Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 and Purkess v Crittenden [1965] HCA 34; 114 CLR 164, no longer good law with respect to cases governed by the Civil Liability Act. Section 5E provides that in proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.

138. The respondents submitted that 5E, when speaking of onus of proof covered not only the legal onus of proof but also the evidentiary onus. Accordingly, the respondents submitted that the principle in Watts v Rake and Purkess v Crittenden has no application because that principle imposed an evidentiary onus on the respondents to disentangle other causes of the appellant’s injury.

139. In Varga v Galea [2011] NSWCA 76, a case to which the Civil Liability Act applied, McColl JA, having noted that the terms of s5E provided that the plaintiff always bore the onus of proving, on the balance of probabilities, any fact relevant to causation, said:

[51] A defendant who alleges that a plaintiff suffered from a pre-existing condition which may have had an adverse impact on his or her future whether or not the immediate injury in question had occurred, bears an evidential burden to show that the plaintiff’s condition would have deteriorated in any event regardless of the accident: Watts v Rake and Purkess v Crittenden. [citations omitted]

140. In Glen v Sullivan [2015] NSWCA 191, another case to which the Civil Liability Act applied, Sackville AJA (Beazley P and Ward JA agreeing), after referring to the principle in Watts v Rake and Purkess v Crittenden, summarised the position as follows:

[47] … Where the plaintiff establishes a prima facie case that the incapacity has resulted from the injuries sustained in the accident, the defendant has the burden of adducing evidence to show that the incapacity would have come about independently of the accident, for example by reason of a pre-existing degenerative condition: … However, the burden of proving on the balance of probabilities that the incapacity was caused by the accident always rests on the plaintiff: …”

141. In Woolworths v Strong [2010] NSWCA 282 Campbell JA (Handley AJA and Harrison J agreeing) said (at [59]), that he did “not find the statutory background to section 5E useful in interpreting it. Its words are quite clear, and do not change the pre-existing law”.

142. The respondents referred to Zanner v Zanner [2010] NSWCA 343; 79 NSWLR 702 at [7], where Allsop P observed that one explicit change to the common law, or at least a strand of approach of the common law, introduced by the Civil Liability Act was section 5E, concerning the filling of evidentiary gaps by shifting the onus of proof in causation.

143. In my view, the reference to the filling of ‘evidentiary gaps’ in Zanner v Zanner does not assist the respondents. Reference to the “Ipp Report” (Commonwealth of Australia, Treasury, Review of the Law of Negligence: Final Report, (September 2002) at [7.27] – [7.36]) makes clear that the problem of what had been called ‘evidentiary gaps’ was not concerned with the principle in Watts v Rake.

144. One difficulty with the respondents’ argument is that it conflates the legal burden of proof which falls on the plaintiff, on the balance of probabilities, as s 5E makes clear, with the evidential burden which is considered at different points in time during the trial as evidence is adduced, and is different to the legal burden (which always remains on the plaintiff).

145. It is unnecessary, however, to determine this issue in the present case. Here, the medical evidence demonstrates that the work incapacity suffered by the appellant from mid-2008 would have come about independently of the 2001 accident by reason of the earlier 1991 neck injury, the pre-existing degenerative condition in the appellant’s neck and right shoulder, the complete occlusion in the appellant’s left brachial artery diagnosed in early 2008 and the pre-existing injury in the appellant’s right wrist, which was reinjured in 2005.

Past economic loss

146. As already noted, the claim for past economic loss of $1,681 up to May 2004 should be allowed, since it was agreed at trial. The claim of $8,567 for the period May to December 2004 should be rejected because of a lack of evidence of the workers compensation payments received by the appellant in this amount for this period. That leaves the assessment of the claim for past economic loss in the closed period 1 January 2005 to 30 June 2008.

147. The appellant claimed that he was totally incapacitated from work as a teacher after December 2004. The relevant question, however, is the appellant’s post-accident work capacity. It does not follow from the appellant’s diminished work capacity caused by the 2001 accident, that he did not have any residual earning capacity after December 2004.

148. The appellant conceded at trial and in this Court, that he had a residual earning capacity of approximately 25 per cent from December 2014, with respect to his claim for future economic loss. There is no reason why his claim for past economic loss should be treated any differently. That conclusion is reinforced by several matters. One is the evidence of the manual and physical activities able to be performed by the appellant at his home in Lower Beechmont, as shown on the investigative film recorded in December 2005 and November 2006. This included using a large chisel to shave varnish off timber posts on a verandah, and turning his head from time to time. The appellant acknowledged that he had no difficulty doing manual work at the time of the investigation film, including using his hands above his head. The other matter is the primary judge’s finding that the appellant did not show any discomfort, as would have been expected consistently with the appellant’s complaints of ongoing pain and symptoms in his neck, when he was head-butted in the incident with a neighbour in 2006.

149. No issue was raised in the present case by the respondents that the appellant had failed to mitigate his loss: s 136 MACA Act.

150. There was no evidence of comparable earnings or the availability of similar work as a trade teacher on the Gold Coast in Queensland in the period 2005-2008. The appellant relied upon the Court drawing an inference that similar work would have been available in Queensland at similar rates of pay to his position at the Illawarra TAFE Institute.

151. Notwithstanding the paucity of evidence for this submission, I reject the respondents’ submission that it would be more appropriate to award a “buffer” in respect of past economic loss. The mathematics of the appellant’s claim for past economic loss (over the longer period of 2005 to 2014) had been agreed at trial and the respondents did not seek to resile from that agreement.

152. The assessment of the appellant’s diminished earning capacity should be approached upon the basis of the comparable earnings agreed at trial as at the time the appellant’s employment was terminated in December 2004 ($1,052 per week net) with a modest adjustment for CPI increases to obtain an average weekly earnings figure over the closed period from 1 January 2005 to 30 June 2008. I would assume earnings of $1,100 per week net as the appellant’s average net weekly earnings over that period and deduct $275 per week as the appellant’s residual earning capacity, giving an amount of $825 per week net. There should be a 15 per cent deduction for vicissitudes on account of the appellant’s prior injuries, the complete occlusion in his left brachial artery in 2007/2008 and the 2005 surgery on his re-injured right wrist. I would assess the award for past economic loss for this period as $127,627.50 ($825 x 182 x 0.85).

153. Damages for lost superannuation entitlements are to be calculated pursuant to s 15C of the Civil Liability Act. For ease of calculation, and because damages are assessed by reference to earnings net of tax, the conventional approach is that this calculation is undertaken on the basis of 11 per cent of net earnings: Najdovski v Crnojlovic [2008] NSWCA 175; 72 NSWLR 728. The calculation of lost superannuation entitlements is $14,039 ($127,627 x 11%).

Future economic loss

154. The appellant claimed $259,000 for future loss of economic capacity from the date of judgment to the appellant reaching age 67 (a period of 8 years) based on his inability to continue to work as a TAFE teacher. This claim was based on net earnings of $1,345 per week as at December 2014, reduced to $1,000 per week after allowing a residual earning capacity of $345 per week. The appellant also accepted that a 25% deduction for vicissitudes was appropriate on account of the appellant’s prior injuries.

155. The exercise to be undertaken with respect to future economic loss is prescribed by section 126 of the MACA which provides:

126 Future economic loss—claimant’s prospects and adjustments

(1)   A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant’s most likely future circumstances but for the injury.

(2)   When a court determines the amount of any such award of damages it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events concerned might have occurred but for the injury.

(3)   If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.

156. In light of the above conclusion that there is no diminished earning capacity attributable to the 2001 injury beyond mid-2008, the claim for future economic loss should be rejected. The appellant’s most likely future circumstances after December 2014, but for the injury caused by the 2001 accident, is that he would have been unable to continue to work as a teacher. The appellant acknowledged so much in his evidence when he accepted that he had a “constellation” of other problems not related to the 2001 accident, which, if they all occurred together, would have caused him difficulties in working as a TAFE teacher. Any diminution in the appellant’s earning capacity after December 2014 was attributable to a combination of his injuries prior to the 2001 accident, superimposed degenerative changes that had developed since then, the re-injury of his right wrist in 2005, the pain experienced in his left arm in 2007 and 2008, the problems with his right foot, and the need for hip surgery in 2011.

Domestic assistance

157. As Basten JA explained in White v Benjamin [2015] NSWCA 75 at [60], “[t]here is often a correlation between loss of earning capacity and the need for domestic assistance in circumstances where earning capacity depends upon the ability to undertake strenuous physical tasks.” In this case, the appellant’s inability to undertake his teaching duties (demonstrating painting and decorating) is at least indicative of a loss of capacity reflecting the need for domestic assistance.

158. The appellant claimed past domestic assistance of $116,610 from 1 October 2002 to 30 June 2012 on the basis of assistance of 10 hours per week at $23.00 per hour. A claim for future domestic assistance of $141,440 was made for 8 hours per week for life at the same hourly rate (based on a life expectancy at the date of trial of 26 years).

159. The appellant’s case was that the Ms Freilich provided 2 hours of domestic assistance per day in Sydney (at Eschol Park) from October 2002 to December 2004, which increased in Queensland from January 2005 to 3 to 4 hours per day, although it was accepted that Ms Freilich struggled to attribute a precise time to the appellant’s needs. It was submitted that the evidence more than justified the 10 hours per week claimed for past domestic assistance.

160. With respect to the claim for future domestic assistance, the claim of 8 hours per week for food preparation and delivery and cleaning was said to be justified by the evidence that the appellant had received 1.5 hours of assistance for cleaning fortnightly from volunteer organisations, relevantly Church of Christ, and an allowance of 7 hours per week was claimed as reflecting the reality of meal preparation in respect of Meals on Wheels (who provided the appellant with meals once per week).

161. Claims for voluntary domestic assistance are governed by s 141B of the MACA which provides:

141B Maximum amount of damages for provision of certain attendant care services

(1)   Compensation, included in an award of damages, for the value of attendant care services:

(a)   which have been or are to be provided by another person to the person in whose favour the award is made, and

(b)   for which the person in whose favour the award is made has not paid and is not liable to pay,

must not exceed the amount determined in accordance with this section.

(2)   No compensation is to be awarded if the services would have been provided to the person even if the person had not been injured by the motor accident.

(3)   Further, no compensation is to be awarded unless the services are provided (or to be provided):

(a) for at least 6 hours per week, and

(b) for a period of at least 6 consecutive months.

(4)   If the services provided or to be provided are not less than 40 hours per week, the amount of compensation must not exceed:

(a)   the amount per week comprising the amount estimated by the Australian Statistician as the average weekly total earnings of all employees in New South Wales for:

(i)   in respect of the whole or any part of a quarter occurring between the date of the injury in relation to which the award is made and the date of the award, being a quarter for which such an amount has been estimated by the Australian Statistician and is, at the date of the award, available to the court making the award—that quarter, or

(ii)   in respect of the whole or any part of any other quarter—the most recent quarter occurring before the date of the award for which such an amount has been estimated by the Australian Statistician and is, at that date, available to the court making the award, or

(b)   if the Australian Statistician fails or ceases to estimate the amount referred to in paragraph (a), the prescribed amount or the amount determined in such manner or by reference to such matters, or both, as may be prescribed.

(5)   If the services provided or to be provided are less than 40 hours per week, the amount of compensation must not exceed the amount calculated at an hourly rate of one-fortieth of the amount determined in accordance with subsection (4) (a) or (b), as the case requires.

(6)   Unless evidence is adduced to the contrary, the court is to assume that the value of the services is the maximum amount determined under subsection (4) or (5), as the case requires.

(7)   Except as provided by this section, nothing in this section affects any other law relating to the value of attendant care services.

162. The respondents disputed whether, for a gratuitous care award, the temporal threshold relating to intensity (6 hours per week) and duration (at least 6 consecutive months) had been met: s 141B(3). With respect to the intensity and duration requirements, the appellant relied upon his evidence and the evidence of Ms Freilich given at the first damages hearing.

163. The essential issue is whether the housework performed by Ms Freilich was, in substance, the usual sharing of household duties between persons living under the one roof. In White v Benjamin (at [62]), Basten JA referred, with approval, to the statement by Kirby J in a case determined under the common law in the ACT, Hodges v Frost (1984) 53 ALR 373 (Full Court of the Federal Court: Gallop, Morling and Kirby JJ) [1984] FCA 98 at 380, that the services must “go beyond the mere rearrangement of domestic chores or the tender attention to comfort that can be expected in an affectionate environment” and “must be such that, but for the gratuitous and benevolent activities, it would have been necessary to secure assistance at a cost”.

164. No issue of principle arises in relation to the claim for domestic assistance. The dispute depends upon an assessment of the facts.

Determination

165. Contrary to the appellant’s damages schedule and submissions, Ms Freilich did not provide 2 hours domestic assistance per day from October 2002 to December 2003. She did not move to Sydney to live with the appellant at Eschol Park until 2004. Prior to that time, Ms Freilich visited the appellant “2, 3, 4 times per year”, when she visited her son in Sydney. On those occasional visits, she did some cleaning up at the appellant’s home. The threshold requirements were not satisfied during the period of October 2002 to December 2003: s 141B(3).

166. The evidence in relation to 2004 is as follows:

1. the appellant and Ms Freilich lived together for about 3 months at the appellant’s home at Eschol Park and then Ms Freilich moved to Casula;

2. the appellant said that Ms Freilich was doing the majority of the housework and he was helping. He estimated that the split between them of housework was probably 70:30 and sometimes 60:40;

3. Ms Freilich estimated that when she lived with the appellant in Sydney in 2004, she did 80 per cent of the housework and the appellant did about 20 per cent. She explained that the appellant was working and he was doing the outside chores in the garden on the weekend, which included mowing, gardening and sweeping;

4. after Ms Freilich moved from the appellant’s house at Eschol Park to Casula in 2004, she visited the appellant “most days”. She estimated that she spent 2 hours per day cleaning, cooking and washing during 2004.

167. Ms Freilich was not challenged on her evidence concerning the domestic assistance she provided to the appellant during 2004. Although the assistance provided during the 3 months she lived with the appellant at Eschol Park might fairly be described as “domestic convenience”, as the respondents contended, the position in relation to the remainder of 2004 is different. Ms Freilich continued to provide domestic assistance in cleaning, cooking and washing for 2 hours per day, notwithstanding that she was no longer living at the appellant’s house and had to travel there to provide it. In the circumstances, there should be a finding that the threshold requirements of s 141B(3) of the MACA are satisfied. I would allow 10 hours per week for domestic assistance for 9 months during 2004.

168. The evidence in relation to the period 2005 to 2007 is as follows:

1. when the appellant moved to Queensland at the end of 2004 he first lived in his unit at Nerang, and Ms Freilich visited him regularly, almost every day. The appellant did not give any evidence of any domestic assistance provided by Ms Freilich when he lived at Nerang. Ms Freilich said that the appellant painted the inside of his unit and tried to tidy up the outside;

2. after the appellant and Ms Freilich purchased a home at Lower Beechmont in 2005, Ms Freilich initially estimated that she spent 3 to 4 hours per day on housework, which she later qualified as 2 to 3 hours per day, five days per week for housework, cooking and washing. The appellant and Ms Freilich lived together for about 24 months;

3. when the appellant and Ms Freilich separated in 2007 for 8 or 9 months no one came to do the housework at his new house at Molendinar in Queensland. After this period of separation, Ms Freilich provided domestic assistance to the appellant at Molendinar but conceded that she did not do work at “that house” on the weekends. She said that she cleaned the wooden floor in the bedroom once per week (for no more than half-an-hour), that she vacuumed and cleaned the carpet and rugs once per week for about one hour, that she assisted with clothes washing, but did not provide any estimate of time, that 2 or 3 times per month she assisted with bathroom cleaning (no more than one hour), and she did “brooming” in the laundry once per day (she did not disagree that that took more than 5 minutes) and that she washed the appellant’s dog once per week (involving one hour or so). Ms Freilich also gave evidence that, whilst the appellant did his own shopping when he could drive, there were other occasions when she would drive him.

169. For the years 2005 to mid-2008, the claim for domestic assistance must necessarily be limited to the period of the 2 years during which the appellant and Ms Freilich resided together at Lower Beechmont and the further period of about 9 months, from late-2007 (after the 8 or 9 months separation in 2007) to mid-2008, when the appellant lived alone at Molendinar. I would allow 10 hours per week of domestic assistance for the 2 years at Lower Beechmont and 4 hours per week for the 9 months at Molendinar.

170. I would not allow any claim for domestic assistance after mid-2008. Any domestic assistance provided to the appellant after that time by either Ms Freilich or volunteer organisations related to services that would have been required by the appellant even if he had not been injured by the 2001 accident: s 141(2) MACA.

171. There was no dispute in relation to the ($23 per hour) rate claimed for gratuitous domestic assistance. I assess the claim for domestic assistance in the amount of $36,478 comprising: the 9-month period in Sydney in 2004 ($8,970 being 39 x 10 x $23), 24 months at Lower Beechmont covering 2005 to 2007 ($23,920 being 104 x 10 x $23) and 9 months at Molendinar covering late 2007 to mid-2008 ($3,588 being 39 x 4 x $23).

Out-of-pocket expenses

172. The appellant’s schedule of damages in this Court did not include any claim in respect of out-of-pocket expenses. It seems, however, that the parties agreed on a figure for out-of-pocket expenses at trial, as well as a figure for Fox v Wood damages. Insofar as there is agreement on those matters in respect of the period up to 30 June 2008, this should be included in the Short Minutes of Order which the parties will be directed to bring in reflecting these reasons.

Payment of interest

173. A plaintiff only has a right to interest on damages payable in relation to a motor accident as conferred by s 137 of the MACA. The section excludes any entitlement to interest on those components of an award calculated under s 141B (dealing with attendant care services) and any amount for non-economic loss: s 137(2), (3).

174. Interest is not payable on other heads of damages in relation to a motor accident unless the requirements of s 137(4) are satisfied (dealing with the provision of information that would enable a proper assessment of the plaintiff’s claim and the absence or reasonableness of a defendant’s settlement offer). The appellant’s submissions did not address the question of interest on damages or the application of s 137(4). This issue should be revisited and, in the event that the appellant presses a claim for interest on damages, directions given for the exchange of written submissions and any supporting materials, and for such issue to be dealt with on the papers.

Conclusion and orders

175. The appeal has succeeded and I would reassess damages as indicated above. The judgment in favour of the appellant should take effect on 5 December 2014, being the date of the judgment below.

176. As the parties requested to be heard on the question of costs, this issue should be reserved and directions given for the exchange of written submissions and that the issue of costs be dealt with on the papers.

177. I would propose the following orders:

1. appeal allowed;

2. set aside the orders of the primary judge made on 5 December 2014 and Order 1 made on 25 February 2015;

3. direct the parties to bring in Short Minutes of Order within 28 days of the date of these reasons in respect of the amount of the judgment to be entered in favour of the appellant consistently with these reasons, including any necessary orders under s 151Z of the Workers Compensation Act 1987 (NSW);

4. reserve the question of interest on damages under s 137 of the Motor Accidents Compensation Act 1999 (NSW);

5. in the event that the appellant claims interest on damages:

1. the appellant file and serve within 14 days brief written submissions not exceeding 3 pages, together with any affidavit in support;

2. the respondents file and serve within a further 14 days brief written submissions in response not exceeding 3 pages, together with any affidavit in support;

3. direct that the issue of interest on damages be dealt with on the papers;

6. reserve the question of costs in this Court and in the District Court;

7. in default of agreement on costs:

1. the appellant file and serve within 14 days of these reasons proposed short minutes of order, together with brief written submissions in support not exceeding 3 pages;

2. the respondents file and serve within a further 14 days their proposed short minutes of order, together with brief written submissions in support not exceeding 3 pages;

3. the appellant file and serve within a further 7 days any brief written submissions in reply not exceeding 2 pages;

4. direct that the issue of costs be dealt with on the papers.

178. TOBIAS AJA: I agree with the orders proposed by Gleeson JA for the reasons he has expressed.

Amendments

04 July 2016 - Amending citation number

Decision last updated: 20 July 2016