Noronha v Bennett - [2001] WADC 69

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: NORONHA -v- BENNETT [2001] WADC 69

CORAM: CHARTERS DCJ

HEARD: 19-23 FEBRUARY 2001

DELIVERED : 28 MARCH 2001

FILE NO/S: CIV 688 of 1999

BETWEEN: SYDNEY JULIUS NORONHA
Plaintiff
AND
MARJORIE MARY BENNETT
Defendant

Catchwords:

Damages - Assessment - Turns on its own facts

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943

Result:

Damages awarded of $220,321

Representation:

Counsel:

Plaintiff: Mr I L K Marshall
Defendant: Mr J P T Olivier

Solicitors:

Plaintiff: S G Nigam & Co
Defendant: Talbot & Olivier

Case(s) referred to in judgment(s):

Morris v Zanki (1997) 18 WAR 260

Case(s) also cited:

Jongen v CSR Ltd & Anor (1992) A Tort Rep 81-192

CHARTERS DCJ: The plaintiff is a 43 year old former factory hand who claims damages following a motor vehicle accident on 17 July 1997. He was then driving his motor vehicle along Erindale Road, Greenwood, crossing an intersection when the defendant, disobeying a red traffic light against her, collided into the plaintiff's vehicle.
The defendant admits she was negligent and puts the plaintiff to proof of his damage and loss.

The claim

By reason of the accident the plaintiff claims he suffered whiplash injury to the neck, fracture of the right collar bone, soft tissue injuries to both shoulders, soft tissue injury to the lower back, and nervous shock.
His treatment has included having his right arm placed in a sling at the Joondalup Health Campus, Cortisone steroid injections, physiotherapy, hydrotherapy, use of a TENS machine, laser and ultrasound treatment and medication. The residual disabilities are said to be pain in the right collar bone which increases with physical activity, pain in the right side of the upper back which increases with physical activity, restricted movement of the right arm, intermittent pins and needles in both arms particularly in the right arm, pain in the lower back which increases with physical activity, inability to work for any length of time with arms above shoulder height or in a fully flexed position, disturbed sleep pattern, inability to sleep on the right side, inability to stand or work for more than 40 to 45 minutes without resting, inability to lift and carry objects weighing more than 4 to 5kg for extended periods, reduced ability to bend down, reduced ability to drive for long periods, loss of libido, predisposition to arthritis and psychological distress.
He claims now to be unable to engage in sporting activities such as social cricket and he is reduced in his ability to dance and take part in social outings.
Economic loss is claimed on the basis that at the time of the accident the plaintiff was an electrician by trade and was employed by Harvestaire Pty Ltd as a processor or factory hand, looking actively for employment as an electrician. He was in receipt of an income estimated at $400 net per week as a processor but as a result of his injuries and residual disabilities he was unable to work from 17 July 1997 to 15 September 1997. He then returned to work. He has been unable to work in his pre‑accident duties as a processor. He is unable to commence employment as an electrician.
Gratuitous services are claimed for the balance of his life for an estimated two hours per week at the rate of $15 per hour for heavy household work, cleaning, gardening and general maintenance on his house.

Facts found

The plaintiff was born in India on 9 January 1958 and married his wife on 28 December 1986. They have one child born on 23 October 1990.
The plaintiff completed high school in 1975 and in 1976 completed first year arts from MD College Bombay, India. Between August 1977 and July 1979 he completed a two year course in electrical trade from Joseph Cardijn Technical School Bombay and was awarded a National Trade Certificate and Licence of Wireman.
Between October 1979 and September 1980 the plaintiff was employed at Joseph Cardijn Technical School as a junior instructor in electrical trade.
Between September 1980 and September 1981 he completed a one year apprenticeship in electrical trade at Hindustan Petroleum and was awarded the National Apprenticeship Certificate and also the Licence for Electrical Supervisors.
Between October 1981 and December 1981 he was employed on a temporary basis with Indian Naval Dockyard as an electrical fitter.
From March 1982 to December 1985 he was employed by Otis Elevators as an electrical fitter and later became Examiner Highly Skilled "A": his duties there involved the building and wiring of lifts.
On 4 January 1996 the plaintiff migrated to Perth, Western Australia, with his family.
Here his trade qualifications were not accepted and he was required to return to a refresher course before applying for work in the electrical trade.
On 5 May 1996 he commenced employment with Harvestaire Pty Ltd as a processor and graduated to machinist second class, although he was not qualified as a machinist.
In July 1996 the plaintiff obtained his electrical worker's licence from the Electrical Licensing Board Perth after completing a refresher course at TAFE. He unsuccessfully applied for work as an electrician.
In the course of the accident on 17 July 1997 the plaintiff's vehicle was spun in 360 degrees.
Following the accident the plaintiff was taken by ambulance to Joondalup Hospital where x‑rays were taken and he was discharged the same day. It was recommended that he wear a sling for his right arm for two months and he was given Panadeine Forte.
He was certified by his general practitioner, Dr Richard Leavy, to be unfit for normal duties for eight weeks and returned to light duties full‑time on 15 September 1997. He returned to normal duties after three months and worked to January 1999.
Notwithstanding the plaintiff's evidence that he rarely worked overtime after the motor vehicle accident, I find he worked on average about 10 hours overtime per week from September 1997 to December 1997. The total overtime worked in the year 17 July 1996 to 17 July 1997 was 112.75 hours. In the year 17 July 1997 to 17 July 1998 he worked 179.3 hours. During the period 20 January 1998 to 22 November 2000 he lost 737.9 hours resulting in lost wages of $8,341.96. He claims that those lost hours resulted from inability to work as a consequence of his accident caused injuries.
Notwithstanding the evidence of Mr Stewart, a work colleague, I find the plaintiff needed no particular help with his work. Mr Zani and Mr Roberts saw nothing which suggested an inability to work normally. The work was not heavy or beyond the plaintiff's physical capacity.
In about March 2000 Dr Tan certified the plaintiff fit for six hours work per day and on 20 October 2000 Harvestaire Pty Ltd terminated the work of four other employees. On 24 November 2000 Harvestaire Pty Ltd terminated his employment - he was made redundant. This termination of employment was not accident or disability related.
I am not persuaded that the reduction by Dr Tan in hours to be worked was warranted - Dr Tan was dependent upon the symptoms related by the plaintiff and I shall comment later upon his reliability in that respect.
Since 8 February 2001 the plaintiff commenced a computer designing course at Leederville TAFE. He is currently not working.
I turn now to the injury.
The plaintiff suffered a fracture of the right clavicle, which is a common fracture in men and this continued to be painful for some months. By February 1998 the fracture had united satisfactorily although there was some deformity along the superior aspect in keeping with incomplete moulding. The acromioclavicular joint was normal. He also suffered a soft tissue injury to the neck.
Following the accident the plaintiff undertook physiotherapy treatment which gave him some relief. He commenced stretching exercises and used a TENS machine twice each week. In March 1998 the plaintiff changed his general practitioner to Dr Tan, and undertook hydrotherapy treatment for two to three weeks until September 1998. He received steroid injections from Dr John Hayes, a rheumatologist, from March 1998. Dr Salmon, a rheumatologist, saw the plaintiff from March 1998 to June 1999 and performed C5 and C6 sleeve injections and C4-5 facet joint injection.
On 28 March 2000 the plaintiff consulted Dr S Chowdhury who commenced a monoprogramme of myofascial trigger point therapy and mobilisation into the cervical and thoracolumbar spine.
The radiological evidence which included EMG studies, CT scan of the cervical spine and MRI scan showed no disc lesions or neurological deficit. There was a right sided bulge at the C5-6 level and x‑rays showed a kyphus at C3-4 as well as a united fracture of the clavicle. The fracture had been to the mid shaft of the clavicle with overlap of the fragments together with a small intermediate fragment lying obliquely.
A number of hypotheses have been put for the continuation of pain. None of the medical witnesses has suggested that the plaintiff has falsely exaggerated or described his symptoms. I relate, briefly the medical evidence to record the various specialists' views and to illustrate the disparity of their opinions.
After the accident the plaintiff complained of pain in both shoulders and neck. I am satisfied he was totally incapacitated for work for eight weeks. He was referred by Dr Leavy for physiotherapy and continued to have quite deep seated mid‑clavicle pain and difficulty in extending his right arm above his shoulder. Work might have had some bearing upon his ongoing pain.
Dr John Hayes, a consultant rheumatologist, treated the plaintiff from March to September 1998 and reviewed him again on 22 March 2000. He noted that the plaintiff had injury to both the acromioclavicular and sternoclavicular joints - at either end of the clavicle - and diagnosed the plaintiff's condition as sensitisation of the upper trunk of the right brachial plexus. The upper trunk includes the nerves C5 and C6 which join together to form the upper trunk. This condition may result from direct injury related to the fractured clavicle or from cervical strain injury by itself - presumably a whiplash type injury.
A person suffering cervical strain injury with neural sensitisation may have a prolonged recovery over many years.
"Neural sensitisation" means that the nerves become painful to touch or movement - it is "called a neuropathic‑type pain because within these people the conduction of the nerve is usually intact. Nerve conduction studies are normal". It is neurological pain without neurological deficit. Deficit means motor weakness or sensory deficit - a muscle weakness or absence of sensation of feeling. Sensation to light touch or pinprick reveals no deficit and motor or muscle weakness.
Dr Hayes noted that sleeve injections by Dr Salmon to C5 and C6 failed to provide relief - but the rate of success of such injections is fairly low.
The plaintiff's condition improved from March to September 1998 in the sense that latterly he was no longer tender over the right acromioclavicular joint or right sternoclavicular joint. The plaintiff was and is able to abduct his right shoulder joint to 160 degrees.
The structures in the right shoulder joint were and are otherwise normal - there is a 20 degree limitation of movement, or near‑normal range. The left arm is normal.
The plaintiff should not perform work which involves elevating his arms to work on ceilings and therefore he should not work as an electrician. He could work full‑time as a machine operator.
The plaintiff's disability is 15 per cent permanent disability in the cervical spine and 10 per cent disability in the right shoulder. His main problem is neural sensitisation secondary to the cervical strain injury.
Dr Salmon, an anaesthetist and specialist in pain management, recorded that radiological evidence showed a healed fracture of the right clavicle and bone scan, cervical x‑rays and EMG studies were unremarkable. There was no evidence of neurological dysfunction in the region.
Nevertheless Dr Salmon concluded from his examination, notably a brachial plexus tension or stretch test and bluntness of pinprick sensation, that there was some right C5 neural sensitisation - the symptoms did not emanate from the fractured clavicle. Dr Salmon last saw the plaintiff on 24 June 1999 when he said the plaintiff still had some significant pain symptoms in the right neck and shoulder region. These problems gradually recede over time and more quickly with the right treatment: one should identify an appropriate level of activity to be maintained each day with small rest breaks; with under‑activity such people as the plaintiff become worse. I understand Dr Salmon to say that once these proceedings are concluded the plaintiff is likely to improve over time and to return at least to light type work. The psychological problem he is experiencing in this "unhealthy environment" is the overwhelming and important problem.
Mr Narula, a neurosurgeon who saw the plaintiff on three occasions, May 1999 and March and May 2000, said the abnormal kyphosis resulted from the injury. This is a reverse of curvature of the spine at C3-4 and is caused by muscle spasm.
The fracture of the clavicle in turn caused the muscle spasm. The spasm and crepitus were seen and felt by Mr Narula and in that sense were objective signs. The fractured clavicle is not the main problem - presumably because it has healed - and the bony abnormality, seen as a lump is not a matter of concern.
The shoulder in this area is served by the C5 nerve and the experience of relief upon injection of the C5 nerve root suggests that as the basis for the view of damage to a neural structure, notwithstanding the absence of a neural deficit shown upon radiological examination. The plaintiff "does not have a direct nerve injury as such, but he has injury to the segments which are subserved by the nerves…".
Mr Narula found the plaintiff had a reduced range of cervical movements - which are related or correspond to tenderness on palpation.
The history Mr Narula obtained was that the plaintiff had become worse. He is now restricted in carrying weights and working with his hands overhead all the time and digging all the time.
Dr Gino Mastaglia, a rheumatologist, conducted infra‑red thermographic studies upon the plaintiff. These showed signs of a soft tissue myofascial syndrome.
Dr Ross Goodheart, a consultant neurologist, conducted neurophysiological studies on the plaintiff in December 1998 and reviewed him again in July 2000.
He did not find evidence of nerve irritation in the right side of the neck but this does not exclude nerve sensitisation.
On examination he found markedly reduced range of neck movement on formal testing to the neck and now has 20 per cent disability to the cervical spine. His condition had deteriorated to the time of the year 2000 examination. There was no major evidence of nerve compression.
The plaintiff will continue to experience neck symptoms and limitation of right arm movement in the foreseeable future though the tendency is for improvement. Working with his arms above shoulder level would be almost impossible.
Professor Andrew Harper, an occupational physician, saw the plaintiff once - on 20 December 1999 at the request of the plaintiff's solicitors.
He recorded symptoms of pain in both shoulders, right arm weakness and neck and upper back pain. He was told the symptoms had not changed significantly over the preceding 2½ years.
The plaintiff sat through the interview without apparent discomfort. There was no muscle wasting. Left shoulder movements were unrestricted. Active abduction of the right arm was 120 degrees and flexion 170 degrees. I understand him to say that this was slight reduction in abduction. On palpation there was tenderness over both the sternoclavicular and acromioclavicular joints on the right. Range of neck movement was 50 per cent to 75 per cent of normal in extension but movements in other directions were unrestricted, but with pain on side flexion and rotation to the left.
He assessed the plaintiff's disability of the whole body at 18 per cent.
The injury was such that work as a machine operator may be unsuitable and Professor Harper had reservations that the plaintiff could work in a static position, such as at a computer - but he had not fully assessed this prospect.
Professor Harper would have expected the plaintiff's symptoms to improve upon stopping work- which I understand does not correspond to the history of no change in the reported symptoms.
Dr John Suthers, an occupational physician, saw the plaintiff twice (27 August 1999 and 18 May 2000) at the request of the defendant.
The absence of any pathology noted on radiological examination suggested there was no serious trauma. Deterioration of symptoms is particularly unexpected.
There was no physical reason, other than the plaintiff's historical account of pain, for not managing to work full‑time as a machinist. That remains his opinion.
He considered the plaintiff to have a very strong work ethic and to be well motivated.
There was, however, he thought fibromyalgia - a chronic but not necessarily permanent pain condition - in the neck. There may be no identifiable pathology for this condition. Damage to the sheath of the brachial plexus would not be revealed on radiology.
Such pain does not typically continue indefinitely.
Dr Suthers did not think there was damage to the nerves.
Whilst the plaintiff's employability has been diminished, he can work notwithstanding pain; but he cannot do a very physically demanding job.
Dr Suthers expects the plaintiff to achieve an 80 or 90 per cent improvement.
Finally, the plaintiff was seen by Dr Peter Silbert, a specialist neurologist, in April 2000 at the request of the defendant.
Dr Silbert said that having regard to the mechanism of the injury it was reasonable to consider that the plaintiff would have some discomfort from the right acromioclavicular joint and the right sternoclavicular joint and there may also have been some soft tissue injuries. "The persistence of symptoms, however, is difficult to explain over two years following the accident".
He could not explain the ongoing pain related to the right mid‑clavicle fracture - he did not consider it had a neurological basis. There was no evidence of a cervical nerve root origin for the symptomatology. It was neither neurogenic nor neuropathic.
The limitation of the right shoulder was of a muscular origin.
There is no residual neurological disability - there had been no neurological injury.
From the neurological point of view there was no impairment of work capacity. He was able to continue with normal duties.
Neural sensitisation is a relatively complex theory which, by reference to evidence with animals, means that with a peripheral injury there will be sensitisation of the nerve cell body in the neck region. It is not a theory well accepted in neurological circles, though it is accepted in some pain circles. Dr Silbert did not regard it as a well accepted diagnosis: it is encountered primarily in the medico‑legal field. It was also part of the RSI theory, leading to brachial plexus stretch tests and other subjective tests which have not "stood the test of time". Dr Silbert discounts the diagnosis of neural sensitisation. The pain is not neuropathic - the nerve was not damaged.
The brachial plexus stretch test is not part of neurological or orthopaedic practice.
The symptoms and signs I understand Dr Silbert to say, suggest referred pain in the C5 distribution. The difference is prognostic. There is a gradual improvement with a vulnerability to further symptoms or injury in the future. There may be residual symptoms.
The plaintiff did not report symptoms which could relate to brachial plexus pathology.

From the impact in question Dr Silbert did not consider there could be nerve damage in the area of the brachial plexus - it does not tie directly behind the fracture of the clavicle.
Nerve irritation can occur, but in the C4/5 facet joint and surrounding musculature. There were, furthermore, no symptoms consistent with nerve sheath injury, as was hypothesised by Dr Hayes.
The plaintiff complained of pain in both shoulders but this could not be explained on the basis of the mechanism of the accident. There was also discrepancy in the range of cervical movement - when formally tested and when observed independently of formal examination.
The MRI scan showed evidence of degenerative change but not remarkable for a man of the plaintiff's age.
Dr Silbert found limitation of the right arm to be to 90 degrees - which is seen in this type of cervical soft tissue injury and the plaintiff is likely to have some ongoing cervical discomfort as a result, notably working in positions of neck extension, working overhead, but it is not severe. He disagrees with Dr Goodheart's assessment of 20 per cent cervical spine and 10 per cent right arm disability. Dr Silbert considered the plaintiff had a full range of movement of the neck, with a 10 per cent cervical spine disability - discomfort. This would not stop the plaintiff working full‑time at a bench, repairing electrical equipment in a manufacturing role - but not installing ceiling lights and crawling around in ceiling spaces.
Of the specialists I found Dr Silbert the most impressive and convincing, but some of the areas he canvassed, such as the unacceptability of the neural sensitisation diagnosis and the brachial plexus stretch test, were not put to Dr Salmon and Dr Hayes. They may have literature upon the subject. Having said this, however, his opinions on restriction of work activity are to some extent in line with other practitioners though he views the condition and prognosis as not so serious.
I conclude from the evidence that the plaintiff has little residual disability from the fracture, which has healed. He has a nerve irritation in the C4/5 facet joint and the surrounding musculature. This is the view of Dr Silbert and corresponds, I understand, to the findings of Dr Mastaglia.
The limitation of the right arm is not severe - it was found to be near normal by Dr Hayes, a little more restricted by Professor Harper. It is difficult to understand why it should be further restricted when tested by Dr Silbert. The latter has, however, commented upon discrepancies in examination.
This is not to say the plaintiff has falsely represented his symptoms. I do think, however, that there is a psychological component in these symptoms as Dr Salmon has observed and this may colour his attitudes generally until these proceedings are finalised. For these reasons he was not a reliable historian of his symptoms, notably to Dr Tan when the latter recommended reduced working hours.
There is a residual disability, the duration of which may be indefinite, which prevents employment as an electrical installer - with the limitations expressed by Dr Silbert. The plaintiff is able, and has been able since returning to work, to work at bench height or work in a sedentary capacity.
I shall now turn to the various heads of damage.

Damages

General damages

The plaintiff suffered a painful fracture of the right shoulder and a soft tissue injury to the cervical spine.
Having regard to his background, and his relatively recent arrival in Australia, I have no doubt he feels vulnerable concerning his future in the workforce. This in turn has led to anxiety over his injuries.
He is left with some residual pain in his neck and shoulder but this pain does not incapacitate him for full‑time employment as a machinist at bench level. He may have difficulty extending his arms upwards and maintaining that posture for long but he is capable of working in the role he worked with Harvestaire Pty Ltd.
His is likely to make a near full recovery in the future - to about 80 per cent.
He has not been disabled from working in the house and mowing the lawn since his return to work in September 1997. He has been precluded from engaging in his full professional activity as an electrical installer and this I have no doubt is a serious emotional consideration. I regard the plaintiff's condition as 15 per cent of a most extreme case.
His award under this head will be $33,750 less amount A of $10,000. The net award is $23,750.

Past economic loss

The plaintiff was totally incapacitated for eight weeks following the accident and in that time lost $2,723.
I am not persuaded by the evidence that the times off work thereafter resulted from incapacity for work as a consequence of his injuries. There is no contemporary medical evidence of this and the plaintiff made no such reports to his employer. The evidence does not support a view of worsening symptoms having regard to the activity of which he was capable during the balance of 1997. His employment was terminated for reasons other than his disability.
I do find, however, that the plaintiff intended to obtain and would ultimately have succeeded in obtaining work as an electrical fitter and mechanic. The accident related injuries - the residual disability - prevented full employment in this field; though he can still work as an electrical fitter in a workshop, working a bench level.
I can only make an informed guess concerning his likely employment as an electrical mechanic had the accident not happened. I find there was the prospect that he would otherwise have obtained work as an electrical fitter and mechanic by the year 2000. From 1 January 2000 to 19 February 2001 I award him the difference between his pre‑accident rate and the rate for an electrical fitter and mechanic.
I set the rate of an electrician, by reference to the evidence of Mr Tajam and Mr Wheeler at $32,000 net per annum and relate that to the award rate, without overtime of a factory hand: a differential of about $285 per week or, for the relevant period of 57 weeks, $16,245. To that I add the lost income of 8 weeks - $2,723 - and reach a total of $18,968.
I propose, for the purpose of this exercise, not to discount that product on account of the prospect that he might have obtained a comparable income as an electrical fitter in a workshop.
Under this head I award the plaintiff $18,968.

Interest and past superannuation

It is somewhat artificial to calculate interest and past loss of superannuation where a guess is made of past loss of income, as in this case, but I nevertheless award under this head $2,000.

Future economic loss

I calculate this award by reference to the difference between his pre‑accident rate, based on the award rate, without any component of overtime and that of an electrical fitter and mechanic, as I have calculated for past loss of income. The starting point is $285 per week.
This would extend to age 65 years but would be discounted on account of the very real prospect that the plaintiff will obtain work more remunerative than that of a machinist such as an electrical fitter or working at bench level in some capacity, for example, at a computer. There is too the real prospect that he will recover considerably in the future. The plaintiff is intelligent and after training will no doubt be capable of earning reasonably well. The multiplier to age 65 is 647 and from the product of $184,395 I would make a discount of 15 per cent. To this I add $10,000 representing about six months remuneration for a period of retraining and $8,000 for future superannuation, to reach a total in round figures of $175,000.
The award under this head is $175,000.

Special damages

These are agreed at $676.30.

Past travelling expenses

I allow these at $426.30.

Future medical and pharmaceutical expenses

There is little in the way of future medical treatment and drugs required by the plaintiff. He will not require specialist treatment, regular medical reviews or therapy massages. He may require some analgesics from time to time, but lessening in the future.
Under this head I award the plaintiff $500.

Gratuitous services

I award the plaintiff gratuitous services for the eight weeks he was incapacitated for work. I conclude he could not during that period attend to the household tasks and gardening he might otherwise have done. The evidence is, however, slender and unimpressive concerning what was required of him.
Nevertheless I award $30 per week for eight weeks - $240.
I make no award for gratuitous services thereafter. He has since been quite capable of doing what is required around the house.

Summary of awards

General damages  $ 22,750.00
Past economic loss  $ 18,968.00
Interest and past loss of superannuation                $    2,000.00
Future economic loss including superannuation     $175,000.00
Special damages  $      676.30
Past travelling expenses  $      426.30
Future medical and pharmaceutical   $      500.00
Total  $220,320.60

I award damages to the plaintiff of $220,321.
I add this rider.
At the conclusion of the trial I invited counsel to make submissions, amongst other things, upon the quantum of general damages.
Both counsel declined to do so.
Mr Olivier said he was not prepared to offer any submission upon the amount of an entitlement to non‑economic loss, except to say that the injury "has not really been a serious one. There is no real pathology, or no pathology at all really". He added:
"The difficulty I have is that I have a certain view which I have expressed to my client, my client has expressed a view to me. It would be contrary to my client's instructions and my retainer to tell you what my suggestion to my client was. On the other hand to proffer the suggestion that my client makes to me would render me probably in breach of my duty as an officer of the court to misinform your Honour as to what I believe or suggest ought to be an appropriate award."
Mr Marshall in declining to make a submission upon a percentage of "a most extreme case" said he has not in 32 years been drawn on the question.
I find these attitudes unhelpful. I am not asking counsel for his advice to his client.
Certainly I have had much benefit from submissions of experienced counsel in other trials and at least an indication of the range of awards, by reference to decided cases, may be a guide to avoid inconsistent awards.
The defendant's insurer, the Insurance Commission, is entrusted with public funds for the purpose of paying appropriate damages for personal injury suffered as a consequence of motor vehicle accidents. The Commission is charged with the duty of assessing such damages in a fair and proper manner. No doubt many claimants are compensated by the Commission without the benefit of legal advice.
It is my view that a trial Judge is entitled to expect a soundly based submission upon all aspects of the plaintiff's claim, especially where, as in this case, liability is not in issue.
The Full Court of this State appears to have acknowledged the propriety of such submissions in Morris v Zanki (1997) 18 WAR 260 at 269 - 270. The Court there said -
"A trial judge must, of necessity, identify a range within which the discretion is to be exercised. It is permissible to have regard to general levels of awards of damages in the broadest sense in order to identify the range, so long as this process does not involve the distillation of a norm or standard for injuries and consequences of the nature under consideration. An appellate tribunal dealing with a challenge to an award must also identify the range in order to assess whether the award falls within, or outside, the description of the sound exercise of the discretion."