Nundle v Hayes - [2002] WASCA 48

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

TITLE OF COURT : THE FULL COURT (WA)

CITATION: NUNDLE -v- HAYES [2002] WASCA 48

CORAM: MALCOLM CJ
WALLWORK J
MURRAY J

HEARD: 6 NOVEMBER 2001

DELIVERED : 14 MARCH 2002

FILE NO/S: FUL 89 of 2001

BETWEEN: ASTRID ELAINE NUNDLE
Appellant
AND
JOHN WILLIAM HAYES
Respondent

Catchwords:

Damages - Appellant injured in motor vehicle accident - Whether sufficient damages allowed for loss of earning capacity - Decided on facts

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943, s 3A, s 3B, s 3C, s 3D

Result:

Appeal allowed
Damages for loss of earning capacity increased

Category: B

Representation:

Counsel:

Appellant: Mr N J Mullany
Respondent: Ms C J Thatcher

Solicitors:

Appellant: Bradford & Co
Respondent: State Crown Solicitor

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

Fox v Wood (1981) 148 CLR 438
Thomas v O'Shea (1989) A Tort Rep 80‑251

Case(s) also cited:

Abalos v Australian Postal Commission (1990) 171 CLR 167
Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842
Calder v Boyne Smelters Ltd [1991] 1 Qd R 325
Devries v Australian National Railways Commission (1993) 177 CLR 472
Galea v Galea (1990) 19 NSWLR 263
Gamser v The Nominal Defendant (1977) 136 CLR 145
Lloyd v Faraone [1989] WAR 154
Rosenberg v Percival (2001) 75 ALJR 734
SS Hontestroom v SS Sagaporack [1927] AC 37
State Government Insurance Commission v Hitchcock, unreported; FCt SCt of WA; Library No 970089; 11 March 1997
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (1999) 73 ALJR 306
Wade v Allsopp (1976) 50 ALJR 643
Wilson v Peisley (1975) 50 ALJR 207

MALCOLM CJ: In my opinion, this appeal should be allowed and the total damages increased from $37,509.04 to $85,655.36 plus medical expenses of $3,595.20 subject to a further adjustment depending upon the correctness of the Fox v Wood allowance of $155.68 per week. This is a point upon which I would hear counsel.
WALLWORK J: The appellant obtained a judgment in the sum of $37,509.04 for damages for personal injuries which she received in a motor vehicle accident on 20 March 1998. She has appealed against the sum awarded to her, broadly on two grounds. The first is that the learned trial Judge erred in his assessment of the appellant's loss of earning capacity and the second is that the learned Judge did not award a sufficient sum for general damages to compensate the appellant for the injuries she received.
With respect to the question of loss of earning capacity, prior to her being injured on the 20 March 1998, the appellant had been employed as an Aboriginal Health Worker. She was injured when a bus ran into the back of the vehicle she was driving whilst it was stationary waiting for traffic lights to change.
Having seen the appellant give evidence during the trial, in his reasons for judgment the learned Judge said that the appellant was an Aboriginal woman who seemed to him to be very quiet and somewhat reticent "in being forthcoming" in her evidence. His Honour said that to describe her as a poor historian, or someone who did not answer direct questions fully, was to fail to understand that by her nature, limited responses were perhaps to be expected. Importantly his Honour said that he considered the appellant to be a credible witness.
The appellant had said in evidence that her work had involved transporting persons to medical appointments, including to the premises of the Aboriginal Medical Service and Sir Charles Gairdner Hospital. She was asked whether transporting patients was an easy task and she said: "No, not really. There were clients who needed wheelchairs. There were a number of those."
The appellant said that she was required to help patients in and out of wheelchairs and into her car, and to put the wheelchairs into the boot. She was also involved in helping patients with showers and baths. The appellant said: "If the elderly are unable to do showering for themselves, we will go to their house and we will help them - give them showers and just help them dress."
In cross examination the appellant was asked whether she had any problems with her neck, back and knee at the time of the trial. She said: "If I lift, bend down to lift, a heavy thing like boxes or laundry, heavy laundry baskets, or sweeping or mopping, I can't do those things." She said that if she did those things: "It will start getting sore again and the pain will reoccur".
The appellant said that her defacto husband and some of her children helped in the house. She was asked: "Are you able to work as a health care worker at the present time?" The appellant answered: "No, not at the moment, because I have still got an illness there, because its still sore."
In my view it is a significant aspect of this appeal that, as stated above, the learned trial Judge said that he considered the appellant to be a credible witness. His Honour referred to the evidence of one of the surgeons who had considered that the appellant was exaggerating and who had not accepted the injuries as the appellant had described them. In one of his reports, the surgeon had said that he had obtained the impression that there was some degree of exaggeration by the appellant. The learned Judged said that the way in which that surgeon had dealt with the case "causes me to doubt his objectivity and impacts on the weight I give to his opinion."
The Judge said:
"Although there is a lack of precision in the evidence on behalf of the plaintiff I am satisfied on the balance of probabilities, that the musculo ligamentous strain to the left thoracic spine is related to the motor vehicle accident the subject of this action. I accept there is no evidence of regular complaint of pain in the mid-back."
The appellant said in evidence, that on the 8 November 1998, approximately seven months after the accident, while washing dishes at her home, she had turned to the right and experienced a severe pain in the left side of her upper back. The learned Judge said:
"It is more likely that the mid-back area had not completely settled and that the simple motion of twisting whilst washing up had caused it to flare up again. In those circumstances I do not consider there to be any break in the chain between the motor vehicle accident and those symptoms.
It is clear that within a few weeks the injury to the knee had settled down. It is also clear that by the end of 1998, so had the cervical spine and lumbar spine problems."
His Honour said:
"The evidence does not satisfy me that the plaintiff suffered to any significant degree after a period of about three months from the date of the accident until the exacerbating event in November."
His Honour said:
"Accepting as I do that the plaintiff up to the date of the trial is suffering from a musculo ligamentous strain to the left thoracic spine, the next issue is the prospects in the future."
He said:
"I am not satisfied on the evidence before me that her present condition is likely to be permanent, rather a gradual improvement would be expected. Even if it was permanent, the extent of the disability is, as I have said, minor."
The findings of the learned trial Judge, and in particular, his finding that the appellant was a credible witness, posed the problem of how the appellant would be compensated for her loss of earning capacity. The appellant had said in evidence that she could not work as a health care worker at the time of the trial in April 2001. That was nearly exactly three years after the accident.
The learned Judge accepted that an Aboriginal Health Care Worker would take clients to medical and other similar appointments. He said:
"The specific duty for which the plaintiff claims she is unfit for work is with respect to taking a client who is wheelchair bound to medical and other similar appointments. She says she is unable to lift such a person to the car and to place that person's wheelchair in the boot. The extent to which this type of work is a problem was not explored in any great detail."
The appellant had given evidence concerning having to help people in and out of their wheelchairs and of helping them in showers and baths.
Ms Taylor, who was the Manager of Health at the Perth Aboriginal Medical Service, gave evidence that occasionally a health care worker is expected to support a client from a wheelchair to a car, or from a car to a wheelchair, or from a bed to a wheelchair. Health care workers are taught how to lift, to do manual lifts and to support a client. When asked whether she saw the physical aspects of the job as being significant, she said: "not on a daily basis, no."
The duty statement for a home care health worker requires the worker, amongst other things, to assist with shopping and the organisation of social activities; to assist with the provision of transport and to accompany clients on appointments with other health professionals; also to provide personal care, including showering, shaving and dressing, as required by clients. One of the essential criteria is the ability to deliver holistic care.
Ms Taylor said in evidence that at different times a health care worker is asked to help with a patient's bath or shower and would be expected to do that if asked by the patient. Further that health care workers have been taught how to lift, which includes lifting patients, and to assisting with showering and bathing etc.
In his reasons for judgment, the learned Judge said that Mr Slinger had advised that many people who are confined to wheelchairs do not physically need to be lifted in and out of a motor car, with the wheelchair only being necessary, because the patient is unable to walk for any great distance.
The Judge said:
"According to Ms Eileen Taylor, the manager of health of the Perth Aboriginal Medical Service there were between 120 and 160 clients of the department during the relevant period and it seems there were four or five carers for them. Only six to eight of that group used wheelchairs. On Mr Slinger's evidence only a proportion of those will be required to be lifted. It seems to me that to the extent that it is the lifting of the patients that is the crucial factor, that was work which could well have easily been avoided by a person in the plaintiff's position, by some re‑scheduling of the client list. No attempt appears to have been made by the plaintiff or anyone on her behalf to achieve that very simple outcome. Without that heavy work there appears to be no reason why the plaintiff would not have been able, after a period of three months or so as previously described, to have carried out all of the duties of an aboriginal health care worker."
Because of his conclusions set out above, his Honour said that it seemed that at best for the appellant, she had been incapacitated for work due to the various injuries she had suffered, for a period of three months. He went on to find that since about the end of June 1998, that is, three months after the accident, the appellant had been fit to perform the vast bulk of the work of an Aboriginal Health Care Worker. Having made that finding, his Honour said:
"I do accept that the plaintiff since about June 1998 and into the future for some indefinite period has had and will have a weakness in the labour market for which compensation should be paid."
His Honour assessed the appellant's loss of earning capacity after June 1998 at a sum of $25,000. When that sum was added to the loss of 13 weeks nett earnings after the accident until the end of June 1998 at $6,890, the total sum was $31,890. To that sum his Honour added tax for 13 weeks, at $2,023.84, pursuant to the decision in Fox v Wood (1981) 148 CLR 438.
The appellant complains that the learned Judge's findings, firstly, that the lifting work which the appellant could not do "could well have easily been avoided by a person in the plaintiff's position by some re‑scheduling of the client list" and, secondly, that "no attempt appeared to have been made by the plaintiff or anyone on her behalf to achieve that very simple outcome", were not supported by the evidence. It was contended that the learned Judge's finding that after three months from the accident there appeared to be no reason why the appellant would not have been able to carry out all the duties of an Aboriginal Health Care Worker "without that heavy work" revealed error and that the assessment should be varied by this Court.
The appellant contended that the learned Judge's approach had in part been due to the cross examination of the appellant and Mr Slinger.
The appellant had been asked: "So what parts of the job couldn't you do now because of your shoulder blade?" She had answered "Helping clients with wheelchairs in and out of the car." She was then asked, that if somehow the job could be rejigged "so that you didn’t have any patients with wheelchairs, what problems would you have doing the job?" Her answer was "Nothing".
Mr Slinger was asked "The physical parts of her job that she described - if she didn’t have to manoeuvre the patients in and out of wheelchairs or assist them in showering and so on - this might go without saying, but if the job was pared down to the non-physical aspects of the job, you wouldn't have a problem with her doing that particular job, being a health care worker?" Mr Slinger answered "No. I mean, her problem is using the left upper limb and if that can be avoided, that's lifting above this height, then she could perform all the jobs which I have mentioned in my report including that work you have mentioned, as long as those physical activities were removed from the job description." He was then asked "You said that Ms Nundle was fit to work full‑time in jobs of a lighter nature, that is, that didn't have the physical aspects that have been described to you?" Mr Slinger answered "That's correct."
The appellant contended that if an injured plaintiff cannot perform part of the requirements of his or her employment, then it is inappropriate to approach an assessment of damages, such as in this case, on the basis that the employment previously performed can continue to be performed if certain duties are eliminated from the job description; further that it constitutes error to effectively ignore demanding aspects of a plaintiff's work for the purposes of the assessment of residual incapacity. It was contended that it was not correct to assume, in the absence of evidence, that modification of the work requirements could easily be achieved.
It was stressed for the appellant, that the appellant had been accepted by the learned Judge as credible and that she had stated that she was incapable of performing the full duties of an Aboriginal Health Care Worker. The appellant had said in evidence that she still had pain at the back of her neck - at the back of the shoulder on the left side - and that she had difficulty with lifting heavy things, which caused the pain to reoccur. Further that she could not accomplish really strenuous lifting with her left arm. She could take a jumper off "by just taking it off slowly".
In cross examination the appellant had said that there were some physical elements to her employment, such as getting people in and out of cars, lifting wheelchairs, and showering people. She had had difficulty with getting persons in and out of cars and lifting wheelchairs. At the time of the accident she had had four patients with wheelchairs. When asked directly "So what parts of the job couldn't you do now because of your shoulder blade?", the appellant answered "Helping clients with wheelchairs in and out of the car". She said that the pain in her shoulder blade was aggravated by certain movements of her left arm. She had to be careful when moving her left arm. She did not like lifting things with her left arm if they were too heavy. She said "If the things aren't too heavy. I mean, I can - if it is light, then I can help lift it up."
On the 3 February 1999 nearly 12 months after the accident, Mr Lee a neurosurgeon, had reported that from the appellant's description of her duties as a home carer, he did not think she was at that stage physically fit to return to that type of work. Mr Lee was of the view that lifting and manoeuvring patients was obviously beyond her capacity at that stage. He said "I think it is too early to make any comment as to permanence of disability with the evidence that it is improving but it could be argued that even if she becomes symptom free, it would be unwise to resume that type of work, in that sense I would have thought it would be a very reasonable proposition that she redirects herself to lighter, more sedentary work."
On the 1 June 2000 Mr Lee reported that the appellant was pretty much the same as when he last saw her on the 3 February 1999 and that he did not think any further treatment would be helpful. He thought she should be able to return to work as a home carer with perhaps restrictions, as determined by a work trial. In March 2001 Mr Lee was of the opinion that the appellant had a 5 per cent loss of efficient function of the left shoulder and that it was permanent: "This being a measure of the disability that she is left with".
On 7 June 2000 Mr Slinger reported: "The diagnosis is of a soft tissue injury occasioned to the spine as a whole as well as the right knee and whilst symptoms in the low back and right knee have resolved, symptoms persist in the left upper back, as a soft tissue injury relating to the proximal spine and left shoulder." Mr Slinger was of the view that the symptoms at that time were likely to continue. He believed that the appellant was unfit to return to full time unrestricted work as a home carer. It was his understanding that that employment required significant physical activities. Mr Slinger said "…that is likely to aggravate symptoms." Mr Slinger believed that the appellant was fit to return to full time work of a lighter nature "which would avoid any heavy lifting or repetitive bending such work would include, general office duties, receptionist, retail sales, or similar, ideally commencing on a work trial with graduated hours allowing work hardening and conditioning, to increase those hours to what he would anticipate would be full time."
Importantly, Mr Slinger was of the view that it was likely that if the appellant was subjected to heavy lifting, repetitive bending or heavier physical activity, she would be subject to recurrences and aggravations. With respect to the left shoulder, Mr Slinger said that the appellant had a measurable disability of the order of ten percent loss of function of the upper limb as a whole, utilising the Assessment of Disability Guide published in January 1994 by the Australian Medical Association.
Professor Hollingworth had said in evidence that he would accept that the appellant at the time of the trial had a permanent injury. The Professor qualified that by saying that he did not accept that the permanent injury was a result of the motor vehicle accident, but he conceded that the appellant had something "at the moment which seems to be going on and on, for which she apparently doesn’t need treatment, but is still giving her symptoms. I accept that she's getting symptoms. I have no way of knowing whether she has pain or not. She says she has, I have to believe her."
In that regard, it is significant that the learned Judge said:
"Accepting as I do that the plaintiff up to the date of trial is suffering from a musculo ligamentous strain to the left thoracic spine, the next issue is the prospects in the future."
The learned Judge said that it was for the appellant to prove the extent of her injuries and that he was not satisfied on the evidence before him that her present condition was likely to be permanent - "rather a gradual improvement would be expected. Even if it was permanent, the extent of the disability is, as I have said minor."

In Thomas v O'Shea (1989) A Tort Rep 80‑251 Malcolm CJ and Wallace J, with whom Kennedy J agreed, said:
"The legal onus of proof of loss of earning capacity rests, of course, on the plaintiff, but once the plaintiff has proved that he has lost his pre-accident earning capacity and has been unable to find alternative employment, or that his condition has prevented him finding alternative employment, an evidentiary onus is cast on the defendant to show what alternative employment opportunities were open, including the state of the labour market and the likely earnings…."
In this case, the appellant, whose evidence was generally accepted by the learned Judge, had said in evidence that while she was on workers compensation she had been given some rehabilitation. She was asked "Were you able to get any work through rehabilitation?". The appellant replied "No, nothing at all." She was asked "What types of jobs did the rehabilitation try and get you involved in?" She answered "They tried to - in the health field, but there was nothing that came about."
The appellant also said that she could not get a house in Perth and "there was a house in Quairading, so we took it". She had applied for a house in Perth. She had asked the Service if it could help her obtain employment at a mission about 10 kilometres out of Quairading but that had not been achieved.
It was contended for the appellant that the appellant's evidence was sufficient to satisfy the tests in Thomas v O'Shea and that there had been no evidence from the defendant that the appellant's employer could have, in a cost efficient manner, rescheduled her responsibilities and provided her with a modified job. There had been no examination of those issues by the defendant at all.
In answer to the appellant's propositions it was submitted for the respondent that the evidence in relation to the appellant's inability to obtain other employment was extremely sparse. It was pointed out that after the appellant had said that she was not able to work as a health care worker at the time of the trial because: "I've still got an illness there because it's still sore", she was asked whether she had been looking for other work. She said: "No, not at present, no." It was said that the evidence which the appellant had given about not being able to get any work through rehabilitation had related to when she had returned to Perth from Quairading in about August 1998.
At the time of the trial the appellant was engaged in a course of study relating to cultural tourism and had been so engaged for about a month. The aim of that was to set up a business to show tourists the Aboriginal culture at the mission near Quairading.
The appellant had said in evidence that she and her defacto husband had returned from Quairading so that he could look for work as a journalist. She was asked if she would be prepared in the future, if there was work available outside of Quairading, for she and her defacto to leave Quairading and work elsewhere, in Perth or somewhere else. She answered that she would be prepared to do that because there were hardly any jobs in Quairading. She would be prepared to leave Quairading for work.
It was submitted for the respondent that the evidence at the trial had not established that the appellant was unable to return to her pre‑accident employment or unable to find alternative employment; that in that event, it was not correct to commence with a sum for total future incapacity and then to discount that sum for a proved retained earning capacity or contingencies.
It was submitted for the respondent that the clear formula set out in Thomas v O'Shea did not apply to this case; that the learned Judge had been faced with the situation of someone who had a relatively minor injury which did not disable her from performing the vast majority of her pre‑accident duties and who had made little if any independent attempt to obtain alternative employment. It was submitted that the appellant had acknowledged that she was able to work as a teacher's aide. She had been a teacher's aide at Mt Magnet District High School in 1997. She had said in evidence that physically she could do that job at the time of the trial and she had not made any attempt to obtain work as a teacher's aide over the previous "couple of years."
It was contended for the respondent that prior to the appellant's injury there had been about 160 to 180 clients of the Service, of whom 6 to 8 were in wheelchairs, so that statistically a person in the appellant's position would only have to help a person in or out of a wheelchair, or in or out of a car, on a minimal number of occasions. It was submitted that although there had not been any evidence that the appellant's duties could have been modified so that she would not have had to do the heavy work, there was evidence from which the learned Judge could reasonable have concluded that the job could have been modified because of the statistical rarity of the tasks needing to be performed. It was however conceded that there was a deficiency in the evidence and that the respondent should have asked that question.
It was submitted that at the end of the day the learned Judge had made his decision based on the evidence he had in relation to the frequency at which the lifting tasks needed to be performed. It was conceded that the Judge did not have direct evidence that those who employ people in the relevant area would be prepared to employ someone who was not capable of assisting people who needed wheelchairs, in and out of cars.
It was submitted for the respondent that in awarding the appellant a sum for loss of earning capacity of $25,000 to cover the period after June 1998, the learned Judge had done the best he could with the evidence he had; further that the appellant clearly had a retained earning capacity, although she clearly had some weakness in the labour market. The learned Judge had compensated her accordingly.
His Honour found:
"In this case no significant injury occurred at all. Symptoms even remotely serious had resolved within three months. Long term problems are minor and should continue to improve. In my view on such an assessment the severity of the injuries suffered in this case is not 5 percent or more of a most extreme case …"
Early in his reasons the learned Judge had also said:
"I am not satisfied on the evidence before me that her present condition is likely to be permanent, rather a gradual improvement would be expected. Even if it was permanent, the extent of the disability is, as I have said, minor."
The damages for loss of earning capacity would depend to an extent upon the nature of the appellant's injuries. Because of that I will now refer to the second aspect of the appellant's appeal, which was that his Honour's findings as to the nature and permanency of the injuries were not reasonably open.
The appellant referred to one of his Honour's findings that:
"There is a considerable dispute about the nature of soft tissue injuries. At one extreme Dr Stewart Brash denies soft tissue injuries can continue more than six weeks. Perhaps a more general body of medical opinion considers that not to be the case. I think it fair to say such injuries are generally not permanent."
It was submitted that the learned Judge had effectively taken judicial notice of what he considered to be a notoriously known fact, namely that soft tissue injuries, that is injuries affecting anything except bone, are generally not permanent. It was contended that that was simply not the position and that in this case there had been clear unchallenged expert medical evidence to that effect; further that the learned Judge had not identified the precise basis for his conclusion that soft tissue injuries are generally not permanent.
It was submitted for the appellant that the learned Judge had not accepted Mr Brash's evidence and had not mentioned Dr Silver's evidence in his reasons for judgment. It was noted that Dr Silver had referred to abnormal illness behaviour by the appellant which he felt was contrived. Dr Silver had questioned the veracity of the appellant, which suggestion he had later withdrawn. It was submitted that his Honour had obviously not accepted that evidence and that once the evidence of Mr Brash and Dr Silver was put to one side, the only evidence remaining was the evidence of four medical practitioners, one of whom had been called by the respondent, and all of whom had confirmed, not only that soft tissue injuries can be permanent, but that they were in this case.
It was contended that Professor Hollingworth had accepted that the appellant's type of injury could go on for years and years and that she had a disability in her left shoulder which was probably a permanent injury albeit that he was not satisfied as to the cause of the injury. Dr Nicholl, who had treated the appellant, had said that some neck injuries never settle and that the situation is extremely variable. Some people take longer than others to recover. Some people still have the same symptoms as the years go by.
Mr Slinger, an orthopaedic surgeon, had said that the appellant's symptoms were likely to continue. He had believed that the appellant was unfit to return to full time unrestricted work as a home carer and that it was likely that if the appellant was subject to heavy lifting, repetitive bending, or heavy physical activity, then she would be subject to recurrences and aggravations. He was of the opinion that the injury to the appellant's left shoulder was of the order of 10 percent loss of function of the upper limb as a whole, utilising the Assessment of Disability Guide published in January 1994, by the Australian Medical Association. He had said that the appellant's present symptoms were likely to continue.
Mr Lee had said that there was evidence of muscle tearing and fibrous injury which does not always fully repair. He had expressed the opinion that the appellant had a five percent loss of the efficient function of the left shoulder which was permanent.
It was submitted that neither Mr Slinger or Mr Lee had been cross examined on the issue of permanency and that their evidence should have been accepted. It was then submitted that it followed from the evidence of Mr Slinger and Mr Lee that the disability sustained by the appellant had been incapable of characterisation as "minor".
With respect, his Honour was correct insofar as he found that the appellant would have a weakness in the labour market for which compensation should be paid. His Honour said that "since about June 1998 and into the future for some indefinite period" the appellant "has had and will have a weakness in the labour market." That opinion in so far as it went, was supported by the evidence which his Honour accepted that in November 1998 the appellant had exacerbated her condition when turning whilst washing dishes.
In my view, the effect of the medical evidence was that the appellant's condition was a permanent condition . However his Honour assessed the sum of $25,000 on the basis that the appellant's condition would constitute a weakness in the labour market for some indefinite period. He also did not allow for the appellant's incapacity to perform her former employment during the balance of the year of 1998, which the exacerbation in November 1998 revealed.
There is a lot to be said for the appellant's contentions that the case was fought before the learned Judge on the basis that the respondent had alleged that the appellant was not to be believed, either in relation to the circumstances and nature of the accident, or with respect to the nature and extent of the injuries sustained by her. Both of those contentions were emphatically rejected by the learned trial Judge. The respondent had contended that the appellant was not genuine and was exaggerating her symptoms, pain levels and incapacity generally and that her presentation to some medical practitioners had been contrived. It had been submitted for the respondent that the appellant had engaged in a deception consciously and that she was a malingerer who had chosen to "sit on her hands" when capable of performing her pre‑accident activities or those of similar vocations.
The appellant's counsel submitted that there had been an extended and persistent attack on the credibility of the appellant; further that the learned trial Judge had expressly refused to include costs associated with surveillance video tapes on the basis that they had been no use to him in the determination of the dispute.
It is fair in my view, as the appellant contended, to say that the defence "was strikingly unsuccessful." It was perhaps because of the way the case was fought by the respondent that there was not sufficient attention paid to the alternative employment opportunities available to the appellant. That failure at the trial, in my view, should be attributed to both the appellant and the respondent. It then became a question of his Honour doing the best he could with the evidence available.
Concerning the general damages for pain and suffering and loss of amenities, in my opinion, it could not be said that the learned trial Judge

erred in his estimate that the severity of the injuries suffered by the appellant was not five percent or more of the severity of injuries suffered in a most extreme case. His Honour was therefore correct in finding that due to the provisions of s 3A, s 3B, s 3C and s 3D of the Motor Vehicle (Third Party Insurance) Act 1943 no damages should be awarded to the appellant for non‑pecuniary loss.

With respect to the assessment for loss of earning capacity, in my view, the learned trial Judge erred in finding that the appellant was only entitled to be compensated on the basis of a full incapacity for work for 13 weeks. On the medical evidence which was accepted by the learned Judge, it could not be said that after 13 weeks the appellant would have been able to return to her former employment. His Honour awarded damages for those 13 weeks at $530 net per week, and then added tax at $155.68, because the appellant had been receiving workers compensation: Fox v Wood.
In my view, a more correct assessment would have been for the appellant to have been awarded $530 net per week for one year following the accident, that is until 20 March 1999. If the appellant was entitled to the tax of $155.68 per week pursuant to Fox v Wood for that period, the sum allowed for that twelve months would be $685.68 per week. Additional to that, and taking into account that the appellant was 34 years of age at trial and obviously handicapped in the labour market due to her injuries, I would allow a further sum of $50,000 for the loss of her earning capacity. That sum is calculated with reference to the appellant's annual earning capacity at the time of her injuries and her activities since that time, which have been referred to earlier in these reasons.
The total sum for damages would therefore be increased from the sum of $37,509.04 to $85,655.36 plus medical expenses at $3,595.20.
If the Fox v Wood allowance of $155.68 per week for one year is not correct then the award can be adjusted to reflect the correct figure.
MURRAY J: I have had the benefit of reading the reasons of Wallwork J in draft. I agree that the appeal should be allowed and the judgment of the court below varied to the extent proposed by his Honour. I concur in the proposal that counsel should be heard further in respect of the allowance made pursuant to the case of Fox v Wood (1981) 148 CLR 438.