O'Keefe v Graham
[2001] WASCA 80
•19 MARCH 2001
O'KEEFE -v- GRAHAM [2001] WASCA 80
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 80 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:199/1998 | 5 SEPTEMBER 2000 | |
| Coram: | WALLWORK J PARKER J MILLER J | 19/03/01 | |
| 28 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Judgment of Commissioner varied by substituting for award $73,229.35 | ||
| PDF Version |
| Parties: | ROGER JOHN O'KEEFE WANDA LEANNE GRAHAM |
Catchwords: | Damages Personal injury Findings of Commissioner on credibility Findings on medical evidence open Gobal assessment of past and future loss of earning capacity Inadequate assessments Turns on own facts |
Legislation: | Motor Vehicle (Third Party Insurance) Amendment Act 1994, s 3C, s 3D |
Case References: | Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 De Vries v Australian National Railways Commission (1993) 177 CLR 472 Graham v Baker (1961) 106 CLR 340 Matthew v Flood [1939] SASR 389 Medlin v State Government Insurance Commission (1995) 182 CLR 1 Paul v Rendell (1981) 34 ALR 569 Rowe v Scanlan [1969] 1 NSWR 43 Southgate v Waterford (1990) 21 NSWLR 427 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306 Warren v Coombes (1978-1979) 142 CLR 531 Wylde v Aristondo's Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : O'KEEFE -v- GRAHAM [2001] WASCA 80 CORAM : WALLWORK J
- PARKER J
MILLER J
- Appellant
AND
WANDA LEANNE GRAHAM
Respondent
Catchwords:
Damages - Personal injury - Findings of Commissioner on credibility - Findings on medical evidence open - Gobal assessment of past and future loss of earning capacity - Inadequate assessments - Turns on own facts
Legislation:
Motor Vehicle (Third Party Insurance) Amendment Act 1994, s 3C, s 3D
Result:
Appeal allowed
Judgment of Commissioner varied by substituting for award $73,229.35
(Page 2)
Representation:
Counsel:
Appellant : Mr I L K Marshall
Respondent : Mr I R D Mason
Solicitors:
Appellant : Paul O'Halloran
Respondent : Jackson McDonald
Case(s) referred to in judgment(s):
Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649
De Vries v Australian National Railways Commission (1993) 177 CLR 472
Graham v Baker (1961) 106 CLR 340
Matthew v Flood [1939] SASR 389
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Paul v Rendell (1981) 34 ALR 569
Rowe v Scanlan [1969] 1 NSWR 43
Southgate v Waterford (1990) 21 NSWLR 427
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306
Warren v Coombes (1978-1979) 142 CLR 531
Wylde v Aristondo's Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997
Case(s) also cited:
Nil
(Page 3)
1 WALLWORK J : The appellant appeals from a judgment which he obtained in the District Court at Perth on 8 December 1998 after a four day trial. He had been injured on 28 August 1994 when he was a passenger in a motor vehicle which rolled over near Broome, Western Australia. The vehicle was being driven by a female friend of the appellant. Since the accident the couple have been living in the same house but the appellant said in evidence that they do not have the same relationship as they had at the time of the accident.
2 In his reasons for judgment the learned Commissioner made it clear that he had found the appellant to have been a very unreliable witness. He said:
"I do not accept his evidence on matters of fact in issue unless it is supported by other evidence which I find to be reliable. He was prone to exaggerate. He gave unbelievable explanations to support his version of various matters. There were inconsistencies noted in many of his examinations by various medical practitioners who gave evidence and/or whose reports are in evidence. I have no doubt that he exaggerated his symptoms to medical practitioners and sought to mislead them by his behaviour in their presence."
3 The appellant appeals in essence on the ground that having taken the view that the appellant was an unreliable witness, the learned Commissioner erred and substantially underestimated the effects of the injuries which the appellant had received in the accident. As a consequence the appellant contends that the Commissioner substantially underestimated the appropriate damages to be awarded to him.
4 The appellant alleged that at the time of the accident he had received injuries to his cervical spine, his lumbar spine and his left shoulder; further that he had been badly shaken and bruised at the time of the accident. He claimed that following the accident he had suffered persistent stiffness and restriction of movement in the cervical spine, the lumbar spine and the left shoulder and that he had suffered other injuries including an injury to his left hand. He claimed that his injuries had prevented him from working in his occupation as a mechanic and had caused him a general loss of enjoyment of life including frustration, anxiety and fatigue.
5 It seems from all the evidence that there was some lack of appreciation at the hospital at Broome of the extent of the appellant's
(Page 4)
- injuries following the accident. The appellant was not admitted to hospital as an in-patient. On the next day he was prescribed analgesics and given a soft collar.
6 The appellant said that he had continued to be distressed by his injuries but that in early October 1994, approximately one month after the accident, he was thought by a doctor to be fit to return to work. He said that when he commenced work with Broome Pearls on 10 October 1994, his employment lasted only two weeks, due to the fact that his left armed swelled, he could not move his neck and his lumbar spine "gave out on me". It was common ground that he was then referred to an orthopaedic surgeon at the Port Hedland Hospital who first saw him on 27 October 1994. That was nearly two months after the accident. That surgeon, Mr Brash, arranged for the appellant to travel to Perth for x-rays, a CT scan of his neck and EMG nerve conduction studies.
7 Early in December 1994 a neurosurgeon, Mr Wong, diagnosed the appellant as having suffered a fracture of C7, possible irritation of cervical nerve roots and a possible exacerbation of previously asymptomatic L5/S1 spondylolisthesis. Thereafter the appellant was treated by various specialists including Mr Kerr, a specialist in rehabilitation medicine, who treated him for neck and back symptoms.
8 The appellant was later treated by Dr Downe at Geraldton and Mr McLaren, an orthopaedic surgeon at Geraldton. He was examined by other specialists including Mr Batalin, Mr Griffiths, Dr Home, Mr Watson, a neurosurgeon, Mr Harper, an occupational physician, Professor Burvill, a psychiatrist and other medical practitioners.
9 In April 1998 the appellant was diagnosed as suffering from an adjustment reaction with depression and anxiety. He continued to complain of symptoms in his neck, left shoulder, left upper limb, low back, thigh and feet, and pins and needles in his right hand.
10 At the trial in August 1998, the appellant said that his former partner (the driver of the vehicle which rolled over) had been caring for him since the accident and doing everything for him, including minor things such as giving him his medication, cooking his meals and bathing and dressing him.
11 The learned Commissioner found that prior to the accident the appellant had worked on and off as a motor mechanic in New Zealand, in Western Australia and in other places. The Commissioner said it was difficult to work out exactly the appellant's employment history due to
(Page 5)
- the lack of evidence. He said that nobody could be held responsible for that but the appellant himself. The Commissioner had to guess at a substantial part of the appellant's work history prior to his being injured. That task was complicated by the appellant giving evidence that three or four days before the accident his then alleged partner in business "took off with all the books and to this day I have been unable to locate him."
12 The learned Commissioner came to the conclusion that on his assessment of the evidence: "The plaintiff was probably unemployed for more time that he was employed between 1988 and July 1993" (The appellant was injured in August 1994).
13 The Commissioner said that the appellant's evidence concerning his business activities prior to his being injured was very unsatisfactory and that the most obvious point for concern was his failure to disclose his business income in a taxation return. The appellant had said that this was because his business partner "did a runner". The Commissioner said that the evidence as to the appellant's earnings prior to his accident was in essence unsatisfactory. He came to the conclusion:
"On my assessment of all the evidence the plaintiff lacks credibility and it is simply not possible to make any reliable findings on his level of income, if and when he was a partner with one other in the business known as R & R Brake and Clutch."
14 The Commissioner also noted that the appellant had become very unsatisfied with a number of medical practitioners who had treated him. He said the appellant had painted a picture that he was almost totally dependent on his partner and "In my opinion he deliberately and grossly exaggerated the position when he was asked …."
15 The Commissioner accepted the evidence of Mr Brash that the appellant had not complained to him about back pain when he had first seen him after the accident. He found that no plain x-ray or CT scan had been taken of the appellant's lumbar spine before the appellant was referred to Mr Kerr on 12 December 1994, a little over three months after the accident.
16 Having discussed some of the evidence, the learned Commissioner said:
"In my opinion the plaintiff was simply caught out inventing symptoms to embellish his claim. I am of the firm opinion the
(Page 6)
- plaintiff was an unreliable witness. I do not accept his evidence on matters in issue unless it is corroborated by reliable evidence from another witness or witnesses."
17 The learned Commissioner also did not accept the appellant's partner as an independent reliable witness on matters in issue. Miss Graham had given evidence that she had been receiving social security payments of $387 per fortnight and had agreed to repay all of those payments when she received funds from the appellant. The Commissioner said that Miss Graham therefore clearly had a vested interest in the outcome of the appellant's claim. He did not regard her as an independent or reliable witness.
18 The Commissioner found that as a result of the accident the appellant had suffered a minor fracture of the left lateral mass of the seventh cervical vertebrae in his neck. He accepted that the appellant had complained of neck pain shortly after the accident and that such an injury was consistent with the circumstances of the accident. He said that that fracture explained the neurological deficit in the appellant's left hand and that numbness involving the thumb, index and middle fingers of that hand related to C7.
19 The Commissioner was not satisfied that the appellant had suffered a lumbar spine injury, or an aggravation of his pre-existing spondylolisthesis in the lumbar spine, as a result of the accident. He did not accept that the appellant had complained to Dr Franklyn at Broome of both neck and lumbar pain following the accident. He said: "My assessment of the reliability of the plaintiff's evidence is such that I do not accept his word on this issue."
20 The Commissioner noted that no nurse or medical practitioner who had examined the appellant at the hospital after the accident had given evidence and that there was no report from any officer of the Broome Hospital in evidence. Neither Dr Franklyn nor Dr Murray who had seen the appellant at Broome had given evidence and there was no report from either of them in evidence. He said:
"I therefore have no medical evidence before me setting out the nature of the plaintiff's injuries and symptoms in the first two months following the accident. It follows that there is no medical evidence before me to show that within that time the plaintiff complained of any low back pain."
(Page 7)
21 The learned Commissioner also noted that the first set of plain x-rays taken at the hospital were of the cervical spine only and not the lumbar spine. Further that Dr Murray's referral of the appellant to Mr Brash had made no reference to back pain. Mr Brash had said that the appellant had not complained to him about any back pain. The Commissioner found that Mr Brash had asked the appellant if he had any symptoms other than neck pain.
22 The Commissioner noted that the first mention of any complaint by the appellant about lower lumbar or spinal pain had been in Mr Wong's report dated 7 December 1994 which was just over three months after the accident. Mr Wong had stated in his report that after the accident the appellant had noticed severe neck pain and lower lumbar spine pain. Mr Wong gave evidence that it was not until after December 1994 when x-rays were available to him that he had first been alerted to the appellant's problem with the L5/S1 spondylolisthesis.
23 Mr Griffiths gave evidence that the spondylolisthesis problem would have been present from the time the appellant was 12 or 13 years of age. It was a developmental anomaly which was quite common in 6 to 8 per cent of the Anglo Saxon and Asiatic population. The Commissioner noted that Mr Griffiths, Mr Brash, Mr Batalin, Mr Kerr and Mr Watson had agreed that the appellant had had a pre-existing grade 1 spondylolytic spondylolisthesis in the lower back region at the lumbo-sacral junction. He said that the issue was whether that condition had been asymptomatic before the accident and had then been rendered symptomatic as a result of the accident. He noted that the appellant had given evidence that his lumbar spine had been asymptomatic before the accident and that Mr Griffiths thought that the appellant would not have been working as a motor mechanic before the accident if his pre-existing L5 spondylolisthesis had been symptomatic. The Commissioner said:
"This evidence must be considered with all of the other evidence as a whole. I have already mentioned that I do not regard the plaintiff as a reliable witness. I have also already mentioned that the plaintiff did not complain about any low back symptoms until about three months after the accident. Mr Griffiths also said and I accept, that the L5 spondylolisthesis could become symptomatic spontaneously, although generally the onset of symptoms is associated with some sort of excessive bending or lifting from the floor level upwards, putting extra stress on the potentially weak area. He also said that it was not
(Page 8)
- necessary to be involved in a car accident for the degenerative condition to be rendered symptomatic."
24 The Commissioner accepted Mr Batalin's evidence that usually the symptoms from such a back injury would arise quickly:
"… usually immediately; in the more severe injury the more immediate the symptoms. Certainly one accepts symptoms within days. One is a little cautious about accepting symptoms within weeks. If symptoms occur many months afterwards I would be pushed hard to have cause and relation between the two."
25 The learned Commissioner came to the conclusion:
"Whatever may have rendered the plaintiff's L5 spondylolisthesis to become symptomatic, if was not already before the accident, was probably minor given that there was no additional pathology at L5/S1 and that the bone scan conducted in April 1995 showed uptake at that level. If the plaintiff's level of low back symptoms was really as severe as he suggested to Mr Wong and Mr Harper then it is reasonable to expect that he would have complained about them within the first three months of the accident and I am not satisfied that he did."
26 He said:
"In summary I am not satisfied on balance that the accident caused a symptomatic pre-existing L5 spondylolisthesis problem to become symptomatic. It probably became symptomatic in about early December 1994 and after the plaintiff had seen Mr Brash on 1 December 1994. The symptoms were and probably are minor."
27 It can be seen from the Commissioner's last-mentioned comments, that he came to the conclusion that the appellant's back "probably became symptomatic in about early December 1994…The symptoms were and probably are minor."
28 That finding was not a finding which was solely based on the appellant's evidence. It was a conclusion which accepted that the appellant had back problems which had arisen approximately three months after the accident.
(Page 9)
29 The appellant was 37 years of age at the time of the accident. The medical evidence was to the effect that back conditions like his "begin to play up" in the middle to late 40s, or in "late middle life or middle life" (eg Mr Batalin). Mr Watson thought it was reasonable to conclude that it was the accident which had caused the back pain.
30 The Commissioner's finding that he was not satisfied that the appellant's back problems were accident related was a finding which to a large extent was based on inference from the medical evidence some of which has already been referred to in these reasons.
31 In Warren v Coombes (1978-1979) 142 CLR 531 at 551 Gibbs ACJ, Jacobs and Murphy JJ said:
"There is in our respectful opinion no authority that entitles us to depart from the doctrine expounded in this Court in cases before and including Paterson v Paterson (1953) 89 CLR 212 and in the House of Lords in Benmax v Austin Motor Co Ltd [1955] AC 370. The balance of opinion in cases since Edwards v Noble inclines in favour of adherence to that doctrine. Shortly expressed, the established principles are, we think, that in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it. These principles, we venture to think, are not only sound in law, but beneficial in their operation."
32 In my view, considering that the vehicle in which the appellant was travelling turned over at least once (if not twice), it did not do justice to the appellant for the Commissioner to find that the appellant's back problems were unrelated to the accident.
33 It was common ground that there had been a roll over which had been severe enough to fracture the appellant's neck. For the Commissioner in those circumstances to hold, that although the appellant had suffered some back problems within approximately three months after the accident, they had arisen due to some other cause, was in my view a wrong inference to draw and against the weight of the evidence.
(Page 10)
Past Economic Loss
34 With respect to past economic loss, the learned Commissioner came to the conclusion that this was not a case where the past economic loss should be calculated with precision by a mathematical calculation. He said:
"The weight of medical evidence rules out the plaintiff working as a motor mechanic because of the symptomatic spondylolisthesis effect. I am not satisfied that this is accident related. It follows that once the plaintiff's lumbar spine became symptomatic he probably would not have been able to work as a motor mechanic in any event. The plaintiff did not complain about lumbar spine pain until about three months after the accident. For part of this period of time he was considered fit to work and worked for about two weeks. Therefore while his accident related neck and shoulder symptoms probably would have prevented him from working as a motor mechanic he was rendered incapable of doing so in any event because of his non-accident symptomatic spondylolisthesis."
35 The learned Commissioner noted that the appellant had been actually unemployed at the time of the accident and that the evidence did not permit a reliable finding concerning the appellant's income from his business which had ended three or four days before the accident. He noted that the appellant had not led a settled lifestyle in the 1980s and in the 1990s before the accident and had moved between Australia and New Zealand and that there was good reason to think that he might have travelled on a holiday but for the accident.
36 The Commissioner noted that the appellant did not have a continuous work history in the 10 years preceding the accident and that he had had periods of unemployment. He had also had a variety of jobs although they had all seemed to have either mechanics or sales in common. He said that sales work would probably be regarded as light work.
37 The Commissioner was not satisfied that the appellant's accident related injuries had prevented him from performing light work from 1995. He thought it was unlikely that the appellant would have worked continuously year after year as a mechanic:
"He seemed to want to do something different from time to time for example park attendant and proprietor of a craft shop. In the decade before the accident he did not work over a prolonged
(Page 11)
- period as a motor mechanic. Doing the best I can I award the plaintiff damages for past economic loss in the global sum of $3000."
38 In my view, because of the fact that the Commissioner did not attribute the appellant's back injury to the accident, he under-estimated the damages for past economic loss at $3000. However, it could not be said that the learned Commissioner under-estimated the appellant's past attitude to work. Doing the best I can I would increase the damages for past economic loss from $3000 to $12,000.
39 The learned Commissioner found that the appellant's $87,100 claim for past gratuitous services on the basis that he had required care for not less than 70 hours per week for the first three months following the accident and not less than 40 hours per week thereafter until trial, was not sustained. He found that the appellant had probably needed some assistance in the month immediately following the accident but that the evidence had not been precise in relation to that period. It was also the fact that pursuant to s 3D of the Motor Vehicle (Third Party Insurance) Amendment Act 1994, no damages were to be awarded under this heading if the value of the gratuitous services was $5000 or less. In my view the Commissioner's finding in this regard should be accepted.
Future Economic Loss
40 With respect to future economic loss, the learned Commissioner came to the conclusion that the evidence did not permit the damages for future economic loss to be assessed with precision by a mathematic calculation. I agree with that finding.
41 The learned Commissioner then said:
"It is necessary to conduct the assessment on the basis that I am satisfied
(1) the plaintiff has some residual neck and neck related symptoms in his shoulder, left arm, left hand and thumb, index and middle finger on his left hand and
(2) that there is no causal relationship between any lumbar spine symptoms in the accident. I think the plaintiff's neck and associated symptoms are minor despite the plaintiff's evidence to the contrary."
(Page 12)
42 The Commissioner came to the view that the medical evidence on the appellant's work capacity needed to be considered very carefully because much of it had been based on the appellant's subjective account of his symptoms which in the Commissioner's opinion were not reliable and also because much of it had been based on a combination of all of the appellant's alleged symptoms including those of the neck and lumbar spine.
43 The Commissioner noted that the fracture of the C7 vertebrae had healed well and did not itself cause any symptoms and that there had been no major nerve damage. The irritation in the shoulder, arm, hand and finger was only minor. There was a lack of muscle wasting. In 1996 Mr Griffiths had considered the appellant to be very fit but anxious. The Commissioner did not accept that the appellant was unable to use his left upper limb.
44 In my view the medical evidence supported these findings.
45 The Commissioner came to the view that the medical evidence and objective signs supported the view that the appellant was able to use his hands and that he appeared to have been using his left hand despite hardly using it at all during medical interviews and examinations. He accepted that the appellant would have had some ongoing symptoms related to his neck, but said that his incapacity was not as great as he had made it out to be. The Commissioner accepted the evidence of Mr Griffiths that the appellant had a permanent disability of the cervical spine of 5 to 10 per cent.
46 The Commissioner came to the conclusion that while the appellant had symptoms in neck, left shoulder, left arm and fingers on his left hand, they were only minor and did not prevent him from using his left arm or limb. It was likely that he had a small permanent residual disability in his neck of about 5 to 10 per cent and that it was possible, perhaps likely, that the rate of degenerative change in his neck would increase. He accepted Dr Home's evidence that he would tend to advise people with the appellant's symptoms to avoid activity which involved jarring, such as strenuous manual handling particularly above shoulder height, digging, pulling on heavy objects and pushing heavy objects at arms length away; that light manual work such as maybe bench height repairs or shop assistant type work would appear to be within the appellant's range. The Commissioner noted that Mr Watson was optimistic that the appellant could return to the work force providing the right occupation was found which was relatively sedentary. He thought the appellant would increase
(Page 13)
- his workload to 30 or 40 hours per week in such work as a motor parts supplier or estimator in the area of mechanical repairs.
47 Dr Home had given evidence that the appellant was not without some transferable skills and had operated several businesses; that there was no reason why he could not be employed in some sort of work which involved a capacity to move around a bit, as opposed to sitting in one position. He anticipated the appellant could accept work such as a travelling salesman, sales representative or maybe in a shop, walking around the place. The Commissioner noted that the appellant had worked at various times as a salesman in New Zealand.
48 With respect to the lumbar spine problems, the Commissioner noted that Mr Watson had assessed the appellant to have a permanent disability of the lumbar spine of 5 per cent. He noted that in September 1996 Mr Griffith had expressed the opinion that it was possible that his lumbar spine symptoms could spontaneously resolve. Mr Batalin had also indicated that the lumbar spine symptoms could resolve.
49 Mr Batalin had given evidence that bench type work, or small engine mechanical work could be considered, or retraining to work which would involve a sedentary or semi-sedentary occupation, for example clerical work or salesperson work.
50 Mr Batalin had said that patients with spondylolisthesis who work in labour intensive occupations tend to become symptomatic progressively in their late middle life. The chances of this were very high, so probably by the middle to late 40s, many of them will have problems. There was a well over 50 per cent chance of such problems occurring.
51 The learned Commissioner discussed the psychiatric evidence. He noted that initially Professor Burvill had not thought that the appellant had had a psychiatric condition, or any psychiatric impediment to work. The professor had later come to the conclusion that the appellant had an adjustment reaction with depression and anxiety which was related to the physical disabilities and pain due to the accident. The professor did not believe those problems were likely to be permanent, but thought they could last for a considerable time as they were secondary to physical disabilities and pain which had appeared to be chronic in nature.
52 The Commissioner did not accept that the later opinion of Professor Burvill concerning the appellant's condition could be attributed to his injuries at the time of his accident. He said:
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- "In my opinion this is a case where the plaintiff's credibility rather than psychological aspects is a crucial factor."
53 Importantly the Commissioner came to the view that:
"Even though it is likely that the plaintiff's minor neck, left shoulder and left upper limb symptoms would permanently prevent him from working as a motor mechanic, it is also likely that his L5 spondylolisthesis problem would prevent him from doing so in any event. Even if the possibility of his lumbar spine becoming asymptomatic is realised then he would still be very vulnerable to further exacerbations of his lumbar spine if he returned to work as a motor mechanic or heavy work requiring lifting or bending."
54 The Commissioner came to the conclusion that the appellant was not the type of person who would work in the one job in the one place and for any great length of time. That his work and personal history in the last decade supported that view. He seriously doubted that the appellant was the type of person who would work continuously until he was 65 years of age. The Commissioner noted: "To be fair to the plaintiff he did not suggest that he intended to do so."
55 The Commissioner came to the opinion that:
"The plaintiff's range of employment as a consequence of the neck, shoulder and left upper limb symptoms is much the same as that available to him as a consequence of his L5 spondylolisthesis problem. The fact that he is likely to have neck, shoulder and left upper limb symptoms in addition to the likely existence of lumbar spine symptoms or the risk of redeveloping lumbar spine symptoms may on occasions prevent him from obtaining work that he would otherwise have been capable of. He should be compensated for this. I cannot be more precise about it. For all these reasons and doing the best I can I assess the plaintiff's future economic loss in the sum of $10,000."
56 In my view the learned Commissioner considerably under-estimated the problems which the appellant may fairly be said to have suffered arising from the consequence of his neck and back disabilities due to the accident. I would assess the sum for future economic loss on a global basis and accepting the findings of the learned Commissioner concerning
(Page 15)
- the plaintiff's attitude to full-time employment I would increase the award for this aspect from $10,000 to $40,000.
General Damages other than Economic Loss
57 The learned Commissioner approached the question of the award of general damages for other than economic loss, on the basis that s 3C(3) of the Act provides that the maximum amount of damages that may be awarded for non-pecuniary loss is, at the present time, $212,000 and that that amount may be awarded "only in a most extreme" case. He followed the prior decisions in Wylde v Aristondo's Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997 and Southgate v Waterford (1990) 21 NSWLR 427, 440. Those cases decided that it was necessary for a Judge to conceive "a most extreme case" and only for such a case might the maximum amount be awarded. Clearly quadriplegia would fall into that class. The amount to be awarded in a particular case must then be apportioned somewhere between nil and in this case, the sum of $212,000.
58 The learned Commissioner accepted that the appellant had suffered a good deal of pain and discomfort from his injuries in the month that followed the accident. He also accepted that the appellant had had headaches during that time and that thereafter he had suffered pain and discomfort and occasional headaches, but only to a minor extent. The appellant had required various medications from time to time for pain relief and to assist him in sleeping. He found that even at a minor level that the nature of the appellant's neck injury and associated symptoms were such that he was precluded from para-sailing, water skiing and surfing. Those were all sports which he had enjoyed prior to the accident. The Commissioner did not accept that the appellant had not had any sexual liaisons since the accident. He assessed the appellant's case at 12 per cent of a most extreme case. That equated to the sum of $25,440 which then he reduced by $10,000 as required by s 3C of the Act. The Commissioner therefore assessed the appellant's general damages in the sum of $15,440.
59 In accord with the reasons above, and considering the back injury suffered by the appellant, it is my view that 12 per cent of the maximum was too low an award in all the circumstances. A more appropriate award would be one based on 15 per cent of the maximum permissible, to take into account the acceleration of the appellant's pre-existing back condition. I would increase the award for general damages to the sum of $31,800 less $10,000 being $21,800.
(Page 16)
Other Damages
60 The Commissioner found that the appellant may need medication to relieve headaches and to aid sleeping from time to time. He awarded damages for future pharmaceutical expenses in the sum of $2000. I would not interfere with that award.
61 The parties had agreed special damages in the sum of $4189.35 to include $3000 for travelling expenses. The learned Commissioner awarded the special damages in that sum.
Total
62 If these reasons are accepted, the total award for the damages would be increased by increasing the sum for past economic loss by $12,000 to $15,000; the sum for future economic loss from $10,000 to $40,000, and the general damages from $15,440 to $21,800. The damages would therefore be increased from the sum of $34,629.35 to the sum of $82,989.
63 I would allow the appeal to that extent.
64 PARKER J: I have had the advantage of reading the reasons to be published by Miller J with which I agree. For those reasons I agree with Miller J that the appeal should be allowed, and the judgment of the District Court should be varied by substituting the sum of $73,229.35 for the sum of $34,639.35, being the amount of damages awarded.
65 MILLER J : This is an appeal from a judgment of Commissioner Reynolds delivered in the District Court at Perth on 8 December 1998 when the appellant was awarded the sum of $34,639.35 by way of damages for personal injury sustained in a motor vehicle accident which had occurred on 28 August 1994.
66 The grounds of appeal contend that the learned Commissioner erred in his assessment of damages in a number of different respects, including:
(1) awarding a sum which was well below the amount which should have been awarded in the exercise of a sound discretionary judgment;
(2) rejecting the evidence of the appellant without having regard to other supportive evidence of the appellant's case;
(Page 17)
(3) failing to make a proper allowance for past loss of earning capacity from the date of the motor vehicle accident until the date of trial;
(4) failing to assess an appropriate sum for future loss of earning capacity, having regard to the appellant's age and future notional working life;
(5) failing to give sufficient weight to the medical evidence which supported the case for the appellant;
(6) failing to make a proper allowance for the cost of future medication;
(7) failing to make any allowance for past and future gratuitous and paid services;
(8) awarding an insufficient amount for general damages for pain, suffering, inconvenience and permanent disability.
67 The appellant was a passenger in a motor vehicle which overturned on a roadway at Gantheaume Point on 28 August 1994. There is some dispute as to the number of times the vehicle turned over, the learned Commissioner concluding on the evidence that it had rolled over, but not twice as contended for by the appellant. In my view nothing turns upon this point.
68 The learned Commissioner detailed in his reasons the evidence which related to the appellant's injuries consequential upon the accident. It appears that the appellant left the scene of the accident on foot but was shortly thereafter given assistance and taken to Broome District Hospital by taxi, where he was examined by a nurse and sent home. The following day he saw a Dr Franklyn at the Broome District Hospital where he claimed he complained of neck and lumbar pain. The appellant testified to the effect that he was given only a soft collar by Dr Franklyn and although x-rays were taken of his cervical spine, no x-rays were taken of his lower back area. The appellant changed doctors because of disquiet about the way in which Dr Franklyn was treating him and thereafter saw a Dr Murray. Dr Murray was of the view, by early October 1994, that the appellant was fit to return to work. In response to this recommendation the appellant attempted work as a deckhand on a pearling lugger, but contended that his condition worsened, with the result that he did work for only a two-week period. He then returned to Dr Murray who referred him to Mr Brash, an orthopaedic surgeon then at Port Hedland District Hospital.
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69 Mr Brash referred the appellant to Perth for various x-rays and tests. He saw the appellant on 1 December 1994 after those investigations had been completed, but not thereafter until August 1998. The appellant did, however, see a number of medical practitioners from December 1994, at which time he commenced living in Quinns Rock. They included a general practitioner Dr Mao, a neurosurgeon Mr Wong, a specialist in rehabilitation medicine Mr Ker, the orthopaedic surgeons Messrs McLaren, Batalin and Griffiths, occupational physicians Dr Home and Mr Harper, and the neurosurgeon Mr Watson. The diagnoses and prognoses (where applicable) of each of these medical practitioners were considered carefully by the learned Commissioner, who reached the following conclusions on all the evidence:
(1) The appellant had suffered a minor fracture of the left lateral mass of the seventh cervical vertebrae in his neck and this injury was accident related.
(2) There was no major nerve route damage occasioned by the injury but minor nerve root irritation of the seventh cervical nerve root.
(3) The appellant's response to his cervical spine injury exceeded the extent of his physical injury and the unusual functional features which he demonstrated were to be explained by exaggeration of his symptoms.
(4) It could not be said on balance that the appellant had suffered any lumbar spinal injury or any aggravation of a pre-existing spondylolisthesis in the lumbar spine in consequence of the motor vehicle accident.
(5) As a result, any radiation of symptoms suffered by the appellant in the area of the buttocks, leg and foot was not accident related.
(6) Whatever rendered the appellant's L5 spondylolisthesis to become symptomatic (if it was not already symptomatic before the motor accident) was something minor and not accident related, because had it been the case that it was accident related, it was reasonable to expect that the appellant would have complained to either Mr Wong or Mr Harper or both within the first three months of the accident and yet he did not do so.
(7) The appellant does suffer from radiated symptoms from the L5/S1 area down the side of the thighs to the knee and
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- the side of the foot as a result of irritation of the nerve root adjacent to the defect, but these symptoms are not causally connected to the motor vehicle accident.
70 These conclusions were reached by the learned Commissioner after a careful consideration of a substantial volume of medical evidence. They were open to the learned Commissioner and should not, in my view, be disturbed. The learned Commissioner gave full weight to the conflicting views of the various medical practitioners and made a strong finding against the credibility of the appellant. He found him to be a very unreliable witness and did not accept his evidence on matters of fact in issue unless it was supported by other evidence which was in turn reliable. The learned Commissioner added that the appellant was "prone to exaggerate" and "gave unbelievable explanations to support his version of various matters". In this respect the learned Commissioner had the advantage of seeing the appellant in the witness box and of assessing his evidence over what appears to have been the course of nearly a full day. The advantage which the learned Commissioner enjoyed in this respect cannot be replicated in this Court.
71 The importance of recognising the role of the trial Judge in this relation to findings of face based on credibility was clearly stated by Brennan, Gaudron and McHugh JJ in De Vries v Australian National Railways Commission (1993) 177 CLR 472 at 479 as follows:
"More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge 'has failed to use or has palpably misused his advantage' or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable'."
- The issue was further considered by the High Court in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306 where Kirby J (at [68] et seq) reviewed the history of and principles governing the appellant review of questions of fact generally, and the conclusions of a trial Judge on the credibility of a witness in particular. His Honour (at [91] - [92]) said:
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- "… because trials remain public procedures for the resolution of disputes, it is inescapable that, in some cases at least, credibility assessments will be required where there is no documentary, electronic or other incontrovertible evidence to resolve the conflict presented for decision. In such cases it will remain the fact that, try as it might, the appellate court cannot procure from the printed record exactly the same materials on which to base the judicial decision as the trial judge had.
This conclusion may, as I think, be true of a relatively limited class of case: basically those where the decision depends upon resolving a clash of critical oral testimony, oath against oath. But in such cases, because the appellant court cannot, in presently available records, recapture all of the information properly used to assist the trial judge's decision, the old strictures about that judge's advantage remain as relevant today as they were when first written more than a century ago. In such cases, the appellate court's rehearing must be conducted within a constraint which is set by the somewhat more restricted data available to it. This limitation is not confined to Anglo-Australian law. It is recognised in other countries of the common law and doubtless beyond."
72 In my view, the conclusions reached by the learned Commissioner in relation to the credibility of the appellant were of fundamental importance in this trial. The Commissioner found the appellant's evidence in relation to his injuries and resultant disabilities to be entirely unsatisfactory and concluded that his evidence in relation to his work history was equally unsatisfactory. The result was that the learned Commissioner turned to the medical evidence to make findings in relation to the extent of the appellant's injuries, resultant disabilities and earning capacity. Within that evidence the learned Commissioner reached the conclusions I have previously set out. He did so by sifting carefully through the totality of the evidence and it would in my view be wrong for this Court to interfere with the conclusions so reached.
73 The learned Commissioner assessed the appellant's entitlement to damages in the following manner by reference to a number of separate and discrete headings.
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Past and future gratuitous services
74 The appellant had claimed some $87,100 for past gratuitous services, calculated on the basis that he required care of not less than 70 hours per week for the first three months after the accident and not less than 40 hours per week thereafter until trial. The claim was based on a rate of $10 per hour. A claim was made for future gratuitous services in the sum of $36,400 on the basis that the appellant would require care for five more years at a reducing rate from 30 hours per week to an ultimate requirement of five hours per week. Again the rate claimed was $10 per hour. Pursuant to the provisions of s 3D of the Motor Vehicle (Third Party Insurance) Amendment Act 1994 the appellant was limited in his entitlement to damages for the value of gratuitous services. No such damages can be awarded under s 3D(6) of that Act if the value of those services is $5000 or less.
75 The learned Commissioner accepted medical evidence to the effect that the appellant had the ability to survive independently without the need for any carer, although accepting that the appellant had probably needed some assistance in the month immediately after the motor vehicle accident. On the Commissioner's view (based upon medical evidence) the appellant was being "overcared for" and was quite capable of managing dressing, undressing, cooking and the like without assistance. For these reasons the learned Commissioner was not satisfied that the appellant had established any need for future gratuitous services and the entitlement to past gratuitous services was clearly less than the prescribed amount. The result was that no award was made under this head. I can find no basis upon which the learned Commissioner's assessment in this regard can be challenged.
Past economic loss
76 Prior to making an assessment of the appellant's entitlement to past economic loss the learned Commissioner reviewed a number of well-established authorities on the subject. They included Medlin v State Government Insurance Commission (1995) 182 CLR 1 and Paul v Rendell (1981) 34 ALR 569. The Commissioner accepted that it is the diminution of earning capacity which is or may be productive of financial loss (Graham v Baker (1961) 106 CLR 340 at 347) and properly proceeded to examine whether the evidence revealed that financial loss by reason of diminution of the appellant's earning capacity.
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77 In relation to past economic loss the learned Commissioner was seriously hampered by the fact that there was little or no evidence which established the appellant's income from the business which he had been conducting up to a few days before the motor vehicle accident. The only reliable income figure before the learned Commissioner was an earning capacity of $384.81 per week net which the appellant had earned for a period whilst employed by Coates Hire. In addition, there was evidence of the appellant's earnings at the rate of $560.50 per week net in the two weeks when he worked for Broome Pearls following the motor vehicle accident. This led the learned Commissioner to the view that the appellant had a capacity to earn more than $384.81 per week net, but he pointed out that the appellant had no settled lifestyle prior to the accident and no history of continuous work in the 10 years preceding it. Indeed, there had been substantial periods of unemployment and the appellant had held a variety of jobs, although primarily in the field of mechanics or sales. The conclusion reached by the learned Commissioner was that the appellant's accident related injuries did not prevent him from performing light work from the year 1995. He said:
"I think it is unlikely that he would have worked continuously year after year as a mechanic. He seemed to want to do something different from time to time, eg, park attendant and proprietor of a craft shop. In the decade before the accident he did not work over a prolonged period as a motor mechanic.
Doing the best I can I award the plaintiff damages for past economic loss in the global sum of $3,000.00."
78 It will be seen that the learned Commissioner made no attempt to spell out how the "global sum" of $3000 was calculated for past loss of earning capacity. The award is criticised by counsel for the appellant who contends that it is totally inadequate to reflect the appellant's loss for a period of four years. It is complained that it "overlooks the loss of earning capacity sustained, the loss of the capital asset of a mechanic, the devaluation of the appellant in the open labour market and his reduced ability to compete".
79 The approach of the learned Commissioner in relation to both past and future economic loss in this case appears to fall within the description of "broad axe and sound imagination" used by Cleland J in Matthew v Flood [1939] SASR 389 (at 392 -- 393) in the context of an assessment of damages under Lord Campbell's Act. That approach is sometimes necessary and the present case is a good example of that necessity. There
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- is, of course, a distinction between a "broad axe" assessment of loss of earning capacity and "plucking a figure out of the air" (see Rowe v Scanlan [1969] 1 NSWR 43), but it cannot be said that the learned Commissioner approached the matter in the latter way. Indeed, the lack of any true foundation for a calculation of past loss of earning capacity created insuperable problems for the Commissioner and precluded him from making any detailed arithmetical assessment of the appellant's entitlement.
80 However, the award of damages for past economic loss was very low. The appellant had been essentially unemployed for a period of four years from the date of the accident until the date of trial and his proven neck disability would undoubtedly have reduced his overall capacity to earn. It is true that the learned Commissioner found on the evidence that once the appellant's lumbar spine became symptomatic he would not have been able to work as a motor mechanic in any event. However, irrespective of that aspect of the appellant's aetiology, he had a reduced capacity to work on the labour market in consequence of his accident caused injuries. Given the period of time which elapsed between the date of the accident and trial, I consider that a more appropriate award for past economic loss was $10,000. Although complaint was made by counsel for the appellant that no allowance was made for loss of superannuation benefits, it was quite impossible for the learned trial Judge to separately calculate any component for loss of superannuation benefits. The best that could be done was to calculate a "global sum" as the learned trial Judge did. It was, however, a sum which was below the appropriate level of damages to which the appellant was entitled. I would therefore increase the learned Commissioner's assessment for past economic loss by the sum of $7000.
81 No interest was awarded by the learned Commissioner on the sum calculated for past economic loss. No explanation was given as to why this was so. The grounds of appeal contend that the appropriate allowance for past economic loss should have included interest, and on the face of it, I agree. Interest on the sum I consider appropriate for past economic loss (at 4 per cent per annum over the period of four years between the date of the accident and trial) would be $1600. That sum I consider should be added to the allowance of past loss of earning capacity.
Future economic loss
82 In calculating future loss of earning capacity the learned Commissioner adopted his conclusions in relation to past loss of earning
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- capacity. In particular, he adopted the findings in relation to the appellant as a witness and the findings that he made on the appellant's injuries and symptoms. The Commissioner pointed out that the evidence did not permit future economic loss to be assessed with any precision by reference to mathematical calculation and concluded:
"Given my findings on the plaintiff's reliability, the nature and extent of his accident related injuries and symptoms and his pre-accident work history the assessment of future economic loss is very much a matter of judgment in this particular case.
It is necessary to conduct the assessment on the basis that I am satisfied that (1) the plaintiff has some residual neck and neck related symptoms in his shoulder, left arm, left hand and thumb, index and middle fingers on his left hand and (2) that there is no causal relationship between any lumbar spine symptoms and the accident. I think the plaintiff's neck and associated symptoms are minor despite the plaintiff's evidence to the contrary."
"All of this evidence together with my finding that the plaintiff was unreliable and exaggerated his symptoms leads me to conclude that while the plaintiff has symptoms in his neck, left shoulder, left arm, left hand and fingers on his left hand they are only minor and do not prevent him from using a his left upper limb. Further, it is likely that the plaintiff has a small permanent residual disability in his neck of between 5 and 10 per cent. It is possible and perhaps likely that the rate of degenerative change in the plaintiff's neck will increase. It is also possible that the plaintiff's left upper limb symptoms could resolve spontaneously."
- The learned Commissioner went on to review the medical opinion in relation to the appellant's future in the work force. He accepted Dr Home's view that activity involving jarring, such as strenuous manual handling, particularly above shoulder height, digging and pulling on heavy objects, and pushing heavy objects at arm's length away at arm's length should be avoided by the appellant. However, light manual work such as work at bench height, repairs or shop assistant type work appear
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- to Dr Home to be something of which the appellant was capable. This view was supported by the opinion of Mr Watson who thought the appellant unlikely to go back to a job where he had to flex his neck repetitively or lift heavy things, but provided the right occupation was found in a sedentary field, the appellant should be able to perform it. It was Mr Watson's view that work of 20 hours per week for one or two years and then perhaps 30 or 40 hours per week thereafter would be within the appellant's capacity. Motor parts supply work or estimating in the field of mechanical repairs were two suggested occupations.
84 The learned Commissioner adopted Dr Home's view that the appellant would not be forced into premature retirement from the workforce. Dr Home had said in evidence that most people injured in heavy vocations and with the sort of physical disability the appellant suffered could be expected to be rehabilitated into "some sort of light manual work and unskilled nature … machine operator, machine attendant, light sales sort of work … some clerical work".
85 The learned Commissioner analysed the appellant's lumbar spinal problem which he found to be non-accident related. After reviewing the opinions of the various specialists (nearly all of whom thought that there were non-organic factors at play) the learned Commissioner concluded:
"All of the evidence to which I have referred on all of the plaintiff's symptoms and the various prognoses needs to be combined and weighed together. Even though it is likely that the plaintiff's minor neck, left shoulder and left upper limb symptoms would permanently prevent him from working as a motor mechanic, it is also likely that his L5 spondylolisthesis problem would prevent him from doing so in any event. Even if the possibility of his lumbar spine becoming asymptomatic is realised then he would still be very vulnerable to further exacerbations of his lumbar spine if he returned to work as a motor mechanic or heavy work requiring lifting and bending."
- The learned Commissioner then pointed out that the appellant was not the type of person who was likely to have worked in the one job in the one place for any great length of time and his work and personal history in the previous decades supported that view. The Commissioner doubted that the appellant would ever have worked continuously until the age of 65 years and concluded:
"In my opinion the plaintiff's range of employment as a consequence of his neck, shoulder and left upper limb
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- symptoms is much the same as that available to him as a consequence of his L5 spondylolisthesis problem. The fact that he is likely to have neck, shoulder and left upper limb symptoms in addition to the likely existence of lumbar spine symptoms or the risk of redeveloping lumbar spine symptoms may on occasions prevent him from obtaining work that he would have otherwise been capable of. He should be compensated for this. I cannot be more precise about it.
For all these reasons and doing the best I can I assess the plaintiff's future economic loss in the sum of $10,000.00."
86 In my view the conclusions reached by the learned Commissioner were entirely open on the evidence. The only question is whether the assessment of $10,000 to reflect the appellant's future loss of earning capacity was an adequate assessment. In this respect I agree with the learned Commissioner that only a global award could be made. The assessment was quite incapable of precise arithmetical calculation. However, it is to be borne in mind that the appellant was only 42 years of age at the date of trial, and although it is true that he may not have worked continuously until the age of 65 years, he would at the time of trial have had at least 20 years of earning capacity ahead of him. It truly was a case in which the diminution of the appellant's earning capacity was or might be productive of financial loss (Graham v Baker (supra) per Dixon, Kitto and Taylor JJ at 347). See also Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 where (at 658) Barwick CJ stressed that an injured plaintiff is not to be compensated for loss of earnings but for loss of earning capacity. His Honour said:
"However much the valuation of the loss of earning capacity involves the consideration of what moneys could have been produced by the exercise of the respondent's former earning capacity, it is the loss of that capacity, and not the failure to receive wages for the future, which is to be the subject of fair compensation."
87 In this case the appellant had a demonstrated capacity to work in the past in the mechanical field. He had also worked as a salesman. He was, by reason of his accident caused neck disability, limited in his capacity to carry out the work of a motor mechanic and although complicated by the aggravation of a previously asymptomatic lumbar spinal condition (non-accident related) the fact remains that the appellant's employment field was narrowed. Opinions expressed by the treating doctors as to the
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- capacity of the appellant to work in lighter vocations such as light manual work of an unskilled nature and even in clerical work, have to be tempered by reference to the appellant's chequered past working life in which he had worked primarily as a mechanic, but also in occupations which included service co-ordinator, sales manager, park attendant and small business proprietor. The evidence of the doctors in relation to the appellant's capacity for future work necessarily also had to take into account the fact that he had reached 42 years of age by the time of trial and had been absent from the labour market for approximately four years.
88 For all of these reasons I am of the view that the learned Commissioner assessed the appellant's entitlement to future loss of earning capacity at far too low a figure. Given an earning capacity of even $20,000 per annum net prior to the motor vehicle accident of 1994, the assessment of a figure of $10,000 for overall loss of future earning capacity was, in my view, below the exercise of a sound discretionary judgment. I would increase that sum to $40,000.
General damages
89 The learned Commissioner was called upon to assess damages for pain, suffering, inconvenience, loss of enjoyment of life and loss of amenities generally by reference to the provisions of s 3C of the Motor Vehicle (Third Party Insurance) Act. That section imposes a limit upon the award of damages to be made for non-pecuniary loss and by s 3C(3) prescribed (at the relevant time) a maximum amount of damages that could be awarded under that head of $212,000. That amount could only in turn be awarded in "a most extreme case". The learned Commissioner accepted authority to the effect that damages were to be awarded somewhere between nil and $212,000, but in a ratio which kept in mind the fact that the cap of the statutory maximum was retained for the most extreme case (Southgate v Waterford (1990) 21 NSWLR 427 at 440). There is no doubt that the learned Commissioner's approach was correct. It can be accepted that a case of quadraplegia falls into the "most extreme case" and therefore it was appropriate for the learned Commissioner to fix upon a ratio which kept that fact in mind. In so doing the learned Commissioner placed the appellant's case at 12 per cent of a most extreme case and by reference to the maximum amount of $212,000 calculated the appellant's entitlement at $25,440. By reason of the provisions of s 3C of the Act, that sum was to be reduced by $10,000 to the sum of $15,440.
90 In the course of his reasons the learned Commissioner accepted that the appellant had suffered a good deal of pain and discomfort from his
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- injuries and from his symptoms in the month following the accident. He accepted too that the appellant had thereafter suffered pain, discomfort and occasional headaches but "only to a minor extent". The Commissioner found the appellant to have exaggerated the extent of his symptoms but was nevertheless persuaded that he was precluded from various sporting and recreational activities. Given the learned Commissioner's findings and the inherently discretionary nature of the assessment to be made under this head, it cannot be said that the ultimate award of $15,440 was beyond the limits of a sound discretionary judgment.
Future pharmaceutical expenses
91 The learned Commissioner concluded on the evidence that future treatment expenses for the appellant would be limited to simple analgesia and appropriate physical exercise. At the most he would require medication to relieve headaches and aid sleeping from time to time. Again, without being able to make any precise arithmetical calculation the learned Commissioner assessed future pharmaceutical expenses in the sum of $2000. Given the findings I can find no basis upon which that assessment should be upset.
Conclusion
92 In my view the award of the learned Commissioner should be recalculated as follows:
Past economic loss $10,000.00
Interest on past economic loss $ 1,600.00
Future economic loss $40,000.00
Future pharmaceutical expenses $ 2,000.00
Special damages $ 4,189.35
General damages $15,440.00
Total $73,229.35
93 I would therefore allow the appeal and vary the judgment of the learned Commissioner by substituting for it an award of $73,229.35.
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