Patel v Casey

[2019] NSWCA 285

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Patel v Casey [2019] NSWCA 285
Hearing dates:	15 November 2019
Date of orders:	27 November 2019
Decision date:	27 November 2019
Before:	Basten JA at [1]; Leeming JA at [68]; Barrett AJA at [69]
Decision:	(1)   Allow the appeal and set aside the order and judgment given on 12 June 2019 in the District Court. (2)   Order that there be a new trial in the District Court dealing with the plaintiff’s claim for damages, including the costs of the first trial. (3)   Order that the respondent pay the appellant’s costs in this Court. (4) Grant the respondent a certificate under the Suitors’ Fund Act 1951 (NSW).
Catchwords:	TORTS – damages – motor vehicle accident – plaintiff sustained lower back injury – whether plaintiff also sustained injury to neck – few initial complaints of neck injury – whether trial judge addressed the significant medical evidence – adequacy of findings of reliability of plaintiff – reasoning insufficient to justify conclusion   TORTS – damages – quantification of loss of earnings – calculation of lost earnings based on workers compensation payments – lack of evidence of actual earnings – whether residual earning capacity properly assessed – basis of trial judge’s calculations not specified – matter remitted to District Court
Legislation Cited:	District Court Act 1973 (NSW), ss 4, 44 Motor Accidents Compensation Act 1999 (NSW), s 131; Pt 3.4 Uniform Civil Procedure Rules 2005 (NSW), r 51.53
Category:	Principal judgment
Parties:	Ripalkumar Ramez Hbahai Patel (Appellant) Ramona Anne Casey (Respondent)
Representation:	Counsel: Mr K Rewell SC (Appellant) Mr R McIlwaine SC / Mr R Quickenden (Respondent)   Solicitors: Hall & Wilcox Lawyers (Appellant) Whitelaw McDonald Solicitors (Respondent)
File Number(s):	2019/212959
Decision under appeal	Court or tribunal: District Court Jurisdiction: Civil Date of Decision: 12 June 2019 Before: Curtis ADCJ File Number(s): 2014/13423

Judgment

1. BASTEN JA: On 16 January 2011 the appellant, Ripalkumar Ramez Hbahai Patel, drove through a red light in Redfern, almost colliding with a police vehicle. The respondent, Ramona Anne Casey, was then a detective senior constable travelling in the back seat of the police vehicle. Ms Casey was injured when the driver took evasive action to avoid a collision.

2. On 13 January 2014 Ms Casey (the plaintiff) commenced proceedings in the District Court seeking damages from Mr Patel. By the time of the trial, in February 2019, negligence had been admitted and the dispute was limited to a quantification of the plaintiff’s damages. In an undated judgment, delivered on 12 June 2019, Acting Judge Curtis awarded the plaintiff $1,527,164 plus interest. No order with respect to the quantification of interest, nor as to costs, has been entered. The defendant appeals against the quantification of damages. (It is convenient to identify Mr Patel as the appellant.)

3. The appellant does not dispute that the plaintiff suffered an injury to her lower back which caused some level of disability. The primary dispute on the appeal concerned her complaint of a neck injury, which was either a soft tissue musculoligamentous injury, or an injury to the cervical spine. The judge found that she did suffer an injury to her neck in the accident but in doing so failed to address a significant volume of evidence which was inconsistent with that finding. The primary ground of appeal is that the failure by the judge to consider the relevant body of conflicting evidence led to a miscarriage of justice. Because, as the matter was run at trial, the critical finding turned in large part upon acceptance of the plaintiff’s evidence, acceptance of this ground would require remittal for a rehearing in the District Court.

4. For such an order to be made, the Court would need to be satisfied, not only that the trial judge had failed to address the relevant evidence, but that a substantial wrong or miscarriage had thereby been occasioned. [1] The appellant submitted that this requirement was satisfied because the attribution of the neck injury to the motor vehicle accident substantially increased the level of disability resulting from the injuries suffered in the accident. The error, if it were such, infected the assessment of damages for past and future loss of earning capacity and for medical treatment.

   1. Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), r 51.53.

5. Secondly, and independently, the appellant challenged the assessment of past and future loss of earnings in a number of related respects, which will be identified below. The effect of those independent errors, if established, could also significantly affect the amount of damages awarded and give rise to a substantial wrong or miscarriage of justice.

6. For reasons explained below, the appeal must be allowed and the judgment of the District Court set aside. There will have to be a retrial in relation to the quantum of damages.

Nature and extent of injury to neck

(a)   overview

7. Two medical assessments were undertaken of her physical complaints in accordance with the requirements of the Motor Accidents Compensation Act 1999 (NSW) (Motor Accidents Act); both found that the plaintiff did not suffer a degree of permanent impairment greater than 10%, and was therefore ineligible for an award for non-economic loss. [2] Neither assessor was satisfied that the plaintiff suffered an ongoing injury to her cervical spine attributable to the motor vehicle accident; however, each accepted that she had suffered an injury to her lower back which was caused by the accident. Different diagnoses have been given over the years as to the cause of her lower back pain; there has been no consensus as to whether there was an injury to the lumbosacral spine, to the sacroiliac joint, or a swelling in the piriformis muscle affecting the sciatic nerve. More importantly for present purposes, the trial judge made no finding as to the precise nature of the neck injury for which he awarded damages.

   2. Motor Accidents Act, s 131.

8. In order to appreciate the nature of the deficiencies in the reasoning of the trial judge relied on by the appellant, it is necessary to provide a brief coverage of the evidence called by the parties. Because the particular ground of appeal does not require this Court to assess the merits of the matter the evidence may be dealt with succinctly. That is a matter of no little importance given that some eight years elapsed between the date of the accident and the date of the trial, in the course of which period the plaintiff obtained and tendered 161 reports almost entirely from health professionals.

9. As is not uncommon, the parties called no medical practitioner to give evidence and be cross-examined. The burden on a trial judge of giving adequate consideration to some 1,000 pages of reports, medical notes and statements of opinion, and placing the oral evidence of the plaintiff in context, was undoubtedly formidable. Unhelpfully, submissions were all in writing, the appellant filing his before the plaintiff’s case had been articulated. To make matters worse, a schedule of payments made for the plaintiff’s treatment over 8 years and exceeding 150 pages was filed with the written submissions.

10. Apart from the examination and cross-examination of the plaintiff (and one other witness corroborating part of her case), it is difficult to distinguish the court process from the statutory assessment process under the Motor Accidents Act. Indeed, the court process runs a real risk that the immediacy of the oral testimony may overwhelm the equally important, and vastly greater volume of, documentary material. It is possible that that risk materialised in the present case.

(b)   plaintiff’s testimony

11. In her evidence-in-chief, the plaintiff described being thrown forward and then sideways when the vehicle had to brake and swerve. She described pain in her “lower back and my left – under my left glute, the middle of my lower back.” [3] She said that when she returned to the police station she told fellow officers that she had hurt her back. She said she spoke with the supervising sergeant, “asked for an ice pack and I had pain relief.” [4] The examination-in-chief continued: [5]

    3.    Tcpt, 25/02/19, p 12(20).

    4.    Tcpt, p 12(45).

    5.    Tcpt, p 12(50).

“Q. Did you have any pain in your neck at that point?

A. I was shaken. So in terms of pain it was mostly my lower back.

…

Q. How far up your spine did the pain go at that time so far as you could--

A. Up to my neck.

Q. Did you have any time off work?

A. Yes.

Q. Did you seek any medical treatment on that day, 16 January?

A. No. I drove home.

Q. Where was home then?

A. Newcastle.”

12. She stated that she had a day off and then went back to work but was still in pain, which she identified as being “left side of my glute and hamstring, my lower back, my neck, my arm, my chest.” [6] She gave evidence that she saw her physiotherapist, Mark Coulton the following day, 18 January.

    6.    Tcpt, p 14(25).

(c)   other evidence of neck injury

13. From the plaintiff’s perspective, Mr Coulton was of some importance as a witness: his notes provide the only contemporaneous confirmation that she complained of neck pain following the accident. There were three written reports from Mr Coulton in evidence. The first, which was undated but referred to an appointment in the future to be held on 28 March 2012, noted that the plaintiff was experiencing “an increase in lower back, sacroiliac joint and nerve related pain.” He suggested that she be able to continue in her employment, but with certain limitations.

14. In April 2013 Mr Coulton provided a report addressed to the plaintiff’s general practitioner, stating that she had been thoroughly tested by him and was fully fit to return to full duties. He said that he had tested her two days post-assessment and there were “no physical signs of dysfunction, nor disablement.” He said that Dr Conneely (another general practitioner who was treating the plaintiff) agreed that she could return to full duties.

15. A third report, dated 3 July 2013, was addressed “To whom it may concern”. The report stated:

"Ramona commenced treatment at this practice in February 2011 for injuries sustained in a work accident. She was diagnosed with disc injuries at C4-5, C5-6 & C6-7 levels as well as the L5 disc and left iliolumbar ligament. …

Ramona has seen dramatic improvements since approximately January 2013 and has since been deemed medically fit to return to full duties. Since early June 2013 she has been based in Parramatta. In the recent weeks I have seen a rapid decline in her condition and advised her that despite being 100% fit to carry out police duties, that prolonged sitting (i.e. travelling to/from Sydney daily) places undue stress specifically on the areas of injuries, and that undoubtedly it is the travel alone which is causing a flare up of her symptoms.”

16. The plaintiff also tendered Mr Coulton’s notes, which, consistently with his report, include an account of injury at the cervical spine being given by the plaintiff on 28 and 31 January 2011. (There were further references to the cervical spine, with symbols which were not explained, on 8 August and 29 August 2011.) Again, on 4 and 13 June 2012 there were references to the cervical spine, with the words “settled somewhat, good return rom [return of motion?]. P [pain?] persists.”

17. The most detailed entry in Mr Coulton’s notes was that of 10 October 2012 which stated “MVA [motor vehicle accident] on Freeway on return trip from Dr Conneely yesterday - ?asleep at wheel. ?Car written off.” The notes appear to refer to increased neck pain, with restricted movement. There were notes of an examination of the cervical spine, although the detail is difficult to translate.

18. In 2014 the plaintiff’s general practitioner, Dr MacDonald, referred her to Dr Michael Edger, a neurosurgeon. Dr Edger noted her account that since the motor vehicle injury in Redfern she had experienced “chronic low back pain, leg pains and pelvic pains. The pelvic pains were particularly severe in 2011, when she had a gynaecological procedure, although they gradually settled, until they recurred again earlier this year.” At the time of the consultation in September 2014 the plaintiff was pregnant and possible further investigations were delayed. (Her son was born in March 2015.)

19. In May 2015, she was receiving injections to treat both her L5/S1 pain and pain at her C7. A cervical foraminotomy and decompression of the exiting nerve at C7 were undertaken on 7 October 2015.

20. In November 2016 the plaintiff saw another orthopaedic surgeon, Dr Hyde-Page who expressed the opinion that she had suffered –

“an acute flexion/extension injury or whiplash type injury to her lumbar spine and cervical spine when the police vehicle in which she was a backseat passenger stopped very suddenly to avoid an accident. …

In the cervical spine she developed persistent neck pain and stiffness and right sided C7 radiculopathy where she has had surgical decompression of the right C6/7 disco to relieve pressure on the nerve root. Despite this her symptoms down the right arm and now the left arm have persisted.”

21. Dr Hyde-Page expressed the view that her “future employability is greatly restricted by her neck and back symptoms.”

22. At trial the plaintiff called a family friend, Mr Lobsey, who lived at Morpeth, outside Newcastle. He gave evidence that “after the motor vehicle accident”, although she never complained of pain, he noticed that she was “very stiff”, continuing: [7]

“She certainly had neck issues and I noticed that she would go to sit down and she would sit for a while and then she’d stand up, so she was obviously uncomfortable.”

7.    Tcpt, 26/02/19, p 101(40).

(d)   defence case

23. The foregoing summary sets out the plaintiff’s case for ascribing her neck condition to the accident in January 2011. It may be that there was some other material which might have supported that case, including a diagrammatic representation which was to be found at the end of Mr Coulton’s notes, indicating where she complained of pain, but it is not clear that the diagrams were deployed at the trial (although in evidence), nor do they reveal when they were prepared. There was, as senior counsel for the plaintiff submitted on the appeal, evidence that would support a finding in favour of the plaintiff with respect to causation of her neck condition. However, there was also a body of material which cast doubt upon the relationship of that condition and the accident in January 2011. In substance, and with the sole exception of the physiotherapy notes, the appellant submitted that there was no reference to neck pain in contemporaneous reports or the reports of any treating medical practitioner for 18 months after the accident.

24. These documents commenced with a NSW Police Force incident notification form filled in by the plaintiff, dated on the evening of the accident, in which she stated that the result of the abrupt braking was that her “upper body was thrown forward and the seatbelt did not lock. I felt immediate pain to the left side of my lower back.” The following day she saw Dr Dib at Broadmeadows Medical Centre. He signed a WorkCover medical certificate which gave as the diagnosis “low back pain”. The plaintiff also signed the document.

25. On 27 January 2011 the plaintiff saw her general practitioner, Dr Kochanski. He recorded the presenting symptoms as “lower back pain left sacroiliac area.” He noted that she exercised regularly and was seeing a physiotherapist, Mr Coulton. There were a number of further consultations with Dr Kochanski (who appears to have worked with Dr MacDonald’s practice) and who examined the plaintiff on 27 and 31 January. On 11 April 2011 he referred her, at her request, to Dr Halpin, a sports physician. An MRI scan undertaken in early April showed a “small central disc protrusion with an annular tear centrally and minor contact with S1 nerve”. There was also “mild degeneration at facet joints at L5/S1 level.”

26. Dr Halpin saw the plaintiff on 29 April 2011 and described her as “in very good general health.” He described her reported condition in the following terms:

“She had immediate pain in her lower back and left gluteal area. Several days later she developed left sciatic pain. She had no symptoms prior to this accident nor does she have any relevant past history.”

Dr Halpin referred to the MRI and suggested that the preferred treatment would be an L5/S1 lumbar epidural corticosteroid injection, but noted that some four years earlier multiple attempts at an epidural following a provisional diagnosis of meningitis had failed. She was referred to Dr Dan for further advice.

27. On 1 June 2012, having obtained legal advice, the plaintiff made a statutory declaration in support of a late claim under the Motor Accidents Act. Referring to the incident on 16 January 2011, she said:

“I immediately felt pain and discomfort in my lower back and I reported this to my fellow officers. I was driven back to Redfern Station in a lot of discomfort and while there I iced my back, was given pain relief and then went home to rest.”

There was detail of her ongoing treatment for her lower back pain. Again, there was no reference to a neck injury resulting from the accident.

28. A medical certificate given by a general practitioner, Dr Geary, dated 30 May 2012 referred to the annular tear at L5/S1 with central disc protrusion, suspected compression of sciatic nerve in piriformis region.

29. On 11 October 2013 the plaintiff was seen as part of a medical assessment by Dr Burns, who provided a certificate under Pt 3.4 of the Motor Accidents Act as to her degree of permanent impairment. Dr Burns found that there was a permanent impairment, being the injury to the lumbar spine involving “L5/S1 disc protrusion, left ilio lumbar ligament tear.” The impairment was not greater than 10% (5%).

30. Dr Burns noted that although the personal injury claim form had identified the injuries as injuries to the lower back, the entry under, “How do the injuries affect you now?” included “pain radiating into neck”. Dr Burns’ report contained the following statement:

“Dr Geary then referred her to Dr Conneely, a General Practitioner with an interest in Pain Medicine and Musculoskeletal Medicine. She was seen by Dr Conneely on 03.07.12. After examining her he believed that she had a left ilio lumbar ligament rupture rather than a piriformis syndrome. He arranged for a limited CT scan of the pelvis at the level of the ilio lumbar ligaments. This was carried out on 09.07.12 and revealed an injury to the left ilio lumbar ligament consistent with a tear. … Dr Conneely also recommended a referral to Dr Teychenne, a Neurologist in Sydney.

… I noted from the documentation provided that Dr Teychenne did organise for an MRI scan of the brain and cervical spine on 31.10.10 some 21 months after … her motor accident. I questioned Ms Casey about why the MRI scan of the brain and cervical spine was carried out. She then reported that she had had neck symptoms and neck pain since the accident. I noted that none of the medical specialists who had treated her prior to that time had reported any injury to the cervical spine or head. This included four different reports from Dr Dan as well as several reports from Dr Conneely. It also included a report from Dr Kochanski, one of her early treating doctors. Ms Casey reported that she had told all of the doctors that she had neck pain as well as low back pain and was unable to explain why none of them had reported this symptom. She also reported that Dr Conneely had told her that her pain in the legs may be due to a syrinx, which could have been present in either her cervical or thoracic spine.”

31. Under “current symptoms”, Dr Burns noted:

“She reported that she also has constant stiffness in her neck with occasional burning pain into her right arm and headaches. She also has pins and needles, which radiated [down] into the little finger of her right hand. She then pointed to the upper thoracic level on the right side as to where the burning pain commences.”

32. Dr Burns conducted a clinical examination, reporting:

“Examination of her cervical spine revealed minor global tenderness without any localised tenderness. There was no evidence of muscle spasm or muscle guarding. Flexion and extension were symmetrically decreased by 50%. Rotation to the left and right was also symmetrical and decreased by 50% as was lateral tilt to the left and right. Neurological examination of both upper limbs revealed no evidence of neurological deficit. She had normal power, tone, sensation and reflexes.”

33. Dr Burns concluded that there was “no evidence within the documentation of an injury to her cervical spine at the time of the motor vehicle accident. None of the substantial documentation provided, which includes medical reports from her treating specialists in 2011 and 2012 make any mention of a cervical spine injury.”

34. Dr Burns concluded that while there was a complaint of neck strain, it was not caused by the motor vehicle accident.

35. Because the plaintiff underwent a foraminotomy, it was necessary to carry out a subsequent medical assessment, which was undertaken by Dr Myers in June 2017. Amongst the injuries listed in the letter of referral was “cervical spine – musculoligamentous” injury. As part of the history of symptoms and treatment with regard to her cervical spine, Dr Myers noted that the plaintiff was seeing a physiotherapist in Cardiff “who treated all of her vertebral column and shoulders.” She told Dr Myers that the physiotherapist had suggested she see Dr Edger for a cervical spine injection, which was not done because she was pregnant, that being late 2014. She complained of increasing pain in her right arm from August 2015 (post-partum). Dr Myers referred to the foraminotomy conducted in October-November 2015, noting a report that she had had no numbness in the arms since that time. He also recorded a report of current symptoms involving “a numb, dull, pain at the back of the neck and which then spreads over the right shoulder blade, down the back and the side of the arm and into the hand, but not into the fingers.”

36. Dr Myers noted the reports by Dr Edger, including his lack of advice with respect to the lower back pain and symptoms in the left leg given “that the imaging is fairly unremarkable.” Dr Myers also noted that Dr Hyde-Page had identified an injury to the cervical to the spine, continuing “but his references to the cervical spine were not time related and therefore there would appear to be issues with regard to his finding of causation for the cervical spine.”

37. Dr Myers accepted that the plaintiff “has had a soft tissue injury to the lumbosacral spine.” With respect to the cervical spine he concluded:

“There was no contemporaneous documentation with regard to the cervical spine being injured in the motor vehicle accident.

There is no reference to it until nearly 18 months from the motor vehicle accident and no documentation otherwise to support that this was a significant event.

It is clear that Ms Casey did go on to develop C7 symptoms in the neck and right arm, but this was because of her foraminal stenosis.

This is not an acute or chronic traumatic injury.

Thus, while Ms Casey did quite appropriately require surgery to the cervical spine, I can find no evidence sufficient to support the contention that the condition of the cervical spine, which was operated upon by Dr Edger, was caused by the motor vehicle accident.”

38. The absence of complaint of injury to the neck, either in her own contemporaneous documentation reporting the accident, or in the records of the numerous medical officers whom she consulted, often many times, was put to her in cross-examination. The cross-examiner established, first, that in the 14 months following the accident she had had two days off work because of injuries suffered in the accident, a proposition with which she agreed. [8] When pressed with the absence of reports of neck pain in the medical records, and the suggestion that she did not tell the doctors that she had any problem with her neck because she had no significant problems, her response broadly was that she did have problems from the outset, that her main complaint was her lower back, and that she could not recall whether she had informed the various doctors of the problem, but believed that she did.

    8.    Tcpt, 25/02/19, p 59(25).

(e)   reasoning of trial judge

39. At the outset, the judge identified the key elements of the plaintiff’s claim, namely that she suffered neck and back injuries in the incident on 16 January 2011. He further noted that the defendant asserted that “the injury to the back was a minor soft tissue injury from which Ms Casey has mostly recovered, and that she suffered no injury to the cervical spine in the accident.” [9]

    9.    Judgment at [1]-[3].

40. The judge dealt first with the back injury, setting out the findings of Professor Leon Kleinman. [10] He then identified the principal finding of Dr Burns with respect to the lumbar injury, accepting that she continued to have significant pain in her lumbar spine. [11] The judge then stated:

“[12]   The defendant relies upon the opinion of Dr Zeman that the back injury symptoms referable to the motor vehicle lasted no more than 12 weeks. I reject this opinion. It is contrary to all other medical evidence and contrary to the evidence of Ms Casey which I accept as truthful.”

10.    Judgment at [5]-[10].

11. Judgment at [11].

41. The rejection of Dr Zeman with respect to the back injury symptoms may be put to one side for present purposes, although it may be noted that Dr Zeman in fact provided three reports and gave detailed consideration to a number of issues which were relevant to the assessment of the plaintiff’s claims. For present purposes the significance of the statements set out above is the final sentence, accepting Ms Casey as truthful. It was submitted on her behalf that this statement extended (i) to reliability as well as truthfulness, and (ii) to all of her evidence including evidence in relation to her neck injury. If those inferences were correct, they reveal a failure to address the critical aspects of the evidence.

42. With respect to the first inference (reliability), there was no attempt to assess the objective circumstances of her apparent failure to mention the neck pain to any medical officer other than her physiotherapist. That material, only part of which has been summarised above and which was put to her in cross-examination, was capable of casting significant doubt, at least on her reliability. Thus, in failing to address that material, at this point, the trial judge, if making a general finding as to reliability and credibility, failed even to advert to, let alone engage with, a core aspect of the defence case. Further, there was no reference until later in the reasons, to the surveillance evidence of the plaintiff undertaking athletics training shortly before the trial. Even then its effect on the reliability of her evidence was addressed briefly as not being “inconsistent with serious back and neck pathology”, which was incapacitating for work. [12]

    12.    Judgment at [24], [25].

43. The drawing of the second inference may, however, be inappropriate; the trial judge turned to the question of the “neck” which was his next heading, in the following paragraphs.

44. The judge noted the plaintiff’s evidence “that she was immediately aware of pain in her back and neck after the accident”; that as time went by “her neck became more painful and stiff and she developed shooting pain down her right arm”, that Dr Edger diagnosed right C7 nerve root irritation from a C6/7 disc protrusion and in November 2015 performed a C6/7 decompression. [13]

    13. Judgment at [13].

45. The judge then referred to Dr Hyde-Page having examined the plaintiff on 4 November 2016 and having “related her neck pain and the need for surgery to the accident.”[14]

    14. Judgment at [14].

46. Dr Hyde-Page’s opinion was no doubt open on the evidence; he understood the description of the accident to have been consistent with a whiplash effect. On the other hand, Dr Burns and Dr Myers were not satisfied of any such connection, Dr Myers denying that the condition of her cervical spine which was the subject of the operation by Dr Edger was a traumatic injury. The judge had to deal with this evidence. There was no reason to disregard these opinions on the basis of expertise or lack of attention to detail. The alternative view was acknowledged by the trial judge, but dealt with succinctly in the following three paragraphs:

“[15]   Various medical reports upon which the defendant relies express the opinion that the neck pathology cannot be related to the accident because the first medical complaint of neck pain was made 18 months after the injury, and the plaintiff cannot be believed when she describes neck pain during this interval.

[16]   Their assumed history is incorrect. Mr Mark Coulton physiotherapist who treated Ms Casey recorded cervical symptoms on 28 January, 31 January and 8 August 2011. Further cervical symptoms were recorded on 4 June, 13 June 22 October and 26 October 2012.

[17]   Further, Mr Daryl Lobsey, a TAFE teacher who has known Ms Casey since she was a teenager gave evidence. He was in regular contact with her before and since the accident. He recalls observing her displaying symptoms of a stiff neck in the weeks following the motor vehicle accident.”

47. This brief reasoning is unsatisfactory for a number of reasons. First, it commences with the assumption that the plaintiff was a satisfactory and reliable historian in giving evidence, rather than noting the problems in the objective evidence in assessing her reliability. Secondly, it treats as a false assumption the proposition that she made no medical complaint of neck pain for 18 months after the injury. This proposition requires some further analysis. If, as might be assumed, the reference to “medical complaints” in Dr Burns’ report referred to complaints to medical practitioners, the statement was correct. There appear to have been some 33 visits to general practitioners between the date of the accident and July 2012 (18 months post-accident) without reference to neck pain being recorded in the notes. The plaintiff was also referred to various specialists in that period, but never for treatment of her neck. The only assessment of her neck appears to have been that undertaken by the physiotherapist, Mr Coulton. The only note which may have been available to support an early complaint of neck injury was the statement by Mr Coulton that she was “diagnosed with disc injuries as at C4-5, C5-6 & C6-7 levels…”. [15] Mr Coulton was not a medical practitioner, did not identify the nature of the injury the subject of his “diagnosis” and took no steps to investigate the injuries.

    15.    Report, 3 July 2013.

48. Secondly, it was not true to say that the medical practitioners who found no injury in her neck rejected the claim on the basis of absence of early records; they also undertook examinations of the plaintiff and reviewed her medical history.

49. Dr Myers examined the plaintiff after the foraminotomy had been conducted. Dr Myers referred to an MRI of the cervical spine on 31 October 2012, [16] which showed “multi level cervical spondylosis with an osteochondral bar on the right side at C6/7 contacting the right C8 nerve root.” As noted above, Dr Myers identified these symptoms as a foraminal stenosis which he described as not a traumatic injury. He was not satisfied that it was caused by the motor vehicle accident. None of these findings was addressed by the reasoning of the trial judge. Further, Dr Myers did not conclude that the plaintiff’s neck had not been affected in the accident, but rather that there was no evidence to support the conclusion that this was “a significant event.” This approach was supported by the history recorded by the physiotherapist, who referred in his notes to cervical symptoms (without detail) on six occasions out of 36 consultations during the first 18 months after the accident, and was satisfied she was 100% fit in early 2013.

    16.    Wrongly identified in his report at p 10 as being undertaken in 2010.

50. Thirdly, it was not open, without further explanation, to place significant weight on the evidence of Mr Lobsey. It was true that he recalled her displaying symptoms of a stiff neck, but (i) he denied she said anything about it, (ii) he was unable to provide clear evidence as to the circumstances in which he made the observations, (iii) he was unsure where he understood the plaintiff was living at the time (in fact Newcastle, not Sydney), (iv) and could not say what she was doing in the police force at the time, and (v) there was imprecision in what was meant by a “stiff neck”. While lack of precision was understandable in giving evidence eight years after the event, a fair assessment of his evidence, including his cross-examination, could not have allowed the judge to place much weight upon it.

51. Point (v) identifies a further difficulty with the reasoning of the trial judge. At no stage did he make any finding as to the nature of the neck injury which he found to have been caused by the motor vehicle accident and as giving rise to a significant level of on-going disability.

(f)   finding as to neck injury – conclusions

52. These considerations require that the judgment, based on the finding that permanent injuries occurred both to her neck and her lower back, must be set aside.

Assessment of lost earning capacity

53. In calculating past economic loss, the judge used as a base figure the amount paid by the worker’s compensation insurer during the period she was in the Police Force, before her medical retirement. To that figure, the judge added an amount of 25%, apparently because the compensation did not equate to her “full pay”.

54. The basis of this calculation was not explained in the reasons. It may be inferred that the supplement was intended to cover overtime. However, the Court was not taken to material which supported that calculation with respect to the plaintiff. The incident notification form identified her weekly base salary and her weekly full salary; the latter was 11.5% greater than the former. Her counsel led evidence from her to the effect that her compensation payments were $560 per week and that she received payments from her police sickness and accident insurer. (As for part of the 8.5 years since the accident she had worked full time, it was unclear to what period that figure related.) She also agreed with the proposition that both payments “amount to about 75% of your salary last time you worked”.

55. Her written submissions asserted:

“67   The best way of calculating [past] economic loss is to take the net sum paid by the worker’s compensation insurer until 13 February 2019 at $196,544. Allow 25% of that net sum as representative of the additional loss to the plaintiff ($49,136). This reflects the differential between what the plaintiff would have earned net to what she received net during periods of worker’s compensation.”

The judge accepted that calculation. [17]

17. Judgment at [27]. (The paragraph contained three sentences: the first two repeat the written submission, but the third is gibberish. It is not clear whether there was a further explanation intended to be included in the reasons.)

56. To that amount the judge stated that it was necessary to add the amount the plaintiff would have earned as a police officer “for the ten weeks from 14 February 2019 to the present. I accept the plaintiff’s calculations and find this loss to be $18,792.”

57. Dealing with the last, smaller, sum first, the calculation undertaken by the respondent did not equate with the reasoning of the trial judge. The respondent calculated a period of 12 weeks at a particular figure to reach the amount of $18,792. Four weeks later, the judge, purporting to accept the plaintiff’s submissions, reached the same sum on the basis of a 10 week period (not 12 weeks, nor 16). Secondly, as the appellant submitted, this figure took no account of any residual earning capacity.

58. The larger figure, being the loss until 13 February 2019, did not base itself on the plaintiff’s evidence (such as it was), because it took no account of the police accident and sickness payments; nor did it correctly allow the proposed mark-up, since to increase 75% to 100% requires the addition of one-third of the amount, not one-quarter. These mistakes may have operated in favour of the appellant, but each calculation was arbitrary in its own way. Critically, however, apart from the plaintiff’s say so, there were no records, nor other material, relied upon to justify the figure based on worker’s compensation payments.

59. The final figure accepted by the trial judge may be within an appropriate range; it is impossible to know from the actual evidence and the judge’s reasoning whether that is so or not. It is true that there was some evidence in the plaintiff’s testimony to support such a calculation (or indeed a more generous calculation in her favour). That evidence was given without objection, but there may have been an expectation on the part of the defendant that proper material would have been provided to support such a calculation. Nor did the trial judge address the defendant’s submissions which asserted that the plaintiff had two days off in 2011 (being the first year after the accident) and travelled overseas during that year. Her reduced working hours were said to have commenced after 2011 (apparently from March 2012). Further, at the time the plaintiff was retired as medically unfit in January 2018, she was working 30 hours per week. Regardless of whether the neck injury was caused by the accident, there was ample evidence of residual earning capacity which the trial judge did not address with respect to past loss.

60. With respect to future economic loss, the judge made assumptions that she would receive promotions in the future because she was “ambitious”, and had a total commitment to being a police officer, an ambition held since tender years. There was, however, no evidence to indicate that she was thought highly of within the Police Force, or that she had a likelihood of promotion. If, nevertheless, it was appropriate to allow for an increase in salary rates in the future, absent the injury, it is not possible to understand the calculations in the judgment. After accepting one medical officer’s opinion that she would be able to work some 27 hours per week, the judge opined that she had a residual earning capacity of $500 per week, although the basis of that calculation was not identified. The next step appears to have been a rejection of the loss calculated by reference to gross earnings for police officers aged between 30 and 34 years, and an assumption that the value of her loss per week was $1,500 net. If her residual earning capacity was fixed at $500, that appears to equate to a 75% loss of earning capacity. However, that was not the calculation which the judge then undertook; rather, he identified her present loss as $1,000 per week. He then applied a discount of 20% and a multiplier of 822 (described as $822) to achieve an amount of $657,600, which, with superannuation, gave a figure of some $730,000.

61. While the assessment of the largest element of the award of damages was fraught, because it is not necessary for this Court to recalculate damages, the issue need not be pursued. However, one further general issue should be identified with respect to the nature and extent of the ongoing disabilities. That relates to the surveillance evidence.

62. The judge referred to surveillance of the plaintiff undertaking activities at the Fearnley Athletic Centre in Newcastle West, recorded shortly before the trial. The judge described the recorded activity in two brief paragraphs in largely neutral terms, but noting an apparent limping as she walked off the track (which may have been caused by walking on a hard surface with running spikes) and grimacing and placing her right hand to her lower back after bending to pick up a plastic cone marker. [18] On another view, which was not discussed, her athletic abilities, which included what the judge described as a 200 metre sprint at “a fairly brisk pace” was patently inconsistent with a person who had lost two-thirds of her earning capacity due to physical disability. No specific finding was made as to the inferences to be drawn from the surveillance evidence, nor was it addressed in dealing with damages.

    18.    Judgment at [21]-[22].

Conclusions

63. The conclusion reached by the trial judge that the plaintiff suffered a significant neck injury in the course of the motor vehicle incident which occurred on 16 January 2011 must be set aside. The finding was made without addressing central elements of the defence case, which was not lacking in substance.

64. The plaintiff’s case in this regard turned on the credibility and reliability of her oral testimony. The challenge by the defence was directed squarely at her reliability. Accordingly, it is not possible for this Court, not having heard her evidence, to make its own findings. That exercise requires a further trial in the District Court.

65. An order for a new trial requires that the Court be satisfied that some substantial wrong or miscarriage has been occasioned by the error identified above. [19] In this case, there can be no doubt as to the satisfaction of that criterion. A critical issue as to the assessment of damages has not been properly determined according to law. Furthermore, although counsel for the plaintiff submitted that this Court would be satisfied that the award was otherwise within an appropriate range, that submission should be rejected. The award of more than $1.5 million was a substantial sum, in excess of twice the general jurisdictional limit of the District Court (which does not apply to motor accident claims). [20] Not only was the sum significant, but the defence case raised serious issues as to whether there was a loss of earning capacity in the range identified by the plaintiff and accepted by the trial judge.

    19. UCPR, r 51.53(1).

    20. District Court Act 1973 (NSW), s 44(1)(d) and s 4(1) jurisdictional limit.

66. Because the appellant’s challenges to the assessment of damages extended to other details of the calculations of past and future economic loss, a retrial will have to involve a full assessment of all issues with respect to damages, and not merely the finding as to whether there was a level of disability arising from a neck injury caused by the motor vehicle incident in 2011.

67. As noted earlier, it is not apparent that any order was made by the District Court with respect to interest on the damages awarded, nor as to the costs of the trial. If such orders had been made, it would be necessary to set them aside. In the event, it is sufficient that the Court make the following orders:

1. Allow the appeal and set aside the order and judgment given on 12 June 2019 in the District Court.

2. Order that there be a new trial in the District Court dealing with the plaintiff’s claim for damages, including the costs of the first trial.

3. Order that the respondent pay the appellant’s costs in this Court.

4. Grant the respondent a certificate under the Suitors’ Fund Act 1951 (NSW).

68. LEEMING JA: I agree with Basten JA.

69. BARRETT AJA: I agree with Basten JA.

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Endnotes

Decision last updated: 27 November 2019