Taupau v HVAC Constructions (Queensland) Pty Ltd - [2012] NSWCA 293

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Taupau v HVAC Constructions (Queensland) Pty Limited & Ors [2012] NSWCA 293
Hearing dates: 28 and 29 February 2012
Decision date: 18 September 2012
Before: Beazley JA at [1];
Basten JA at [219];
Macfarlan JA at [220]
Decision:
1. Appeal allowed;
2. Cross-appeal allowed;
3. Set aside the orders of the trial judge;
4. Dismiss the appellant/plaintiff's statement of claim against the first respondent/first defendant;
5. Dismiss the appeal against the first respondent/first defendant;
6. Note that no order for costs is made in respect of the proceedings against the first respondent/first defendant, either of the appeal or in the court below with the intent that the appellant/plaintiff and first respondent/first defendant are to bear their own costs of each proceeding;
7. Judgment for the appellant/plaintiff against the second respondent/second defendant. The parties to bring in short minutes of order in respect of the judgment sum assessed in accordance with these reasons.
8. The second and third respondents are to bring in short minutes of order in respect of the cross-claim;
9. Order that the second respondent/second defendant pay the appellant's costs of the appeal and in the court below.
10. Order that the second respondent/second defendant pay the costs of the third respondent/third defendant's cross claim and cross-appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:
APPEAL - Appellate review - Applicable legal principles - Appeal by way of rehearing - Real review of the trial - Court of Appeal required to give effect to independent review bearing in mind advantages enjoyed by trial judge.

EVIDENCE - Unchallenged evidence - No cross-examination of expert engineering witnesses - Trial judge erred in acceptance of one expert's evidence in preference to another - Absence of necessary factual underpinnings - Unchallenged status of evidence not sufficiently cogent reason for acceptance - Expert evidence could not be considered in isolation from medical and lay evidence.

EVIDENCE - Expert evidence - Assessment of expert evidence - Context - Suspicion does not have evidentiary value - Trial judge must assess evidence as a whole.

DAMAGES - Torts - Negligence - Workers' Compensation - Non-economic loss - Significant impairment of cardiac function - Trial judge erred in failing to award any amount for non-economic loss.

DAMAGES - Torts - Negligence - Workers' compensation - Past economic loss - Prior history of imprisonment - Trial judge erred in differential treatment of plaintiff based on previous incarceration - Relevant question is whether injury caused impairment of economic capacity whereby plaintiff suffered a loss.

DAMAGES - Torts - Negligence - Workers' compensation - Future economic loss - Discounts for vicissitudes - Prison record relevant vicissitude - Earning capacity - Medical expenses - Trial judge entitled to award damages by way of buffer - Civil Liability Act 2002, s 13.
DAMAGES - Torts - Negligence - Workers' compensation - Reassessment of damages by appellate court - No adverse credit findings by trial judge - Court able to assess damages on evidence - Supreme Court Act 1970, s 75A.
Legislation Cited: Civil Liability Act 2002
Supreme Court Act 1970
Uniform Civil Procedure Rules 2005
Workers Compensation Act 1987
Cases Cited: Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1
Anikin v Sierra [2004] HCA 64; 79 ALJR 452
Archibald v Byron Shire Council [2003] NSWCA 292; 129 LGERA 311
Bulstrode v Trimble [1970] VR 840
Clifton v Lewis [2012] NSWCA 229
Dell v Dalton (1991) 23 NSWLR 528
Eckersley v Binnie (1988) 18 Con LR 1 at 77-78
Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377
Fox v Percy [2003] HCA 22; 214 CLR 118
Graham v Baker [1961] HCA 48; 106 CLR 340
Hull v Thompson [2001] NSWCA 359
Jackson v Mazzafero [2012] NSWCA 170
Jones v Dunkel [1959] HCA 8; 101 CLR 298
Mackinnon v Bluescope Steel (AIS) Pty Ltd [2009] NSWCA 94
Medlin v State Government Insurance Commission [1995] HCA 5; 182 CLR 1
Nominal Defendant v Clancy [2007] NSWCA 349
Penrith City Council v Parks [2004] NSWCA 201
Sarian v Elton [2011] NSWCA 123
State Rail Authority of New South Wales v Brown [2006] NSWCCA 220; 66 NSWLR 540
Uszok v Henley Properties (NSW) Pty Limited [2007] NSWCA 31
Waterways Authority v Fitzgibbon [2005] HCA 57; 221 ALR 402
Wiki v Atlantis Relocations (NSW) Pty Limited [2004] NSWCA 174; 60 NSWLR 127
Wiki v Atlantis Relocations demonstrates
Zorom Enterprises Pty Ltd v Zabow and Ors [2007] NSWCA 106; 71 NSWLR 354
Category: Principal judgment
Parties: Filivae Taupau (Appellant)
HVAC Constructions (Queensland) Pty Limited (First Respondent)
HVAC Queensland Pty Limited (Second Respondent/Respondent to Cross-Appeal)
Forstaff Australia Pty Limited (Third Respondent/Cross-Appellant)
Representation: Counsel:
B Dooley SC; G Hickey (Appellant)
D Fagan SC: J W Dodd (Second Respondent)
D J Hooke SC; P J O'Connor (Third Respondent/Cross-Claimant)
Solicitors:
Slater & Gordon (Appellant)
Dibbs Barker (First and Second Respondents)
Holman Webb (Third Respondent)

File Number(s): 2010/211636
Publication restriction: No
Decision under appeal

Citation:

Filivae Taupau v HVAC Constructions (Qld) Pty Ltd v HVAC Queensland Pty Ltd & Anor

Date of Decision:

2010-06-04 00:00:00

Before:

Gibson DCJ

File Number(s):

4255/07

HEADNOTE

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

The appellant brought a claim in negligence against the third respondent, the labour hire company employing the appellant, and the second respondent, the firm to whom the appellant's services had been hired to, seeking damages for injuries he alleged he sustained during a workplace incident on 8 October 2004. The appellant claimed that he experienced an electric shock in the workplace, which caused him to suffer atrial fibrillation.

The trial judge found that the appellant had proved the system of work was unsafe. However, her Honour dismissed the claim against both the second and third respondents on the basis that she was not satisfied the appellant had experienced an electric shock, which caused the appellant's atrial fibrillation.

The appellant appealed against the dismissal of his claims against both second and third respondents. The third respondent cross-appealed against the second respondent claiming indemnity under the Workers Compensation Act 1987, s 151Z if the appellant's claim succeeded on the appeal.

The appellant's grounds of appeal raised four issues, which turned upon the trial judge's assessment of expert engineering evidence, that was not subject to cross-examination, and the medical and lay evidence. The four issues were:

1. Whether the appellant experienced an electric shock during the workplace incident?

2. Whether the trial judge erred in preferring the second respondent's expert engineering evidence instead of the appellant's expert engineering evidence?

3. Whether the trial judge erred in overlooking the medical and lay evidence that supported a finding of electric shock?

4. If the appellant had experienced an electric shock, whether the appellant's continuing atrial fibrillation caused by the electric shock?

If the appellant succeeded on these four issues then there was also an appeal in respect of the trial judge's provisional assessment of damages.

Held per Beazley JA allowing the appeal (Basten and Macfarlan JJA agreeing):

(1) An appeal by way of rehearing requires the Court of Appeal to conduct a real review of the trial, including the trial judge's reasons: [128].

Applied: Fox v Percy [2003] HCA 22; 214 CLR 118

(2) The Court of Appeal is required to give effect to its independent review of the facts except to the extent that the trial judge enjoys advantages, which cannot be recaptured by an appellate court: [128].

Followed: Anikin v Sierra [2004] HCA 64; 79 ALJR 452

(3) A trial judge is not required to accept evidence on the basis that it is unchallenged, however, the unchallenged status of the evidence may provide a cogent reason for its acceptance: [130].

Cited: Bulstrode v Trimble [1970] VR 840; Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1.

(4) The trial judge is required to engage with the issues canvassed by the expert evidence and explain why one expert is accepted over another. The evidence cannot be considered in isolation from other evidence: [133], [135].

Cited: Archibald v Byron Shire Council [2003] NSWCA 292; 129 LGERA 311

(5) Expert evidence must be assessed in light of the context in which it was given. A mere suspicion expressed by an expert does not have evidentiary value: [165], [167]-[168].

(6) The trial judge erred in finding that the appellant was not entitled to non-economic loss: [184].

(7) The assessment of non-economic loss turns on matters of opinion, impression, speculation and estimation: [205].

Cited: Dell v Dalton (1991) 23 NSWLR 528; Jackson v Mazzafero [2012] NSWCA 170

(8) In the assessment of damages for past economic loss, the court is in a position to look at the actual circumstances of the past, however, the question at all times remains whether there has been an impairment of economic capacity for which the plaintiff has suffered a loss: [190].

Cited: Graham v Baker [1961] HCA 48; 106 CLR 340; Medlin v State Government Insurance Commission [1995] HCA 5; 192 CLR 1

(9) In assessing future economic loss, the trial judge is required by the Civil Liability Act 2002, s 13 to take into account vicissitudes that impact upon a person's ability to earn: [195].

(10) The Court of Appeal may reassess damages as provided by the Supreme Court Act 1970, s 75A(10): [204].

(11) In the absence of an adverse credit finding by the trial judge and unchallenged medical evidence, it was appropriate for the Court of Appeal to reassess damages: [204].

Judgment

INTRODUCTION

BEAZLEY JA: This is an appeal from a decision of Gibson DCJ in which her Honour dismissed the appellant's claim for damages for injuries he sustained on 8 October 2004 when he alleged he experienced an electric shock which caused him to suffer from atrial fibrillation. In dismissing his claim, the trial judge accepted that the appellant had proved an unsafe system of work, but was not satisfied that he had suffered the injury for which he had claimed compensation.

Given the multiplicity of parties, it is convenient in the first instance to identify the parties, their relationships and the claims made between them.

At the time of the injury, the appellant, Mr Taupau, was employed by the third respondent, Forstaff Australia Pty Limited (Forstaff), a labour hire firm. For several months prior to the date of injury, Mr Taupau's services had been hired by Forstaff to the second respondent, HVAC Queensland Pty Limited (HVAC). His immediate supervisor was Mr Bongers, HVAC's foreman.

Mr Taupau brought his claim against the first respondent, HVAC Constructions Pty Limited (HVAC Constructions), as well as HVAC, because he was uncertain as to which company hired his services. It was resolved at the commencement of the hearing before the trial judge that his services had been hired to HVAC. No orders were made in respect of the claim against HVAC Constructions. The claim against HVAC Constructions should have been dismissed from the proceedings either then or at the time of making the final orders in the matter at first instance. As it was not a necessary party to the appeal, an appropriate order dismissing the appeal against it should be made.

The trial judge held, at [125], that although the system of work was unsafe, Mr Taupau had not sustained an electric shock as he claimed and although he suffered a burn to his thumb, he had not sustained a compensable loss. Accordingly, her Honour entered verdicts for HVAC and Forstaff. Her Honour nonetheless and appropriately assessed damages, should her rejection of the appellant's claim be found to be wrong on appeal. In that regard, her Honour provisionally assessed damages in the sum of $175,949.10 as against HVAC. Her Honour would have dismissed the claim against Forstaff had she found that Mr Taupau had suffered electric shock: see judgment at [133]-[134].

As Mr Taupau did not succeed on his claim against Forstaff, her Honour dismissed Forstaff's cross-claim against HVAC for indemnity.

Mr Taupau has appealed against the dismissal of his claims against both HVAC and Forstaff. Forstaff has cross-appealed against HVAC claiming indemnity under the Workers Compensation Act 1987, s 151Z should Mr Taupau's claim against it succeed on the appeal. Forstaff also challenged her Honour's finding that Mr Taupau did not suffer an electric shock.

Issues on the appeal

The principal challenge to her Honour's finding that Mr Taupau had not experienced an electric shock was to her acceptance of HVAC's engineering expert, Associate Professor Blackburn. Mr Taupau contended that there was an unchallenged aspect of the evidence of another engineering expert, Dr Grantham, that explained how Mr Taupau could have and did experience an electric shock. There was also engineering evidence from Mr Seeger-Snowden which supported Mr Taupau's claim of electric shock.

Mr Taupau also complained that her Honour erred in accepting engineering evidence that Mr Taupau had not suffered an electric shock before and without taking into account the expert medical evidence and the lay evidence in the matter. These two challenges raised the following particular questions, which in some respects overlap:

(1) Did Mr Taupau suffer an electric shock? (ground 1)

(2) Did her Honour err in preferring the expert evidence of Associate Professor Blackburn over that of Dr Grantham? (grounds 2, 3, 6, 10 and 11)

(3) Did her Honour err in overlooking the medical and lay evidence that supported a finding of electric shock? (grounds 4, 5, 7, and 12)

(4) Even if Mr Taupau did suffer electric shock, was the atrial fibrillation, from which he undoubtedly suffers, caused by the electric shock?

Should he be successful on the appeal, Mr Taupau also appealed against her Honour's provisional award of damages (ground 13).

Factual background

Mr Taupau commenced employment with Forstaff in April 2004. He was an experienced welder. Between that date and the date of the injury on 8 October 2004, his services were hired to HVAC, which was engaged at that time in the construction of a waste management centre at Eastern Creek. The particular job upon which Mr Taupau was working was the installation of ductwork for dust collection and odour extraction. The work was heavy manual work involving the use of power tools, a welder and other metal tools.

At the time of the injury, Mr Taupau was working in a fan/ventilation room. The work involved the installation of new fans and Mr Taupau was engaged in the process of bolting those fans to stands. In order to perform this task, he was required to lie on the floor in a confined space using a socket, a screwdriver and a shifter. As he needed to feel the bolts to tighten them he was working without gloves. Mr Taupau was using both hands to manipulate the shifter.

Whilst Mr Taupau was carrying out that work, Mr Bongers commenced to work nearby, using a welder. As he commenced the welding, Mr Taupau "immediately" saw what he described as "lightning" coming towards him from the welder, causing him to be thrown backwards. Mr Taupau said he felt "a burning sensation" in his head, which was "like sweat - very hot", that he had "pins and needles" in his fingers and hands and that his breathing was very fast. I will refer to Mr Taupau's evidence as to what happened in more detail below.

Mr Taupau was taken to Mount Druitt Hospital where a history of "electric shock to left hand" was recorded and a diagnosis made of atrial fibrillation. Mr Taupau continues to suffer from this condition. There was a serious contest as to whether Mr Taupau's atrial fibrillation was causally related to the work incident on 8 October 2004, even if he suffered an electric shock on that occasion. This dispute arose because of Mr Taupau's history of a heart condition which was first recorded when he was serving a term of imprisonment. There was also evidence that Mr Taupau had a number of convictions for PCA (prescribed content of alcohol) offences as follows: 25 July 1994, mid-range; 16 January 1995, special range; 2 April 1995, low-range; 8 July 1995, low-range; 18 July 1997, special range. Evidence was given that alcohol was a known cause of atrial fibrillation.

The evidence

Mr Taupau's description of the incident

Mr Taupau made a statement to an investigator on 24 February 2006 in which he described the incident as follows:

"On 8 October 2004, just after morning tea, 11:30am-12pm, I was inside the fan room. There were about 6 or 7 fans inside one room. Each fan was 2-3 metres square. We were installing the new fans. I had to get underneath them to bolt the fans onto the stands. I was underneath the fans, lying on the concrete. I was using a socket, screwdriver and shifter to bolt the fans in place.

... Rene [Bongers] was welding the fan next to the one I was bolting. There was enough room to walk between the fans but that was about all. Rene was using an Arc welder, which was plugged in to the power source ...

I was underneath the fan next to one that Rene was working on, but all the ducting was joined together ...

As soon as Rene started welding I saw lightning go right around the fan and hit me. My tools were connected to the bolts. I was holding my tools. The fans were only about 200mm off the ground, just enough to get my hands underneath. I recall that I could not [fit] my head underneath to see what I was doing.

I don't know if there was a short circuit or what. I don't think Rene grounded the arc welder properly. I was probably the ground that the welder went to. I recall that when the lightning reached me it pushed me across the room and away from the fans and ductwork. I think I am lucky that I did not get stuck under the fan for longer. I was only shocked for a short time.

Because I was lying down I felt all different parts of my body shaking. I burnt both my hands where I have been holding my tools. They were really hot. I think I might have been unconscious for 5 or 6 seconds. I felt pins and needles going through my body and could not see anything."

At trial, Mr Taupau gave oral evidence over three days. The services of an interpreter were engaged on the second day. Mr Taupau gave evidence that Mr Bongers was working on "the other side". He said he could see Mr Bongers' feet, but Mr Bongers could not see him. He said the fan Mr Bongers was going to be welding on was joined to the fan he was working on by the ducting. He said he "heard [Mr Bongers] start his welding and then I saw the lightning". The lightning was not "coming clockwise around" the "fan stand", but was on "both sides" of the fan stand, that is, "the metal bit ... where the fan was stand[ing]". He said he felt "pins and needles" all through his body, but mostly in his hands.

One of the controversial aspects of Mr Taupau's evidence was his contention that he was thrown some distance by the electric shock. In his evidence in chief, he said he felt himself "thrown away" about two metres. He was challenged on this in cross-examination:

"Q. Sir, can I suggest that you were not tossed some metres across the floor?

A. INTERPRETER: I was dragged under this duct, you know, where the air goes. I was dragged under that, and then I touched the wall."

There was also an issue as to whether there could have been a 'lightning' like effect around the fan due to some electrical malfunction. This was commented on, in particular, by the engineering experts and is discussed below. In cross-examination, Mr Taupau appeared to agree there was "no lightning around the fan". The cross-examiner then asked the question more directly:

"Q. I'll ask it this way: was there any lightning around the fan?

A. WITNESS: On the site [sic] at the top."

This, in my opinion, was consistent with his evidence in chief, to which I have referred at [16] above.

Mr Taupau said he had previously felt shocks from spark plugs, but this shock was different. Referring to the electric shock he said he felt on this occasion, he said, "that was very, very - too much that one".

Mr Taupau described the physical problems he had experienced since the incident and said he had not previously experienced a condition like that. He said that until the incident, he had been able to fully perform his work, had not missed a day's work and was able to work full weekend overtime when it was available.

Mr Taupau was cross-examined by counsel for HVAC as to his evidence that he had no previous problems with his heart:

"Q. Do you recall [counsel for Mr Taupau] asking you regarding heart problems or breathlessness, whether you've ever had those problems before, do you recall that question?

A. INTERPRETER: Fast beating of the heart wasn't happened before.

Q. Was your answer that 'Nothing has happened, nothing like that'?

A. INTERPRETER: It was just during the time that I was injured that my heart was beating fast.

HER HONOUR: He's not understood the question. Look, why don't you just put it to him on the basis we all know that's what he said and if you want to put it to him that in fact that's not the case, just go over it, I think.

[Counsel for HVAC]

Q. Yes, that was a lie that you told her Honour under oath, wasn't it?

HER HONOUR: I don't think you've quite got there."

At this point in the cross-examination, Mr Taupau's written statement was tendered. Portion of that statement is set out above at [15]. In addition to describing how the incident happened, Mr Taupau provided information in the statement as to his work history, sporting activities and his previous health. He said he was fit and healthy before the incident and had always worked hard in successive employment. He said he used to play golf nearly daily and had won trophies in 2000, 2001, 2002 and 2003. Importantly, he also said, at para (37):

"I have never had any heart problem before 8 October 2004. I have never needed to have my heart checked."

Mr Taupau was cross-examined on the statement as follows:

"Q. You went inside the gaol in September 2001?

A. WITNESS: Yeah.

Q. And you didn't play golf after that, did you?

A. WITNESS: 2001-2000, 2001, that's the only time I - 2002 not 2003, I was inside in that time.

Q. That wasn't true, was it?

A. WITNESS: No, that's not true.

Q. That you were trying to tell in this statement that before October 2004, you had no problems at all with your health, is that right?

A. WITNESS: Yeah yeah."

Mr Taupau's attention was then drawn to para (37). The cross-examination continued:

"Q. Do you remember telling anyone in the gaol in September of 2001 that you had chest pain with heavy exertion?

A. INTERPRETER: I remembered when I was locked in the cell for being stressed.

Q. So do you deny telling anyone at the gaol, in September of 2001, that [you] had chest pains with heavy exertion?

A. INTERPRETER: I remember telling the doctor when I saw that I have chest pains, and he was giving me Panadol and Panadeine.

Q. And did you relate the chest pains to heavy exertion?

A. INTERPRETER: No, there's a difference between the chest pains and heavy exertion.

Q. What's the difference?

A. INTERPRETER: I have sharp pains, and I can feel that in my heart, but short breath, I have been having that on and off.

Q. For how long?

A. INTERPRETER: About ten minutes, every ten minutes.

HER HONOUR

Q. When did it start?

A. INTERPRETER: About three days since I was in gaol.

[Counsel]

Q. It is in September of 2001, is that right?

A. INTERPRETER: Yes.

Q. Had you had any tests of your heart condition, before 2001?

A. INTERPRETER: I had check-ups in 1988 and 1998.

...

Q. ... do you now recall seeing a doctor when you were put into gaol in September 2001?

A. INTERPRETER: Yes.

...

Q. Do you recall seeing any sort of medical practitioner within a couple of days of being put in gaol in 2001?

A. INTERPRETER: I was looking for a doctor while I was inside gaol.

Q. For what?

A. INTERPRETER: For stress.

Q. That's nonsense, I suggest to you, sir. What do you say to that?

A. WITNESS: When I stress, I feel short of breath.

...

Q. ... I'm putting to you that you never complained of stress to any of the medical attendants whilst you were in gaol. What do you say about that?

A. INTERPRETER: In gaol, if you mention stress to anybody, they don't care.

...

Q. ... what you're saying to her Honour is that, say, for getting looked at for some stress related problems when you got put into gaol, but thereafter, you were healthy and okay, is that right?

A. INTERPRETER: That's right, I came out in 2004, and I was still working.

...

Q. ... you didn't tell the investigator about being in gaol between 2001 and 2004, did you?

A. INTERPRETER: I don't remember. I don't remember saying anything. I don't remember saying anything to the investigator in regards to that. I only remember what I wrote down in the statement.

Q. What you were saying, the investigator ... was that before October of 2004, you used to go jogging and running, is that right? In paragraph 31?

A. INTERPRETER: No, I can't run.

Q. Well, could you run before, before October 2004, could you run?

A. WITNESS: I never run. I always walk my dog.

A. INTERPRETER: I never run. I just walk my dog.

...

Q. Did you tell the investigator that you were playing football before October 2004?

A. INTERPRETER: No.

Q. Did you tell them that you were doing weightlifting before October 2004?

A. INTERPRETER: I told the investigator that I played football and do weightlifting, and that was in Samoa.

...

Q. You've told a number of the medical specialists ... that if you walk quickly, you have shortness of breath. That's correct, isn't it?

A. INTERPRETER: No.

Q. Before October 2004, did you ever have problems with shortness of breath?

A. INTERPRETER: No, only when I was in gaol, but when I was released, I wasn't - it's all gone.

...

Q. ... did you ever have any heart problems before October 2004?

A. INTERPRETER: There was a problem when I was in gaol.

...

Q. What was the problem that you had with your heart in gaol, between 2001 and 2003?

A. INTERPRETER: It's not a problem that I've been having every day. It's like every three months, then it happens. It's not an everyday problem.

Q. What problems did you have in 2001, 2002 and 2003?

A. INTERPRETER: It's the problem of shortness of breath when I walk up the stairs, so that's why they put me down on the ground floor.

...

Q. Can I understand this, sir, and correct me if I'm wrong, that what you're saying to her Honour, is that having complained of some chest pains when you were admitted into gaol of September of 2001, that they would just check you up from time to time while you were in gaol, but you did not have any more problems as far as your health was concerned in gaol. Is that what you're saying?

A. INTERPRETER: Yes, there was nothing wrong with me, but they called me for the ECG.

Q. Did you have any continuing problems after September of 2001, whilst you were in gaol with shortness of breath?

A. INTERPRETER: After a year, it was gone, and I was working. As I said before, when I was released, I was still working at the time, before I was released.

Q. Sorry, after a year, do you mean after - a year after you were put into gaol in September 2001, no more problems with shortness of breath. Is that what you're saying? No, please, translate?

A. INTERPRETER: He's saying 2001 to 2004.

Q. I'm asking for the time - in the time period you were in gaol, 2001 to 2004, do you understand that, your evidence you just gave us for a moment was, it was after a year that you stopped having problems with shortness of breath. Is that correct?

A. INTERPRETER: Yes.

Q. My question to you, sir, is, after a year, does that mean after about September 2002, that is, after you'd been in gaol for a year?

A. INTERPRETER: Yes.

Q. And that's a lie too, isn't it?

A. INTERPRETER: That's all I know.

Q. Sir, certainly on 20 July 2002, you attended the medical staff at the gaol, and complained of shortness of breath on slight exertion. Is that right?

A. INTERPRETER: I think I did, but I can't really remember.

Q. You gave a history of having a heart attack?

A. INTERPRETER: I didn't have a heart attack."

This last question may have been based on a misreading of the Justice Health records. On 17 September 2001, Mr Taupau, in respect of his family history, had stated that his mother had an irregular heartbeat. The medical records for 20 July 2002 then state:

"Complaining of [shortness of breath] on slight exertion. Has Hx of heart A. ECG attended, same normal. P. 67 BP. 120/80. To be assessed by MO. today."

It is not immediately apparent that the reference "Has Hx of heart A" recorded something that Mr Taupau said. It may have been a reference to the previous infarct that had been observed on an earlier ECG.

Mr Bongers' description of the incident

Mr Bongers was Mr Taupau's immediate supervisor and the person operating the welder at the time of Mr Taupau's work incident. He was a boilermaker by trade and described himself in his statement as a skilled tradesman. He is a certified welder with qualifications as a welding supervisor and a welding inspector. Mr Bongers did not give oral evidence at the trial. However, a statement he made to an insurance investigator on 7 March 2006 was tendered by the respondents.

In his statement, Mr Bongers described the work being undertaken at the time of the injury as connecting the ductwork to the fans. He stated that at the time of the incident he and Mr Taupau were attaching an "expansion joint". He explained that this was material held in place by clamps which had the effect of isolating vibrations from coming through to the ductwork. He said he was working about 1.5 metres away from Mr Taupau, welding "C-clamps" around the edges of a flange which was part of the expansion joint.

Mr Bongers said Mr Taupau "was working on one side of the joint, hammering the C-clamps into place". He continued:

"He was lying on the ground to perform this work. Access was really poor to get to these things. There was a big steel frame around the fan, supporting it. It was a real squeeze to get inside the frame and under the fans to put the [C-clamps] on. It was a headache job. I was working on the other side of the same joint that [Mr Taupau] was working on. I was using an arc welder (not much bigger than a laptop).

I don't know what happened. I don't think the welder was malfunctioning. [Mr Taupau] was not electrocuted by 240 volts. Somehow he became part of the circuit of the welding machine and he became electrocuted.

[Mr Taupau] first told me that he got a burn from an arc. I think when he put the clamp over the two flanges it may have formed a connection. The arc welder does not have to be grounded. It has a positive and negative terminal on the welding machine. One clamp goes on the job, the other has a welding electrode, which you strike up on the job and that makes the weld." (emphasis added)

Mr Bongers said he recalled finishing the weld he was doing and went to reposition, when Mr Taupau told him "he had a burn on his fingers". Mr Bongers observed some discolouration on Mr Taupau's fingers and told him to go to first aid. Mr Bongers said that he, Mr Bongers, continued to work. He said that it seemed like a minor injury to him and that he had "no thought of it being an electric shock or an electric burn". Mr Bongers said that it is quite common for a welder to get "little shocks and burns".

Although stating that he did not really know the cause of the incident, Mr Bongers advanced some possibilities. He said that the earth clamp may not have been "on properly". He also said it was "possible that the earth clamp was sitting on a painted surface and was not making a proper contact". He added that there may have been "rust on the steel". He added that these were all "maybes" and that there was nothing wrong with the welder that he was using.

Mr Bongers said that the "welder struck an arc so it was operating". He said that if Mr Taupau received a shock:

"... when he put the clamp on and he was the point of contact - the welder would have stopped when he let go because he would have been part of the circuit."

Mr Bongers added that "[m]aybe some residual current from the arc got into" Mr Taupau. He said that immediately after the incident, he kept welding, unaware that Mr Taupau was hurt, "so the circuit was complete".

The workplace injury reports

Mr Bongers prepared and signed a "Hazard/Incident Investigation Report" and a "Workplace Injury/Illness Record". Both documents were dated 8 October 2004, the date of the incident. In the Hazard/Incident Investigation Report, Mr Bongers stated that he was a witness to the incident and described it in the following terms:

"Arc crossing from one piece of steel to another. Electrical burn to right thumb"

In the Workplace Injury/Illness Record, Mr Bongers recorded the following:

"Nature of Injury/Illness: Electrical burn

Bodily Location of Injury/Illness: Left thumb

What was the worker doing at the time? Hammering on dogs

What happened unexpectedly? Welding arc shorted through flange

How exactly was the injury sustained? Holding on to flange"

The welder used by Mr Bongers was an HVAC welder. The manufacturer's information provided with the welder contained the following:

" WARNING

ARC WELDING AND CUTTING CAN BE INJURIOUS TO YOURSELF AND OTHERS. TAKE PRECAUTIONS WHEN WELDING. ASK FOR YOUR EMPLOYER'S SAFETY PRACTICES WHICH SHOULD BE BASED ON MANUFACTURERS' HAZARD DATA.

ELECTRIC SHOCK - Can kill

Install and earth the welding unit in accordance with applicable standards.

Do not touch live electrical parts or electrodes with bare skin, wet gloves or wet clothing.

Insulate yourself from earth and the workpiece.

Ensure your working stance is safe.

...

ARC RAYS - Can injure eyes and burn skin.

Protect your eyes and body. Use the correct welding screen and filter lens and wear protective clothing.

Protect bystanders with suitable screens or curtains."

Section 4 of the Instruction Manual, "Technical Description", described the welder as having an "open circuit voltage" of 50-80 V.

As I have indicated, Mr Bongers was not called to give evidence, notwithstanding that he was waiting outside the courtroom when the matter was being heard and a statement had been made by HVAC's counsel that he would be called to give evidence.

The medical evidence

(a) Mount Druitt Hospital

At Mount Druitt Hospital, a history was taken that Mr Taupau had suffered an electric shock. The "Initial diagnoses/problems on admission" were recorded as:

"Electric shock to left hand while working."

"Management and investigations" were recorded as follows:

"ECG. AF initially rapid heart, was controlled medically."

The "Principal and secondary diagnosis" was stated as:

"AF.

Back pain"

It was accepted that 'AF' was a reference to atrial fibrillation.

On 28 October 2004, a further document from Mount Druitt Hospital recorded:

"Chronic atrial fibrillation for DC cardioversion"

The "Principal and secondary diagnosis" was again recorded as "Atrial fibrillation".

As explained by Dr Paoloni, Forstaff's medical expert, atrial fibrillation is an irregularity of the heartbeat. Mr Taupau's evidence was that he had not experienced any irregularity of his heartbeat prior to the incident and that he had been able to engage in hard physical labour without difficulty.

(b) Dr Au

Mr Taupau attended upon his general practitioner, Dr Au, on 14 October 2004. Dr Au, in his report dated 17 November 2005, recorded a history of Mr Taupau having suffered an electric shock to his left hand on 8 October 2004. Dr Au stated that the appellant had "been a patient of the practice since 1995 with no significant past history". He reported that on examination, "his pulse was ... irregular consistent with atrial fibrillation". Dr Au also reported that on 28 October 2004, Mr Taupau had been admitted to Mount Druitt Hospital for a transoesophageal echocardiogram and that a DC cardioversion had been administered four times. However, his heart remained in atrial fibrillation. Dr Au expressed the opinion that Mr Taupau suffered atrial fibrillation as a result of the electric shock sustained on 8 October 2004. He stated that the condition was work-related. These matters were confirmed in a second report dated 2 December 2006.

Dr Au's clinical notes from 29 August 2004 were in evidence. According to those notes, 29 August 2004 was the last occasion that Mr Taupau had attended the practice prior to the work incident. There was nothing in that note that indicated Mr Taupau suffered from a condition of or related to atrial fibrillation. Dr Au was not required for cross-examination.

(c) Dr Russell

Mr Taupau came under the care of Dr Russell, cardiologist. Dr Russell noted a history of electric shock and that Mr Taupau was found to be in atrial fibrillation. Dr Russell was not required for cross-examination.

(d) Justice Health records

Although Dr Au's notes did not reveal any history of a pre-existing heart condition, Mr Taupau had in fact complained of and been treated for complaints of chest pain and shortness of breath whilst serving a number of terms of imprisonment commencing in 1997.

Mr Taupau's complaints in gaol, which led to treatment, included complaints of shortness of breath. Mr Taupau agreed in cross-examination that in the period 2001 to 2003, he had "shortness of breath when I walk up the stairs, so that's why they put me [in a cell] down on the ground floor". He also said that he was "put to work as a forklift driver which requires just sitting". HVAC placed considerable emphasis on this as indicating that Mr Taupau had suffered from a heart condition prior to the incident on 8 October 2004.

An examination of Mr Taupau's prison records for that period revealed the following. At the commencement of his first prison sentence, Mr Taupau denied chest pain in his medical questionnaire. His first complaint of chest and abdominal pain was in November 1997. Radiological evidence at that time indicated that he had no problems and that such pain as he had was resolved by the administration of Panadeine. In December 1998, Mr Taupau again complained of chest pains that were eased with Panadeine.

An ECG was performed on 17 September 2001, after Mr Taupau complained of chest pains on heavy exertion lasting a few hours and which were relieved by Panadeine. There was no complaint at that time of palpitations or shortness of breath. An ECG was performed but revealed no fibrillation and the "impression" recorded was of non-cardiac chest pain. An ECG performed in July 2002 was also normal.

Mr Taupau again complained of chest pain in mid-August 2002. On that occasion, he was referred for assessment of ischaemic cardiac problem. There was no report of the outcome of this assessment in the evidence. On this occasion, the pain of which he complained was treated with gastrogel, with good result. An ECG performed on 1 September 2002 was normal.

Mr Taupau was referred to the cardiology clinic at the Prince Henry and Prince of Wales Hospitals in May 2003. Dr Yousseff, the cardiology registrar, reported that Mr Taupau had complained of a three month history of shortness of breath on exertion and mild chest discomfort. This was particularly associated with working close to an oven. Dr Yousseff expressed the opinion that it was probable that Mr Taupau had some coronary artery disease, which had improved on medical therapy. The reference to 'medical therapy' was, it seems, a reference to medication, which included Cartia (low dose aspirin), Imdur and Atenolol.

An ECG was also taken on this occasion which revealed "sinus rhythm with some left anterior hemiblock".

There was no reference in any of the prison records, including the prison medical records, to Mr Taupau having complained of an irregular heartbeat. Nor did any of the reports of the tests performed and clinical assessments undertaken indicate that he had an irregular heartbeat.

(e) Dr Collins

Dr Collins, consultant physician, provided a medico-legal opinion for Mr Taupau. In Dr Collins' opinion, Mr Taupau's atrial fibrillation was caused by or contributed to by the electric shock he experienced at work. In oral evidence, Dr Collins said:

"Q. Now doctor, Mr Taupau has described the nature of his symptoms associated with the atrial fibrillation which is a racing of the heart?

A. Mm.

Q. And something that he never experienced before. And could that condition to that extent have been present without him noticing it before?

A. No, I don't think so at all."

Dr Collins disagreed that Mr Taupau's atrial fibrillation was caused by his pre-existing heart condition, notwithstanding that previously Mr Taupau had experienced symptoms of breathlessness and chest pain. What was important, in Dr Collins' opinion, was that the atrial fibrillation came on immediately after the incident and that it was "very, very obvious". Mr Taupau had not had anything like that before.

Dr Collins examined the results of the ECGs. He said that none of the ECGs indicated atrial fibrillation. This was not contradicted by Professor O'Rourke, retained as a medico-legal expert by HVAC, notwithstanding that in his view Mr Taupau had a pre-existing condition of atrial fibrillation.

(f) Dr Paoloni

Forstaff retained Dr Paoloni, consultant physician and cardiologist, who provided a report, dated 9 May 2005, to Allianz, Forstaff's workers compensation insurer, in which he stated:

"On examination in hospital, [Mr Taupau] was given superficial treatment to the burns on his hand and no other abnormality was found related to the electric shock except that he was found to be in atrial fibrillation. This is an irregularity of the heartbeat which he says he had not ever noticed before. He was seen by a Cardiologist and in the course of treatment was given several attempts at electrical cardioversion to try to restore his cardiac rhythm back to normal. These were unsuccessful and it was felt unwise to continue cardioversion in these circumstances ...

He now remains in atrial fibrillation ...

The presence of atrial fibrillation is common and has a number of causes. Mr. Taupau does not appear to have had any significant cause for atrial fibrillation to be present prior to the work injury. The occurrence of an electric shock is sufficient to produce an abnormal cardiac rhythm which in this case has remained permanent. The coincidence of the work injury (electric shock) and the sudden onset of atrial fibrillation are certainly related and I therefore consider the incident to be fully work-related and I have no evidence that his heart condition was pre-existing."

As the evidence revealed, Mr Taupau in fact had a pre-existing cardiac condition. Dr Paoloni was not aware of this at the time he gave his report of 9 May 2005.

In a follow-up report dated 6 April 2006, Dr Paoloni reported Mr Taupau had suffered an electric shock and had remained in atrial fibrillation since the time of the incident. Dr Paoloni was of the opinion that this condition was permanent.

In the course of his evidence in chief, Dr Paoloni's attention was drawn to the fact that Mr Taupau had a pre-existing heart condition. He was referred to Mr Taupau's evidence that he had been undertaking heavy physical employment in a confined space and heated environment in the four months prior to the incident and during that time had no symptoms of chest pain or shortness of breath associated with exertion. This was to be contrasted with his evidence that immediately after the incident at work, he suffered "pins and needles up his arm into his shoulder with a heat in his head, uncontrollable sweating and a racing heart" and then, at hospital, was found to be in atrial fibrillation.

Dr Paoloni responded to that scenario as follows:

"Well, it seems to be one hundred per cent coincidental, the two episodes seem to coincide. He said that he was lying on a metal thing undoing some bolts, and he was physically thrown, he saw a flash of light, and then the - somewhere in the notes, and you probably have these from the hospital, he had some superficial burning of I think the left-hand.

...

And it's all very puzzling, I mean, in association with welding, my dear old father was a boiler maker and electric welding, and I've done electric welding, and I helped him all through my childhood, and apart from getting flashes in the eyes and things like this, there was never a question of an electric shock associated with the actual welding machine, but what he describes sounds very much like a 240 volt thing that physically burnt the hand that he was leaning on, so that I guess, even a normal heart may experience an arrhythmia with that sort of shock. If he had some previous coronary damage not associated with atrial fibrillation, but if his heart was not one hundred per cent, then I should imagine that it would be easier for him to go into atrial fibrillation, if you have a healthy heart, you go into AF, then the majority, we can get you back into sinus rhythm, either with drugs or with electric PC shock, cardioversion. And I understand that they tried cardioversion on Mr Taupau, I think on three separate occasions, and it was quite resistant. They could not get him out of this rhythm, which would fit in - I was a bit puzzled by this fact. If he actually had no heart problems of any sort ever, and he went into atrial fibrillation, then why couldn't they get him back to a normal rhythm, and I guess that with his previous history that you've described, and the suggestion of some previous heart problem not associated with atrial fibrillation but associated with coronary arteries, that when he did go into AF, then it was highly resistant, and that would explain, I think, the matter that we couldn't get him back into sinus rhythm." (emphases added)

Dr Paoloni also said that a person with an existing heart problem would have a greater propensity to go into atrial fibrillation if subjected to an electric shock. It was his opinion that electric shock was "absolutely" the pre-eminent cause of Mr Taupau's atrial fibrillation. This opinion was expressed in the context of having been informed of Mr Taupau's pre-existing heart condition.

(g) Professor O'Rourke

Mr Taupau was assessed by Professor O'Rourke on behalf of HVAC on 21 November 2008. Professor O'Rourke obtained from Mr Taupau a history of having received an electric shock immediately after Mr Bongers began to weld. Mr Taupau told Professor O'Rourke that he had felt a shock in both hands, that he had moved away in pain and that he was sweating. He also gave a history of being momentarily unconscious.

In his report dated 28 November 2008, Professor O'Rourke recorded:

"He said that his alcohol consumption is approximately three large bottles of beer per week. He did not refer to any previous problem with alcohol."

He also reported that Mr Taupau said:

"... that he has had no previous illnesses specifically no problems with blood pressure, heart disease or rheumatic fever."

Professor O'Rourke expressed the opinion that he was not entirely satisfied Mr Taupau had been electrocuted at work or that his atrial fibrillation had commenced for the first time after an electric shock. In his opinion, it was quite possible that Mr Taupau had pre-existing atrial fibrillation, which was brought to light when he was admitted to hospital after the incident on 8 October 2004.

In answer to the following specific questions asked for the purposes of his report, Professor O'Rourke stated:

"2. The circumstances of [the appellant's] alleged accident, the relationship between the accident on 8 October 2004 and [the appellant's] alleged injuries and disabilities.

Ans. All the information in the papers that I have received has been based on Mr. Taupau's own description. I have no information on previous history from other sources, no accident report from Mr. Taupau's employer, and no hospital records from his admission to Mr. Druitt Hospital. Drs. Au, Russell and Paoloni have assumed that [the appellant's] history is correct. I've noted some discrepancies, and Mr. Taupau's arrest and custodial sentence which were not relayed to me nor to other physicians and cast some doubt on his accident and alleged injuries and disabilities.

3. Any subsequent treatment.

Ans. Mr Taupau had attempted cardioversion on the 28th October 2004 which was unsuccessful. He had been treated with Warfarin since the diagnosis of atrial fibrillation on the 8th October 2004 and also with Sotalol at this time. Subsequently when coronary artery disease was suspected he underwent coronary angiography and most recently in 2006 was commenced on treatment for heart failure by Dr. Russell with Coversyl and Dilatrend, in addition to Warfarin.

4. For each of the injuries and disabilities listed on pages 1 and 2 of this letter, would you kindly comment on how the injury or disability affects [the appellant] vocationally, socially or domestically, whether the injury or disability continues to affect [the appellant], the likely duration of this effect and, if this amounts to a disability, the percentage impairment as a most extreme case.

Ans. I am not sure that Mr. Taupau did receive an electric shock, an injury to the heart or that he developed atrial fibrillation as a consequence of an electric shock with injury to the heart. He is being treated at present for controlled cardiac failure by Dr. Paul Russell and may have a longstanding (possibly alcohol related) cardiomyopathy which has caused atrial fibrillation. I am not sure how the alleged injuries or disabilities (of atrial fibrillation, controlled heart failure, myocardial damage, pain and restriction of movement in the chest and inability to perform pre-injury duties) do affect [the appellant] vocationally, socially or domestically. I need more information to answer this and specifically information on Mr. Taupau's alcohol intake, and convictions have affected his life and his employment."

For the purposes of his subsequent report of 26 June 2009, Professor O'Rourke was provided with the Justice Health records of Mr Taupau's various periods of imprisonment. Professor O'Rourke observed that the only reference to atrial fibrillation in the Justice Health records was in 2006. However, the records contained evidence of coronary artery disease. The records also revealed that Mr Taupau had been treated for ischaemic heart disease originally in 2002 on the basis of chest pains and changes in the electrocardiograms. Professor O'Rourke observed that Mr Taupau had been reviewed at the Prince of Wales Hospital and:

"... while there are no specific reports that I have identified from the cardiologists at Prince of Wales Hospital it appears that this was the diagnosis given and the treatment recommended."

Professor O'Rourke, in summary, observed that Mr Taupau was first noted to be in atrial fibrillation after the work incident on 8 October 2004 and that investigations following the incident showed the presence of coronary artery disease. He stated that it was "likely that Mr Taupau developed atrial fibrillation on the basis of pre-existing cardiac disease". He stated that this "may have been due to alcohol as well as ischaemic heart disease".

In his oral evidence, Professor O'Rourke agreed that none of the ECGs performed whilst Mr Taupau was in prison indicated that Mr Taupau had atrial fibrillation. He said that the 2003 ECG demonstrated sinus rhythm with left anterior hemiblock which indicated that Mr Taupau had an underlying coronary condition. This accorded with the views of all the medical expert witnesses. Professor O'Rourke said that this underlying condition was responsible for the symptoms that Mr Taupau was experiencing in 2001-2003. Those symptoms were shortness of breath on exertion and chest pains. Professor O'Rourke considered that given his underlying heart condition, Mr Taupau "moved towards a great likelihood of developing atrial fibrillation ... [b]ut it's not necessarily the case that it would occur".

Professor O'Rourke agreed there was an accepted link between electric shock and atrial fibrillation and that a person with underlying cardiac disease was more likely to move into atrial fibrillation if subjected to electric shock. He also said atrial fibrillation could occur spontaneously, without a person being aware of it and could be brought on by factors such as "alcohol and coffee et cetera".

Professor O'Rourke accepted, however, that if in the months immediately prior to the incident, Mr Taupau had undertaken hard work in a hot and confined environment and was symptom free, it was unlikely he was suffering from atrial fibrillation during that period.

Professor O'Rourke also gave evidence as to the medication the appellant was prescribed whilst in gaol including, relevantly, the drugs Cartia, to inhibit platelet function, Imdur, "a nitrate ... used for coronary artery disease ... directed towards dilating arteries" and Atenolol, "a beta blocker agent [that] decreases the effect of ... the sympathetic nerves on the heart, so it stabilises the heart rhythm".

However, Dr Paoloni explained that Atenolol is used "to make [the heart] go a little slower ... It's basically something to put the brakes on the heart". He said the drug was used for heart disease "even if there's not an arrhythmia". Dr Paoloni further explained:

"If there is an arrhythmia, then we use more of it, but otherwise, we use it just to slow down your resting sinus rhythm so ... if your heart muscle is running a bit short on blood, then by decreasing the rate of the heart, then we also decrease the demand of the muscle on oxygen and on blood, so we help the heart that way."

This evidence was consistent with the ECG in 2003, in that the ECG indicated "sinus rhythm with some left anterior hemiblock". It was not consistent with Mr Taupau having been medicated for atrial fibrillation.

There are two further aspects of Professor O'Rourke's evidence to which reference should be made. In his examination in chief he was referred to Mr Taupau's drink driving record. I have referred to that above at [14]. Although the specific dates and ranges of the PCA offences were given to Professor O'Rourke, there had been an engagement between her Honour and Mr Taupau's counsel as to whether there were five or seven PCA offences. Mr Taupau's counsel had asserted there were five PCA offences. Her Honour said:

"... there are seven occasions when he's been picked out by the police and dealt with by the courts, and imprisoned."

Although there was no reference in the question to Professor O'Rourke of Mr Taupau having been imprisoned for the PCA offences, Professor O'Rourke had been in court when her Honour made the comment set out above at [76]. Her Honour's comment did not accord with the facts. There were five PCA offences prior to the work incident, not seven. Further, Mr Taupau had not been sentenced to a term of imprisonment in respect of any of the PCA offences, before the work incident. Nonetheless, the following question was asked by HVAC's counsel:

"Q. Does that information give you any assistance in assessing any relationship between this man's alcohol ingestion, and his heart condition as you found it?"

The reference to "that information" presumably, or may have, included the reference made by her Honour to Mr Taupau having been imprisoned for PCA offences. The question was in any event potentially misleading to the extent that it did not distinguish between the PCA offences pre and post the work incident.

Professor O'Rourke answered:

"A. Well, it indicates to me that he's been drinking more than he should, and it would be more useful for me to know if that was on weekends or not, because he said he drank ten drinks, standard drinks per day, on weekends only, and he indicated that he didn't drink during the week, but I thought that someone who [drank] that much in the weekend probably would be drinking through the week as well, and I think that - I'm very suspicious of him drinking [excessively] and having alcoholic cardiomyopathy as a consequence of that."

In cross-examination, Professor O'Rourke gave the following evidence:

"Q. Well, doctor, if you can assume that the evidence of [the appellant] is that from that time, he noticed that his heart was beating extremely fast, and was not a symptom he experienced before, he noticed it immediately after receiving the electric shock. There is no clinical indication of atrial fibrillation at any time earlier. Is it possible, doctor, is it possible that it was the electric shock which may have brought on the atrial [fibrillation], if you accept electric shock?

A. Yes.

...

Q. ... doctor, what I want to suggest to you ... despite a multitude of clinical examination and indeed quite specific testing, relatively discrete to the time of this accident, this man demonstrated no atrial fibrillation, but in the moments immediately after receiving an electric shock, he suffered atrial fibrillation, would you not accept as a proposition, that the most likely cause was the electric shock?

A. No, I wouldn't.

Q. If I were to put that to you as a proposition, you'd reject that, would you?

A. I did. I said it was probable - I didn't say it was probable. I said it was possible.

Q. So it could be the reason why he moved into the atrial fibrillation?

A. It could be.

...

Q. If you were to assume that this gentleman had worked from at least late May early June 2004 up until October doing difficult manual work which involved significant exertion in a confined environment which was also hot, one would have normally expected, if atrial fibrillation were present, that he would suffer from at least some symptoms next [sic] with the same during that period?

A. Yes; but I don't know if he had any symptoms during that time.

Q. One would expect that if he had atrial fibrillation, [undiagnosed] and not perceived, working in that type of situation, he would have begun to experience at least some symptoms, wouldn't he?

A. It's possible, yes.

Q. What I suggest to you is that in fact the circumstance of [the appellant] that he worked in this difficult type of work over a period of not less than several months on a regular basis and experienced no symptoms whatsoever until the day that he suffered the electric shock, would that cause the possibility that the electric shock was involved in the atrial fibrillation in its onset up to the probability level?

A. It's possible, I think, just probably. All I could say there, if I was certain of that, that there was a person having no symptoms, but I gather from - I really have difficulty in knowing that this gentleman was telling the truth.

Q. Yes, and that's a matter for her Honour to determine in relation to that, based upon medical records available and the like?

A. Yes, yes.

Q. If you were to accept that he was symptom-free during that period, it would be unlikely that he was suffering even from a perceived atrial fibrillation during that period, correct, doctor?

A. It is unlikely, I suppose." (emphases added)

(h) Dr Gliksman

Dr Gliksman, occupational physician, provided two medico-legal reports to Forstaff's solicitors. In the first report, dated 21 December 2007, Dr Gliksman diagnosed atrial fibrillation that was well controlled with medication. He noted the history of the electric shock on 8 October 2004, but did not expressly comment upon any causal connection between electric shock and atrial fibrillation, either in relation to the incident in which Mr Taupau had been involved, or in more general terms.

Subsequently, Dr Gliksman was provided with Professor O'Rourke's report of 29 June 2009 in which reference was made to evidence indicating pre-existing cardiovascular disease. Dr Gliksman agreed with Professor O'Rourke that cardiovascular disease was a risk factor for the development of atrial fibrillation and that having regard to the pre-existing cardiac disease in Mr Taupau's case, it was likely that he had "impaired ventricular contractility and coronary disease ... prior to the incident at work in 2004". Nonetheless, Dr Gliksman expressed the opinion that the history obtained suggested that Mr Taupau's atrial fibrillation was a result of the electrocution incident, probably arising on a background of pre-existing cardiovascular disease.

The expert engineering evidence

There were three expert engineering reports adduced in evidence. None of the experts was cross-examined. HVAC's case, based on Associate Professor Blackburn's report of 31 July 2009, was that a voltage of 23-26 volts was insufficient to cause an electric shock. Before dealing with that evidence, I will refer to the evidence relied upon by Mr Taupau and by Forstaff.

(a) Mr Seeger-Snowden

Mr Seeger-Snowden was retained by Mr Taupau. He explained the operation of an arc welding machine as follows:

"... an arc welding machine has two heavy duty electrical wires. One of these wires has an insulated welding rod holder attached, which is used by the person carrying out the welding. The other wire is connected to the metalwork being welded, generally via a [C] clamp or heavy duty spring loaded clamp. In the welding process a circuit is formed via the welding rod, through the metal being welded to the second wire, which in turn goes back to the machine. These components form the welding circuit."

Mr Seeger-Snowden recorded his understanding of the circumstances of the incident whereby Mr Bongers was electric arc welding using a 240 volt AC welding machine with a capacity to output 70 amps. He noted there was a discrepancy in the information provided to him as to the precise task Mr Taupau was undertaking at the time, whether it was hammering the clamps (see Mr Bongers' statement), or attaching a C-clamp to the work piece.

If Mr Taupau was hammering the clamps, he would not, on Mr Seeger-Snowden's evidence, have become part of the welding circuitry and thus would not have been electrocuted. On the assumption that he was attaching a C-clamp to the work piece, Mr Seeger-Snowden stated that:

"... it is possible he formed part of the welding circuit and subsequently received an electric shock. This [C] clamp may have been the means of attaching one of the welding machine leads (wires) to the metal being welded."

Mr Seeger-Snowden further stated:

"Based upon the fact that the medical reports indicate that the injuries sustained by [Mr Taupau] were caused by an electric shock, I am of the opinion that [Mr Taupau] formed part of the welding circuit and received the reported injuries."

Mr Seeger-Snowden added:

"For [Mr Taupau] to have received an electric shock from the welder, he would have had to form part of the welding circuit. I am of the opinion that the only time he would have been able to do this (form part of the welding circuit) is if he was moving the work clamp from one location to another under the instructions of the person carrying out the welding. '... It was a real squeeze to get inside the frame and under the fans to put the [C] clamps on ...'" (original emphasis)

(b) Dr Grantham

Dr Grantham was retained by Forstaff. He provided a general explanation as to how a person receives an electric shock:

"An electric shock is experienced by a person when an electric current flows through their body as a result of being connected to an electrical supply voltage. The measure of an electric shock's intensity is based on the amount of current (amperes) flowing through the body and its duration ...

The magnitude of current is proportional to the supply voltage and inversely proportional to the impedance of the current path ..."

Dr Grantham was of the opinion that Mr Taupau:

"... received an electric shock when he was connected in parallel with the arc welder's 80 volt output voltage via the conductive metal of the fan he was working on. An electric shock above 50 volts is regarded as potentially dangerous with the danger increasing progressively as the voltage increases."

In coming to this opinion, Dr Grantham considered four different scenarios: the first, based on Mr Taupau's statement dated 24 February 2006; the second, based on Mr Bongers' statement; the third, based on the Workplace Injury/Illness Record and the fourth, based on the Accident Investigation Report conducted on behalf of Forstaff by a Mr Schliebs. In Dr Grantham's opinion, the mechanism described in the Workplace Injury/Illness Report was the only basis upon which an electric shock could have been caused. His opinion in this regard was as follows:

"On the basis of this record it appears that Mr Taupau was connected in parallel with the arc welder's output voltage via the conductive metal of the fan. This possible electric shock situation is illustrated in Figure 1 ...

This appears to have been the only mechanism by which an electric shock could have been received by Mr Taupau. This would have subjected Mr Taupau to a worst case voltage of 80 volts which would have reduced to a 23-26 volt shock as the arc from the welding rod was struck."

Dr Grantham also commented upon the effect of electric shock based on the medical report of Dr Paoloni:

"The report of Dr Henry J Paoloni indicates that the electric shock to Mr Taupau resulted in 'atrial fibrillation' rather than ventricular fibrillation the latter of which often leads to death in electric shock situations. This report also refers to 'superficial treatment to burns on his hand' which is consistent with Mr Taupau's description of the effects of the electric shock. It appears that Mr Taupau must have been perspiring heavily prior to the electric shock. This would have decreased Mr Taupau's skin resistance which in turn would have increased the electric shock current to which Mr Taupau was subjected. This is the only explanation I can give for the evidence of burns."

Dr Grantham stated that if the electric shock did result in atrial fibrillation, he was of the opinion that:

"... the principal reason for the incident was that Mr Taupau was allowed to come into contact with the work piece which was being welded."

Dr Grantham then referred to the manufacturer's warning as to the dangers associated with arc welding (see at [35] above) and further commented:

"When Mr Taupau removed his gloves prior to touching the work piece it is clear that this second last safety requirement was not complied with. The work area appears to have been very confined and it would appear that the final safety requirement was also not complied with. It may have been difficult to comply with the latter requirement which should have served to emphasis[e] the importance of complying with the former requirement regarding insulation from earth and the work piece."

By way of conclusion, Dr Grantham stated:

"37 It appears that Mr Taupau was connected in parallel with the arc welder's output voltage via the conductive metal of the fan. This would have subjected Mr Taupau to a 80 volt DC electric shock of short duration reducing to 23-26 volts as soon as the arc from the welder was struck.

38 Any electric shock above 50 volts is regarded as potentially dangerous with the danger increasing progressively as the voltage increases.

39 In my experience a short duration maximum 80 volt DC electric shock would not normally lead to burns. However, treatment of superficial burns to Mr Taupau's hand is confirmed by Dr Paoloni. It appears that Mr Taupau must have been perspiring heavily prior to the electric shock. This would have decreased Mr Taupau's skin resistance, which in turn would have increased the electric shock current to which Mr Taupau was subjected.

40 The analysis of the probable electric shock severity carried out in this report is based on the highest (worst case) open-circuit voltage of 80 volts. Once the arc is struck the electric shock voltage falls to the much lower 23-26 volts. This latter range of voltage is not necessarily regarded as dangerous with respect to electric shock because in addition to the direct effect of the reduced voltage the body has a higher resistance in this range of voltage and further reduces the electric shock current. However, such 'low' voltage electric shocks can lead to related injuries due to the human body's involuntary muscular action as a result of the electric shock current flowing through the body.

41 The statement of Mr Bongers appears to be at variance with the statement of Mr Taupau. In particular there is no reference to an electrical discharge being seen around the circumference of the fan, no reference to Mr Taupau's body shaking and in Mr Bongers' statement it is suggested that the injury seemed to be a minor one with 'no thought of it being an electric shock or an electric burn'.

42 In my opinion, the principal reason for the incident was that Mr Taupau was allowed to come into contact with the work piece which was being welded."

(c) Associate Professor Blackburn

Associate Professor Blackburn was retained by HVAC to provide an expert report. He concluded that there was "no possible closed circuit for any electric shock current to flow through Mr Taupau's body". He stated, alternatively, that:

"... even if some current did somehow flow through his body, the low current level associated with a voltage of 23 volts DC would not have caused an electric shock of any significance."

Associate Professor Blackburn explained the burns to Mr Taupau's hands and the "lightning" around the fan Mr Taupau said he saw, as follows:

"The most likely explanation of the accident and the burns that he received is that they resulted from very high temperature particles emitted from the weld site (or from touching a heated part of the fan duct). Such emitted particles can travel significant distances (many metres), can bounce and reflect from surfaces and can break up into smaller glowing particles."

Associate Professor Blackburn was of the opinion that the operational characteristics of the welder did not allow for any current to flow through Mr Taupau's body. He also stated that it was not possible to get any significant electric shock from 23 volts DC, which, on Associate Professor Blackburn's understanding, was the operational output voltage after the weld arc had been initiated. This opinion was based upon his assumption, derived from an investigation report of Mr Schliebs that the welding unit used put out a maximum of 70 amps. He continued:

"If this was the case and 70 amps was in fact the current level being used by Mr Bongers the output voltages (open circuit and operational) would have been at the bottom end of the ranges quoted in the manual, namely 50 volts DC open circuit voltage and 23 volts DC during the welding procedure."

Associate Professor Blackburn stated:

"Mr Taupau states that the effect of the electric shock came after he saw the 'lightning', so that it (the alleged shock) would have occurred after the weld arc was struck. As noted previously, when the welder is supplying current to an arc the voltage that is supplied is about 23-26 volts DC. If the current being used was 70 volts, as reported by Mr Schliebs, the operation voltage would have been about 23 volts DC."

The reference to "70 volts" was presumably meant to be a reference to "70 amps".

He added:

"... even if Mr Taupau did somehow make direct contact with the live welder electrode, it would not have caused an electric shock that would be of any concern."

His evidence was it was unlikely that a current from a DC voltage of 23 volts would be perceptible in the human body. He stated that:

"With no closed circuit for current to flow through Mr Taupau's body, there is no possibility that any stray welder current could have caused the tools in Mr Taupau's hands to heat up."

He also dismissed the likelihood that Mr Taupau saw "lightning" go around the fan, but accepted that there could have been two possibilities to explain the phenomenon Mr Taupau said he observed. The first was a reflection from the various metal surfaces of the "normal welding arcing" occurring as part of Mr Bongers welding work. The other possibility was that it was "glowing molten particles".

Associate Professor Blackburn considered how the burn on Mr Taupau's hand had occurred, noting that it was not possible for the burn to be the result of an electric current running through the body. In his opinion, the only possibility was that the burn was a thermal burn rather than an electric burn. He stated:

"[u]nfortunately, there is no evidence available from the hospital examination relating to the burn and the intensity and whether it was an electric burn".

Associate Professor Blackburn considered that there were two possibilities if the burn was a thermal burn. The first was of the weld current in the arc and in the metal causing heating of the metal at the location Mr Taupau was working. He said the actual temperature of the steel at the weld site would be the melting point of the steel (approximately 1500°C). He said unless Mr Bongers cooled the work site down as he finished each location, Mr Taupau may have made contact with a site that was still at the elevated temperature. The second possibility was that the molten globules emitted from the arcing bounced from surfaces in such a way as to come into contact with Mr Taupau's hand under the duct. Associate Professor Blackburn concluded that with the absence of any possibility of electric shock this was the most likely explanation for the burns.

(d) Mr Schliebs' report

Before turning to the trial judge's reasons, an explanation of the status of Mr Schliebs' Accident Investigation Report needs to be given. Mr Schliebs was retained by Forstaff to prepare a report. He was not called as a witness. There was no evidence as to his qualifications and his report was not tendered. However, both Dr Grantham and Associate Professor Blackburn referred to it, Dr Grantham to reject the hypothesis advanced by Mr Schliebs and Associate Professor Blackburn to rely upon certain factual matters contained in the report.

Dr Grantham, at (26) of his report, set out Mr Schliebs' statement that:

"Both [Mr Taupau] and [Mr Bongers] had completed the previous two fan units without incident and when commencing to strike the arc on the last unit [Mr Taupau] received an electrical burn due to the earth not having made a good contact in the first instant"

but expressed the opinion that this did not make much sense to him.

Associate Professor Blackburn noted, at (14) of his report, that according to Mr Schliebs, the welding unit "put out a maximum of 70 amps". He stated, at (22), that if this was correct, the operating voltage would have been about 23 volts. However, no evidence was adduced that the welding unit "put out a maximum of 70 amps".

At trial, Forstaff had objected to the tender of Associate Professor Blackburn's report on the basis that the underlying material on which he relied and, relevantly for present purposes, Mr Schliebs' report, had not been proved. On the cross-appeal, Forstaff abandoned its objection to the admission of Associate Professor Blackburn's report. However, Forstaff maintained that Associate Professor Blackburn's opinion should be rejected as having no weight because of its reliance on unproved and, it was submitted, wrong factual material. I deal with this submission in more detail below.

The reasons of the trial judge

The trial judge accepted, at [71], that Mr Taupau's own evidence and that of his witnesses, including the statement of Mr Bongers (in circumstances in which Mr Bongers was not called), as well as Mr Taupau's medical and engineering evidence pointed strongly to the conclusion that he suffered an electric shock.

The trial judge noted, however, that there was a conflict between the engineering experts. She dealt with this at [98], commenting that:

"... the real problem is that the experts are completely at odds as to whether or not the subjecting of [Mr Taupau] to an 80 volts DC electric shock of short duration, reducing to 23-26 volts at the site of impact, is first of all likely to have occurred (although Dr Grantham appears to have conceded that this was the impact speed at paragraph 37 of his report - Exhibit B), and secondly, whether this is capable of giving the plaintiff an electric shock."

After examining the engineering evidence, her Honour concluded, at [102], that Mr Taupau did not suffer an electric shock. This conclusion involved an acceptance of Associate Professor Blackburn's expert opinion that electric shocks could not be caused with a current of 23 volts DC so that, in the absence of some other explanation, whatever occurred when Mr Taupau was injured, he was not subjected to an electric shock. In particular, her Honour, at [101](d), considered that:

"The real factual issue appears to be whether in addition to the 23-26 volts which is conceded by all the experts to have been the range, [Mr Taupau] was able to have suffered an 80 volts electric shock in circumstances where any electric shock over 50 volts is potentially dangerous. However, as Dr Grantham notes, an 80 volts DC electric shock does not normally lead to burns. [Mr Taupau] did have superficial burns, as Dr Paoloni noted. The explanation of burns being caused by heavy sweating is in my view less likely than the explanation that [Mr Taupau] was struck by sparks in the manner described by Professor Blackburn in his report."

In accepting Associate Professor Blackburn, her Honour also observed, at [101](d), that the evidence as to whether Mr Taupau suffered an electric shock was complex and that the opinions of the experts were diametrically opposed. She noted that Associate Professor Blackburn had not been required for cross-examination.

Having made a finding, at [102], that Mr Taupau did not suffer an electric shock, her Honour turned to consider the medical evidence. Her purpose in doing so was to determine whether, contrary to her finding, Mr Taupau had suffered an electric shock and it had caused his atrial fibrillation. Her Honour stated, at [116], that if Mr Taupau did suffer an electric shock at work, any connection between his atrial fibrillation and his injury was "very plausible". Nonetheless, her Honour considered that whether or not Mr Taupau suffered electric shock, there remained a question as to whether his condition could be explained as having developed by reason of his prior history of coronary heart disease that he did not otherwise realise he had.

Her Honour concluded, at [117], that the answer to that question lay in the similarity of the symptomatology of which he had complained over a period of years and Professor O'Rourke's comments made as to his heart condition at the time atrial fibrillation was diagnosed. Her Honour observed in particular that in the period 2001-2003, when Mr Taupau had been in gaol, he had suffered from shortness of breath while walking upstairs, chest pain and restriction of work duties, these being the kind of problems from which he was presently suffering and, as her Honour further commented, "he certainly has pre-existing cardiovascular disease".

Her Honour accordingly accepted HVAC's argument that there was merely a coincidence of events in that it was the incident on 8 October 2004 that caused Mr Taupau to notice symptoms that had been there previously. Her Honour concluded, at [118] and [122], that Mr Taupau had a pre-existing condition of atrial fibrillation.

Issues on the appeal

Although the parties advanced detailed and helpful arguments on the evidence on the appeal, I am of the opinion that the appeal is resolved by a determination of two issues. The first is whether her Honour erred in preferring the evidence of Associate Professor Blackburn. The second is whether her Honour misunderstood the medical evidence with the consequence that she erred in finding that Mr Taupau's atrial fibrillation was pre-existing.

Submissions as to trial judge's treatment of the engineering evidence

Mr Taupau contended that the trial judge erred in finding a verdict for HVAC in circumstances where there was unchallenged evidence that he had suffered an electric shock. The unchallenged evidence was said to be that of Dr Grantham, particularly that set out at [88] ff above. He submitted that her Honour's acceptance of Associate Professor Blackburn's evidence was therefore erroneous. On the assumption that this submission was accepted, the position was that all of the other evidence in the case was to the effect that Mr Taupau had suffered an electric shock and the electric shock caused his undoubted condition of atrial fibrillation.

Dr Paoloni considered that Mr Taupau's condition of atrial fibrillation was permanent and had reached maximum improvement levels. In his earlier report of 9 May 2005, Dr Paoloni reported that atrial fibrillation "produces an impairment in cardiac function of between 5-10%". He continued:

"There are added factors related to the cardiac problem with the constant need for medications and possible side-effects, the loss of earnings in not being able to follow a full-time job, and the anxiety generated, all complicate the issues."

There was no contest to Dr Paoloni's opinion. An impairment of 5-10 per cent cardiac function is itself significant and as Dr Paoloni pointed out, there are added factors. Some of these factors are of importance and some are aggravating factors associated with the need for continuing medication. However, breathlessness on exertion, particularly in negotiating stairs, is itself a significant disability and is likely to become more so as Mr Taupau ages.

In my opinion, her Honour erred in failing to award any amount for non-economic loss.

Past economic loss

In respect of past economic loss, her Honour noted that it was only in the four months pre-incident that Mr Taupau had earned $760 net per week and that his entire economic claim was based on that amount. It should be noted, however, that Mr Taupau also gave evidence that, in the months before the incident, he did overtime from time to time and in those weeks earned approximately $1,200 net per week. However, her Honour noted that the four years prior to the incident, Mr Taupau's earnings had been low because he had been in gaol.

After the incident, Mr Taupau was off work until January 2006. He was employed by Sony and then by Promex until September 2006, although on Mr Taupau's evidence the total period involved was about 4.5 months. Mr Taupau found those jobs through an organisation called "Work Focus", described in the evidence as "rehabilitation providers". In respect of those jobs, Mr Taupau understood he was being paid by the insurance company.

On 14 September 2006, Mr Taupau was sentenced to 6 months home detention and on 7 May 2008 was gaoled for a period of six months. He has been unemployed since being released from jail in 2006 notwithstanding that he registered with Centrelink and continued to be provided with assistance from Work Focus. He worked in a volunteer capacity with disabled persons for about three months from March to June 2009. That position was also arranged through Work Focus.

Her Honour appears to have accepted the opinion of Dr Paoloni in his report of 6 April 2006 that Mr Taupau was able to work a seven-hour day five days a week with a lifting limit of 10 kg. This accorded with the view of Mr Taupau's general practitioner. Nonetheless, her Honour considered that Mr Taupau was not entitled to claim for economic loss beyond the period of his employment with Sony for the reasons set out in the closing written submissions of HVAC at trial, at para (39). That submission contended that Mr Taupau had demonstrated little if any economic loss, other than for a closed period, arising out of the incident of October 2004. No facts were referred to in support of this submission and her Honour does not say why she accepted the submission. One reason, if not the reason, for her having done so, may be in her further comments in [128]:

"It is a significant factor relevant to [Mr Taupau's] credibility in my view that he was convicted of two serious offences during this period. Where a person reduces his or her employability by reason of criminal activities resulting in period[s] of time in gaol, his employability in the market place should not, in my view, be assessed on the same basis as law-abiding members of the community. Counsel for [Mr Taupau] did provide me with a revised estimate to allow for [Mr Taupau] having problems with imprisonment in his future working career (although maintaining the position, as I understand it, that this should not be taken into account) but did not submit that these problems should be taken into account in relation to past economic loss. However, where a person reduced their employability because of a significant criminal record, that must be of some relevance to their employability generally."

Although her Honour said that she considered Mr Taupau was not entitled to any economic loss after he commenced the job with Sony, she in fact awarded him $50,000 by way of a cushion. The time between the date of the incident and the commencement of employment with Sony was approximately 63 weeks (8 October 2004 to 3 January 2006). At an earnings rate of $795 per week, Mr Taupau had an actual loss of income for this period (assessed on 63 weeks) of $50,085. Accordingly, rather than awarding past economic loss in terms of a cushion of $50,000, her Honour appears to have awarded actual loss of income for a period of 63 weeks, rounded to the nearest $100.

In my opinion, this award was erroneous. The medical evidence supported a case that Mr Taupau had an impaired working capacity following the incident which was continuing. I refer to this in more detail below in the consideration of future economic loss. Apart from the periods when Mr Taupau was in gaol and perhaps for a period thereafter when he would have had to look for work, Mr Taupau was entitled to an award of damages for past economic loss. Her Honour was in error to treat him differently merely because he had been imprisoned. Whilst the Court is in a position to look at the actual circumstances of the past in assessing past economic loss, the question at all times remains whether there has been an impairment of economic capacity for which the plaintiff has suffered a loss: see Graham v Baker [1961] HCA 48; 106 CLR 340; Medlin v State Government Insurance Commission [1995] HCA 5; 182 CLR 1. Her Honour's approach to past economic loss was therefore in error.

Future economic loss and future out-of-pocket expenses

As to future economic loss and future out-of-pocket expenses, her Honour stated, at [128]:

"If I have erred in holding that [Mr Taupau's] atrial fibrillation is unrelated to the accident, I note the amount I would have awarded would only be a cushion for future economic loss of $75,000 and future out-of-pocket expenses as estimated by [Mr Taupau] ... as I consider he has a significant capacity for work."

The period for which future economic loss fell to be assessed was a period of approximately 10 years from the date of judgment. As the award for future loss included future out-of-pocket expenses, the extent of the award made for either is not apparent on the face of her Honour's reasons. However, as her Honour considered that Mr Taupau's past economic loss should be assessed on a different basis from that of law-abiding members of the community, presumably she held that view in respect of his claim for future economic loss. If that is a correct understanding of her Honour's reasoning, then her Honour's approach does not accurately reflect the principles upon which economic loss is assessed.

As HVAC was not Mr Taupau's employer, damages for future economic loss fell to be determined under the Civil Liability Act 2002, ss 12 and 13. Those sections are predicated upon the common law principle that damages for economic loss, past and future, are awarded for an impairment to economic capacity resulting from the injury caused disability. Damages for such impairment are only awarded if the impairment is productive of economic loss: Graham v Baker at 347; Medlin v State Government Insurance Commission.

The evidence established that the atrial fibrillation did cause an impairment to Mr Taupau's economic capacity. He was restricted to working less hours per day than the usual working day and was confined to light work. He was tired at the end of the working day said to be within his capacity. That would impair his capacity to undertake overtime. These restrictions would make his services less valuable in any labour market and this would be more so in a tight labour market.

It was her Honour's task to determine the extent that that impairment resulted in economic loss. In assessing future economic loss, a trial judge is required by the Civil Liability Act, s 13(2) to take into account vicissitudes so as to factor into the assessment risks that may exist and which may, in the ordinary course of events, impact upon a person's ability to earn.

In the present case, one of the vicissitudes to which the trial judge was entitled to have regard was whether Mr Taupau's prison record had disadvantaged him in the workplace. There was nothing in Mr Taupau's evidence in chief that indicated he had not been able to find employment because of his history of imprisonment and Mr Taupau was not cross-examined to suggest that this was a reason why he had not been able to obtain work. Nonetheless, given the interruptions to his employment because of periods of home detention and imprisonment, it would not have been inappropriate to take that factor into account by way of a vicissitude had her Honour proceeded to assess future economic loss under the Civil Liability Act, s 13.

However, her Honour chose to award a buffer. As I explain below, she was entitled to take that course. However, there are difficulties with her Honour having done so in this case. Her Honour combined the 'cushion' for future economic loss and future out-of-pocket expenses without attributing a specific amount to each loss. It is also unclear what factors her Honour considered were relevant as to his future earning capacity or the extent to which she considered it was impaired. If she adopted the same approach to future economic loss as she did to past economic loss, she presumably considered that Mr Taupau had suffered little impairment to his earning capacity and that he was not entitled to be treated in the same way as law-abiding citizens in terms of 'employability'. If her Honour did incorporate Mr Taupau's criminal record into her assessment of future economic loss, the same comments I have made in respect of the approach to past economic loss apply.

Some gauge as to how much her Honour awarded for future economic loss can be found by considering the claim for out-of-pocket expenses. Her Honour awarded an agreed amount of approximately $50,000 for past out-of-pocket expenses. Mr Taupau had claimed future out-of-pocket expenses in the sum of approximately $64,000 based upon: 12 general practitioner attendances per year (approximately $11,000); six specialist visits per year (approximately $20,500); and medication at $40 per week (approximately $32,400). It is not clear to what extent these costs were disputed.

Mr Taupau gave unchallenged evidence that he attended upon his GP every second week in respect of his heart condition. The amount claimed was for half that amount. Presumably, the assessment of the amount claimed for medication was based upon his past history of expenditure. No evidence was given as to the number of visits to a specialist required each year. It would not be unreasonable to assume that he would require at least six-monthly treatment from his specialist.

If the claim for future out-of-pocket expenses was assessed in the way I have just suggested, a reasonable assessment for future out-of-pocket expenses would be in the order of $50,000. On that assumption, the award for future economic loss would have been in the order of $25,000. One matter is immediately obvious in respect of an award in that amount. It is significantly less than the award for past economic loss in circumstances where the evidence disclosed no improvement in Mr Taupau's medical condition. That of itself is indicative that the award for future economic loss involved error. In my opinion, on the facts of this case, the award for past and future economic loss should be based upon a similar impairment of economic capacity and a similar actual loss.

Should this Court reassess damages?

The question arises whether this Court should reassess damages, or whether the matter should be remitted to the District Court for reassessment. The Court's approach in determining whether it should reassess damages itself or whether it should remit is usually predicated upon whether there are credit issues involved. Credit issues may arise in respect of a plaintiff as well as witnesses, including medical witnesses. In the present case, it is only the plaintiff's credit that may be in issue. Although Professor O'Rourke differed as to the cause of Mr Taupau's atrial fibrillation, there was no disagreement amongst the medical witnesses in respect of its effect and its severity.

In the present case, her Honour noted, at [6], that one of the matters in issue was Mr Taupau's credit, particularly having regard to his criminal record which included periods of incarceration. Her Honour also stated, at [41]:

"I have noted elsewhere my reservations about the credit of [Mr Taupau]."

Her Honour went on to say:

"It is not suggested, and I do not find, that his claim of suffering an electric shock is not to be accepted as his honest belief at the time. His account of the accident was dramatic, but that is understandable in the circumstances. In his favour, I have taken into account that he gave his evidence and was cross-examined in circumstances of some difficulty. He gave a version of the events in English and through an interpreter and those versions are very similar except concerning the gloves."

Apart from these references, she did not make an adverse finding as to Mr Taupau's credit. Indeed, she accepted at one stage that Mr Taupau was being truthful as to what he believed happened to him.

The Supreme Court Act, s 75A(10) provides that the Court may, inter alia, make any assessment that ought to have been made or as the nature of the case requires. In this regard, the Court has the powers and duties of, relevantly, the District Court, from which the appeal came: Supreme Court Act, s 75A(6). See also Uniform Civil Procedure Rules 2005, r 51.53. I have found on the evidence that Mr Taupau experienced an electric shock that caused his atrial fibrillation. There was uncontested evidence of Dr Au and Dr Paoloni as to Mr Taupau's disabilities and the effect this had on his daily life and work activities. Given those factors and the further consideration that there was no express adverse credit finding by the trial judge, other than the references to which I have referred, I am of the opinion that this Court is fully able to assess the damages and that it should do so.

Non-economic loss

Mr Taupau submitted that an appropriate assessment of non-economic was 33 per cent of the worst case, which would result in an award of $165,000. The reason for this percentage being proffered as the appropriate award for non-economic loss undoubtedly relates to the significant difference in the monetary award between an assessment of 33 per cent and any lower assessment. Basten JA commented upon this in Clifton v Lewis [2012] NSWCA 229 at [57]. Nonetheless, the Court is required to assess the matter having regard to all the facts. The assessment involves matters of "opinion, impression, speculation, and estimation": see Dell v Dalton (1991) 23 NSWLR 528 at 533; Jackson v Mazzafero [2012] NSWCA 170. In my opinion, an appropriate award would be 25 per cent of the worst case.

Economic loss

Mr Taupau claimed an economic loss on the basis that he had retained a 30 per cent residual earning capacity. In my opinion, that claim was too pessimistic. The evidence established that he had identifiable restrictions on his earning capacity. This will have an impact on his ability to earn in the open labour market. Further, any impairment of earning capacity for a person whose skills are essentially those of a manual labourer will increase with age. I would assess Mr Taupau as having retained approximately 60 to 70 per cent of his earning capacity. I also consider that Mr Taupau's economic loss, past and future, should be assessed on the basis of a weekly loss of $275.00. This amount falls somewhere between the amount he could earn with a retained earning capacity of 60 to 70 per cent and takes into account that Mr Taupau had worked overtime from time to time whenever it was offered.

Assessment of past economic loss

In relation to his past economic loss, Mr Taupau should, therefore, have an award of damages for past economic loss as follows:

(a) $50,000 as assessed by the trial judge for the period 8 October 2004 until 3 January 2006.

(b) A loss of $275 per week for the period 1 April 2007 until 6 May 2008.

(d) The amount of superannuation to which he would have been entitled had he been in receipt of that amount by way of earnings.

The dates chosen are arbitrary in the sense that they allow for a short period after release from detention to find employment.

In addition to these amounts, Mr Taupau is entitled to:

(a) An award for the Fox v Woods component of past economic loss: [1981] HCA 41; 148 CLR 438.

(b) An award of interest in respect of past economic loss.

Future economic loss

Before determining the appropriate award of future economic loss, I would comment in passing that, contrary to Mr Taupau's submissions, it was not inappropriate for her Honour to have awarded future economic loss by way of a cushion. The question is whether, on the assumption that it is appropriate for this Court to reassess damages, it should do so on the basis of a cushion or by the way of the assessment of a specific economic loss. In Penrith City Council v Parks [2004] NSWCA 201, Giles JA explained, at [5], the circumstances in which it was appropriate to award damages for economic loss by way of a buffer:

"I consider that it is still open to assess damages by way of a so-called 'buffer'. The occasion for a buffer is when the impact of the injury upon the economic benefit from exercising earning capacity after injury is difficult to determine. There is still a comparison between the economic benefits, although the difference can not be determined otherwise than by the broad approach of a buffer. Section 13(1) can be fulfilled, and the assumptions as to exercising earning capacity before injury can be stated. Having determined damages for future economic loss by way of a buffer, because of the broad approach there is no question of percentage adjustment, and so in the application of s 13(2) the percentage adjustment is nil." (emphasis added)

The Court is not bound to award damages for economic loss by way of a buffer in such circumstances: see Zorom Enterprises Pty Ltd v Zabow and Ors [2007] NSWCA 106; 71 NSWLR 354. Rather, the Court may do so if it considers that is the appropriate way in which to adequately compensate the plaintiff for the loss sustained.

In this case, however, in circumstances where I consider that Mr Taupau had a retained earning capacity of between 60 to 70 per cent and the period in which he would in the usual course have productively engaged in employment is relatively short: approximately 11 years from the date of judgment, I consider that the appropriate course is to assess future economic loss in accordance with the Civil Liability Act, s 13.

Section 13 provides:

"13 Future economic loss - claimant's prospects and adjustments

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

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

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

I am satisfied that but for the injury, Mr Taupau would have continued to work in manual jobs of the type in which he was engaged at the time of the incident. He may also have been employed as a forklift driver from time to time, as he had worked as a forklift driver both before his first period of imprisonment and whilst in prison. As the only earnings rate advanced in the evidence was that which he was earning at the time of his injury, I consider that is the rate at which his earning capacity should be assessed.

For the reasons I have already given, I consider Mr Taupau has a retained earning capacity of between 60 and 70 per cent, so that he is entitled to an award based on that degree of incapacity. Mr Taupau already had a pre-existing heart condition. He also had periods of imprisonment which had interrupted his employment history. In my opinion, it is appropriate to increase the usual vicissitudes to which the award of future economic loss should be subject from 15 per cent to 25 per cent.

Accordingly, Mr Taupau should have an award of future economic loss calculated to the age of 67, as follows:

(a) $275 from 4 June 2010 being the date of judgment) until 21 January 2021 (when Mr Taupau turns 67) with an allowance of 25 per cent for vicissitudes.

(b) Superannuation assessed on the loss so calculated.

As there are a number of calculations to be done and as there are calculations to be done for the purposes of the cross-claim to which I next refer, I propose to direct the parties to bring in short minutes of order reflecting the award of damages assessed on the bases to which I have referred.

Forstaff's cross-claim

The consequence of my finding that HVAC was liable to Mr Taupau in damages for having negligently caused him electric shock is that Forstaff's cross claim against HVAC must succeed. Accordingly, pursuant to the Workers Compensation Act, s 151Z(1)(d) it is entitled to indemnity from HVAC in respect of workers compensation payments it has paid to Mr Taupau, together with interest. HVAC did not submit that Forstaff was not entitled to indemnity under s 151Z, should it be found to be liable to Mr Taupau. As Forstaff did not quantify the amount to which it contended it was thereby entitled, the parties should calculate that amount and bring in short minutes or order to enable the Court to make the appropriate order.

The orders I propose are:

1. Appeal allowed;

2. Cross-appeal allowed;

3. Set aside the orders of the trial judge;

4. Dismiss the appellant/plaintiff's statement of claim against the first respondent/first defendant;

5. Dismiss the appeal against the first respondent/first defendant;

6. Note that no order for costs is made in respect of the proceedings against the first respondent/first defendant, either of the appeal or in the court below with the intent that the appellant/plaintiff and first respondent/first defendant are to bear their own costs of each proceeding;

7. Judgment for the appellant/plaintiff against the second respondent/second defendant. The parties to bring in short minutes of order in respect of the judgment sum assessed in accordance with these reasons;

8. The second and third respondents are to bring in short minutes of order in respect of the cross-claim;

9. Order that the second respondent/second defendant pay the appellant's costs of the appeal and in the court below;

10. Order that the second respondent/second defendant pay the costs of the third respondent/third defendant's cross claim and cross-appeal.

BASTEN JA: I agree with Beazley JA.

MACFARLAN JA: I agree with Beazley JA.

**********

Decision last updated: 18 September 2012

Medium Neutral Citation:	Taupau v HVAC Constructions (Queensland) Pty Limited & Ors [2012] NSWCA 293
Hearing dates:	28 and 29 February 2012
Decision date:	18 September 2012
Before:	Beazley JA at [1]; Basten JA at [219]; Macfarlan JA at [220]
Decision:	1. Appeal allowed; 2. Cross-appeal allowed; 3. Set aside the orders of the trial judge; 4. Dismiss the appellant/plaintiff's statement of claim against the first respondent/first defendant; 5. Dismiss the appeal against the first respondent/first defendant; 6. Note that no order for costs is made in respect of the proceedings against the first respondent/first defendant, either of the appeal or in the court below with the intent that the appellant/plaintiff and first respondent/first defendant are to bear their own costs of each proceeding; 7. Judgment for the appellant/plaintiff against the second respondent/second defendant. The parties to bring in short minutes of order in respect of the judgment sum assessed in accordance with these reasons. 8. The second and third respondents are to bring in short minutes of order in respect of the cross-claim; 9. Order that the second respondent/second defendant pay the appellant's costs of the appeal and in the court below. 10. Order that the second respondent/second defendant pay the costs of the third respondent/third defendant's cross claim and cross-appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	APPEAL - Appellate review - Applicable legal principles - Appeal by way of rehearing - Real review of the trial - Court of Appeal required to give effect to independent review bearing in mind advantages enjoyed by trial judge. EVIDENCE - Unchallenged evidence - No cross-examination of expert engineering witnesses - Trial judge erred in acceptance of one expert's evidence in preference to another - Absence of necessary factual underpinnings - Unchallenged status of evidence not sufficiently cogent reason for acceptance - Expert evidence could not be considered in isolation from medical and lay evidence. EVIDENCE - Expert evidence - Assessment of expert evidence - Context - Suspicion does not have evidentiary value - Trial judge must assess evidence as a whole. DAMAGES - Torts - Negligence - Workers' Compensation - Non-economic loss - Significant impairment of cardiac function - Trial judge erred in failing to award any amount for non-economic loss. DAMAGES - Torts - Negligence - Workers' compensation - Past economic loss - Prior history of imprisonment - Trial judge erred in differential treatment of plaintiff based on previous incarceration - Relevant question is whether injury caused impairment of economic capacity whereby plaintiff suffered a loss. DAMAGES - Torts - Negligence - Workers' compensation - Future economic loss - Discounts for vicissitudes - Prison record relevant vicissitude - Earning capacity - Medical expenses - Trial judge entitled to award damages by way of buffer - Civil Liability Act 2002, s 13. DAMAGES - Torts - Negligence - Workers' compensation - Reassessment of damages by appellate court - No adverse credit findings by trial judge - Court able to assess damages on evidence - Supreme Court Act 1970, s 75A.
Legislation Cited:	Civil Liability Act 2002 Supreme Court Act 1970 Uniform Civil Procedure Rules 2005 Workers Compensation Act 1987
Cases Cited:	Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1 Anikin v Sierra [2004] HCA 64; 79 ALJR 452 Archibald v Byron Shire Council [2003] NSWCA 292; 129 LGERA 311 Bulstrode v Trimble [1970] VR 840 Clifton v Lewis [2012] NSWCA 229 Dell v Dalton (1991) 23 NSWLR 528 Eckersley v Binnie (1988) 18 Con LR 1 at 77-78 Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377 Fox v Percy [2003] HCA 22; 214 CLR 118 Graham v Baker [1961] HCA 48; 106 CLR 340 Hull v Thompson [2001] NSWCA 359 Jackson v Mazzafero [2012] NSWCA 170 Jones v Dunkel [1959] HCA 8; 101 CLR 298 Mackinnon v Bluescope Steel (AIS) Pty Ltd [2009] NSWCA 94 Medlin v State Government Insurance Commission [1995] HCA 5; 182 CLR 1 Nominal Defendant v Clancy [2007] NSWCA 349 Penrith City Council v Parks [2004] NSWCA 201 Sarian v Elton [2011] NSWCA 123 State Rail Authority of New South Wales v Brown [2006] NSWCCA 220; 66 NSWLR 540 Uszok v Henley Properties (NSW) Pty Limited [2007] NSWCA 31 Waterways Authority v Fitzgibbon [2005] HCA 57; 221 ALR 402 Wiki v Atlantis Relocations (NSW) Pty Limited [2004] NSWCA 174; 60 NSWLR 127 Wiki v Atlantis Relocations demonstrates Zorom Enterprises Pty Ltd v Zabow and Ors [2007] NSWCA 106; 71 NSWLR 354
Category:	Principal judgment
Parties:	Filivae Taupau (Appellant) HVAC Constructions (Queensland) Pty Limited (First Respondent) HVAC Queensland Pty Limited (Second Respondent/Respondent to Cross-Appeal) Forstaff Australia Pty Limited (Third Respondent/Cross-Appellant)
Representation:	Counsel: B Dooley SC; G Hickey (Appellant) D Fagan SC: J W Dodd (Second Respondent) D J Hooke SC; P J O'Connor (Third Respondent/Cross-Claimant) Solicitors: Slater & Gordon (Appellant) Dibbs Barker (First and Second Respondents) Holman Webb (Third Respondent)
File Number(s):	2010/211636
Publication restriction:	No
Decision under appeal	Citation: Filivae Taupau v HVAC Constructions (Qld) Pty Ltd v HVAC Queensland Pty Ltd & Anor Date of Decision: 2010-06-04 00:00:00 Before: Gibson DCJ File Number(s): 4255/07