Tchen v Nominal Defendant

[2010] NSWCA 245

New South Wales

Court of Appeal

CITATION:	Tchen v The Nominal Defendant [2010] NSWCA 245
HEARING DATE(S):	6 September 2010
JUDGMENT DATE:	29 September 2010
JUDGMENT OF:	Giles JA at 1; Basten JA at 2; Sackville AJA at 3
DECISION:	1. Appeal allowed. 2. Set aside Order 1 made by the primary Judge and in lieu thereof judgment should be entered in favour of the appellant against the respondent in the sum of $72,588.24. 3. The respondent to pay the appellant’s costs of the appeal.
CATCHWORDS:	ASSESSMENT OF DAMAGES – causation - whether injury to appellant's right knee was caused by motor vehicle accident. - Whether appellant's lost opportunity to gain employment was compensable - whether "buffer" should have been awarded for future economic loss.
LEGISLATION CITED:	Motor Accidents Compensation Act 1999, ss 126, 128, Part 3.4 Motor Accidents Compensation Amendment (Claims and Dispute Resolution) Act 2007 Workers Compensation Act 1987, ss 40, 52A
CATEGORY:	Principal judgment
CASES CITED:	Larson v Commissioner of Police [2004] NSWCA 126 Majkic v Bonanno [2008] NSWCA 253 Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638 Motor Accidents Authority (NSW) v Mills [2010] NSWCA 82; 55 MVR 243 Penrith City Council v Parks [2004] NSWCA 201 Pham v Shui [2006] NSWCA 373; 47 MVR 231 Purkess v Crittenden [1965] HCA 34; 114 CLR 164 Sellars v Adelaide Petroleum NL [1994] HCA 4; 179 CLR 332 Warren v Coombes [1979] HCA 9; 142 CLR 531 Zreika v New South Wales [2009] NSWCA 99
PARTIES:	Michael Tchen (Appellant) The Nominal Defendant (Respondent)
FILE NUMBER(S):	CA 2009/298556
COUNSEL:	Norton SC/ Daley (Appellant) Turnbull (Respondent)
SOLICITORS:	Brydens Law Office (Appellant) Ferguson Lawyers (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	3478/08
LOWER COURT JUDICIAL OFFICER:	Gibb DCJ
LOWER COURT DATE OF DECISION:	11 December 2009

CA 2009/298556

GILES JA
BASTEN JA
SACKVILLE AJA

29 September 2010

MICHAEL TCHEN v THE NOMINAL DEFENDANT

Judgment

1 GILES JA: I agree with the orders proposed by Sackville AJA and with his reasons.

2 BASTEN JA: I agree with Sackville AJA.

3 SACKVILLE AJA: This is an appeal from a decision of a Judge of the District Court (Gibb DCJ) awarding damages to the appellant for personal injuries sustained by him when struck by a motor vehicle. The appellant, the plaintiff in the proceedings, appeals on the ground that the primary Judge erred in her assessment of damages. The appellant asks this Court to reassess damages with respect to past and future economic loss and past and future domestic assistance. Alternatively, he seeks an order remitting the matter to the District Court for a further hearing on the question of quantum.

4 The appellant was struck by a vehicle at about 5 pm on 23 June 2005 when crossing the road at the intersection of the Hume Highway and Moore Street Liverpool. The appellant was on his way home from work. The driver of the vehicle did not stop. There is now no dispute that the Nominal Defendant (the respondent) is liable to the appellant by reason of the negligence of an unidentified driver.

5 The major issue at the trial was whether the accident caused an injury, or an aggravation of a pre-existing injury, to the appellant’s right knee. There was no dispute that at the time of the trial the appellant had continuing pain with his right knee that restricted his movements and his ability to perform heavy work. The respondent’s case, however, was that any disability was the result of a condition that pre-dated the accident and that there was no causal relationship between the accident and the appellant’s condition.

6 The primary Judge accepted the respondent’s argument and concluded that any injuries caused by the accident had been resolved before the trial. Her Honour found that:

“there is no causal nexus between [the] motor vehicle accident and (jointly and severally):
(i) the [appellant’s] arthritis;
(ii) any ‘gradual onset and progression of osteoarthritis in the knee’; or
(iii) any knee restriction/pain now afflicting the [appellant].”

7 The primary Judge entered a verdict in favour of the appellant in the sum of $25,861.12. The verdict comprised past out of pocket expenses of $12,739.92 and past economic loss of $13,121.20. Her Honour reserved the question of interest, but it appears that neither party did anything to quantify the amount of interest that might be due to the appellant. Nor was any order sought to deal with the relationship between the verdict and any workers compensation payments received by the appellant.

8 Her Honour made a “hypothetical” award to cover the possibility that her finding on causation was wrong. On the assumption, contrary to her Honour’s finding, that the condition of the appellant’s knee was causally related to the accident, she awarded damages of $52,589.24. This sum comprised:

$


Past out of pocket expenses 17,170.57

Future out of pocket expenses 13,000.00

Past economic loss 17,418.67

Future economic loss 5,000.00

52,589.24

9 The primary Judge made no allowance in either award for past or future domestic care. It was common ground at the trial that the appellant did not qualify for an award of damages for non-economic loss under the provisions of the Motor Accidents Compensation Act 1999 (“MAC Act”).

10 As counsel for the respondent accepted in oral argument in this Court, the trial was unsatisfactory in certain respects. In particular, the medical reports tendered on the question of causation were incomplete and were not supplemented by oral evidence from any of the medical practitioners. This Court has had occasion to comment on the difficulties facing a trial judge and the appellate court where the medical reports are in conflict and none of the medical practitioners has been cross-examined: see, for example, Larson v Commissioner of Police [2004] NSWCA 126, at [48], per Tobias JA, with whom Mason P and Santow JA agreed; Majkic v Bonanno [2008] NSWCA 253, at [26], per Bell JA, with whom Giles JA and Sackville AJA agreed.

BACKGROUND

11 The appellant was born in East Timor in 1945 and migrated to Australia in 1975. He was aged 59 at the time of the accident and 63 at the date of the trial.

12 From 1977 the appellant worked in the textile industry, but did not work in that industry between 1997 and 2003 because he contracted asthma working with woollen products. He returned to the industry, however, in 2003 as a textile cutter. This was physically demanding work.

13 The appellant shared a flat with Mr Field, a disability pensioner, and had done so for some 10 years. Mr Field’s evidence was that prior to the accident the appellant was as “fit as a mallee bull”.

14 The accident occurred when the appellant was traversing a pedestrian crossing near his home. The vehicle struck the appellant on the left side of his body and he fell to the right. It was common ground that the vehicle did not directly strike the appellant on either of his knees, but that he did suffer a massive haematoma over his right calf. The primary Judge’s finding was that he suffered a “rather nasty impact injury with bruising and swelling at the right calf”.

15 The appellant was helped home by a passer-by and was taken to Liverpool Hospital by Mr Field, where he was treated at the emergency department and X-rays were taken. He attended his general practitioner, Dr McMahon, the day after the accident and on a number of subsequent occasions.

16 The appellant remained off work from 24 June 2005 until 26 September 2005. He then resumed limited duties with his pre-accident employer who was apparently sympathetic to the appellant’s position. The appellant initially worked for approximately two hours per day, two to four days a week.

17 The appellant’s employment terminated on 29 July 2006, when his employer closed the factory. At that time, the appellant was working about one to two hours per day, two to three days per week. He never returned to his pre-injury fabric cutting duties.

18 The appellant has not worked or been employed since his employment was terminated. The primary Judge found that the appellant had no relevant qualifications and no experience other than tasks requiring some degree of manual labouring, such as fabric cutting in the textile industry. Her Honour accepted that work of this kind was physically beyond him.

MEDICAL REPORTS

19 The parties tendered reports from medical practitioners, as follows:

Dr McMahon, the appellant’s longstanding general practitioner;

Dr Giblin, the treating orthopaedic surgeon to whom the appellant was referred by Dr McMahon on 17 January 2006;

Dr Ellis, an orthopaedic surgeon, who prepared a medico-legal report on behalf of the appellant; and

Dr Harvey-Sutton, a Medical Assessor appointed by the Motor Accidents Authority under the MAC Act to determine whether the degree of permanent impairment sustained by the appellant as the result of the injury caused by the accident was greater than 10%.

20 Dr Harvey-Sutton was a competent but not compellable witness in the proceedings determined by the primary Judge: MAC Act, s 59A(2). It appears that neither the appellant nor the respondent requested Dr Harvey-Sutton to attend court to give oral evidence. However, we were told from the bar table that such a request is invariably met with refusal.

21 In addition to the medical reports, a report was admitted into evidence from a rehabilitation service provider known as Konekt, which conducted an “initial workplace conference” with the respondent on 5 July 2005. The report, which was apparently prepared in connection with a possible workers compensation claim, was prepared by Ms Williams, the “Konekt Conference Facilitator”.

22 The appellant relied on the reports of Dr Giblin and Dr McMahon and the medico-legal report of Dr Ellis. The respondent relied on Dr Harvey-Sutton’s report. None of the doctors was cross-examined. The primary Judge was therefore in the position of doing the best she could with a series of reports, to some extent contradictory, without hearing from the medical practitioners themselves.

Dr McMahon

23 Dr McMahon had been the appellant’s general practitioner since 1992. Extensive notes concerning the appellant, made by Dr McMahon or by others in his practice over the years, were in evidence.

24 The notes included an entry for 30 December 2003. This entry, upon which the primary Judge placed considerable reliance, read as follows:

“R[right] knee lateral pain on medial strain. Months.”

25 As a result of the consultation on 30 December 2003, Dr McMahon referred the appellant for an X-ray of the right knee, which was carried out on 9 January 2004. The report of the X-ray, which was not referred to by the primary Judge, recorded the following:

“The bone components present normal radiological features.
No arthritic changes are evident.
There is no obvious intra-articular effusion, loose body formation or other joint abnormality.
No bone or joint abnormalities have been demonstrated.” (Emphasis in original.)

26 The appellant consulted Dr McMahon on 24 June 2005, the day after the accident. Dr McMahon observed a massive haematoma on the right calf. He made a diagnosis of a soft tissue injury to the right calf with haematoma formation. When reviewed on 29 June 2005, there was still massive discolouration of the calf, but swelling had reduced and there was a good range of movement at the knee and ankle.

27 Dr McMahon saw the appellant again on 4, 6, 12, 16, 22 and 27 July 2005. When reviewed on 3 August 2005, Dr McMahon recorded that there had been good improvement, with reduced swelling. At that time, the appellant reported no problems with walking.

28 The appellant reported to Dr McMahon on 23 August 2005 that his knee had given way while walking down stairs. Dr McMahon ordered X-rays to be taken of the right knee, but the X-rays apparently did not reveal any abnormality.

29 The appellant continued to see Dr McMahon regularly. On 4 October 2005, the appellant complained of left ankle pain. The ankle pain had eased by the time the appellant saw Dr McMahon on 21 October 2005, but the appellant again said at that consultation that his right knee occasionally gave way. He repeated the complaint on 29 December 2005.

30 On 17 January 2006, the appellant complained of right knee pain and was referred to Dr Giblin. On 16 March 2006 the appellant complained of experiencing pain in his right leg, from the knee to his heel, while at work. An examination of the knee by Dr McMahon was “unremarkable”. On 1 September 2006, the appellant was still complaining of right knee and heel pain.

31 Dr McMahon last saw the appellant prior to the trial on 7 February 2006. At that point, the appellant was walking one hour per day but said he had to rest after twenty minutes due to pain. His knee was said to become stiff after sitting for one hour. On examination, there was “no wasting, no effusion, but painful flexion”.

32 Dr McMahon prepared a report on behalf of the appellant on 17 February 2007. The report made no mention of Dr McMahon’s notation of 30 December 2003, nor did the report mention that the appellant may have suffered before the accident from a condition affecting his right knee.

33 Dr McMahon’s report summarised his conclusions as follows:

“[the appellant] has sustained an injury to the calf which has caused residual scarring and pain. In addition it has resulted in a gradual onset and progression of osteoarthritis in the knee, mainly the patello-femoral joint. His injury has mostly stabilised now (although it is only three months since arthroscopy). However osteoarthritis of the knee is likely to progress.
In the short to medium term treatment will involve quadriceps strengthening exercises. He should take glucosamine indefinitely. He may take anti-inflammatory medication intermittently as required. He is fit for work which is sedentary. He may suffer stiffness on prolonged sitting so it would be an advantage if he could stand and stretch his legs each hour.
In the long term his arthritis may progress to the extent that he may come to further surgery, perhaps even partial or total knee replacement.
He has shown admirable motivation and determination to recover.”


The reference to an arthroscopy was to a procedure carried out by Dr Giblin on 21 November 2006 to which I shall refer shortly.

Dr Giblin

34 Dr Giblin first saw the appellant on 1 February 2006 on referral by Dr McMahon. Examination showed that the right knee would not fully flex or extend, particularly medially. At that point no X-rays were available.

35 Dr Giblin referred the appellant for X-rays of the right knee. These were administered on 28 March 2006. According to Dr Giblin, the X-rays showed an ossified lesion on the medial aspect of the left tibial metaphysis. Dr Giblin said in his report prepared on behalf of the respondent on 28 February 2007 that the ossified lesion:

“was probably post traumatic in nature given that it was not on the x-rays 23rd August 2005. I advised [the appellant] that it was not of surgical concern.
The MRI scan right knee [also done on 28 March 2006] showed patello-femoral arthritis with damage to the articular cartilage and an effusion ”.

36 Dr Giblin observed in March 2006 that the appellant was unable to stand or squat and was having trouble at work with his knee.

37 Dr Giblin reviewed the appellant on 14 November 2006 and found that the appellant’s knee was no better. On 21 November 2006, he performed an arthroscopy. In his report of 28 February 2007, Dr Giblin said that the arthroscopy showed:

“a small tear in the posterior aspect of the lateral meniscus, but in addition there was a deep grade 4 snail track ulcer exposing bare bone running from the trochlear notch all the way down to the anterior cruciate origin. The back of the patella articular cartilage was moderately damaged.”

38 Dr Giblin expressed his conclusion in his report, as follows:

“From my perspective, he remains fit only for a sedentary work environment avoiding the aforementioned physical restrictions. His treatment protocols should consistent of isometric static quads, non-prescriptive medication, and due care in terms of his work environment. He was returned to the care of his family doctor.
In the absence of any previous history of the symptoms or injuries , he has the provisional diagnosis of a soft tissue injury to his right knee as a result of the subject accident, and consistent with the findings noted on the MRI scan and at operation.
There will be a progressive deterioration in his knee, with the passage of time and associated post traumatic degenerative change.
I regard his condition as now stable but his long term prognosis remains guarded.” (Emphasis added.)

Dr Ellis

39 Dr Ellis examined the appellant on 16 January 2007 for the purpose of preparing a medico-legal report. Dr Ellis also took a history from the appellant and reviewed his medical records. Dr Ellis recorded his “impressions” in a report dated 26 January 2007 as follows:

“He was injured in a motor vehicle accident on his way home from work on the 23 ^rd June 2005 when he was hit by a car while walking on a pedestrian crossing. His right knee was injured and it was affected by surface cartilage damage described above under the arthroscopy findings, the damage involved the trochlear surface of the femur, the patella, lateral meniscus tearing and damage to the medial and lateral femoral condyles . There were loose cartilaginous bodies in the knee joint and there was an associated effusion.
Pain and disability have continued in the knee and his knee is worse since operation.
There is marked limitation of movement in the knee today and it is likely prematurely in the future he will require knee joint replacement, the cost of which will amount to $18,000 to include surgical and ancillary services and hospitalisation.
He is permanently unfit for work which requires prolonged standing, walking, bending, lifting, stairs, kneeling, and his chances of finding suitable light employment in the future are minimal.
There is no evidence of psychosomatic illness and no evidence of previous abnormality, debility or injury affecting his leg or back or right arm.
Continued medical supervision and conservative treatment for pain relief will be required, medications, consultations, intermittent physiotherapy would be helpful, he has not had the benefit of physiotherapy after operation. These items are likely to cost at least $2,000 annually over the next 2 years.” (Emphasis added.)

Dr Harvey-Sutton

40 Dr Harvey-Sutton prepared her report under Part 3.4 of the MAC Act, which sets out the procedures to be followed in performing medical assessments for the purpose of determining the degree of permanent impairment attributable to the motor accident. The referral to Dr Harvey-Sutton apparently took place after 1 October 2008. Accordingly, the amendments to Part 3 of the MAC Act effected by the Motor Accidents Compensation Amendment (Claims and Dispute Resolution) Act 2007 apply to the motor accident involving the appellant: see Motor Accidents Authority (NSW) v Mills [2010] NSWCA 82, at [39], per Giles JA (with whom Tobias JA and Handley AJA agreed).

41 The MAC Act provides that no damages may be awarded for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%: s 131. If there is a dispute about whether the degree of permanent impairment of an injured person is sufficient for an award of damages for non-economic loss, the court may not award damages unless there has been a medical assessment under Part 3.4: s 132(1). The medical assessor to whom a medical dispute is referred is to give a certificate as to the matters referred for assessment: s 61(1). Any such certificate as to a “medical assessment matter” is conclusive evidence as to the matters certified in any court proceedings in respect of the claim concerned: s 61(2). A “medical assessment matter” includes a determination of whether the degree of permanent impairment of the injury of the injured person caused by the motor vehicle accident is greater than 10%: s 58(1)(d).

42 Dr Harvey-Sutton conducted her assessment of the appellant on 25 March 2009. She took a history from him and reviewed his medical records although, as will be seen later, Dr Harvey-Sutton did not have access to all relevant documentation. The appellant attended the assessment with an interpreter and the interview was conducted in the Tetum (East Timorese) language through the interpreter.

43 Dr Harvey-Sutton’s report commenced with a certificate which was said to be issued pursuant to Part 3.4 of the MAC Act. The Certificate was in the following form:

“ Certificate

issued under Part 3.4 of the
Motor Accidents Compensation Act 1999
as to

WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10%

MAS Matter Number
2008/02/3290



The following injuries caused by the motor accident give rise to a permanent impairment which, in total, IS NOT GREATER THAN 10%:
History of haematoma of right calf (fore-leg)
Details of the assessment are set out in the reasons below, which form part of this Certificate.” (Emphasis in original.)

44 Dr Harvey-Sutton identified the question she had to consider as:

“Whether the degree of permanent impairment of the injured person as a result of injury caused by the motor accident is greater than 10%.” (Emphasis in original.)

She identified the “ Injuries to be Assessed ” as “Right Knee – ossified lesion”.

45 Dr Harvey-Sutton recorded the following:

“On enquiry as to the two questions, namely – had he had any pain in the right leg before the accident? or any pain in the right knee before the accident? he said no.
Under procedural fairness, I referred him to the clinical notes of Dr McMahon which indicated on 30 December 2003, that ‘Right knee lateral pain on medial strain. Months’.
Mr Tchen said that it was ‘a bit of arthritis’ that he had before the accident and he had ‘pains in the right knee with weather changes’. He confirmed that this was occurring up to the time of the accident too.”

46 The report recorded the appellant’s then current symptoms. Among other things, he reported having difficulty walking down steps and grades. “On enquiry” he said that he had difficulty kneeling or squatting and that sometimes his right knee gave way. There was sometimes swelling in the right knee and in the back of the right calf. The appellant also reported “tenderness in and about the right knee-medial and lateral joint lines and a compression of the patella”. He could flex his right knee slowly to 100 degrees, but said that it was painful to go further.

47 Dr Harvey-Sutton observed that the appellant appeared to give his history in a genuine and straightforward manner, but that she needed to rely on the accompanying documentation to obtain the history set out in her report.

48 Under the heading “Review of Documentation”, Dr Harvey-Sutton referred to Dr McMahon’s report of 17 February 2007 and noted that there was “no reference to any symptomatology in the right knee until 23 August 2005”. She also noted Dr Giblin’s reports and the X-rays and imaging investigations of the right knee that had taken place between January 2004 (which presented normal radiological features and no arthritic changes or loose body formation) and March 2006.

49 Under the heading “Diagnosis and Causation”, Dr Harvey-Sutton made the following observations:

“[The appellant] indicated by pointing and told me that the bruising [in consequence of being hit by the car] was in the right fore-leg, clearly below the right knee, and clearly above the right ankle.
I would note that the ossified lesion referred to in the radiological imagining [sic] relates to the left side and not the right side and I confirmed this by review of the x-rays also, and he denied any injury to the left leg.
Subsequently, some two months later, he reported symptomatology in the right knee having had symptomatology in the right knee prior to the subject motor vehicle accident from about December 2003 (entry in progress notes dated 30 December 2003) and had told me that from this time he had pains in the right knee with ‘changes in weather’.
I appreciate that subsequent to 23 August 2005 he went on to have further investigations of the right knee and an arthroscopy was performed by Dr Peter Giblin on 21 November 2006 with the main finding of severe patellofemoral arthritis.”

50 Dr Harvey-Sutton referred to Dr Giblin’s report of 28 February 2007, where Dr Giblin had summarised the results of the arthroscopy he conducted on the appellant’s right knee. Dr Harvey-Sutton observed that she had not reviewed Dr Giblin’s operative report. She said that it appeared that no partial medial or lateral meniscectomy had been performed and that it was unclear whether or not Dr Giblin had performed a chondroplasty procedure at arthroscopy.

51 Dr Harvey-Sutton summarised the position as follows:

“ Summary of Injuries Listed by the Parties and Caused by the Accident
The following injuries WERE caused by the motor accident:
Haematoma of the right calf (fore-leg).
Summary of Injuries Not Listed by the Parties But Caused by the Accident
The following injuries WERE NOT listed by the parties but WERE caused by the motor accident:
Not applicable.
Summary of Injuries Listed by the Parties and Not Caused by the Accident
The following injuries WERE NOT caused by the motor accident:
Right knee – ossified lesion.
Based on the history as given and the accompanying documentation, and the clinical examination, there was no direct injury to the right knee.
I would also note that the right knee was symptomatic prior to the subject motor vehicle accident; and
Furthermore, I note that the ossified lesion is in region of the left knee.” (Emphasis in original.)

52 She then proceeded to make the determination of impairment for the purposes of the MAC Act.

THE PRIMARY JUDGMENT: CAUSATION

53 The primary Judge placed “considerable weight” in relation to causation on the report of Dr Harvey-Sutton and ultimately preferred her opinion over that of the medical practitioners relied on by the appellant. Her Honour acknowledged that Dr Harvey-Sutton was not an orthopaedic surgeon and, indeed, that her report did not disclose her specialty (if she had one). Her Honour also acknowledged that Dr Harvey-Sutton did not have the advantage of Dr Giblin’s “arthroscopy summary” prepared immediately after the procedure had been completed. Nonetheless, in the primary Judge’s opinion, Dr Harvey-Sutton’s report was “detailed, thorough and persuasive”. Unlike the other reports, Dr Harvey-Sutton had the benefit of an “accurate and reliable history”, save as to the omission of Dr Giblin’s arthroscopy summary. The reliable history available to Dr Harvey-Sutton contrasted with the absence in any of the other three reports of any mention of an injury to, or impairment of the appellant’s right knee prior to the motor vehicle accident.

54 The primary Judge found that the respondent had obtained a report from its own orthopaedic surgeon, but had elected not to tender that report. Her Honour was prepared to infer that the report would not have assisted the respondent’s case. However, this did not cause her to reject Dr Harvey-Sutton’s opinion. Nor did the failure of the respondent to tender the report from the orthopaedic surgeon:

“render reliable opinions that are otherwise flawed by the histories upon which they rest.”

55 Her Honour noted that the appellant had admitted in evidence that he had pain in his right knee before the accident, which he described as “rheumatic pain”. The appellant also acknowledged telling Dr Harvey-Sutton that he had a “bit of arthritis in the knee” and that he had experienced pain when the weather changed. The primary Judge found, apparently on the basis of the appellant’s admissions and the notation by Dr McMahon in relation to the consultation of 30 December 2003, that:

“ for some years before the motor vehicle accident the [appellant] had complained of pain in his right knee .” (Emphasis added.)

56 The primary Judge also noted that:

“On one view, the defendant’s invocation of pre-existing knee problems would be met simply by medical opinion differentiating between the pre-existing condition that the [appellant] called in evidence ‘rheumatic’ pain and the osteoarthritic condition diagnosed since the motor vehicle accident, or otherwise differentiating the prognosis. But I am given no such medical opinion.”

57 Her Honour referred to the notes made at Liverpool Hospital when the appellant was admitted on the day of the accident. There was no mention of knee pain. However, the examination notes recorded the following:

“Tenderness on palpation ^(R) gluteal region
^o tenderness on palpation of hips bilaterally
^o tenderness on palpation of knee joint bilaterally”

Her Honour observed that:

“Conventionally, the symbol ^o is understood in medical notes to denote none or without rather than to denote the existence of phenomena.”

Accordingly, her Honour found that there was no report of tenderness upon palpation of knee joints bilaterally.

58 The primary Judge found that after the accident on 23 June 2005, the appellant had not complained about his right knee until late August 2005. She considered that there was a “degree of exaggeration” in the appellant’s description of his injuries. Her Honour preferred Dr McMahon’s description of the appellant’s injuries (see [23] above).

59 According to the primary Judge, the appellant faced:

“his most significant hurdle because of the omission and errors in the history upon which his doctors rested. The [appellant’s] treating and medico-legal orthopaedic spinal specialists were set forth upon their respective tasks armed with incorrect histories. The consequence was that the flaws in the foundation upon which they built their opinions undermined the value of the resulting opinions …”

60 Her Honour pointed out that Dr McMahon was aware of the true position at the time he prepared his report, as the appellant had consulted him before the accident about rheumatic pain and arthritis in the knee. Although possessed of the relevant history, Dr McMahon:

“offered not a word in the reconciliation of the history nor a word in explanation of why the previous complaints, described by the [appellant] as ‘rheumatic’ or ‘a bit of arthritis’ were different from, or unrelated to, the diagnosis offered as to the ‘onset and progression of osteoarthritis in the knee.’
The general practitioner’s silence would be less significant if the doctor had opined as to exacerbation or aggravation, or even an increased rate of progression or deterioration of a pre-existing vulnerability. But the general practitioner opined only as to the ‘gradual onset and progression’ without comment upon the history.”

The omission of any mention of the knee complaints made by the appellant in December 2003 led her Honour to reject Dr McMahon’s opinion as to causation.

61 The primary Judge considered that Dr Giblin’s opinion, which was founded on the “absence of any previous history of the symptoms or injuries”, was based on a fallacy. It was to be expected that Dr Giblin would “start with a firm grasp of history”, but that was not the case. The appellant himself had given a history to Dr Giblin but made no mention of the pre-existing condition of the knee. Accordingly, Dr Giblin’s opinion had been undermined “so as to render it effectively unreliable if admissible”.

62 Her Honour noted that Dr Giblin had been conscious that there was a significant difference between the X-rays taken on 23 August 2005 (when the appellant told Dr McMahon that his knee had given way) and the X-ray on 28 March 2006. But the primary Judge said that the ossified lesion was of little significance and Dr Giblin himself had said that it was incidental and not a surgical concern.

63 Dr Ellis likewise had been denied a correct history of the appellant’s pre-existing complaints in relation to his right knee. Dr Ellis had incorrectly stated in his report that the appellant had experienced no previous pain, disability, accident or injury affecting his right leg. Moreover, Dr Ellis’ chronology of the events on the evening of the accident also reflected errors. These included Dr Ellis’ apparent unawareness that the appellant had not been referred to Dr Giblin until nearly six months after the accident. In view of the “historical inaccuracy” affecting Dr Ellis’ report, the primary Judge did not place any weight on Dr Ellis’ opinion as to causation.

64 In reaching her conclusion on causation, the primary Judge took into account a number of other matters. These included the following:

it was common ground that the vehicle had not struck the appellant’s knee;

upon admission to Liverpool Hospital on 23 June 2005, the appellant, according to the admission notes, was ambulatory and there was no mention of knee pain;

the proper interpretation of the admission notes was that the appellant had not complained of any tenderness on palpitation of his knee joints bilaterally;

the appellant made no complaint about his knee for nearly two months after the accident, despite seeking regular medical treatment during this period;

the medical reports during the same period found the appellant’s knee “ to be good ” and the appellant himself reported no problems with walking;

Dr McMahon, the treating doctor, had identified a localised impact injury with bruising and swelling of the right calf, indicating that the appellant had exaggerated his symptoms in his evidence;

the appellant’s own evidence was that the pain in his knee, following the accident, started in September 2005 when he returned to work and that he had not experienced pain beforehand;

the appellant conceded in his evidence that he had experienced problems with his knee before the motor vehicle accident by way of arthritis and rheumatic pain; and

little weight could be placed on Mr Field’s evidence in particular, (that the appellant had been as fit as a mallee bull), especially where Mr Field’s evidence was in conflict with the appellant’s own evidence as to his state of health.

REASONING: CAUSATION

65 Ms Norton SC, who appeared with Mr Daley for the appellant, submitted that this Court was as well placed as the primary Judge to assess the medical evidence bearing on the question of causation. She pointed out that none of the medical practitioners had given oral evidence and that no credit issue arose. (While the appellant’s written submissions seemed to challenge her Honour’s finding that Mr Field was not a reliable witness in relation to the appellant’s pre-accident physical condition, Ms Norton did not pursue that contention.) Ms Norton accepted that the primary Judge was entitled to rely on the appellant’s own evidence as to the state of his knee prior to the accident. Accordingly, so she argued, the appeal essentially depended on the documentary evidence and on undisputed facts or on facts which, having been disputed, had been found by the primary Judge: Warren v Coombes [1979] HCA 9; 142 CLR 531, at 551, per Gibbs ACJ, Jacobs and Murphy JJ.

66 Ms Norton contended that the primary Judge had erred in preferring the opinions expressed in the report prepared by Dr Harvey-Sutton over those of the three medical practitioners upon whom the appellant relied. Ms Norton argued that, while Dr Harvey-Sutton’s report was admissible, it should be given little weight as the appellant was precluded from cross-examining Dr Harvey-Sutton on her opinion. Ms Norton further submitted that the primary Judge had placed excessive emphasis on a single notation in Dr McMahon’s clinical notes for 30 December 2003 and had failed to appreciate defects and omissions in Dr Harvey-Sutton’s report which, after all, had been prepared for a purpose other than resolving the factual dispute in the current litigation.

67 Mr Turnbull, who appeared on behalf of the respondent, did not dispute that the appellant’s challenge to the primary Judge’s finding on causation came within the principles stated in Warren v Coombes. He submitted, however, that the evidence supported the primary Judge’s finding that the appellant’s knee condition at the date of the trial was not caused by the accident. Mr Turnbull argued that the primary Judge was fully entitled to conclude that the opinions of each of the medical practitioners on whom the appellant relied had been undercut, either by the failure to mention the appellant’s history of knee problems (in the case of Dr McMahon) or by the absence of a complete medical history (Dr Giblin and Dr Ellis). That history did not depend simply on Dr McMahon’s clinical notes of 30 December 2003, but the appellant’s own evidence that he experienced pain prior to the accident. Her Honour was also entitled to take into account the absence of any recorded complaint by the appellant concerning his right knee for a period of two months after the accident.

68 The matters identified by Mr Turnbull, to the extent that they are borne out by the evidence, are clearly significant on the issue of causation. Nonetheless, there are substantial difficulties with the analysis of the primary Judge.

69 The first is that her Honour appears to have attributed excessive significance to Dr McMahon’s notation on 30 December 2003 and to the appellant’s oral evidence that he had experienced pain in his right knee before the accident. Dr McMahon’s notes merely recorded right knee “lateral pain on medial strain. Months”. There is nothing in the notes to indicate that the appellant was suffering pain in consequence of damage of the kind detected by the arthroscopy performed by Dr Giblin on 21 November 2006 and summarised in his report of 28 February 2007. On the contrary, the report of the X-ray carried out on 9 January 2004, to which her Honour did not specifically refer, did not identify any of the injuries or damage to the right knee detected by Dr Giblin 34 months later.

70 The appellant readily admitted in his evidence that he had experienced problems with his right knee before the accident. He described the pain as rheumatic pain and said that he had a bit of arthritis. However, the appellant was also adamant that the post-accident pain was worse and the primary Judge, although suggesting that the appellant had exaggerated some symptoms, made no finding that his assessment of the comparative pain levels was not accurate. Nothing that the appellant said in evidence supports a finding that any pain he was experiencing before the accident was the result of damage of the kind identified in the arthroscopy or in Dr Giblin’s report.

71 The primary Judge’s finding was that “for some years before the motor vehicle accident [the appellant] had complained of pain in his right knee”. It is not entirely clear what her Honour intended to convey by this finding. If she meant that the appellant had complained to medical practitioners about the state of his knee, the evidence does not support such a finding. The appellant saw his general practitioner on many occasions before the accident, but there is no indication in the clinical notes of any complaint about a knee problem except on the one occasion, on 30 December 2003. If the primary Judge meant to say only that the appellant had experienced some kind of mild rheumatic pain over a period of time (although not for “some years”), that conclusion may have been justified. However, such a conclusion has little significance on the question of causation.

72 The primary Judge did not explicitly find that Dr McMahon withheld relevant information from his report. Yet that is the implication in her criticism that Dr McMahon:

“offered not a word in the reconciliation of the history nor a word in explanation of why the previous complaints … were different from, or unrelated to, [Dr McMahon’s] diagnosis.”

73 An alternative and equally, if not more plausible explanation for the omission is that Dr McMahon, who plainly was aware of the appellant’s history and presumably aware that that history would be closely scrutinised by the parties to the litigation, did not consider the “rheumatic pain” to be material to the issue he was considering. This alternative explanation is made more likely by the failure of the respondent to ask Dr McMahon to attend for cross-examination and to put to him that he had failed to include relevant information in his report. Unlike Dr Harvey-Sutton, who was not a compellable witness, the respondent could have required Dr McMahon to attend for cross-examination, but it did not.

74 Thirdly, the primary Judge assumed that the appellant had not complained about the condition of his knee for at least two months after the accident. It is not clear that the primary Judge was entitled to interpret the notes made at Liverpool Hospital as demonstrating that the appellant did not suffer tenderness in palpation of the knee. Her Honour did so on the basis of her own knowledge that the symbol ^o is frequently used by medical practitioners and others to indicate that the recorded phenomena do not exist. However, there was no evidence to that effect and a similar symbol was used by Dr McMahon in his notes to identify “objective” symptoms.

75 Nevertheless, on the assumption that her Honour was right as to the meaning of the symbol, there was objective evidence that the appellant had in fact complained about his right knee shortly after the accident. The rehabilitation provider, Konekt, recorded that at the conference held with the appellant on 5 July 2005, the appellant complained that he could not keep the knee in a flexed position for long periods and that he felt a muscle in his medial right leg was torn.

76 The primary Judge put this evidence to one side on the ground that the dates recorded in the Konekt report were inconsistent and that the document was likely to have been prepared in late August 2005. But in my view, there is no persuasive reason to conclude that the conference took place otherwise than on 5 July 2005, the date recorded in the report. The report refers to the fact that the appellant “is scheduled” for a medical review on 6 July 2005, suggesting that the review had not yet taken place. It is true that the report has a chart in which the words “Injury Progress Over Past 4 weeks” appear in bold and that the appellant’s injury occurred on 23 June 2005, only two weeks before the recorded date of the report. However, the form of the document suggests that the chart was a part of a standard grid used for reports of this kind.

77 In my opinion it is more likely than not that the rehabilitation conference was held on the date recorded in the report, 5 July 2005. It is therefore likely that the appellant, despite conceding in evidence that he had not complained about his knee during the two months following the accident, made at least one complaint about the condition of his knee before 23 August 2005. The objective evidence suggests that the appellant conceded too much.

78 In any event, her Honour did not advert to the obvious hypothesis that the apparent failure of the appellant to complain about pain in his knee was due to the nature of the injury he sustained and to his relative immobility during the period he was off work. Certainly Dr McMahon was aware that the appellant had not complained to him about the knee for some two months after the accident. But that evidently did not alter Dr McMahon’s opinion on causation.

79 Fourthly, the primary Judge overstated the materiality and cogency of Dr Harvey-Sutton’s report, insofar as it addressed the question of whether the injuries to the appellant’s knee were caused by the accident. No submission was made to the primary Judge or in this Court that the certificate issued by Dr Harvey-Sutton was conclusive evidence that the injuries to the appellant’s knee were not caused by the accident for the purpose of assessing damages for economic loss. The absence of any such submission may reflect the form of Dr Harvey-Sutton’s certificate (which did not specifically state that the injuries to the appellant’s right knee identified by Dr Giblin were not caused by the accident). Alternatively, it may reflect a view that the conclusive effect of a certificate under s 61(2) of the MAC Act does not necessarily extend to a question of causation arising in a claim for economic loss: cf Pham v Shui [2006] NSWCA 373; 47 MVR 231, at [90]-[91], per Santow JA, with whom Bryson JA and Brereton J agreed; Motor Accidents Authority (NSW) v Mills [2010] NSWCA 82; 55 MVR 243,, at [60]-[62], per Giles JA, with whom Tobias JA and Handley AJA agreed. In any event, the parties proceeded on the basis that nothing in the certificate was conclusive for present purposes.

80 In preferring Dr Harvey-Sutton’s opinion over the opinions of the three medical practitioners relied on by the appellant, the primary Judge acknowledged that there were difficulties in the path of doing so. Her Honour accepted that there was no evidence as to Dr Harvey-Sutton’s qualifications or experience and that Dr Harvey-Sutton did not have access to Dr Giblin’s post-operative arthroscopy report. His Honour also observed that Dr Harvey-Sutton did not know, at the time she prepared her report, whether Dr Giblin had performed a chondroplasty procedure at arthroscopy. In fact, as her Honour acknowledged, Dr Giblin had performed such a procedure.

81 It might be thought that these matters detracted substantially from the cogency of any opinion expressed by Dr Harvey-Sutton on the question of whether the injuries or disability sustained by the appellant to his knee were caused by the motor vehicle accident. However, there are other difficulties with Dr Harvey-Sutton’s report on that causation question.

82 Dr Harvey-Sutton, having dealt with the haematoma of the right calf then, for reasons that are not entirely clear, focussed her attention on whether the ossified lesion in the appellant’s right knee was caused by the accident. Her report referred to Dr Giblin’s summary in his report of 17 February 2007 of his findings from the arthroscopy of 21 November 2006, but did not consider whether there was a causal relationship between the accident and the injuries to the appellant’s right knee as recorded in those findings. As Mr Turnbull accepted in argument in this Court, the injuries described by Dr Giblin were quite different and more extensive than an ossified lesion. There is simply no reasoning process in Dr Harvey-Sutton’s report that would justify concluding that the injuries identified by Dr Giblin did not exist or were unrelated to the accident. In short, properly understood Dr Harvey-Sutton’s report expresses no opinion as to the causal connection, if any, between the accident and the condition of the appellant’s right knee revealed by the arthroscopy. (I should interpose that this is not necessarily a criticism of Dr Harvey-Sutton. Her role was not to provide an expert report in relation to the appellant’s claim for damages for economic loss.)

83 Dr Harvey-Sutton did not have Dr Ellis’ report available to her. Accordingly her own report did not comment on Dr Ellis’ opinion and on the reasoning supporting that opinion. It is significant that Dr Ellis identified the injuries sustained by the appellant by reference to Dr Giblin’s findings as a result of the arthroscopy, rather than as an ossified lesion. Dr Ellis, unlike Dr Harvey-Sutton, had a copy of Dr Giblin’s arthroscopy summary and knew that Dr Giblin had performed chondroplasties. Dr Ellis would also have known from the arthroscopy summary that Dr Giblin, contrary to Dr Harvey-Sutton’s assumption, had performed a lateral meniscectomy. The evidence does not explain the importance of the lateral meniscectomy, but Dr Harvey-Sutton’s reference to the procedure suggests that she thought that the performance of such a procedure might have had some significance for her assessment.

84 Fifthly, Dr Harvey-Sutton, alone of the medical practitioners, appears to have believed that the ossified lesion affected the appellant’s left knee, not the right knee. Her report stated that she had confirmed this opinion by a review of the radiological imaging. Yet there is no suggestion in the other reports of any injury to or impairment of the appellant’s left knee. Dr Giblin’s contemporaneous records show that the X-rays and MRI scan were done on the right knee.

85 The matters to which I have referred make it quite unsafe, in my opinion, to rely on Dr Harvey-Sutton’s report in order to conclude that the injuries to the appellant’s right knee, identified by Dr Giblin’s arthroscopy, were not causally related to the accident. On the contrary, when the evidence is taken as a whole it comfortably leads to the conclusion that, on the balance of probabilities, these injuries were caused by the motor vehicle accident on 23 June 2005.

86 Accordingly, in my opinion, the appellant discharged the burden of showing on the balance of probabilities, that the injuries to his right knee, identified by Dr Giblin, were caused by the motor vehicle accident: Purkess v Crittenden [1965] HCA 34; 114 CLR 164, at 167-169, per Barwick CJ, Kitto and Taylor JJ.

DAMAGES

The Claim

87 The appellant’s claim for damages was as follows:

the cost of past treatment, agreed at $12,739.92 if the appellant’s knee condition was not causally related to the accident, and agreed at $17,170.57 if it was causally related;

a “ buffer ” for future treatment of $40,000.00;

past economic loss from the date of the accident until the respondent resumed work on 26 September 2005, an amount agreed at $13,121.20 (comprising $10,720 in lost wages, $1,179.20 lost superannuation benefits and $1,222.00 for the “ Fox v Wood component ”);

past economic loss from 26 September 2005 until the last day of the trial (29 August 2009), being 217.5 weeks lost wages at $823.18 per week net (a total of $179,041), less net wages of $43,605 received from 26 September 2005 when the appellant resumed limited work until 29 July 2006, when the appellant’s employer went out of business (a claim of $135,436 ($179,041 less $43,605));

additional past economic loss for the period 26 September 2005 until the last day of the trial, comprising 11% superannuation ($14,897) and a so-called “ Fox v Wood component” ($8,920.36);

future economic loss from the last day of the hearing until the date the appellant attained 65, calculated at the rate of $850 per week, plus superannuation benefits and a Fox v Wood component (a total of about $68,000);

the value of past gratuitous attendant care services rendered by Mr Field, based on an estimate of 10 hours per week from the date of the injury;

the value of future gratuitous attendant care services based on an estimate of 10 hours per week for the balance of the appellant’s life expectancy (22 years); and

a claim in the alternative for future commercial domestic assistance calculated based on an estimate of six hours paid care per week for the balance of the appellant’s life expectancy.

Primary Judge’s Reasons

88 The primary Judge, on the basis of her findings as to causation, awarded the appellant the agreed sum of $12,739.92 for past treatment. The respondent had conceded that the appellant was entitled to damages for economic loss quantified at $823.18 per week net for the period he was off work (3 months), a total of $10,720. In addition, the appellant was entitled to an 11% superannuation contribution for the same period ($1,179.20) plus the so-called “Fox v Wood component” (agreed at $1,222.00). The total for past economic loss was therefore $13,121.20.

89 The primary Judge awarded the appellant no damages for future economic loss, on the basis that his mobility to work by reason of the accident was for a closed period.

90 As I have noted, the primary Judge also assessed damages on the basis, contrary to her own findings, that the injuries to the appellant’s knee were caused by the motor vehicle accident. On this basis, her Honour found that, but for the accident, the appellant would have continued to work for his sympathetic employer for about 10 hours per week. However, once the employer’s business closed at the end of July 2006, the “harsh economic reality” was that there were few jobs for a 64 year old man with no skills, other than fabric cutting, and a limited ability to speak English. Her Honour also found, on the basis of a job search diary maintained by the appellant, that the appellant had applied for a very large number of jobs, but that all his applications had failed for want of qualifications or experience. None had failed by reason of his physical condition.

91 After referring to Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638, her Honour made the following observation:

“Here there is a substantial degree of what, at its highest, is guesstimation in the hypothetical assessment of the plaintiff’s prospects of securing employment in the past for the purposes of quantification of damages for past economic loss. Even a 10% prospect (as I find for future economic loss) is rendered rather generous on the face of exhibit J [the job search diary]. That being so, the probability of it having occurred is less than it not having occurred; and it must be treated as not having occurred, yielding a zero quantification.”

92 Her Honour, assuming a causation finding favourable to the appellant, assessed past economic loss at $17,418.67, comprising:

$13,121.20 for lost wages up to 26 September 2005;

$4,297.47 in respect of the period from 26 September 2005 to 29 July 2006 (44 weeks at $823.18 per week ($36,219.92), plus 11% superannuation ($3,984.19), plus a Fox v Wood component ($7,698.36) (a total of $47,902.47, less $43,605.00 agreed actual earnings); and

nothing for the period after 29 July 2006 until the date of the hearing.

93 The primary Judge noted that s 126 of MAC Act qualified the appellant’s entitlement to damages for future economic loss. Section 126 provides as follows:

“(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 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 concerned 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.”

The primary Judge noted that although the respondent had relied on s 126 in opposition to the appellant’s claim for future economic loss, the appellant had said nothing significant about the application of the section to the case.

94 Her Honour awarded a “buffer” of $5,000 for future economic loss on the following reasoning:

“This is not a plaintiff who was likely to have found alternative employment if he had not been injured by the defendant’s (statutory) negligence. The sad truth is that absent a sympathetic employer, the plaintiff’s employment prospects were so bleak as to be negligible without the addition of the knee restrictions/pain.
It would, however, be unfair to the plaintiff to find that he has absolutely no prospect of finding alternative employment regardless of the knee restriction/pain, even if that prospect be slim.
…
I find that the plaintiff’s most likely future circumstances but for the injury were that he would have continued to work for the same employer (relevantly earning $823.18 per week) until the employer went out of business, which happened on 29 July 2006 (i.e., in the past). I find that thereafter the plaintiff would have struggled to find fresh employment, with a very slight chance of success ….
At its highest, had I found a causal nexus with the knee restriction/pain … I would have awarded a very small buffer of $5,000 for future economic loss to 2 December 2010 (the date of expected retirement, say 64 weeks). I am conscious that so to do verges upon speculation, but accept that it is possible, if unlikely, that the plaintiff might have found alternative employment.” (Emphasis added.)

The expression a “ a very slight chance of success ” appears to be a reference to the primary Judge’s finding that the appellant had only a 10% chance of finding employment had he not sustained injuries to his right knee in the motor vehicle accident.

95 The primary Judge rejected the appellant’s claim for gratuitous domestic care on the ground that his needs did not exceed the threshold imposed by s 128 of the MAC Act. That section provides that no compensation is to be awarded for gratuitous attendant care services unless the services are provided or are to be provided for at least six hours per week and for a period of at least six consecutive months.

96 There was no medical evidence that the appellant required domestic assistance. An occupational therapist gave evidence that the appellant was able to contribute to his domestic chores at his pre-accident level, bearing in mind that Mr Field did most of the domestic duties in the household. Mr Field’s evidence on the extent of his contributions to the appellant’s care was “confused” and “curious”. Insofar as his evidence was intended to suggest that he was providing some 39 hours of domestic assistance per month, her Honour did not accept Mr Field’s evidence.

97 The primary Judge found that at no point had the appellant required six hours assistance each week in any consecutive six month period. Accordingly, the statutory threshold was not satisfied. The same conclusion applied in relation to future gratuitous care.

98 The primary Judge also rejected the appellant’s alternative claim for future commercial domestic assistance. This claim was for damages assessed at the rate of $40 per hour for six hours per week for the balance of the appellant’s life expectancy. Her Honour found that there was no basis for assuming that the appellant and Mr Field, who was about a year younger than the appellant, would not continue with the same living arrangements into the future.

99 The primary Judge, on the hypothesis that causation was established, would have allowed a “buffer” of $13,000.00 for future treatment. Her Honour accepted that this figure rested “in some large part upon estimation that approaches speculation”.

100 Her Honour would have awarded the respondent a total of $52,589.84 had causation been established. The breakdown of the award appears at [8**] above.

Reasoning

101 The parties filed written submissions on the assessment of damages (independently of the question of causation). They did not elaborate on the submissions in oral argument, except that both counsel indicated a preference for this Court finally to determine damages, rather than have the matter remitted for a further hearing. Neither counsel invited the Court, if it overturned the primary Judge’s finding on causation, to attempt to determine the precise extent to which the appellant’s problems with his right knee were greater after the accident than before the accident.

102 The appellant’s principal criticism of the primary Judge’s reasoning was that there was no evidence to support the finding of the “harsh economic reality” facing the appellant. According to the appellant, there was no evidence that, but for the injury, he could not have exploited his earning capacity, perhaps in unskilled employment involving no heavy labour. It was pointed out that the job search diary was prepared to satisfy the requirements of ss 40 and 52A of the Workers Compensation Act 1987 and that the appellant was forced to apply for some positions for which he clearly had no qualifications.

103 The evidence demonstrates clearly that the appellant, despite diligent efforts, was unable to secure employment after he lost his job in July 2006. There is no evidence that his failure to secure employment for which he was otherwise qualified was due to any problem with his knee. It may be true that some of the positions for which he applied would never have been open to him because of his lack of relevant qualifications. But the job search diary shows that he applied for apparently unskilled positions such as cleaner, café assistant, machinist, process worker, factory hand and carwasher. As the primary Judge found, the diary contained nothing to indicate that his knee condition had anything to do with his lack of success in obtaining any of the positions for which he applied.

104 It is true that the appellant was not cross-examined about what he told prospective employers. However, as he did not give any evidence on this topic, the absence of cross-examination does not derogate from the evidentiary basis for the primary Judge’s finding. There was no error in the primary Judge concluding that, regardless of the injury to the appellant’s knee, the prospects of him obtaining employment suitable to his qualification and experience were slight, amounting to about 10% in percentage terms.

105 The appellant also criticised the finding that the appellant’s need for attendant care services had never exceeded the threshold required by s 128 of the MAC Act. However, her Honour was entitled to rely on the very detailed report prepared by Ms McLaughlin, an occupational therapist who conducted an “Activities of Daily Living Assessment” at the appellant’s home. Ms McLaughlin concluded that the appellant’s past needs had never exceeded five hours per week and, in any event, had never continued for any uninterrupted period longer than about six weeks.

106 This conclusion does not require Mr Field’s evidence to be rejected, even though her Honour was not prepared to place any weight on Mr Field’s chart. Mr Field acknowledged in cross-examination that the chart included domestic work performed for himself as well as for the appellant. Moreover, Mr Field confirmed the accuracy of Ms McLaughlin’s account of what she had been told by the appellant and Mr Field. The evidence supported her Honour’s finding on this issue.

107 However, I think that the appellant has made out two of the criticisms directed at her Honour’s assessment of damages. The first concerns the appellant’s claim for past economic loss comprising his lost opportunity to secure employment between the date he lost his job (29 July 2006) and the last day of the trial (28 August 2009) or the date of judgment (11 September 2009).

108 The primary Judge disallowed the claim on the ground that, but for his injury the appellant had only a 10% chance, of securing employment after 29 July 2006 and that such a low chance must be treated as not having occurred. The effect of Malec v J C Hutton, however, is that the appellant’s chances of securing employment should not have been disregarded unless the chance was “so low as to be regarded as speculative – say less than 1 per cent”: at 642-643, per Deane, Gaudron and McHugh JJ; see also Sellars v Adelaide Petroleum NL [1994] HCA 4; 179 CLR 332, at 355, per Mason CJ, Dawson, Toohey and Gaudron JJ.

109 It was agreed that the appellant, had he secured employment, would have continued to earn $823.18 per week. Thus, if he had gained alternative employment immediately after he lost his job in July 2006, he would have earned approximately $132,000 up to the date of judgment. It would have been necessary to add 11% to cover the loss superannuation (approximately $14,500) and a Fox v Wood component (approximately $12,000, extrapolating from figures agreed by the parties). Accordingly, if the appellant’s failure to secure employment after July 2006 was due to the injuries sustained, the maximum loss he would have sustained by reason of that failure until the date of judgment was approximately $158,500.

110 It is appropriate to allow the appellant $15,000 (being slightly less than 10% of the maximum loss) as damages for the loss of employment opportunity. The slight reduction reflects a small allowance for additional vicissitudes, such as delays in securing fresh employment.

111 The second criticism of the primary Judge’s assessment of damages which has some force concerns the appellant’s claim for a “buffer” to cover the possibility that he might require commercial attendant care services in the future, should Mr Field’s assistance no longer be available due to illness, incapacity or death. As her Honour pointed out, there was no medical evidence that Mr Field would become disabled in the future from providing the limited assistance he has for the heavier domestic tasks. Nonetheless, there was clearly more than a remote prospect that Mr Field, who is only a year younger than the appellant and has long suffered various medical conditions, may become incapacitated or may predecease the appellant. In such circumstances, as Ms McLaughlin’s report accepts, the appellant would be “unable to perform activities that require prolonged weight bearing or heavy manual handling”.

112 In my view, her Honour gave insufficient weight to the chance of Mr Field being unable to perform any domestic duties at all in the household. I think that the chance of this happening is greater than the slight although “perhaps not entirely fanciful” chance discussed in Miller v Galderisi [2009] NSWCA 353, at [21]-[24], per curiam, where the plaintiff’s partner was 10 years younger than the plaintiff himself. While any buffer should be modest, it is appropriate to allow something for the chance that in the future the appellant will require a small amount of paid assistance to cope with the heavier household tasks. I would allow $5,000 under this head.

113 The final issue concerns the appellant’s claim for a “buffer” in respect of future economic loss by reason of his diminished earning capacity. The appellant’s written submissions did not refer to s 126 of the MAC Act. Nor did they explain how, consistently with the terms of s 126, an award of a buffer greater than $5,000 could be justified. No reference was made by the appellant to the authorities dealing with the circumstances in which a buffer may be awarded for future economic loss: see, for example, Penrith City Council v Parks [2004] NSWCA 201, at [5], per Giles JA, at [10], per Cripps AJA; Zreika v New South Wales[2009] NSWCA 99, at [29]-[30], per Ipp JA (with whom Beazley and Macfarlan JJA agreed).

114 In these circumstances, I do not think that any error has been shown in the primary Judge’s award for future economic loss.

115 The result is that, on the basis that the appellant succeeds on the question of causation, his damages should be assessed as follows:

$
Past out of pocket expenses	17,170.57
Future out of pocket expenses	13,000.00
Past economic loss until 29 July 2006	17,418.67
Past economic loss until date of primary judgment	15,000.00
Future economic loss	5,000.00
Future paid domestic care	5,000.00
TOTAL	$72,588.24

CONCLUSION

116 For the reasons I have given, the appeal should be allowed. Order 1 made by the primary Judge should be set aside and in lieu thereof judgment should be entered in favour of the appellant against the respondent in the sum of $72,588.24. The respondent should pay the appellant’s costs of the appeal.

117 The question of interest has never been addressed by the parties, perhaps because it is not relevant having regard to payments the appellant may already have received. However, if the appellant wishes to pursue a claim for interest, he should file within seven days agreed short minutes of order or, alternatively, written submissions quantifying and justifying his claim to interest. If the respondent challenges the appellant’s claim on quantification, it should file written submissions within a further seven days.

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