Winston v Roach

[2003] NSWCA 310

CITATION:	Winston v Roach [2003] NSWCA 310
HEARING DATE(S):	7 August 2003
JUDGMENT DATE:	27 October 2003
JUDGMENT OF:	Mason P at 1; Santow JA at 104
DECISION:	The appeal is upheld in part (see para 103)
CATCHWORDS:	Motor accident - liability not in issue - damages - existing back condition, psychiatric and other difficulties exacerbated - whether allowance made for existing condition - legal onus of proof reversed - tortfeasor only responsible for damage caused
CASES CITED:	Chappel v Hart (1998) 195 CLR 232 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 Purkess v Crittenden (1965) 114 CLR 164 Riley v Cocco [2001] NSWCA 379 Shorey v PT Ltd (2003) 77 ALJR 1104 Watts v Rake (1960) 108 CLR 158 Woolage v New South Wales [2001] NSWCA 256
PARTIES :	Richard Winston (Appellant) Denise Anne Roach (Respondent)
FILE NUMBER(S):	CA 40727 of 2002
COUNSEL:	J D Hislop QC/W Carney (Appellant) S Longhurst (Respondent)
SOLICITORS:	Lee and Lyons (Appellant) Russell McLelland & Brown (Respondent)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 571 of 1998
LOWER COURT JUDICIAL OFFICER :	Goldring DCJ

CA 40727 of 2002
DC 571 of 1998

MASON P
SANTOW JA

Monday, 27 October 2003

Richard WINSTON v Denise Anne ROACH

JUDGMENT

1 MASON P: The respondent was a passenger in a stationary taxi that was struck from behind by a car driven by the appellant. The finding of negligence is no longer in dispute.

2 The accident occurred on 14 June 1996. The respondent was then aged 32. She was 38 years old by date of trial.

3 She was taken to a medical centre. She was x-rayed and sent home to rest with pain relief. Severe back pain continued and 10 days later she was taken to hospital by ambulance. Radiology revealed a disc prolapse at the L4/5 and L5/S1 levels. Disk protrusion was infringing on the thecal sac and causing significant pain.

4 The respondent spent two weeks in hospital for ongoing care and rehabilitation. There was clear evidence of marked restriction of lumbosacral range of motion. A CT of the lumbar spine carried out on 16 September 1996 revealed, according to the radiologist:

… a prominent central to left posterior disc extrusion at L5/S1 with some degenerative calcification. It is causing prominent indentation on to the anterior aspect of the theca and the left S1 nerve root. There is evidence of posterior disc bulge at L4/5 with slight indentation on to the anterior aspect of the theca.

5 On 27 September 1996 the respondent was admitted to Illawarra Regional Hospital complaining of back pain. Dr Moloney, a neurosurgeon, began treating her. He performed a laminectomy on 3 October 1996 (Blue 25). There appeared to be a good recovery. The respondent failed to attend Dr Moloney for review in November.

6 In March 1997 there was a recurrence of low back and leg pain. The respondent was admitted to hospital for bed rest and observation. There was a painful lumbar myelogram. There were episodes of urinary retention and bladder prolapse stemming from back pain.

7 In May 1997 an MRI scan of the lumbar spine showed fairly extensive epidural scar tissue at L4/5 and L5/S1 level both anterior and posterior to the faecal sac, together with changes consistent with some calcified material anterior to an S1 nerve root.

8 Dr Moloney saw her again at various dates in 1997-8. She reported that her situation was gradually deteriorating. By July 1998 she had had seven further admissions to hospital for bed and analgesia because of low back and leg pain. She was also being treated for consequential urinary retention problems.

9 In July 1998 Dr Moloney reported the respondent unfit for work or normal recreational activities. He was very pessimistic about her ever making any form of meaningful recovery from her back injury (Blue 216). A similar prognosis was given in February 2002 (Blue 218).

10 The genuineness of the continuing episodes of back pain is not in dispute, but there is dispute as to the intensity and origin of the problem.

11 From the outset Dr Moloney was sceptical about his patient’s denials of back problems pre-dating the accident. He quizzed her repeatedly about the matter. Belatedly he extracted (from her solicitors) an accurate history that included problems going back to 1988. His latest report (25 July 2002) addressed a full history and referred to the radiological evidence commencing in 1988. Dr Moloney concluded (Blue 341):

The defect therefore did exist prior to 14 June 1996.
The problem certainly seemed to be about the same sort of intensity after the motor vehicle accident in question as it was when she presented initially to Grafton Hospital in 1988. Whether the accident therefore represented an exacerbation of a previously present problem or whether it represents an acceleration of a previously present problem cannot be answered.
I prefer not to have to rely on Mrs Roach’s history to give an opinion as to how much pain she had before and how much pain she had after. There is certainly no objective way of determining the answer other than perhaps of splitting it down the middle and stating that 50% of her current and ongoing problem is as a result of pre-existent history and 50% due to the accident on 14 June 1996.

12 Dr Moloney was not cross-examined.

13 There were further episodes of acute back pain and urinary retention problems throughout 1998. In December 1998 Dr Trethowan prescribed MS Contin, an opiate, because the pain reported had caused the respondent to become almost suicidal. In February 1999 there was an overdose of medication, requiring admission to hospital.

14 A morphine pump was inserted in 2002 because, in Dr Maloney’s words,

”nothing else seemed to help her with pain relief”

(Blue 218). The current medical prognosis is bleak and guarded (Blue 251, 268).

15 I shall refer to other medico-legal evidence when addressing the issues raised by the appellant.

16 Judge Goldring awarded a verdict in the sum of $544,209.21 comprising:

Head Amount ($)

Non-economic loss 148.000.00

Out of pocket expenses 25,552.59

Loss of past earnings 72,800.00

Loss of future earning capacity 178,974.26

Loss of past superannuation 5,824.00

Loss of future superannuation 11,275.38

Future medication 24,165.00

Future GP and Specialist attendance 12,275.82

Replacement of morphine pump 65,342.16

TOTAL $544,209.21

17 The appellant contends that the verdict is vitiated by errors of principle and fact and that it is excessive.

18 Before addressing the grounds of appeal it is appropriate to document the particular difficulties that were presented to the trial judge in regard to assessment of damages. Practically all of the matters referred to below were considered and weighed by the learned trial judge. This of course does not render the judgment immune from appellate review.

19 Complicating factors included:

(a) Respondent’s credibility
The respondent was not the most credible of witnesses. She had denied having any prior back complaints in her motor accident form and in the history she gave to her treating specialist Dr Moloney (see above). She exaggerated the extent of her injuries when giving a history in relation to housework (see Red 61-2).

20 There was extensive video surveillance, some of which showed the respondent performing tasks such as lawn mowing and running while carrying bags. However, this video evidence was not all supportive of the appellant’s case. The way in which the primary judge assessed this evidence, and the respondent’s explanations of it, reveals no appealable error on my view (see Red 60-1. See also Red 65E).

21 The appellant seeks to make much of the credibility difficulties. But his Honour was fully seized of them. He saw the appellant under cross-examination over an extended period and he made findings about credibility to which I have referred. His primary conclusions of fact in the case took these findings into account in circumstances which in my view reveal no appealable error.

22 This of course leaves the appellant with challenges based upon facts that were established to the satisfaction of the trial judge and conclusions stemming from primary facts.

(b) History of earlier back trouble

23 The respondent has had bouts of back pain since at least 1983.

24 She was admitted to hospital in 1988 suffering from back pain radiating into the left leg. She was put in traction for a few days. A CT scan at L4-5, L5-S1 disclosed minimal posterior cannular bulge, but no disc prolapse (Blue 511).

25 An x-ray of her lumbar spine in September 1992 revealed no abnormality (Blue 437).

26 In June 1995 she went to hospital complaining of acute pain in the lower back after getting out of a car. Hospital records disclose that she gave a “12 yr history of back problems”. The clinical findings were of “local pain and tenderness in mid-line at L4-5”. However the x-ray of the L5 spine revealed no abnormality (Blue 601-2).

(c) 1992 motor vehicle accident

27 In April 1992 the respondent was involved in a motor vehicle accident that injured her left leg and knee. There was no bone damage, but she complained of ongoing pain in her left knee in September that year. She was unable to do marching drill in the Army. This problem led to her being placed on permanent light duties and contributed to her being discharged from employment in the Army in October 1992.

(d) History of drug and alcohol abuse

28 There was a lengthy history of drug and alcohol abuse.

29 The respondent commenced smoking marihuana at the age of 14. She was using it daily in 1992 when she was 29. She became a regular user of amphetamines. She had taken heroin on at least one occasion prior to the accident. On another occasion she had taken Rohypnol intravenously and this caused her to contract hepatitis C. In April 1994 she took an overdose of Mogadon. In August 1994 she was admitted to hospital having taken a whole bottle of Mogadon and Panadeine in an apparent attempt to take her life. She was transferred to a psychiatric ward (see below).

30 There were criminal convictions for driving under the influence of alcohol (1986, 1992). Possession of cannabis in 1992 contributed to an unsatisfactory service record when she was in the Army. She was discharged in October 1992 because her retention in the Army was not in the best interests of the Army (Blue 394).

31 The drug and alcohol problems undoubtedly reflected and contributed to quite severe psychological problems that were evident before the accident. To put matters at their lowest, the drug and alcohol problems indicate that the respondent’s life was an unhappy one before the accident. They also reflect adversely on her pre-accident employability.

32 There was no expert evidence about the likelihood or unlikelihood of the respondent breaking the drug and alcohol habits which had marred her life for many years. A lay observer looking at her history might well be somewhat pessimistic. The respondent went to a Crisis Centre in April 1994. Unfortunately she relapsed later that year. In 1995 or 1996 (before the accident) she contracted hepatitis C from sharing needles with her brother during a drug relapse.

33 There were some signs of improvement in the 18 months that preceded the accident in June 1996. It is, I think, nevertheless open to be inferred that the respondent may well have had further relapses from time to time even had the accident not occurred. It is certainly open to infer that a prospective employer who learnt of the respondent’s unfortunate history with drug and alcohol abuse might be cautious about engaging her as an employee. These comments are not intended to be morally condemnatory, merely reflective of community attitudes to these problems especially as they touch employability.

(e) Psychiatric history

34 The respondent had been sexually abused as a child. As an adult, she had suffered physical and sexual assault at the hands of a former boyfriend. These and other problems had caused or contributed to significant diagnosed psychiatric problems.

35 In 1994 the respondent was certified as mentally ill and suffering from a personality disorder. There was also evidence of her suicidal tendencies which had culminated in a number of attempts on her life. In 1994 (and again in 2000) she spent periods in hospital receiving treatment for mental illness.

36 This psychological condition preceded the accident and remains, to a degree, an unfortunate aspect of the respondent’s continuing difficulties.

37 Goldring DCJ made the following findings referable to the respondent’s psychological condition, its independence from the accident, and its significant contribution to the chronic pain and depression which the respondent continues to suffer (Red 55-6):

First, there are some reports of Mr Wenzel, clinical psychologist, relating to her psychological condition. Mr Wenzel has seen her several times, commencing in 1996, and identifies her as suffering from a chronic pain disorder. He continues
“Undoubtedly the patient’s psychological factors are a major key to the impact the injury and chronic pain has had on this patient. The main presenting symptoms relate to ongoing severe depression as well as moderate to severe anxiety symptoms.”
Mr Wenzel recounts that Ms Roach was angry and frustrated because of the impact of the injuries on her life, particularly the interference with her study. She also indicated some fears of driving. He was also well aware of the suicidal ideation. Mr Wenzel acknowledges
“The patient’s overall psychological condition is significantly complicated by pre-existing psychological problems that stem from her having been a victim of sexual assault whilst a child. The patient indicated that some of her psychiatric hospital admissions in fact have related in the past solely to the grief and trauma of dealing with her past stresses with these frequently being amplified when she experiences disturbances in her mood state owing to her accidents and pain related depression and adjustment problem. It is frequently observed that during periods of depression patients are more prone towards dwelling on past unresolved psycho-social issues even those they have previously dwelt [sic] with adaptively.”
From this finding I conclude that the plaintiff certainly does have psychological complaints, and the pain she has felt as a result of the injuries she sustained in June 1996, or the exacerbation of those injuries, certainly does not help. However, it seems to me that the depression she suffered as a result of her pain is merely a factor to be considered in assessing her damages for non-economic loss and in doing so I find it would be difficult to attribute the major part of her psychological problems to the incident of June 1996. This has been only mildly affected by the pain and should not be regarded as something for which the defendant’s breach of duty should be held causally related or responsible. In this respect I differ from Dr McEwin who attributes her depression largely to the accident. Dr McEwin is, of course not a psychiatrist, nor did he have any history of the plaintiff’s prior history of back problems.

(f) Pre-injury work history

38 The respondent’s pre-injury work history was poor and was correctly described by the primary judge as “a very sparse record of full-time employment in the past” (Red 65). In significant part, this was the product of other difficulties encountered by the respondent in her life. It follows that the work history, including the limited and debatable signs of a favourable upturn in the year or so before the accident, is relevant in the assessment of both the economic and non-economic aspects of the respondent’s damages.

39 In brief:

• The respondent left school in Year 9 in 1978.

• She worked as a general hand on a dairy farm between 1978 and 1981.

• She worked as a factory hand in 1983.

• In 1984 she ceased work upon the birth of her child.

• In 1987 she rejoined the work force as a shop assistant in a fish shop. Apart from interruptions for medical attention to her back she worked in this job until 1991.

• Between July 1991 and October 1992 she was in the Army. She was engaged in a clerical position, but had to achieve and maintain certain levels of fitness. The respondent points to the fact that she satisfied the Army’s entry requirements and that she was able to carry out quite vigorous physical activities (see photographs at Blue 352 ff). The appellant focuses upon the negative aspects of her Army career referred to above, which contributed to her discharge from the Army.

• In 1993 the respondent returned to work as a fish shop assistant until early 1994 when she moved to the Illawarra district.

• The respondent’s psychiatric difficulties flared up in 1994-95, exacerbated by continuing drug abuse, and her assault and rape at the hands of a former boyfriend. There was at least one suicide attempt during this period.

• In 1995 the respondent undertook a drug rehabilitation program with the Salvation Army. She said that she found this very helpful in dealing with her alcohol and cannabis problems, to the extent that she formed the intention of working in the drug rehabilitation area.

• The respondent started working as a volunteer with the Salvation Army, mainly in a voluntary capacity but (between July 1995 and April 1996) with paid support as a worker one day a week. At the beginning of 1996 she enrolled in a course at the Wollongong TAFE College with a view to training as a welfare worker. The course was a condition of her employment by the Salvation Army. It was a two year course and she passed the subjects attempted in the first half of 1996, two of them with an A grade mark (Blue 482).

• In April 1996 she stopped working with and for the Salvation Army. This was her last period of paid employment. She said that she was discharged because she was a lesbian.

• In February 1997 she discontinued her TAFE course. She has not worked since that date, due (she says) to the injuries stemming from the accident. She has received a disability support pension since 1998.

40 With this background I turn to the appellant’s challenges to the award.

Causation

41 The appellant submitted that the accident caused little or no injury to the respondent’s back. It was at most minimal and temporary.

42 Particular reliance was placed upon the report of Dr Matheson, a consultant neurosurgeon, who saw the respondent at the request of the appellant’s solicitors. Dr Matheson, who was not cross-examined, viewed the x-rays and MRI scans from before and after the accident. He diagnosed L4/5 and L5/S1 disc degeneration. His conclusion was (Blue 490-1):

Opinion
There is no evidence that this motor vehicle accident produced her back disability. It was already established. The type of accident is unlikely to have made it any worse. She has gone on to have a decompressive operation. She claimed it helped her miraculously for four months and then went back as before. Again this is an implausible story. Since then there has been multiple hospital admissions and the use of analgesics. She has a background in drug abuse and has done some counselling work in drug and alcohol areas. She has also worked in the army. She got dismissed from the army for smoking marijuana. She has drink-driving convictions.
I believe she sustained no injury in the accident on 14.06.96 and I believe that her subsequent behaviour in terms of seeking medical treatment have been driven by substance abuse and not by any back disability.

43 Judge Goldring found that the respondent had a degenerative back condition which became worse after the accident. He considered that the collision significantly exacerbated her back condition and was a significant cause of her injury (Red 59-60).

44 In my view this finding must stand. The appellant’s challenges to the finding and the reasoning supporting it should be rejected.

45 The trial Judge based his conclusion upon:

• The accepted evidence of the respondent and of the taxi driver about the severe jarring impact of the accident (Red 48).

• Acceptance of the respondent’s evidence about her continuing symptoms and conditions (despite reservations stemming from the problems with her credibility) (Red 60-2).

• Corroboration by independent medical evidence, especially that of Dr Davies (Blue 268), Professor Jones (Blue 500-1) and Dr Moloney (above).

46 This reasoning sustains the conclusion that the accident had significant causal impact in exacerbating the respondent’s back condition and rendering it permanently painful and disabling.

47 The primary judge was not bound to accept Dr Matheson’s contrary views, which were somewhat argumentative in nature and appeared to stray beyond the doctor’s area of demonstrated expertise. I see no error in his Honour’s treatment of this issue at Red 58-9, apart from a minor factual error (Red 59D), which is not determinative of this aspect of the appeal. Judge Goldring was also entitled to regard as significant the appellant’s failure to tender the reports of at least four medical experts to whom the respondent was sent by the appellant for examination. (Red 59).

48 The appellant was critical of the language used at two points in the judgment (Red 62 M-T, 64J-R).

49 The first passage relates to causation. His Honour said (Red 62):

I find, therefore, that the plaintiff before 1996 had a degenerative back condition. This may have reached a stage where she was unable to continue a normal life, or it may not have. The plaintiff has, in my view, brought herself within “the eggshell skull rule” so that the defendant had to accept her as she was on the date of the breach of the defendant’s duty. This has some legal consequences, which I shall consider shortly. Where the only evidence is that of the plaintiff or is based on her account, without independent corroboration, I am less willing to accept it. This has serious consequences for her claim for domestic assistance and also in her claim for economic loss. However, I do accept that her injury has been made significantly worse by the incident on 14 June 1996 and that that impairment is permanent and significant. It, therefore, remains for me to assess damages.

50 It was suggested that the second sentence shows that the judge found in favour of the respondent although matters were left equipoised after all of the evidence was taken into account.

51 This is a strained reading of the passage, which is really a summary of detailed causation findings that I have already upheld.

52 His Honour indicated that he was satisfied on causation and he came off the fence of equipoise in the second last sentence of the passage. His conclusions were well open, as I have indicated in the earlier portion of these reasons.

53 I therefore do not accept the submissions that the Judge failed to have regard to the pre-existing conditions when determining whether the tort caused compensable injury, and that he placed a legal onus upon the appellant in that regard.

Non-economic loss

54 The appellant challenges the award of damages for non-economic loss assessed at 50% of a most extreme case.

55 The award proceeded from the finding that the accident significantly exacerbated the respondent’s back condition, leading to surgery and the development of acute pain and chronic pain syndrome. The ongoing pain treatment (including analgesics and the insertion of the morphine pump) addressed symptoms of the back injury. The acute episodes were frequently accompanied by urinary retention requiring catheterisation. Many led to hospitalisation in the years between 1996 and the trial. The morphine pump needs to be reinserted by surgical procedure every four years. One occasion of sexual intercourse resulted in admission to hospital with acute back pain. The escalation of the back condition has made it painful to sit or concentrate for long periods, with the result that the respondent’s studies were curtailed. These matters have in time exacerbated her depression and other psychological problems (Red 62-3, 64-5). These findings were well open on the evidence. I am not persuaded of any error in them.

56 Judge Goldring indicated that, in arriving at these conclusions, he had regard to “a degree of exaggeration [by the respondent] of her symptoms” (Red 65J).

57 The award of 50% of a most extreme case would be unassailable on appeal if all of the respondent’s post-accident conditions were referable to the accident. Their intensity and predicted duration would probably justify such a level of compensation for non-economic loss.

58 The critical question involves the unravelling of the impact of the several adversities not stemming from the accident. The appellant submits that the judge compensated the appellant for more than the aggravation caused by the accident.

59 His Honour commenced damages assessment by recounting that at the time of the accident the respondent had for some time been suffering from a pre-existing degenerative back condition, and also a psychological condition resulting from a combination of her drug and alcohol dependency and her unfortunate history of sexual abuse. He effectively repeated his finding that the accident exacerbated the back condition in a significant way which led to further surgery and the development of acute pain amounting to chronic pain syndrome. And he restated his earlier finding that the pain had itself exacerbated the respondent’s psychological pre-condition.

60 I see no error in these findings. But they were very much the prelude to the more difficult task of quantifying the appellant’s tort-derived damages.

61 Goldring DCJ commenced this task by observing that it was clear that where a defendant’s breach of duty causes an exacerbation of a pre-existing condition, and it is not possible to attribute particular consequences to specific acts, the defendant is liable to compensate the plaintiff for the whole of the injury, unless it satisfies “an onus of proof” that the plaintiff’s loss was wholly or partly due to some extraneous cause. His Honour cited Purkess v Crittenden (1965) 114 CLR 164 at 168, 170-1.

62 The reference to “onus of proof” is unfortunate because it suggests something more than an evidentiary onus. The question for this Court to determine is whether this was a slip in expression or whether it was a stepping stone to legal error and an unsustainable award of damages.

63 A short time later in his judgment Goldring DCJ said the following, which is the second passage to which the appellant points as betokening legal error (Red 64J-R):

In this case, the plaintiff’s case itself, without any evidence from the defendant, has established that she suffered from pre-existing conditions. If the evidence led for the plaintiff had not established these, it would certainly have emerged from the evidence adduced by the defendant. It is certainly not clear that these conditions would have affected her to the same extent so that, but for the incident on 14 June 1996, she would now suffer pain, depression etc. The most the defendant’s case can do is to establish, if the matter were in any doubt, that the plaintiff did have pre-existing conditions. The plaintiff has established a breach of duty causally related to her injury; and the defendant certainly has not discharged the onus required by Purkess v Crittenden . Since the plaintiff has, in my opinion, established that the defendant’s negligence exacerbated her back in a way that would not have occurred but for the impact, the defendant here cannot avail himself of the previous frailty of the plaintiff, whether this be constituted by her back condition, her psychological condition, her substance abuse, or to any combination of these.

64 In this passage the primary judge restates his factual conclusion that there were pre-existing conditions about which it was “certainly not clear” that they would have affected her to the same extent as her painful, depressed condition to which the accident made a significant contribution.

65 What follows in the balance of the passage is a conclusion that clearly implies that no allowance was made in the appellant’s/defendant’s favour by reference to the pain, discomfort, debilitation and capacity for degeneration of the plaintiff’s pre-accident physical and mental condition.

66 Such a conclusion cannot be supported on the facts. More to the point, the reasoning embodied in the second half of the paragraph indicates to me that his Honour proceeded by a legally inappropriate pathway.

67 It is best that I endeavour first to state my understanding of the applicable principles.

68 The respondent/plaintiff carried the onus throughout of establishing that the physical and mental conditions that manifested themselves after the accident and for which she sought damages were caused by the accident. It was enough that she showed that the accident was “a” cause of the conditions for which damages were claimed (see Shorey v PT Ltd (2003) 77 ALJR 1104 at 1110-1 [41] where Kirby J collects the leading authorities).

69 The respondent advanced evidence, mainly her own testimony, suggesting that her earlier painful back and drug problems were behind her and that her psychiatric difficulties were dormant or under control. The motor accident was a substantial one that caused trauma to her back, with ensuing pain and suffering and a possible triggering effect as regards drug and alcohol abuse and psychiatric disturbance. In these circumstances, (a) the appellant took his victim as he found her and (b) the respondent could invoke the evidentiary presumption that threw upon the appellant the burden of disentangling the possible causes and excluding the operation of the accident as a contributing cause of the manifesting injuries (Watts v Rake (1960) 108 CLR 158 at 160, Purkess at 168, Shorey at [46]-[49], [87]). I do not understand the appellant to dispute the availability of these principles.

70 The facts also triggered the application of another set of principles because the appellant successfully shouldered his evidentiary burden to some degree. It is sufficient to record that at the end of the day the trial judge found that the accident exacerbated a pre-existing problem with the respondent’s back: it did not cause it, although the exacerbation was very significant on the findings. His Honour also found that the respondent’s continuing psychiatric difficulties pre-existed the accident and remained largely unconnected with the accident (see above).

71 In such circumstances, the appellant tortfeasor was legally responsible only for the extent of damage caused by the tort (assuming he could disentangle and segregate parts not so caused). In Chappelv Hart (1998) 195 CLR 232 at 241 Gaudron J said:

It is well settled that an award of damages must take account of the probability that some or all of the damage suffered by the plaintiff would have occurred in any event.

72 In Riley v Cocco [2001] NSWCA 379 Heydon JA (with whose reasons Young CJ in Eq and I agreed) said (at [36]):

While defendants must generally take plaintiffs as they find them, they are not obliged to compensate plaintiffs irrespective of the possibility that pre-existing conditions would have caused the plaintiffs harm in any event: Wilson v Peisley (1975) 7 ALR 571 at 574: Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485 at 499.

See also Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 at 643.

73 In my view, the reasoning exposed in the second half of the passage set out at par [63] above does not conform to these principles. The reference to “the defendant certainly … not [having] discharged the onus required by Purkess v Crittenden” is the language of a legal onus placed on the defendant’s shoulders. The sentence that follows states categorically that “the defendant here cannot avail himself of the previous frailty of the plaintiff”, and it rests this conclusion upon no more than the plaintiff having established that the tort caused some injury through the exacerbation of her back.

74 Nothing in this passage or elsewhere reveals his Honour endeavouring to weigh how much of the respondent’s woes would have continued and/or increased had it not been for the accident. The facts confirm in my mind that they would have done so to a substantial degree, even allowing for the evidentiary onus resting on the appellant’s/defendant’s shoulders.

75 In oral submissions, counsel for the respondent argued strongly that the award for non-economic loss on the basis of 50% of a most extreme case lay within the range of a sound conclusion, with the consequence that the Court could and should infer that his Honour’s reference to the defendant’s onus was a reference to an evidentiary onus and that the conclusion otherwise rests upon legitimate legal reasoning.

76 I am not persuaded that this is the case. On the contrary, the reasoning exposed leaves me persuaded on balance that it would be wrong to use the conclusion to sustain the process.

77 Before I address the consequences, I observe that the same type of criticism cannot be levelled at his Honour’s reasoning with respect to economic loss. In two separate places in the judgment, Goldring DCJ indicated the appropriateness of increasing the conventional discount of 15% for “vicissitudes” in a context where a plaintiff’s own case showed that the pre-existing condition may well have affected future earning capacity to his or her detriment (see Red 64 F-H, 66 G-H). In the particular case Goldring DCJ increased the discount for vicissitudes to 30%. Notwithstanding the reference in the former passage to “matters such as … future earning capacity” (my emphasis) I have, after anxious consideration, concluded that his Honour did not approach the assessment of damages for non-economic loss in a similar way.

78 Counsel for the respondent submitted that the medical evidence never assumed, let alone sustained, the evidentiary onus stemming from Purkess and similar cases. He pointed to the passages in the reports of Dr Davies and Professor Jones establishing that the accident aggravated degenerative changes in the respondent’s back condition. But there was nothing in the medical evidence, he submitted, which said that degeneration would have resulted in any event without the motor vehicle accident.

79 I accept this, but it does not seem to me to answer the difficulties based on the passage at Red 64. As I read the last sentence of that passage, it was not only the back condition, but the psychological condition and the substance abuse as well that were treated as having no bearing on the level of damages for non-economic loss payable by the defendant, though they preceded the accident and would have continued in any event.

80 In the early portion of this judgment I pointed to the material that supports the conclusion that these difficulties were an independent and continuing aspect of the respondent’s unhappy life-condition. His Honour had already held that the respondent’s psychiatric problems were to a significant degree independent of the pain stemming from the tortious injury to the back.

81 In any event, the respondent accepts that the Court is entitled to proceed on the basis that the degenerative back condition may have flared up and caused trouble from time to time (CA Tr p26). She points to the doubling of the vicissitudes discount for economic loss as judicial recognition of this. Unfortunately, a corresponding allowance does not appear to have been made as regards non-economic loss attributable to the flaring up of the degenerative back condition that would have occurred in any event.

82 What should this Court do? I do not understand either party to have urged a new trial as the preferred course of action. At the end of the day the primary facts are reasonably clear and it would be most regrettable to order a new trial as to damages generally if this Court is persuaded that it is in a position to do substantial justice by making its own assessment, difficult though it is.

83 I am persuaded that we should reassess. I am also persuaded that a substantial portion of the respondent’s post-accident pain, suffering and loss of amenities of life is and will be attributable to the accident. It is also very pertinent that the pain and suffering will be part of the respondent’s condition for the rest of her life.

84 Doing the best I can in the circumstances I would set aside the award for non-economic loss attributable to the accident and substitute an award based on 40% of a most extreme case.

Economic loss

85 As indicated, the appellant does not here point to evidence of methodological error. The learned judge applied the reasoning in Woolage v New South Wales [2001] NSWCA 256 at [49] and allowed twice the conventional discount for vicissitudes.

86 As regards non-economic loss the appellant concentrated his attack upon the bottom line as it were. He submits that the primary facts do not sustain the award, which is challenged both as regards the finding of retained earning capacity and the finding as to likely earning capacity apart from the impact of the accident.

87 Goldring DCJ said the following:

The plaintiff has a very sparse record of full-time employment in the past, which makes it difficult to assess her claim for past and future economic loss. She has established that as at 14 June 1996, she was in her first year as a full-time student in a TAFE welfare course, and her results indicate that she was doing reasonably well, to the extent that she could reasonably have been expected to complete the course at the end of 1997. There is evidence that she re-enrolled in the course after suffering her injury, but discontinued, on her evidence, which was not challenged, without failure, because her injury made it impossible for her to study or concentrate for long periods.
I consider the likelihood of her completing her studies and obtaining employment as a welfare worker at some stage were extremely high. I have therefore determined that she is entitled to past economic loss on the basis that she would have been employed as a welfare worker (lowest level) from February 1999 until the date of hearing - say 3.5 years. (Mr Longhurst suggested that I take the commencement of employment as 2000, but I see no reason for so doing. I shall assume an average wage of the second level of the award for a Community Services Worker Grade 1, ($400.00 per week net.) This loss amounts to (52 x 3.5 x 400) $72,800.00.
It is also highly likely that, provided she remained able, the plaintiff would have worked as a Community Service Worker to age 65. Her back condition and, to a vastly lesser extent, her mental health and associated complaints, make her ability to continue to that age significantly problematic. I will therefore, in accordance with what I take to be the principle approved by the Court of Appeal in Woolage’s Case , increase the discount for vicissitudes of life to 30%. It is conceded that the plaintiff retains a residual capacity for work, though this is limited. Her counsel has suggested, as the basis for calculation, an average wage of $475 per week, which in my view is reasonable, given the relevant Award and her likely progression though the increments. I consider that despite her protestations, she is able to do part-time clerical work for about 15 hours per week, so her current earning capacity is about $150.00 per week net, leading to a loss of future earning capacity of $325.00 per week. Damages under this head will therefore be (325x786.7x70%) $178,974.26.

88 The appellant challenged the conclusion in relation to residual earning capacity (part-time clerical work for about 15 hours per week). In my view, this conclusion was well open to the trial judge in light of the very gloomy medical prognoses and his Honour’s assessment of the respondent, whom he had the advantage of observing in the witness box.

89 The second line of attack addressed his Honour’s conclusions that the respondent, uninjured, would have worked as a community service worker to age 65 subject only to interruptions reflected by a doubling of the conventional discount for vicissitudes.

90 This predictive conclusion was based to a significant degree upon projections of the respondent’s life style and work history down to the eve of the accident.

91 I am not persuaded that the primary judge erred in his conclusion that the likelihood of the respondent successfully completing her TAFE course was “extremely high”.

92 But I cannot accept the correctness of a similar assessment of her prospects of finding ready employment as a welfare worker. The Court has not been taken to any vocational assessment or any material about the type and availability of such employment. I accept that the respondent’s life experiences would give her valuable insights. And I acknowledge that organisations such as the Salvation Army make strategic use of people who have battled to overcome alcoholism and other problems. Unfortunately, the respondent and that organisation parted company before the accident because of lifestyle issues upon which I pass no judgment.

93 Sadly, the respondent’s drug, alcohol, psychological and (incipient) physical difficulties and her unsatisfactory work-record prior to the accident would have been likely to impact adversely on her capacity to obtain and retain employment in welfare and many other fields. And welfare work would undoubtedly have stresses and strains which could impact adversely upon the respondent’s somewhat fragile psychological framework. I think it likely that she might well have fallen back upon less remunerative areas of work (involving general clerical skills). I also think it likely that there would have been significant interruptions due to the likely recurrence of the various problems in the respondent’s lifestyle and circumstances.

94 The doubling of the conventional discount for vicissitudes recognised the difficulties that the respondent would have had, uninjured, in retaining employment as a welfare worker. If that stood alone, I would not have interfered with what on any view is a broad judgment call on which minds could easily differ.

95 But I am persuaded that the evidence does not sustain the conclusion that it was highly likely that the respondent would have readily obtained employment in her lately chosen vocation upon which she had only progressed a quarter of the way through formal training at the time of the accident. I consider it optimistic to the point of being unrealistic to have concluded, in light of the respondent’s past work history and the reasons lying behind it, that she would have secured this type and level of employment subject only to the 30% allowance that his Honour made.

96 Faced with the difficult task of reassessment I have concluded that the best I can do is to increase the reduction for vicissitudes to 50%. In doing so, I would (with hesitation, but hopefully justified optimism) affirm that, had the accident not intervened, the respondent’s life was on the verge of taking a turn for the better. Accordingly, I do not disturb the trial judge’s decision that damages should be assessed on the basis that there was a significant possibility of employment in the welfare field opening up for the respondent. Sadly, the impact of her earlier life-style choices forces me to take a guarded view as to the realistic prospects of the respondent persuading employers to give her sustained employment in that field.

Replacement of morphine pump

97 The evidence supported the primary judge’s finding that the respondent will continue to have a need for a morphine pump to assist in the control of the chronic pain syndrome causally linked to the accident. The evidence also supported the judge’s conclusion that the pump needs to be replaced every four years. This will undoubtedly involve the direct cost of acquiring the pump as well as the costs of hospitalisation etc associated with the replacement procedure.

98 His Honour awarded $65,342.16 on this account. His reasons were:

No evidence of the cost of replacement of the morphine pump has been provided, but the need is clear. I propose to allow a sum of $5,200.00 per 4-yearly replacement to cover this item (ie $100 per week for the remainder of the plaintiff’s life). That produces a figure of (1300/52 x 966.6) $65,342.16.

99 The appellant points to the judge’s acknowledgement that there was no evidence of the cost of replacement. In those circumstances, he submits that no sum should have been awarded and that the appeal should be upheld at least to the extent of reducing this portion of the verdict.

100 The respondent does not point to any costing evidence, but submits that the judge was entitled to do the best he could on the available evidence.

101 The costing issue should have been agreed or made the subject of evidence at trial. Had it been suggested that there had been a simple oversight I might have considered ordering a new trial on this issue alone. But the Court has been left entirely in the dark.

102 I would uphold this part of the appeal.

Disposition

103 The appeal is therefore upheld in part. The verdict and judgment entered in the District Court should be varied by substituting a figure calculated in accordance with these reasons. Unless any unaccepted settlement orders affect costs, the respondent should pay the appellant’s costs of the appeal and have a certificate under the Suitors’ Fund Act 1951, if qualified. The parties are directed to file orders within 14 days, with liberty to apply within 21 days of today’s date if necessary on any account.

104 SANTOW JA: I agree with Mason P.

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Last Modified: 11/03/2003