JOHN BUTTIGIEG v THE GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, MAHONEY and HANDLEY JJA 6 June 1990 [1990] NSWCA 35 DAMAGES — quantum appeal — motor vehicle injuries injuries to neck and low back — employer provides ex refrigeration mechanic with light/supervisory work — CT scan shows L4/5 disc protrusion — liability admitted — judge enters judgment for $6189, being $4000 general damages appeal — held: (1) (By the Court) Errors of fact finding warrant the setting aside of the judgment by the Court of Appeal; (2) (By the Court) The Court is able to proceed to a reassessment on the basis of the evidence at the trial; and (3) (By Mahoney JA; Handley JA concurring; Kirby P contra) There should be substituted a judgment in favour of the plaintiff in the sum of $12,189 (being $10,000 general damages) (per Kirby P contra) The sum of $24,189 should be substituted). Malec v JC Hutton Pty Ltd (1990) 64 ALJR 316. APPEAL — error — fact finding — preference for one medical opinion of a witness qualified to give evidence over that of treating physician — matter determined on medical reports — observations by Kirby P on the desirability of reasons for such an opinion. Kirby P The appellant, who was the plaintiff at the trial, brings an appeal tothis Court claiming that an award of damages made in his case was inadequate to the extent that this Court is authorised by law to set it aside and to substitute a different award. It was agreed between the appellant and the respondent that, in the event that the Court were of the view that the judgment entered in the District Court by Downs DCJ was inadequate that this Court should proceed to its own assessment in accordance with the provisions of the Supreme Court Act. A manual worker receives injury in a motor vehicle accident The appellant was born in 1959. He was thus twenty-nine years old at trial. He is now thirty-one years of age. He was a refrigeration mechanic. He had held that job for a period of eleven years. He described his work in evidence. It involved work in relation to the installation and repair of airconditioning. It was heavy work. It comprised lifting gas bottles, working in confined spaces and working at an elevation on roofs. It was otherwise work which required him to manoeuvre his back and his limbs and to show physical agility. He suffered the injuries, out of which the appeal arises, on 16 September 1985. It is not necessary to describe in detail the circumstances of the incident in which the appellant was injured. It is enough to say that the incident out of which the appellant's disabilities arose involved the motor vehicle in which he was proceeding as a driver being pressed forward with considerable force over a space of more than four feet and into collision with a truck in front. It was thus a typical wrenching type of injury, such as could easily cause neck and back troubles. The respondent, which under the statute bears liability for the negligence of the tortfeasor, conceded negligence at the trial and that the appellant was entitled to recover damages from it. 2 UNREPORTED JUDGMENTS The matter proceeded before Downs DCJ, as it has before this Court, on the question of the proper assessment of the appellant's damages in the circumstances. The appellant was off work following the injury for only a short time. He lost some six days, followed by five days part time. However, he saw his local doctor, Dr Chan, and complained of pain in the neck and in the back. Soon afterwards he was referred to a specialist at Parramatta, Dr Harrison. Treatment for neck and back injuries Dr Harrison, who became the supervising treating doctor of the appellant, gave a series of reports to the appellant's solicitors. Those reports were tendered in evidence before Downs DCJ. In the initial report of 21 May 1986 Dr Harrison expressed the opinion that the appellant had suffered an injury to the neck and lower back, that he had a combination or interplay, of neck and back pain and that the prognosis was one for slow but progressive resolution of his symptoms given further time and protection from heavy lifting tasks at work. Doubtless because of his long record of employment with his employer when the appellant went back to work he was accommodated to the extent that he was given light duties. At some time between May and July 1986 those duties were changed to that of a supervisor. Later still they were changed to involve more outside work, including driving. However, the common thread that runs through the appellant's employment record after the injury has been that of accommodation by his employer. He has done lighter duties than he did before the injury. On 28 February 1986, at Dr Harrison's request, certain radiological examinations were performed upon the appellant by the Diagnostic Imaging Centre at North Parramatta. These reveal, in relation to the cervical spine, that there was no sign of bone joint or disc abnormality, that intervertebral foramina defined normally and no bony cervical ribs were shown. Soft tissue also defined normally. This led to a radiological summary by Dr Preda, who conducted the examination, to the effect that the appellant's cervical spine appeared normal; but in relation to the lumbar spine the report was that of a mild central posterior L4/5 disc protrusion with no signs of nerve root compression detected. The significance of this report was contested. I shall shortly return to it. Dr Harrison on 5 February 1987 reported that various investigations had revealed minor disc pathology at L4/5 level but no documented pathology of the cervical spine despite ongoing symptoms referable to that area. I pause to say that experience in this case and in other cases coming before me in this Court, earlier and elsewhere, suggests that it is often the case that a person injured will complain of disabilities in the spine although objective radiological evidence is not available to support it. But in this case there was, in the words of Dr Harrison, revelation by investigation of "a minor disc pathology at L4/5". Dr Harrison in his report of 5 February 1987 expressed the hope that there would be a continuation of the general improvement in the appellant's symptoms given further time and also given that he adhered to appropriate work. It was only on that condition that Dr Harrison prognosticated future improvement in the appellant's condition. As to the long-term future Dr Harrison was still more guarded: "Whether he will ultimately go back to his former asymptomatic situation remains in doubt." Nevertheless, he doubted that significant deterioration would follow. UBUIN BUTTIGIEG v THE GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Kirby P) In a report of 26 February 1987, Dr Harrison expressed the view that the appellant's persisting symptoms reflected some doubt about his ability to undertake heavy lifting and bending activities. The epidodic ongoing symptoms, he believed, left the appellant with a 7% loss of functional efficient use of the whole of the person as continuing expression of his disability. As to the prognosis, Dr Harrison expressed much the same opinion as he had in the earlier report. He was unable unequivocably to state whether the appellant would ever get back to his former status. His past report is that of 29 March 1988 in which he expresses these opinions: "OPINION: This man appeared to have discogenic low back pain probably arising from the L4/5 level as evidenced by investigations done before and his problems appeared to relate back to that motor vehicle accident on 16 September 1985 while driving at work. What was initial neck pain became a pattern of low back pain that has persisted and although he is on qualified duties now compared to what he performed before, he still experienced discomfort in his back. Disability: I would express his disability as a 5% loss in the functionally efficient use of the whole of the person as an expression of the ongoing back pain he experiences. Prognosis: This should be for some improvement with a tendency and vulnerability to aggravation of back pain continuing to worry him into the future. I do not foresee that any surgical intervention will necessarily be indicated for him in the future." The insurer's medical adviser paints a rosy picture Dr Harrison was not called to give evidence before Downs DCJ. Nor was Professor Douglas Tracy, who gave written evidence for the respondent called. Professor Tracy, after reviewing the history of the appellant's disability, referred to the X-ray examination and said: "He brought with him X-rays taken on 27 September 1985. These show minor spondylitic change in the cervical vertebrae, together with minor spondylitic change. There is no detectable abnormality of his lumbosacral spine. CT scan on 28 February 1986 does not appear to show obvious pathology" I pause again to comment that the report of the CT scan which was in evidence would appear to deny Professor Tracy's impression and to show some pathology. It clearly refers to an "L4/5 disc protrusion". Certainly, Dr Harrison appears to have considered that there was pathology as a reference to the opinion on the radiological evidence in his report of 5 February 1987 plainly discloses. However, in his diagnosis and prognosis Professor Tracy expressed these opinions: "The patient may have had some mild musculo-ligamentous strain in his neck and back at the time of his accident. It kept him off work intermittently for the first month, but he has been fully employed since. He takes no current medications and in my view his present level of disability is slight. The X-rays show very minor spondylitic change which might indicate some degenerative spinal disease in an early stage. Where was no sign of any bony injury. I think that he should have fully recovered from his injury within a month or so of the accident and that any residual back and neck pain is minor. If present, it could be due to minor degenerative change in his spine, as he would have ordinarily recovered from what appears to have been a minor injury." Trial judge awards damages which the appellant attacks The trial judge entered judgment in favour of the appellant in the sum of $6,189. That sum was made up as follows: Out-of-pockets and loss of wages, as agreed 2189 4 UNREPORTED JUDGMENTS General damages 4000 Total $ The appellant claims that this sum is reviewably inadequate. He says that it makes no real allowance for the vulnerability which he has suffered as a result of the injury for which the respondent is liable. He says that his vulnerability has not demonstrated itself in its full extent (because of the adjustments made by his employer). But he asserts that, in terms of the assessment of damages for an uncertain future, he is entitled to have an allowance of a proper proportion made for the vicissitudes which may face him in the years to come. He also contends that a number of errors has been shown in the fact finding by Downs DCJ which provide this Court with the key by which it may open the door to a reassessment of the matter for itself. The appellant's medical evidence should be preferred It would be sufficient, in my opinion, reviewing the evidence of Professor Tracy and Dr Harrison taken as they were without cross-examination, to conclude, on that basis alone, that the award of $4000 for general damages for this appellant was so inadequate as to invite the intervention of this Court. I would so conclude because the evidence of the appellant was certainly consistent with a continuing disability in his lower back. That disability was demonstrated on radiological evidence. It was supported by the opinion of his treating specialist. There was nothing in the appellant's work history to suggest that his evidence was otherwise than reliable. On the contrary, the whole record of his return to work in a minimum of time and his performance thereafter of various lighter duties were all compatible with that of a person not inclined to exaggerate his symptoms but inclined to get on with his life to the best of his ability. So far as Professor Tracy's report is concerned it appears to me, as I have already foreshadowed, that he may not have given the same attention to the CT scan that Dr Harrison was inclined to give. I see no reason why Downs DCJ should have preferred - as he did - Professor Tracy. He gave no reasons that are convincing. Indeed, he gave no reasons at all for preferring the evidence of a person qualified to see an appellant on a fleeting investigation for forensic purposes over that of a person who had the care and responsibility of treating him over an extended period of years. He saw neither Dr Harrison nor Professor Tracy give oral evidence. So his preference cannot be based on his impressions of them as witnesses. Obviously it is desirable that in such circumstances the trial judge should state his reason for preferring one opinion over the other. Downs DCJ did not. For my own part, I would have no hesitation in preferring the evidence of Dr Harrison. I am not in any less position to do so than Downs DCJ because, like his Honour, I have not had the benefit of seeing Professor Tracy or Dr Harrison give evidence. Like his Honour, this Court must seek the truth, or the preferable opinion, from nothing more than the cold pages of photocopied reports. However, in addition to the above stated conclusion - which in my opinion alone warrants a review by this Court of the judgment entered by his Honour - there are a number of errors of fact finding which have been conceded - properly in my view - by counsel for the respondent. Errors of fact finding authorise intervention by the Court In the course of giving his judgment, Downs DCJ made several references to the appellant which rather suggested that he had come to a conclusion that the appellant had UBUIN BUTTIGIEG v THE GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Kirby P) exaggerated his evidence at the trial. Why he should have so concluded, when no suggestion to that effect was put to the appellant in cross-examination, is a mystery. In the course of giving his judgment, Downs DCJ made these observations about the time that the appellant had had off work: "The plaintiff stated in evidence that he was absent from work for eleven days; however, under cross-examination it became apparent that he lost six full days and then parts of the remaining five. Apparently from his evidence under cross-examination he lost the parts of those remaining days because he was attending physiotherapy treatment for the injuries that he alleged." The implication of that statement is that the appellant had exaggerated the number of days that he was off work, However, when one turns to the actual evidence which the appellant gave, nothing could be further from the truth: "Q: For how long was it that you remained off work? A: I cannot remember exactly, it may have been a week, maybe a week and a half. Then I went back on light duties, Q: And I think you then returned on light duties with the assistance of a helper, is that correct? A: Yes. The reference to eleven days came during cross-examination: "Q: Is it the fact that following the motor vehicle accident there were but 11 days where you were obliged to have any time off from work? A: From days off that's correct. Q: I suggest to you that there were only in five six days of those eleven days where you had eight hours off? A: Quite possibly yes." There is no suggestion in any of that evidence, or any other evidence of the appellant, that he had exaggerated the number of days off. Such an exaggeration would have been entirely inconsistent with his work record and his prompt return to work, despite disabilities and then only with assistance. Furthermore his Honour said: "The plaintiff would have me believe that he was given this job because of the disability in his back but under cross-examination he said "Yes a man used to have that job and I took over from him.'." The inference which I take his Honour to have drawn from this suggested evidence is that the appellant had been untruthful in asserting that he was given work on light duties because of the disability in his back, There was no evidence "under cross-examination" to the effect that his Honour referred to, However, the following exchange occurred during the appellant's examination in-chief: "Q: Was the job doing the supervising sort of work that you are doing now, was that a job that was available, by that I mean was there somebody who always did that job at Carrier? A: There was a gentleman who did it, yes. Q: What happened to him? A: He left and seeing that I was on light duties they offered me the job." I see nothing in that statement that suggests any attempt on the appellant's part to deceive the judge. His Honour omitted to note, or to refer to the explanation proffered: "seeing that I was on light duties". The crucial portion of Downs DCJ's judgment comes at the conclusion of his review of the evidence of the appellant, Dr Harrison and Professor Tracy. At the very end of his judgment, he says this: "What this case comes down to is this. It involves a man who sustained an injury on his way home from work as a result of which he lost six full days and five part days from work immediately following it. He had an aggravation but as he did not lose any time from work as a result of it, it must have been minor. So it would seem that he sustained a minor injury to his back which caused symptoms for approximately a month and since then 6 UNREPORTED JUDGMENTS any symptoms have been due to degenerative changes and that briefly summarises the evidence in this case, In the circumstances, therefore, I award the plaintiff by way of general damages the sum of $4000. His out-of-pocket expenses and loss of wages amount to $2189. I therefore find a verdict in his favour in the sum of $6189 and I enter judgment accordingly. The defendant will pay the plaintiff's costs." No mention at all is made in his Honour's final statement of the appellant's neck injury and disability. This cannot have been accidental. In the course of the examination-in-chief of the appellant, Downs DCJ had drawn specific attention to the distinction between disability in his neck and disability in the back. He said this to the appellant's counsel: "Well you had better be a bit more specific Mr Lidden [counsel for the appellant], you see a neck is part of the back, it being the cervical spine and therefore when you say that about your back you could be talking about the neck as well. I'd ask you to be much more specific please." The complaints about the neck were one of the matters which the appellant brought to the Court for compensation, I can only infer, from the absence of any reference to the neck (and because of his Honour's earlier distinction) that he provided no compensation at all in relation to injury to the neck. There was no suggestion that the appellant did not have some disability to his neck. There is no suggestion that he should receive no compensation in respect of it. This would, of itself, provide an appropriate basis for the intervention of this Court. The final conclusion expressed by his Honour was that it was degenerative changes which explained the appellant's continuing disabilities. I can only return to what I have said about the evidence of Professor Tracy and Dr Harrison. Professor Tracy appears to have thought that the appellant's continuing disabilities were related to the degenerative spinal disease. However Dr Harrison was of the view that there was a vulnerability and that his related to the appellant's back pain which would continue to worry him into the future. For that vulnerability the appellant was entitled to be compensated. The result of this analysis is that error has been shown sufficiently and on a number of bases to warrant this Court's setting aside the judgment entered in the District Court. The parties have invited the Court to proceed to an assessment. I consider that is appropriate and safe in this case to do so. I conclude that we should so proceed. Compensation for the possibilities of the future The High Court of Australia in Malec v JC Hutton Pty Ltd, (1990) 64 ALJIR 316, has pointed to the difficulty which courts of common law face in assessing damages for future or potential needs. Obviously, courts have no special means of looking to the future and seeing what the future holds. They must make their assessments on the basis of the physical injuries that are demonstrated and the possibilities which are likely to unfold having regard to the evidence and the circumstances of the person before them. So much was said by Deane, Gaudron and McHugh JJ at page 318. When one looks to this case in that way, we have before the Court a person who has had an injury to his neck which appears to have substantially settled down. In respect of that injury, there is no objective radiological evidence. But that is not conclusive and certainly not conclusive as to the past complaints of pain. At the most the lack of objective evidence suggests there may not be complications in the future such as will arise from the injury to the lower part of the spine, the back. There the appellant has the demonstration of the CT scan and UBWHN BUTTIGIEG v THE GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Mahoney JA) the potential for vulnerability to which Dr Harrison has referred. It is true that the appellant has been given accommodation by his present employer. However, in difficult economic times, the potential of unemployment at some time in the future cannot be put out of mind. Nor can the possibility that the appellant will have differences with his immediate superiors. Nor even the possibility that he, preferring outside work, may wish to return to that work only to find himself in a situation of vulnerability which will cause him future incapacity. Conclusions, re-assessment and orders For all of these possibilities the respondent must compensate the appellant. Four thousand dollars upon the premise mentioned by Downs DCJ is, in my opinion, obviously inadequate. The appellant must be compensated for the disabilities in his enjoyment of life. The fact that he must make adjustments, even to his work, must be taken into account. The calculation is not a normative exercise. Therefore no sure guidelines exist for the figure which the Court will substitute for that of Downs DCJ. However, in my opinion, looking at the matter as a whole and having regard to the potential loss of earning capacity and also for the general damages past and future, I consider the sum of $4000 which Downs DCJ allowed to be inadequate and an amount of $22,000 should be substituted. This may, in turn, be an under-estimate of the general damages and past and future economic loss of the appellant. On the other hand, it may be an over-estimate, depending on what the future holds. The future may involve the appellant remaining in his present quasi supervision work in which event there will be no large economic component. But against the risk that he does not remain in that work, he is entitled to just compensation. The orders which I would therefore propose are as follows: 1. Appeal allowed; 2. Set aside the judgment of Downs DCJ; 3. In lieu thereof, substitute judgment in favour of the appellant in the sum of $24,189 to take effect from 26 May 1988; and 4. The respondent is to pay the costs of the appeal and to have a Suitors' Fund Act Certificate if so qualified. The defendant is to pay the costs of the trial. Mahoney JA The President has detailed the facts at length and this relieves mefrom the necessity of referring to them. It enables me to go directly to, what, in my opinion, were the two issues to be determined. These are, first - what was the plaintiff's condition because of the accident? And second - what, in the light of that condition, is the proper amount of damages to be awarded to him? The learned judge in his judgment examined the evidence at some length. It will be no discourtesy if I do not myself follow this course. I propose to point in summary to the essential parts of the evidence to which in the end the learned judge came and to which this Court must come. To summarise is to omit but essentially the judge, and this Court, had before it for consideration four things. There was, first, the plaintiff's own summary of his condition as contained in the evidence at the end of cross-examination: "Q: Would you agree that within a month or so of your accident you had fully recovered except from some minor occasional aches and pain in your back and neck? A: That's correct." The quantification of what minor occasional aches and pains in the back and neck amounted to was assisted by what the plaintiff had said at the end of his evidence in chief in relation to the way in which it affected his mowing of the lawn and so on. 8 UNREPORTED JUDGMENTS The significance of these summaries by the specialists who made the radiological examination of the plaintiff is not completely clear to me. I am not in a position to take judicial notice of what precisely these reports mean in relation to the lumbar spine. In particular I am not in the position to say whether the summary there given referring to "mild central posterior L4/5 disc protrusion" should be properly described as pathological or would be within the range of the normal in this area for a man of this age and habits. Finally, his Honour and this Court had for consideration the report of Professor Douglas G Tracy of 26 June 1987 and his diagnosis and prognosis in the following terms: "DIAGNOSIS AND PROGNOSIS: The patient may have had some mild musculo-ligamentous strain in his neck and back at the time of his accident. It kept him off work intermittently for the first month, but he has been fully employed since. He takes no current medications and in my view his present level of disability is slight. The x-rays show very minor spondylitic change which might indicate some degenerative spinal disease in an early stage. There was no sign of any bony injury. I think that he should have fully recovered from his injury within a month or so of the accident and that any residual back and neck pain is minor. If present it could be due to minor degenerative change in his spine as he would have ordinarily recovered from what appears to have been a minor injury." Secondly, his Honour and this Court had before it the opinion, being the final opinion expressed by Dr Harrison the treating doctor. Dr Harrison in his report of 29 March 1988 said this: "OPINION: This man appeared to have discogenic low back pain probably arising from the L4/5 level as evidence by investigations done before and his problems appeared to relate back to that motor vehicle accident on 16 September 1985 while driving at work. What was initially neck pain became a pattern of low back pain that has persisted and although he is on qualified duties now compared to what he performed before, he still experiences discomfort in his back. DISABILITY: I would express his disability as a 5 per cent loss in the functionally efficient use of the whole of the person as an expression of the ongoing back pain he experiences. PROGNOSIS: This should be for some improvement with a tendency and vulnerability to aggravation of back pain continuing to worry him into the future. I do not foresee that any surgical intervention will necessarily be indicated for him in the future." Third, his Honour and this Court had before it the X-ray report given on 28 February following the CAT scan of the plaintiff's spine. This indicated in relation to the lumbar spine: "SUMMARY: Mild central posterior L4/5 disc protrusion but no signs of nerve root compression are detected." In respect of the cervical spine it included: "SUMMARY: Normal cervical spine." His Honour had to form a conclusion from these matters and this Court must also do so. It is proper to record that Mr Lidden for the plaintiff has submitted - and this is not I think contested by Mr Bell for the defendant - that there are some errors of fact in his Honour's judgment. His Honour's judgment was summarised in the passage to which the learned President has referred, and which I repeat, in the following terms: "What this case comes down to is this. It involves a man who sustained an injury on his way home from work as a result of which he lost six full days and five part days from work immediately following it. He had an aggravation but as UBMWHN BUTTIGIEG v THE GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Mahoney JA) he did not lose any time from work as a result of it it must have been minor. So it would seem that he sustained a minor in jury to his back which caused symptoms for approximately a month and since then any symptoms have been due to degenerative changes and that briefly summarises the evidence in this case. In the circumstances, therefore, I award the plaintiff by way of general damages the sum of $4000. His out-of-pocket expenses and loss of wages amounted to $2189. I therefore find a verdict in his favour in the sum of $6189 and I enter judgment accordingly. The defendant will pay the plaintiffs costs." I would find in that summary made by his Honour one matter in respect of which, with great respect, I would disagree. His Honour in his summary of the case there set forth has arrived at the conclusion...since then any symptoms have been due to degenerative changes". That, of course would - or at least may well - have significantly affected his Honour's assessment of the plaintiff's condition insofar as it was due to the accident for which the defendant has accepted responsibility. With respect, I do not think that the evidence justifies that firm conclusion. His Honour, I think, appears to have accepted the evidence contained in the report of Professor Douglas G Tracy. I see no objection to his Honour having done so; that is not a matter to which I need direct attention. But the opinions and prognosis set forth in that report do not, in my respectful opinion, warrant the conclusion, the firm conclusion, that any symptoms have been due to degenerative changes. At the highest Professor Tracy's opinion was, I think, that the X-rays, which no doubt he saw, showed very minor spondylitic change which "might" indicate some degenerative spinal disease at an early stage. Professor Tracy then said if there was residual pain it "could"be due to that minor degenerative change. Upon that basis his Honour's judgment was, in my opinion, affected by a significant error. Therefore, I would accept that it is for this Court, putting aside his Honour's assessment of the plaintiff's condition, to come to its own conclusion. There was here, in my opinion, a difference of opinion between the two doctors - the treating doctor, Dr Harrison and Professor Tracy who saw the plaintiff for purposes of giving evidence in this matter. The difference between them was, in general terms, not great. Dr Harrison, in the passage to which I have referred, has assessed the disability from which he accepted the plaintiff was suffering as a result of the accident as being "'5 per cent loss in the functionally efficient use as to the whole of the person as an expression of the ongoing back pain he experiences". That, I would infer, would probably be in the region of the most minor of assessments of loss which could in any rational sense be arrived at. I do not mean to criticise Dr Harrison in that way - quite the contrary - but an assessment of loss less than 5 per cent, having regard to the range of difficulty in assessment would, I think, be no more meaningful than an assessment of 5 per cent. He has, therefore, and I put the matter broadly, assessed the percentage loss as being as low as might effectively be assessed. Professor Tracy suggested - at least this is the thrust of his opinion - that in fact there was little or nothing left of the effects of the accident. I do not think it is possible to draw a firm conclusion as to which of the doctors is right or wrong. I think the better opinion is that there is such a condition in the plaintiff as a result of the accident as leaves him with a difficulty about which doctors may differ in this particular way and this is a matter in respect of what he is entitled, in my opinion, to be properly compensated. 10 UNREPORTED JUDGMENTS If one were to come to a firm conclusion I would accept that there was a quantifiable and identifiable loss due to the accident, broadly of the order of which I understand, in his final report, Dr Harrison accepted. I come then, against a background of those findings, to assess the appropriate amount of damages. In practical terms the damages to be awarded in this case are to be awarded for essentially three things - the plaintiff's pain and suffering in the past and - insofar as he will have it - in the future: the economic loss which he has suffered because of that pain and disability to date, and the interference with his capacity for work in the future. This has been referred to conveniently as, future economic loss. I do not think that in the present case it is practicable to dissect the plaintiff's damages precisely. As I understand counsel's argument, it is not contested but that the Court's function is to assess a single lump sum which will provide proper compensation for loss of the kinds to which I have referred. In any event I think that is the proper approach to be made to it. It has, in my opinion, correctly not been suggested that the court should attempt, in relation to loss of capacity or future economic loss to attempt to predict exactly what will happen by the way of loss of available work and quantify the loss of wages to flow from it. The best that can be done is to assess a lump sum against that loss of capacity. That loss is in fact, in practical terms, a possibility that in the future, if he goes to another job or otherwise has to change his occupation, he may suffer economic loss. The damages are, as I have said, given essentially against a possibility. The quantification of that possibility is difficult. No evidence was given by the plaintiff to suggest that he would in fact change, or would be likely to change, his job but that does not mean that the Court can or should ignore the possibility of change and it may take into account the possibilities. But, in the end, the compensation is for the possible loss of wages into the future. Assessing these matters as best I can and taking into account the out-of-pocket expenses I would arrive at a lump sum of $10,000 to compensate the plaintiff for the pain and suffering which he has suffered, the actual loss to which I have referred and the loss of earning capacity or future economic loss in the sense to which I have referred. The result is that the plaintiff's judgment, in my opinion, should be for $12,189. In my opinion, therefore, the judgment of the learned judge should be set aside, there should be substituted for that judgment a judgment for the plaintiff of $12,189. The result should be that the appeal should be allowed and the respondent should pay the costs of the appeal and have, if appropriate, a Suitors' Fund Certificate for those costs. Handley JA I agree with the reasons of Mahoney JA and I agree with the orders that he has proposed. I do not wish to add anything for myself. The orders of the Court are accordingly: 1. Appeal allowed; 2. Judgment of Downs DCJ set aside; 3. In lieu thereof, there be substituted for that judgment, judgment for the plaintiff in the sum of $12,189; and 4. The respondent is to pay the appellant's costs and to have, if so qualified and it is appropriate, a certificate under the Suitors' Fund Act.