NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION v JONES SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL KirBy P, CoLe JA and ROLFE AJA 28 March, 4 April 1995 [1995] NSWCA 333 DAMAGES — motor vehicle accident — serving police officer injured in motor vehicle collision — common law entitlement — pre-accident and post-accident trauma — objective evidence of degeneration of the spine — whether, but for the subject motor vehicle accident, the degeneration would have caused incapacitating symptoms with economic consequences — whether incapacitating symptoms complained of were solely referable to the subject trauma or to pre-and post-accident trauma — primary judge (Barbour DCJ) allows plaintiff full undiscounted past financial loss — discounts future loss of economic capacity by 20% (ie 15% + 5%) — provides "cushion" for post-retirement economic loss of $30,000 — allows $100,000 for general damages — on appeal to the Court of Appeal against the judgment, allegedly excessive — held: (1) (by the Court): The judgment was excessive and authorised disturbance by the Court of Appeal; (2) (by the Court): The Court of Appeal could safely and properly substitute its own reassessment of the damages; (3) (Rolfe AJA, Cole JA concurring; Kirby P contra): The judgment sums should be reduced (a) as to past economic loss by an overall deduction of 15%; (b) as to future economic loss, by a deduction of 40%; (c) as to post-retirement cushion, by deletion of the item; and (d) by reduction of general damages to $70,000, all to take into account the possibility that pre-injury vulnerability of the spine would, even without the subject trauma, have caused disabilities and economic loss to the plaintiff. Kirby P. The facts are set out in the judgment of Rolfe AJA. In the District Court, Barbour DCJ found a verdict, and entered judgment, in favour of the respondent as follows: General Damages $100,000.00 Past Economic Loss $ 71,808.00 Future Economic Loss $134,860.00 Loss of Superannuation $ 40,208.00 Out-of-Pocket expenses $ 39,724.83 Future medical expenses $200,000.00 Future mowing costs $ 8,000.00 $594,600.83 The damages were appealably excessive Rolfe AJA is of the opinion that the damages awarded were appealably excessive. Cole JA agrees. I too consider that the judgment under appeal was excessive, displaying error in the relevant sense. My basic reasons for reaching this conclusion are similar to those expressed by Rolfe AJA. In my respectful view, Barbour DCJ did not take adequately into account the vulnerability of the respondent in consequence of his established condition of disc degeneration which was constitutional and not actually caused by any wrong for which the 2 UNREPORTED JUDGMENTS appellant was liable. The appellant's liability was limited by the common law, which governs this case, to the consequences of compensable trauma superimposed upon the respondent's constitutional condition. Of course, it is extremely difficult to differentiate the various causative factors. An element of judgment is inescapably evoked. Upon such matters, even after an examination of the same evidence, judicial minds may differ. Nevertheless, once the decision has been made that the judgment under appeal is excessive and warrants disturbance, this Court is obliged to consider two questions: 1. Whether the Court can safely and properly proceed to a reassessment or should send the matter back for retrial? 2. If the Court proceeds to a reassessment, what sum(s) should be substituted having regard to the items in dispute and what final judgment should be ordered. The Court of Appeal may safely reassess. I agree with the other members of the Court that it is proper and safe in this case, having decided that the judgment must be set aside, to proceed to reassessment. It is certainly desirable to do so. This is an ancient case. The wrong, upon which the respondent sued, occurred in July 1984. The trial consumed nine hearing days. It would be highly undesirable, for the parties, as well as for the community, to require that the dispute be reheard. I do notbelieve that such is necessary. All the evidence relevant to the applicable point of recalculation is available to this Court. The contrary was not suggested. The problem is a familiar one. The assessment which is invoked is not a novel one. In calculating the various heads of economic loss this is not a case where the trial judge had unique advantages or where determination of issues of credit was crucial to the evaluation. Past financial loss-reassessment The essential question for decision is the discount which should be provided from the allowances made by Barbour DCJ, having regard to the established vulnerability of the respondent's degenerative condition of the spine. Rolfe AJA would discount the past financial loss by 15% whereas Barbour DCJ did not consider that any discount at all was required in respect of this item. My own approach would be different. For some part of the time, initially, I consider that Barbour DCJ's approach was right and no discount should be provided. Thereafter, some discount is warranted. An appropriate time to fix as the point from which such a discount should commence would be | July 1990. Dr J Roarty, on 5 October 1989, expressed the view that, by that time, the degenerative change in the lumbo-sacral inter-vertebral disc had become extremely important in the causation of pain. By August 1990, Dr David Gronow, a witness for the respondent whom Barbour DCJ accepted, was of the view that the respondent's position was unlikely thereafter to change. It had reached stability. To countenance a discount of actual financial losses during the earlier period (even in the modest amount of 15%) appears arbitrary. It is inconsistent with the acceptance of Barbour DCJ's principal conclusion that the respondent's back pain and disability related not to a condition or incidents which existed prior to the motor vehicle accident in July 1984 or after it, but to the accident itself. Future loss of economic capacity reassessment If this is a relatively minor matter, my major point of departure from the majority on the reassessment of the future loss is not. With all respect, I consider that the discount of 40% for future economic loss is excessive. WHEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION v JONES (Kirby PB Again I concede that there is an element of arbitrariness in fixing the proper discount. Barbour DCJ determined 20% (ie 15% for ordinary vicissitudes plus a further 5%). The appellant urged upon this Court a total discount of 50%. The majority is of the opinion that 40% is appropriate. Whilst I am prepared to accept that his Honour might not have made adequate allowance for the discount proper to the established vulnerability of the respondent's spine from congenital degeneration, I consider that the discount of 40% proposed by the majority is too high. The evidence established that the respondent was a dedicated and motivated police officer. He had an exceptionally good record as a hard worker. He had displayed leadership and management skills in the police service. Barbour DCJ found that, but for the accident, the respondent had very good prospects for promotion. With promotion could well have come less arduous physical duties reducing the exposure of the respondent to the risk of further trauma. The evidence given before Barbour DCJ showed that the objective indications of degeneration of the spine exist in a broad cross-section of the population without causing symptoms, still less incapacity having an economic consequence. The conventional discount of 15% does, I agree, need to be enlarged in this case beyond the additional 5% allowed by his Honour. Five percent is insufficient as a deduction to reflect the additional risks presented by the susceptibility of the respondent's spine. Such an addition would not adequately reflect the evidence about that vulnerability. But, in my respectful view, it would be entirely sufficient to double the conventional discount. The one matter which is established by the evidence, and accepted by Barbour DCJ, is that the subject motor vehicle accident turned the respondentfrom a person vulnerable to injury, to one with an ongoing, painful and serious disability which had important consequences for his economic capacity. I therefore do not agree in the 40% reduction proposed. For the discount allowed by his Honour as to the future, I would substitute 30%. General damages — reassessment Allowing, again, that the determination of general damages is a matter upon which minds may differ, I am not convinced that the provision made by Barbour DCJ ($100,000) under this head was excessive to the extent that the majority considers. They would substitute $70,000 for the $100,000 allowed by his Honour. In respect of this item of such damages, Barbour DCJ had certain advantages over this Court, for which I would make full allowance. In seeing the respondent give his evidence, his Honour would have had an ample opportunity, over the course of the lengthy trial, to reach his conclusion about the impact of the subject accident, and its consequences, upon the respondent both in terms of pain and disturbance of his enjoyment of life. The allowance for future general damages is necessarily affected by the prediction of what might have happened had the respondent not been injured, taking into account the objective evidence of the vulnerability of his spine. To the extent that I differ in this prognostication from the majority, I would be prepared to contemplate a substantially lower reduction of the provision for general damages. In my view, general damages should be no less than $90,000, having regard to the evidence given in this case about prolonged pain, serious operations, loss of a much valued vocation and dislocation of the enjoyment of life. Cushion for post-retirement economic loss — reassessment 4 UNREPORTED JUDGMENTS I agree that there was some overlap in the 'cushion' of $30,000 provided by Barbour DCJ from age 55 whereas the allowance already made for loss of economic capacity was designed to compensate the respondent to age 60. But that does not, in my respectful view, warrant the total abolition of the""cushion'. Barbour DCJ accepted the evidence of Dr Gronow that the respondent's condition would, in all likelihood, deteriorate within approximately ten to fifteen years from the date of the trial. This would almost certainly interfere with the respondent's capacity to continue with his work as a security officer. It is well known that retired police officers can quite readily secure remunerative employment. Their experience and skills are much in demand. Upon the findings of Barbour DCJ, the ongoing consequences of the subject injury called for compensation. The approach of providing a 'cushion' for post-retirement loss was a sensible one. See Mizzi v Murgatroyd & Anor, Court of Appeal (NSW), unreported, 10 March 1989; [1989] NSWJB 77; Arrowsmith v Haines, Court of Appeal (NSW), unreported, 21 August 1990; [1990] NSWJB 114. The question is how much the cushion should be. To abolish it altogether is, in my respectful view, an inappropriate disturbance of the reasonable conclusion of the primary judge. Accepting that it might have been proper to make a greater discount for the possibility that supervening constitutional difficulties could have reduced the respondent's economic capacity anyway, I would not abolish the 'cushion'. I would simply reduce it to $20,000. It follows from my reasoning that future medical expenses should be discounted not by 40% as provided by the majority but by 30% as I would favour. That makes the proper allowance for such expenses $140,000. Similarly, I would favour a discount of only 30% upon the superannuation allowance bringing the same, discounted, to $28,145.60. Orders. As my opinion is a minority one, I will not extend these reasons by calculating the precise sums, both for the judgment and interest, which would flow from my above conclusions. They are clear enough and can readily be derived. I agree that the appeal must be allowed and the judgment of Barbour DCJ set aside. I agree that this Court should substitute its own judgment, as on a reassessment. I agree that the respondent should pay the costs of the appeal. I would order that the costs order at trial be confirmed. As to the substituted judgment, I would direct that the parties, within seven days, bring in short minutes to give effect to my conclusions. Cole JA. I agree with Rolfe AJA. Rolfe AJA. Introduction The plaintiff/respondent was born on 11 May 1952. On 4 July 1984, in the course of his duties as a Constable of Police with the New South Wales Police Force attached to the Highway Patrol, he was driving a police vehicle on Pacific Highway, Gordon. It was involved in a collision with another vehicle for the negligence of whose driver the defendant/appellant is legally responsible. The respondent commenced proceedings in the District Court for damages in respect of the injuries he alleged he suffered in this accident by an Ordinary Statement of Claim issued on 16 October 1984. Liability was admitted and the matter proceeded to an assessment of damages. On 14 June 1988 the parties consented to the District Court exercising unlimited jurisdiction. The hearing commenced before Judge Barbour QC on 11 November 1991 and the nine hearing days concluded on 8 March 1993, on which date his Honour directed theparties to WHEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION v JONES (Rolfe AJAB provide written submissions, and he stood the matter over for the hearing of oral submissions thereafter. Judgment was delivered on 18 March 1994. The respondent alleged that immediately following the accident he felt extreme pain in his low back and through both buttocks down into the backs of both legs and extreme pain in the neck. He alleged he sustained injuries to his head, shoulders, left arm, hands and knees. He was not admitted to hospital, although he attended at Hornsby Hospital and, after being examined and x-rayed, he was given pain killers and a neck collar and allowed to return home. The Principal Issue The principal issue for his Honour's determination was whether the condition of the respondent's back was caused by the accident on 4 July 1984 or by injuries he suffered to his back before and after that date in a number of different incidents. It was not in issue that before the accident of 4 July 1984 the respondent had a degenerate disc, which, his Honour found, ruptured as a consequence of this accident. His Honour found the respondent did suffer substantial injuries in this accident and, that the accident was causative of the disc rupture from which the respondent was suffering. Whilst other grounds of appeal are raised that to which I have referred constitutes a very substantial complaint against the decision. On 5 July 1984 the plaintiff saw his local doctor, Dr Feiner, who prescribed conservative treatment and referred him to Dr John Bosanquet, an orthopaedic surgeon. He was examined by Dr Bosanquet on 31 July 1984 and, in his report of 8 August 1984, stated: On examination of his cervical spine he was tender over the lower spinus processes and had a very limited range of movement. There was no neurological deficit in his upper limbs, and his reflexes were brisk. Both shoulders showed a decreased range of movement but the left more than the right. Examination of hislumbar spine revealed tenderness over L3, 4, 5 with again a very restrictive range of movement. Straight leg raise on both sides was to 20° and there was no neurological deficit in his lower limbs. X-rays of his cervical spine show a small opacity adjacent to the C6/7 disc space. This does not appear to be an avulsion. His lumbar spine shows LS-S1 disc space narrowing. OPINION This man has been involved in a motor vehicle accident during the course of his work. He has sustained soft tissue injuries to his cervical and lumbar spine and his shoulders. The injuries to his spine would appear to be whiplash type in nature with damage to the facet joints and secondary muscle spasm. It is likely that most of his symptoms will resolve with time though he may be left with a decreased range of movement, particularly in his cervical spine and intermittent headaches. It is still too early to comment on permanent disability. He will need to remain off work for at least six weeks and then it is probable that he will be able to return to light duties.' The plaintiff continued to complain of extreme pain mainly from the low back and neck, which was constant, and of headaches on a daily basis. Pain from the low back radiated down the left leg and he alleged he was deriving no relief from medication and physiotherapy. He was referred to Dr David Gronow at the Sydney Pain Management Centre, who saw him for the first time on 22 October 1984. Dr Gronow requested a CT scan of the lumbar spine. 6 UNREPORTED JUDGMENTS In his report of 16 January 1986, AB389, Dr Gronow gave a history, which referred to the respondent's having been a driver of a Police motor vehiclein February 1981, which ran off the road and into a tree in the course of his carrying out his duties. Dr Gronow noted the respondent suffered neck pain for a period of two days and residual pain for a period of approximately one month in the lower back 'for which he required a month off work'. He continued: His pain continued to be intermittent and he had manipulation and epidural injections performed in October 1983. He had increasing pain for a further two years and in that time he had a discogram and was informed he had a slight degeneration at the L5/S1 and was given a Boston Brace but had difficulty in wearing this. Dr Gronow then referred to the accident on 4 July 1984 and recorded: The pain was over the whole back and occurred immediately after the accident, associated with headaches which became constant. Since that accident the pain became less constant but aggravated by any movement. He continued to have lower back pain which he described as usually being sore but occasionally extremely painful. He continued to have physiotherapy but only found ultra sound to be of any benefit and this was only temporary. He also complained of pain radiating down both buttocks and behind both thighs, usually with the left worse than the right. He found lying helped the pain and occasionally certain movements would decrease the pain. He also found that sneezing and coughing aggravated it. He did not describe any previous back injury and his general health had been good. On examination Dr Gronow found widespread tenderness over the lower lumbar spine and both sacro-iliac joints, and restriction in leg raising. There was no evidence of muscle wasting or sensory defect, but there was limitation of all lumbar movements due to pain. He recorded certain other complaints of the respondent and stated:""It was apparent the patient had suffered two significant soft tissue injuries to his cervical and lower lumbar spine with associated anxiety and depression and poor coping mechanism. He presented as being very anxious to continue his work in his present capacity as a Highway Patrolman.' Dr Gronow referred to a CT scan performed in October 1984 as showing: ... Some remnant disc material at the L5/S1 level still compressing the dural sac with slight indentation of the left S 1 nerve root. The treatment programme was then organised for him to have change of medication, trial of a transcutaneous nerve stimulator and apophyseal joint blocks and psychological treatment by Mr Roberto Garofali for assessment and implementation of a Behavioural Pain Management Programme. He referred to treatment and some improvement and concluded: The patient still presently has evidence of soft tissue damage to his cervical and lumbar spine. He is coping better with this and is continuing to work which is important for his ongoing rehabilitation. The respondent returned to work on 30 December 1984 but, on 27 September 1986, he suffered very severe pain at work and was unable to continue. He ceased performing his duties as a Police Officer on that day and has not done so since. On 4 July 1988 Dr Gronow wrote a further report, which referred to his having seen the respondent on | June 1988. He recorded the prior history, including the diagnosis of a disc lesion at L5/S1, soft tissue injury to the lower lumbar and cervical spine, associated agitated depression, and poor coping mechanisms to control his pain. He referred to the treatment, to goodimprovement and to intermittent exacerbations of his pain throughout 1986 'often related to the type of work that he was performing as a Police Officer'. He noted he was involved WHEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION v JONES (Rolfe AJAY in a motor vehicle accident on 21 July 1986 'which caused re-aggravation of his neck and back pain and also injury to his right wrist'. This accident involved his being taken to Hornsby Hospital 'and when seen a week later he was suffering from marked stiffness and spasm of the lower lumbar region and cervical region. 5 ACT scan at that time reconfirmed a central and left lateral sacral disc protrusion and intervertebral disc degeneration'. He was referred to Dr Michael Fearnside, a neuro-surgeon, who performed an inter transverse bilateral lumbo-sacral fusion on 13 April 1987. He was not seen by Dr Gronow, thereafter, until 11 April 1988, when he told Dr Gronow that 'there had been little improvement with the fusion and he was considerably despondent in relation to this failure to improve, the fact that he had been medically discharged from the Police Force in December 1987 and his attempt at alternative work doing security or surveillance work was increasingly difficult for him and he was limited to short periods at a time'. 1s On 27 May 1987 Dr Fearnside reported to Dr Gronow in the following terms: 'You may recall David Jones who had a ruptured L5/S1 disc confirmed on discography. His pain was relieved by more than fifty per cent in recumbency and a plaster jacket similarly improved his pain. 20 On 13 April 1987 John Cummine and I performed an inter transverse bilateral lumbo-sacral fusion and he is at present in a plaster jacket. Hopefully he will get a good union of the fusion and this will improve his pain. I have stressed that it is not a complete cure but hopefully will ease him by 25 about forty or fifty per cent."""In October 1986 Dr Fearnside reported that there was a disc rupture, which is consistent with his report of 27 May 1987. On 14 August 1987 Dr Fearnside reported that when he reviewed the respondent on 12 August 1987 he was in continuing pain with radiation of pain to the buttocks. He noted there had been no improvement in his symptoms and 30 he still had similar complaints. He said that on physical examination it was revealed that his lumbar spine was somewhat restricted 'but with a normal lumbar lordosis and only mild paraspinal muscle spasm'. He expressed the view that it seemed 'very unlikely' that he would ever return to active duty as a Police Officer. 35 On 15 October 1987 Dr Fearnside wrote a detailed report in which he recounted the history, to which he added that prior to the motor vehicle accident on 22 February 1981, the respondent had been the subject of two assaults in the course of his duties in which he sustained low back injuries from which he recovered. He continued: 40 On 22.2.81 he was the driver of a highway patrol vehicle and was attached to the Hornsby Police Station. He was involved in a motor vehicle accident in St Ives when he was chasing a person through a paddock and the vehicle hit a tree. This was his first significant back injury and he experienced severe back pain, being treated with physiotherapy, rest and analgesics. The situation improved but he experienced 45 intermittent back pain following this accident. He returned to full duties after one month. On return, the pain became severe such that he saw Dr John Bosanquet, orthopaedic surgeon. A lumbar manipulation was performed and he had an injection into his back. A lumbar discogram which was performed on 29.11.83 at the Sydney Adventist 50 Hospital showed a normal LA/5 disc but a ruptured L5/S1 disc which reproduced the patient's pain on injection. 8 UNREPORTED JUDGMENTS On 4.7.84 he was involved in a second motor vehicle accident. On this occasion a car turned in front of his highway patrol vehicle which was pushed up over the gutter. This aggravated his pain and he stated that this was the most significant low back injury in terms of severity of symptoms. Left sided sciatica 5 developed and pain also was experienced in the right buttock. he reported that paraesthesia in the left foot occurred. His neck was also injured. He saw Dr Gronow and was treated with lumbar facet blocks which helped temporarily. He also had some transcutaneous nerve stimulation and a thermoskin, each treatment of which improved his symptoms. 10 He returned to full duties again but a third motor vehicle accident occurred on 17.6.86. This was a minor head-on accident and occurred at Mount Colah. There was an aggravation both to his neck and his back condition. Complaints on presentation were those of a considerable deterioration in his back pain. The pain was related to activity but was also present constantly at rest. 15 He had symptoms of muscle spasm, slept poorly and required regular Mogadon, Sinequan or Rivitril. He reported left sided sciatica, the back pain being worse than the sciatica. When he laid down his back pain improved. He had been off work since 26.9.86.' (My emphasis.) Dr Fearnside referred to certain x-ray investigations. He said: 20 X-rays of the lumbar spine dated 27.10.83 showed a narrowing of the L5/S1 disc. The lumbar discogram report showed a normal L4/5 disc and a disrupted L5/S1 disc as detailed above. The CT scan of the lumbar spine dated 11.8.86 was suggestive of an L5/S1 disc prolapse but there was no evidence of lumbar canal stenosis. On examination he indicated the entire lumbar region as the site of his pain. 25 There was considerable (20%) restriction in lumbar spinal movement. The lumbar lordosis was normally preserved and no scoliosis was present. Neurological examination of the legs revealed normal tone and power and no wasting. Reflexes were equal and symmetrical. There was a sensory loss to pinprick and light touch in the left LS and S 1 dermatomes. 30 Lumbar discography confirmed that his ruptured L5/S1 disc was responsible for the pain. It seems reasonably established that this is due either to the initial motor vehicle accident, the second and third being aggravating matters. In view of the fact that he had experienced two severe motor vehicle accidents since the discogram,' ie on 29 November 1983 'the L4/5 discogram was repeated 35 on 28.11.86 and was normal.' (My emphasis.) After setting out certain further matters of history Dr Fearnside concluded: As a result of the several accidents Mr Jones sustained in the line of Police Duty, the most significant on 22.2.81 and 4.7.84, Mr Jones sustained a rupture of the L5/S1 disc. 40 This has been demonstrated as the cause of his symptoms and surgical treatment has been undertaken. It is as yet too early to offer a final prognosis. However, it seems clear that he will not be able to return to full duties as a police officer now or in the future. It is not clear from the paragraph I have emphasised last and the final paragraph I have quoted whether there is an omission from the report. Thewords 45 'either to the initial motor vehicle accident', which must be the accident of February 1981, are not contrasted with any other accident. On 17 August 1990 Dr Fearnside provided another report, although it did not add to the matters about which he had reported thus far. Dr Fearnside was not called to give oral evidence. The appellant relied heavily on his diagnosis of a 50 ruptured disc as at November 1983 as establishing that condition was not caused by the accident of 4 July 1984. WHEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION v JONES (Rolfe AJAD In addition to the motor vehicle accident on 22 February 1981 and two assaults in July and November 1982, which caused back pain, the appellant relied upon further occurrences. On 20 March 1985 the respondent slipped while walking over rough ground during a mapping course, fell down an embankment, and jarred his back. On 1 August 1985 the respondent was engaged on duty when, in order to avoid being run down by a car, he jumped off the edge of a road, again injuring his back. On 16 July 1986, while on highway patrol duties at Mount Colah, he was involved in another motor vehicle accident, which further aggravated his back and neck. In 1990, while employed by Telecheck he had two further accidents. The first was on 12 May 1990, but did not involve physical injury. The second, on 28 July 1990, was another motor vehicle accident, which exacerbated low back symptoms. The trial Judge considered, firstly, the motor vehicle accident of 22 February 1981. I have set out material relevant to that, for present purposes. The respondent returned to work after a month and resumed his normal social and sporting activities. In May 1981 he completed a Radar Course and became a certified Radar Operator and, in August 1981, he completed a course, which led to his promotion to a Constable First Class. His Honour referred to the assaults in July and November 1992, the first of which necessitated no time off work, and the second of which required him to be absent from work for about two weeks. In September 1983 he had a recurrence of back pain with increased severity and Dr Feiner referred him to DrBosanquet, who examined him on 29 September 1983 and performed a manipulation and epidural injection of cortisone. The failure to bring about relief and increasingly severe back pain led to Dr Bosanquet arranging for x-rays of the lumbo-sacral spine, which showed disc narrowing at L5/S1 with anterior lipping consistent with instability following disc degeneration at this level. On 29 November 1983 Dr Shellshear performed discograms at the Sydney Adventist Hospital, which disclosed that the L4—5 disc was intact and no significant pain was produced at that level, and that the LS-S1 disc was completely degenerate and injection of the contrast medium produced moderately severe pain which was similar to the respondent's symptoms. Dr Bosanquet, as I have noted, reported to Dr Feiner on 1 December 1983 stating the discogram: .. show that the L4—5 disc is intact but that the L5-S1 disc is completely ruptured and injection of the contrast material reproduced the pain. His Honour noted Dr Bosanquet was not called to give evidence, although his reports were tendered, and that there was no explanation for the change in terminology from 'degenerate' as used by Dr Shellshear, to 'ruptured'. He noted Dr Bosanquet's report of 1 December 1983 concluded: Iam satisfied hence there is pain is coming from spinal instability at that level. The next move is to fit him with a Boston brace to see if we can relieve his symptoms in that way. I shall review him after he has worn the brace for about six or eight weeks. The respondent, apparently, had a short period of traction and some physiotherapy over one to two months, at the conclusion of which he was feeling 'much better' and he was fitted with a Boston brace, which he wore 'for about two weeks'. The respondent saw Dr Bosanquet next on 24 May 1984 and, on that day, Dr Bosanquet reported to Dr Feiner that there had been a recurrence of back pain, whereas for the previous five months he was pain free. Dr Bosanquet stated: 10 UNREPORTED JUDGMENTS The pain is localised to his low back with some radiation into his thighs. He found, on examination, he was tender over L5 and S 1| and experienced pain with extension. There was no neurological deficit in his lower limbs and, as the respondent claimed 'that work is making his symptoms worse' Dr Bosanquet certified him unfit for work for two weeks and sent him for some physiotherapy. At AB677 his Honour identified the respondent's primary case in these terms: The plaintiff's primary case was that his injuries and disabilities including the protrusion of L5/S1 disc occurred on and as a result of the 1984 accident. In the alternative it was submitted for the plaintiff that the 1984 accident caused a serious exacerbation of a pre-existing almost asymptomatic condition. As a result of the accident his condition is stable. It will not improve and may well deteriorate. In my opinion there is strong support in the evidence for the plaintiff's primary case on causation particularly in the reports and oral evidence of Dr Evans and Dr Gronow, taken together with the discogram performed by Dr Shellshear on 24 November 1983 (Exhibit L(1)), some seven months before the 1984 accident and the CT scan performed by Dr Faulder & Partners on 24 October 1984 (Exhibit J(1)), between three and four months after the accident.""His Honour then turned to Dr Evans" report of 11 February 1991, (Exhibit R). That appears at AB45 1-454. Dr Evans repeated the history of the motor vehicle accident on 22 February 1981, the manipulation on 27 October 1983 and the results of the x-rays and discograms. He referred to the accident on 4 July 1984 and to various treatment the respondent received and to the CT scan of the lumbar spine dated 24 October 1984 showing narrowed lumbo-sacral disc and _ posterior intervertebral disc protrusions centrally and to the left, with some impingement of the thecal sac and some involvement of the S 1 nerve root. He referred to the respondent's returning to work and the motor vehicle accident of 16 July 1986, and to the respondent's ceasing work on 27 September 1986 and having a spinal fusion operation on 13 April 1987. He referred to two minor accidents in 1990 and to the respondent's present complaints. On examination he found cervical movements were reduced by a third in rotation to the left and by a quarter in rotation to the right and by a quarter in flexion/extension and by a third in lateral flexion. He noted tenderness [Editorial note: Text missing] restriction in low back movements. He said there was no muscle wasting or weakness in the legs and there was reduced sensation. He viewed an x-ray of the cervical spine dated 14 August 1985, which showed some apparent loss of movement and some ossification in the anterior longitudinal ligament anteriorly at C6/7, and an x-ray of the lumbo-sacral spine dated 23 August 1989, which showed narrowing of lumbo-sacral disc with osteophytosis and bone posteriorly and incomplete bone between the transverse processes and sacrum. He commenced his opinion thus: This man has residual neck pain from the 1984 accident and the train of events seems to have started in about 1981 regarding his low back, ending ultimately in spinal fusion and disability from both the pathology in his low back and the operation. He appears to co-operate reasonably well and I think hehas the disabilities more or less as outlined in the history. After stating he did not consider the respondent was fit for general police duties, he continued: I think it has to be accepted that this man had degenerative changes at his lumbo-sacral disc before the 1984 accident and whether or not these were reported on WHEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION v JONES (Rolfe AJA) in February 1981, it is likely that some changes were present in 1981 and that these were aggravated by the 1981 accident and that aggravation was temporary. At the time of the 1984 accident, he had a further aggravation. Dr Evans expressed the opinion that the CT scan after the second accident 5 showed a disc prolapse reported on in October 1984 and August 1986, and that the respondent did not suffer severe damage or disc prolapse in the February 1981 accident, but rather he suffered a temporary aggravation. He stated the difference between degeneration and rupture thus: 10 The difference between degeneration and rupture is that in degeneration the disc remains confined within its enclosing ligaments and his internally disrupted rupture means that the central part of the disc has protruded through the encompassing ligaments and normally causes pressure on surrounding structure such as nerve roots. He said disc protrusion could reasonably be attributed to the injuries of 4 July 15 1984 and that it would occur 'more readily in a disc which was already degenerate and I feel that this disc was already degenerate'. He continued that disc degeneration is virtually always present in a disc that is going to prolapse, and that prolapse would increase symptoms and the degree of disability and would have been detected on the discogram of 29 November 1983 had it beenpresent. He said a discogram is a far more accurate test for prolapse than a CT scan and: I would have expected symptoms to have been more severe prior to the 1984 accident had he suffered a prolapse prior to 1984. 25 In his oral evidence, AB26, Dr Evans was asked for his prognosis for a person, who had a disc in the degenerative state, 'bearing in mind he was at that time 32 years of age'. He replied: Well, such a person would be expected to have backaches intermittently, throughout 30 probably the rest of his life, but it is very hard to quantify that. It is not too an uncommon condition, yet one doesn't due spinal fusions or operations on it that often. He said it was quite possible for the respondent to continue his work as a highway patrolman and he added that in a group of people of average age 40 fifty per cent have abnormal discograms, being degenerate discs and that 'probably 35 thirty per cent or maybe twenty five per cent of the population at his age, at that stage, would have abnormal discograms'. He said that would not lead to periodic pain. He continued: 40 Q. If one was to take the plaintiff as he was then 32 years of age in 1984, having present in his back this degenerative disc, is it possible to offer an opinion as to whether or not that disc would have degenerated further to the point of prolapsing or bulging without there being some intervening event? A. Well, it's becoming very speculative. I think when a disc is in a degenerate state the event doesn't have to be very significant. It might be just bending 45 over so that's parts of everyday living. So that you don't necessarily have to have a traumatic event, but as Ihave said before this is a common finding on a discogram and the majority of people keep going without it disrupting their working lives. Subsequently Dr Evans said the likelihood was that between November 1983 50 and July 1984 he would not have expected the L5/S1 disc to have degenerated to the point where it bulged, were it not for an intervening event such as the motor 12 UNREPORTED JUDGMENTS vehicle accident. He agreed the history after the accident on 4 July 1984 was consistent with its causing 'the change in this disc from one of degenerative status to one of bulging status'. Dr Evans agreed that the history up until May 1984 would indicate continuing aggravation with some referred pain into his lower limbs and, in relation to the discogram, he said that 'the degenerative disc disease is too common for it to be useful many times except in cases where you are going to operate on someone you do a discogram and if you can get the symptoms reproduced accurately then you make the assumption that is the involved disc'. He said endeavouring to say a comparison between the reports of a discogram and of the CT scan was speculative and one had to rely on the history given by the patient in much greater detail to endeavour to dissect the two possible alternatives. However Dr Evans would not agree that it was a 'great difficulty' to determine whether the disc was prolapsed in the 1981 accident and: The disc may have been damaged in the 1981 accident but there doesn't seem to be much evidence of prolapse, or the disc going outside its boundaries after the 1981 accident because there does not seem to have been much in the way of sciatica': AB31. quot; ... was showing signs of some degeneration in his spine and showing symptoms without a specific incident, one might well expect that any minor occurrence in his police work would give rise to any symptoms which would warrant a fusion. He also agreed that as the lumbar spine appeared in 1981 or 1983 any incidents, such as another motor vehicle accident, could have a significant effect and it would be difficult to gauge the consideration of each of the accidents without some sort of detailed analysis of the amount of time off 'although people can — with this sort of back problem people can start getting a lot of back pain for some months for no particular reason that we can discover'. Dr Evans agreed the accident on 20 March 1985, to which he had not referred in his report, could have been an incident having potentially a lot of influence on the condition, as could the motor vehicle accidents on 1 August 1985 and 16 July 1986. Dr Evans agreed one started with a significantly degenerative spine by about 1983, on the assumption of the history put to him, and that any one or more of the incidents that were referred to would have had an effect on aggravating or exacerbating or accelerating the condition and: Q. Up until the time of his fusion in 1987, I think he had been involved in a car accident in 1984. He had a fall in 1985, he had a further car accident in 1985, jarring his neck and back, causing aggravation. And a further car accident in 1986, complaining of extreme pain in the back and neck. Is it possible to assess which, if any, of those caused the consideration which gave rise ultimately to the fusion? A. Only that he did have a CT scan in October 1984, and the fact that he had that CT scan possibly, or not absolutely, possibly means he had fairly severe symptoms about that time and that did show a disc prolapse and there was an event before it in 1984 -accident, and so that — I am not saying they are absolutely, necessarily connected, but the assumption could reasonably be made': AB34. In re-examination Dr Evans said the absence of pain from 1981 until September 1993 would seem inconsistent with a prolapse, but that being off work for one month after the February 1981 accident would be consistent with the aggravation of a degenerated disc, as opposed to a prolapse. He said that he believed the 1984 accident coincided with the degenerate disc bursting. WHEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION v JONES (Rolfe AJAB I have already referred to certain of the reports of Dr Gronow. In his oral evidence at AB308-309 Dr Gronow differentiated between a degenerate and a ruptured disc. He agreed the CT scan taken in October 1984 was different from the discogram taken earlier and that the CT scan referred to a bulging at the posterior of the L5/S1 disc, which he said was a significant finding in that 'when I first saw the patient all I had to hand was that discogram result, which in my mind did not fit in with his clinical findings at the time'. He said the findings on the CT scan were consistent with his clinical findings namely that there was some protrusion on the S | nerve and: Q. Taking into account the two reports I have asked you to consider this morning, that is the report of November 1983 and that of 1984, being a discogram and a CT scan, are you able to express an opinion as to whether or not that degree of change could come about by natural degeneration in the intervening period of approximately one year? A. I wouldn't have thought so. Q. Are you able to express an opinion as to what is the more likely cause of that change of scene between the discogram and the CT scan? A. I think one would expect to have a history of some trauma bearing in mind however that a disc that is degenerative is more likely to rupture than one that is not."'Dr Gronow said a person with a degenerative disc 'can function reasonably well', but a person with a ruptured disc, particularly if there is nerve root compression, 'would have difficulty doing the average daily activities'. He said the onset of pain after the 4 July 1984 accident was consistent with the difference between the CT scan and the discogram. Dr Gronow was vigorously, but quite correctly, cross-examined and he said he disagreed with Dr Fearnside's interpretation of the discogram, although he did not agree Dr Fearnside's expertise was greater than his in that regard. Dr Gronow agreed that his interpretation of the discogram was inconsistent with Dr Fearnside's conclusion, and that he did not have a history of a further incident in May 1984, although he said a history of pain in May was significant, with tenderness at L5/S1, particularly if there was no other reason. At AB338 Dr Gronow said: Q. If you incorporated those matters that I have just put to you into the history of the injury in 1981, the flare-up requiring treatment in 1983 and the follow-on in 1984, that tends to suggest, does it not, that this man had a significant disc injury before this car accident ever happened in July 84? A. Yes, I accept he must have injured his disc earlier than 84, otherwise it would not have been degenerative. Q. To the extent that he was getting the same referred pains that you regarded as significant when you saw him in July? A. Well there was, as you stated, incident that would account for the rupture up until the incident of the accident in July. Q. You said yourself with his spine, in a weakened condition the rupture could come on at any time? A. No, not at any time, at a lesser injury."'Dr Gronow said that pain in the buttocks and thighs was not necessarily suggestive that further injury had occurred and it was not a greater likelihood that a rupture had occurred. He said he was not aware of radiation of pain into the upper legs and he totally disregarded the possibility that the respondent was exaggerating his level of discomfort voluntarily. 14 UNREPORTED JUDGMENTS After considering this evidence his Honour concluded that in November 1983 the L5/S1 disc was degenerate and, his Honour considered that the evidence of Dr Walker, a consultant neurologist, who examined the respondent on behalf of the appellant, interpreted the discogram in that way, as did Dr Michael Eagleton, a consultant surgeon, who reported to the solicitors for the respondent on 4 May 1987. In the result his Honour concluded, for the reasons he set forth at AB681, that the prolapse occurred at the time of the 1984 accident. He relied on the report of Dr Shellshear of 29 November 1983 that the disc was 'degenerate', the failure by the discogram to detect a prolapse, the virtual pain free back for five months until just before the respondent saw Dr Bosanquet in May 1984, the sudden onset of severe and constant pain in the low back with radiation right down the left leg, consistent with sciatica, and pain on straining, coughing and sneezing, the results of the CT scan of 24 October 1984 and the opinions of Dr Evans and Dr Gronow. His Honour referred to the subsequent incidents, upon which the appellant placed reliance, and to the failure by the appellant to furnish medical evidence 'in support of the proposition that the plaintiff was "significantly affected" by these accidents or that they "have significantly contributed to his present condition". The only medical evidence touching this point was sought to be obtained during cross-examination of Dr Evans.' His Honour was of the view that Dr Evans" evidence did not support the conclusion that the subsequent incidents affected the respondent in the manner suggested and did not support the appellant's case. The appellant's submissionsin this Court challenged the critical finding by his Honour and referred to the appellant's history of injuries. The appellant referred to the medical treatment the respondent received and to the discogram and CT scan and, quite correctly, pointed to the view of Dr Fearnside that the disc was ruptured as at November 1983. This evidence was somewhat qualified by his statement that as a result of the several accidents, the most significant of which were on 22 February 1981 and 4 July 1984, the appellant sustained a rupture of the L5/S1 disc. The appellant referred to the importance his Honour attached to the evidence of Dr Evans and Dr Evans" reliance upon the allegation of the respondent that prior to the accident he did not have any referred pain down his lower limbs, although there was evidence of referred pain prior to the July 1984 accident in the left upper leg and into the thighs. Reliance was placed upon Dr Bosanquet's having diagnosed an instability in the spine prior to the subject accident and to his satisfaction that the pain was coming from spinal instability at that level. It was submitted his Honour essentially dismissed a significant disability in the lower back before the 1984 accident as playing any part in the ongoing symptoms. The appellant also submitted that if the finding of the prolapse of the L5/S1 disc took place in the 1984 accident be correct, it is to be noted that once the fusion took place in April 1987 the respondent's symptoms got progressively worse, and there was evidence to suggest the symptoms post-surgery were due to the degenerate disc at LS5/S1. Whilst it is correct to state that there was degeneration prior to the accident in July 1984, there was evidence from which his Honour could conclude and did conclude that the disc prolapse occurred as a result of that accident. I have examined the evidence at some length and I am satisfied that his Honour approached the fact finding task committed to him in a wholly appropriate way, and that his reasons for concluding that the prolapse resulted from the 4 July 1984 accident are fully supported by the evidence he accepted. WHEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION v JONES (Rolfe AJAB Damages. In my opinion the damages awarded are excessive. Whilst his Honour was correct in his finding on causation he failed to take into account, in my opinion, the high vulnerability of the respondent in consequence of his degenerate disc and the police work in which he proposed to continue, and thus to make appropriate discounts both for past economic loss and future loss of earning capacity. The amount his Honour awarded for past economic loss of $71,808 was not discounted at all. In my view the respondent's condition and his continued work as a police officer for some time demanded a discount. I would discount this figure by fifteen per cent to $61,037. Interest on this amount from 4 July 1984 to 18 March 1994 at 7.5 per centum per annum I assess $44,633. His Honour allowed, initially, $131,140 for future loss of earning capacity, which he discounted by twenty per cent to $104,860. The figure of $131,140, it was agreed on the appeal, was to compensate the respondent to age 60. But his Honour then added to the discounted figure $30,000 as a 'cushion' from age 55. To this extent there was a degree of 'double dipping', which the respondent did not seek to justify. In my opinion future economic loss is sufficiently recognized by a figure providing to age 60. However, I consider the discount of twenty per cent, in the circumstances of this case was inadequate. In my opinion the discounting figure should be forty per cent, thus reducing $104,860 to $78,684. The superannuation allowance of $40,208 should be similarly discounted ie to $24,125. Future medical expenses of $200,000 seem very high, but, on the evidence, it was open to his Honour to find there would be such expenses. The figure his Honour found was $195,875 to which he added $4,000. I do not think his reasons justify this addition in the light of the amount awarded. I would round the figure at $196,000 and discount it by forty per cent to $117,600. In my opinion the range for general damages is $60,000 to $90,000 and, for this component, I would allow $70,000. In my view the award of $100,000 is excessive. I would, accordingly, recalculate damages. General Damages $ 70,000 Past Economic Loss $ 57,446 Interest on Past Economic Loss $ 44,633 Future Loss of Earning Capacity $ 78,684 Superannuation $ 24,125 Future Medical Expenses $ 117,600 $ 392,488 To these figures must be added out-of-pocket expenses of $39,724.83 and future lawn mowing of $8,000 ie $47,724.83 giving a verdict of $440,213. The orders I propose are: 1. Appeal allowed; 2. Set aside the judgment entered by Barbour DCJ; 3. In lieu of that judgment substitute a judgment of $440,213 to take effect from 18 March 1994; 3. The respondent pay the appellant's costs of the appeal; and 4. Costs order at trial confirmed. 1. Appeal allowed; UNREPORTED JUDGMENTS 3. 4. 5. The respondent to pay the appellant's costs of the appeal. Set aside the judgment of the District Court entered by Barbour DCJ; In lieu thereof, order that there be substituted judgment in the sum of $440,213 to take effect from 18 March 1994; Costs order at trial confirmed; and Counsel for the appellant: R C Tonner Solicitors for the appellant: G M Meadows: Solicitor for NSW Insurance Ministerial Corporation Counsel for the respondent: J S Drummond Solicitors for the respondent: Hamer and Hamer