CHALKER and ANOR v MITCHELL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, HANDLEY JJA and GILES AJA 19 November 1996, 18 December 1996 [1996] NSWCA 98 NEGLIGENCE — damages for personal injury resulting from bus accident — challenge to awards for non-economic loss, past and future economic loss and gratuitous domestic assistance — questions of credit The respondent, Cheryl Mitchell, was struck by a bus while she was waiting on the side of the road. She was thrown about three metres from where she was standing and landed heavily on the ground, her injuries requiring a trip to hospital. In the following months and years she suffered significant pain and disabilitiy and had a great deal of medical treatment. She sued the owner and the driver of the bus (the appellants) for damages. The case was heard by Sidis DCJ and, liability having been resolved, her Honour was only required to assess damages which she did in the amount of $448,827.12. The appellants appealed on the basis that her Honour erred in respect of the awards for non-economic loss, past and future economic loss and for gratuitous domestic assistance. Held: (1) Causation: In all the circumstances there is no acceptable evidence which contradicts Dr Segelov's opinion that the bus accident caused the disc protrusion at L4/5 and that the respondent's symptoms were consistent with the existence of that condition. Her Honour was correct to make a finding of the relevant causal connection. (2) Non-economic loss: The appellants have failed to demonstrate that her Honour did not deal in an appropriate manner with the two incidents nor did they establish any reason why this Court should interfere with the assessment of damages on the ground that her Honour failed to accord due weight to those incidents. The evidence supports the trial judge's conclusion and there is no proper basis on which to interfere with her assessment of 55% of a most extreme case. (3) economic loss: The discounts given by her Honour to deal with uncertainty were substantial and there was no error in her approach. Given the complexity of the assessment and the consequent wide range available, it cannot be said that her Honour's assessment was beyond the bounds of a reasonable evaluation of the claim. (4) Voluntary assistance: The appellants did not at trial challenge the evidence given by the respondent as to the voluntary assistance she received. They did not cross-examine her on those aspects of her claim and it is now too late to raise the matter and to rely on her failure to call corroborative evidence. ORDERS Appeal dismissed with costs. Clarke JA At about 3.30pm on 20 August 1990 Cheryl Mitchell (the respondent) was struck by a bus while she was waiting on the side of the road at Fairfield Railway Station. She said she was thrown about three metres from where she was standing and landed heavily on the ground. She was nauseous and felt pain in her legs as she stood up but determined to go home. Upon boarding the bus she said she felt a shooting pain from her buttock to her knees in the back of both legs and as the bus proceeded she felt stabbing pains in her back. She then decided to go to Fairfield Hospital. 2 UNREPORTED JUDGMENTS In the following months and years she suffered significant pain and disability and had a great deal of medical treatment including a laminectomy to a joint in her lumbar spine. She sued the owner and the driver of the bus (the appellants) for damages. By the time her case came before Sidis DCJ liability had been resolved and her Honour was required only to assess the damages. Her Honour assessed the damages at $448,827.12. The appellants have appealed and in their notice of appeal have contended that her Honour erred in her awards in respect of non-economic loss, past and future economic loss and in an award for gratuitous domestic assistance. In her judgment her Honour isolated the issues which arose for determination. They were whether, and if so to what extent, the respondent's ability to lead a normal life was significantly impaired; the extent of past and future economic loss and, as her Honour said, there was superimposed on all of these issues the question of the respondent's credit as a witness. On that final issue her Honour, after a careful and comprehensive review of the evidence, said: "T accept that Mrs Mitchell has not been full and frank in giving her evidence to the court. Her reluctance to provide details concerning her years of work in prostitution is understandable as is her express belief that they had nothing to do with the consequence of a back injury which occurred in 1990. However, her initial evidence denying any extensive prior criminal record was dishonest. The events of December 1994 and October 1995 were significant in relation to the medical history of her spinal condition and should have been brought to the attention of the court. Mrs Mitchell's failure to disclose these incidents based on her claim that she had not been asked about them is unacceptable by way of explanation. It follows that in assessing Mrs Mitchell's evidence it will be necessary to look for corroboration from the presence of other evidence before the court or from the inferences to be gained by the absence of evidence." This important finding led the appellants to make a broadly based submission that each of her Honour's assessments was, on analysis, based to a large degree upon the uncorroborated evidence of the respondent and should not be allowed to stand. I will return to these issues but it is convenient initially to deal with what was said by the appellants to be a frank error by her Honour on the issue of causation. That error was said to appear in the following passage from the judgment: "There is radiological evidence in the form of CT scans taken before and after the accident which establishes the presence of a moderately large disc protrusion at the L4/5 level of Mrs Mitchell's spine after the accident which had not been present prior to the accident. The latest CT scan taken in September 1994 confirmed the continuing presence of the protruding disc notwithstanding the 1993 surgery. Dr John Segelov, who had the benefit of the scans taken before and after the accident was satisfied that Mrs Mitchell's current symptoms are a result of the injury suffered in the accident and are consistent with that injury. Dr Morris and Dr Cummine did not have the benefit of viewing the pre-accident scans. Dr Morris was satisfied that Mrs Mitchell's symptoms were consistent with the injury to her spine demonstrated by the post-accident scans and that she had a significant spinal disorder potentially leading to the symptoms of which she now complains. Both he and Dr Cummine relate the disorder to the condition of Mrs Mitchell's spine prior to the accident. URJ CHALKER and ANOR v MITCHELL (Clarke JA) 3 Dr Morris agreed that Mrs Mitchell's pre-accident spinal condition rendered her particularly susceptible to debilitating injury in the circumstances of the accident." The appellants submit, correctly in my view, that in the light of those conclusions her Honour preferred the evidence of Dr Segelov to Drs Morris and Cummine. They also contend that the reason her Honour preferred Dr Segelov's evidence was that he had the benefit of scans taken before and after the accident, as she stated, while Dr Morris and Dr Cummine did not. This reasoning was, according to the argument, flawed. The evidence identified only three relevant series of CAT scans. They were taken on 27 August 1990, 24 October 1991 and 11 February 1993. There was a later scan taken in September 1994 but that is not relevant to the present argument. Dr Segelov saw each of these series of scans; so did Dr Morris and Dr Cummine saw the scans of 27 August 1990 and 24 October 1991. None of these scans were taken before the accident. Her Honour's first error, according to the appellants, was to suggest otherwise. More importantly, the appellants argued, it is apparent that Dr Morris had access to all the relevant CAT scans seen by Dr Segelov and Dr Cummine saw the first two which were the most relevant ones on the issue of causation. The submission was that in these circumstances her Honour had laboured under a significant misapprehension which led her erroneously to prefer Dr Segelov's view of causation. This argument appeared to have substance during the hearing of the appeal but on closer analysis I have concluded that, subject to one matter, the finding that her Honour made that Dr Segelov had the benefit of scans taken before and after the accident while the other doctors did not, was open to her on the evidence and there is no reason why this court should conclude that the finding was wrong. Before proceeding to explain my reasons for that conclusion it is appropriate that I say something more about the respondent. She was born on 16 September 1948 and has had a somewhat colourful life which, as her Honour found, she was reticent in disclosing. She first started to experience back pain in the early 1980's. In 1985 her back pain increased in severity and she consulted Dr G K Vanderfield whose notes record that she gave him a history of having fallen off horses and having suffered violence at the hands of Mr Naudi, her first husband. In June 1985 Dr Vanderfield carried out a laminectomy at the L5/S1 level of the respondent's back. She said that following this operation she felt very well. In 1986 she was involved in an accident on an escalator in a club at Port Macquarie and again injured her back at the L5/S1 level. She consulted Dr John Segelov and a further laminectomy at this level was carried out in May 1986. It may be that the operation was carried out somewhat later than this because the respondent was four months pregnant at the time of operation and her son was born in June 1987 but nothing turns on whether the operation took place in May or somewhat later. Following this operation she gained good pain relief and when her child was old enough she returned to the workforce as a nurses aide working for a nursing service agency PRN. This occurred in April 1989 and she continued in that employment until June 1990. She said that she carried out the full duties of a nurses aide but had been taught how to lift properly and she conceded that although she felt very well she did suffer occasional back ache. She ceased work in June 1990 because her son was suffering from ear troubles and needed an operation. She claimed that she did not intend to give up full time work 4 UNREPORTED JUDGMENTS permanently. I would add that there is no evidence that there was any other reason why she gave up work at that time. Following the accident on 20 August 1990 she was treated at Fairfield Hospital and then, apparently, by Dr S N Ananda, who referred her to Dr V Acton who, on 27 August 1990, took the series of CT scans to which I have referred. She was treated in the following years by Dr Burkitt and Dr Philip Segelov and in October 1991 a further CT scan of her lumbar spine was taken. On 8 February 1993 she returned to Dr John Segelov who, after the taking of a further CT scan of the lumbar spine, prescribed the wearing of a fibreglass jacket for two weeks. He was of opinion that if that led to good pain relief she should have a spinal fusion but if it did not another operation was required. The respondent received no relief from the wearing of the fibreglass jacket and Dr Segelov referred her to Dr John Bentivoglio for a second opinion. That doctor agreed with Dr Segelov that the CT scan revealed a predominantly central L4/S disc protrusion and he also agreed with Dr Segelov's assessment that a laminectomy was called for. Dr Segelov then operated on 23 April 1993. At operation he found a soft disc protrusion and carried out "'a right L4/5 hemilaminectomy and foraminotomy". Although some relief was obtained as a consequence of this procedure the respondent continued to complain of significant disability until the time of trial. In the light of this history, the issue of the causation of the symptoms suffered by the respondent following the bus accident and the need for further operative treatment was a complicated one. There were questions, for instance, as to whether the disc lesion upon which Dr Segelov operated had pre-existed the August 1990 accident and, even if it had not, whether it developed spontaneously as a consequence of her degenerate back or was traumatically induced. Her Honour concluded that the bus accident was a contributing factor in the development of the disc lesion and implicitly rejected the notion that the respondent was suffering from that condition prior to that accident. The appellants submitted that her Honour misunderstood Dr Segelov's evidence insofar as there was no evidence that he had seen CT scans of the respondent's lumbar spine before the 1990 accident and, insofar as Dr Segelov had said he depended in his assessment on the symptomatology, it was wrong for her Honour to regard Dr Segelov's evidence as corroboratorive of the respondent's. Counsel referred to the following evidence given by Dr Segelov: "Q. And, Doctor, I think before that surgery was carried out, you had access to a number of radiological examinations, is that so? A. Yes, I did. Q. Results of those examinations? And did they include CT scans taken in 1990 and 1991? A. That's correct. Q. And I think there was revealed in the CT scans of 1991 a large disc protrusion, is that so? A. That is correct. Q. And bearing in mind the history that you had from the plaintiff, your findings on examination before this motor vehicle accident, do you have an opinion as to the cause of that disc protrusion that was noted on surgical approach and also on the CT scans? A. It would appear to me to be the result of the bus accident. Q. And can we assume therefore that the cause or need for the surgery was the result of the motor vehicle accident in August of 1990? A. That is correct." In cross examination counsel for the appellants directed the doctor's attention to his report of 12 October 1995 in which, relevantly, he said: URJ CHALKER and ANOR v MITCHELL (Clarke JA) 5 "T have read the reports by Dr John Cummine dated 13/9/91 and 7/5/92 and Dr Michael Fernside dated 21/5/91, and it appears that neither of these specialists had the advantage of seeing progress CT scans, taken before and after the motor vehicle accident. CT scans dated 1990 showed a mild bulge at the L3/4 and L4/S levels and some calcified material on the right at the lumbosacral level near the nerve root. CT scans dated 1991, however, showed a large central L4/5 disc protrusion which was not present in the previous films, and there was now bilateral foraminal stenosis due to osteophyte formation at the lumbo-sacral level." The cross examiner asked: "Q. Now, Doctor, in the third paragraph thereof, you state that you had read the reports of Dr John Cummine of the 13 September 1991 from 7/5/92 and Dr Michael Firmside(?)(sic) dated 21/5/91. It appears that neither of these specialists had the advantage of seeing progress CT scans taken before and after the motor vehicle accident. CT scans dated 1990, this is I take it before the accident, is it? A. No, actually those refer to ones taken a week after the injury. Q. So the CT scan dated 1990 is not before and after the motor vehicle accident? A. No. Q. So that paragraph is inaccurate to a degree, is it? A. No, I saw investigations in 1986 which they had not had the advantage of seeing. Q. Well, I see. When you mention there in that paragraph, "CT scans dated 1990 showed a mild disc bulge", that would seem in the context to have suggested that it was taken before the accident. A. It wasn't intended to be. Q. No, but that's the overt meaning that can be construed out of it, is it not? A. It could be. Q. And so immediately after the accident in 1990, there was no focal lesion, I take it? A. That's correct. Q. And the CT scan taken 7 days after the accident on 27 August showed what was the position as it had been before the accident, so far as anyone could ascertain? A. That's correct." This evidence led counsel for the appellants to submit that Dr Segelov was adverting to the distinction between the scans taken in August 1990 and the later ones when he said in the passage of the letter to which I have referred that the other specialists did not have the advantage of seeing progress CT scans taken before and after the accident. This construction of the doctor's report was, in the appellant's submission, clearly correct for the only progress scans referred to were those taken in 1990 and 1991. Counsel then submitted that the doctor's evidence that the scan taken 7 days after the accident indicated the position prior to the accident was a further pointer in support of his submission. The argument presents a view of the written and oral evidence which, no doubt, could have been taken by a tribunal of fact. However, I do not think that it is consistent with what the doctor said in his oral evidence when confronted with the apparent ambiguity in the relevant paragraph of the report of 12 October 1995. It was put directly to Dr Segelov that the paragraph was inaccurate insofar as the CT scan dated 1990 was taken after the accident and the doctor rebutted the suggestion. The terms of his answer could be understood only as suggesting that he was comparing investigations in 1986 with the post accident scans. It was said that the doctor did not identify those investigations. That is correct. But the reason why that is so is that the cross-examiner did not seek further identification of the nature of the investigations. There is no reason to exclude from those investigations CAT scans 6 UNREPORTED JUDGMENTS particularly as lumbar surgery was carried out in 1986 and the doctor was careful to order a similar investigation prior to the lumbar operation in 1993. Furthermore, at the end of his cross-examination counsel came back to the report of 12 October 1995 asking: "Q. However, to go back to the report that you made in 1995, concerning the comments you made about the observations of Dr Cummine and Dr Firmside (sic), that observation of having seen before and after, if it were to be construed in that fashion as providing a specialised position before and after, would not be correct, would it? They may be in a similar position to yourself, in being able to view the progress of the disorder? A. Well, as I said, they didn't have the opportunity to see the patient in 1986 and to see relevant x-rays, which I did. Q. But the position of x-rays before and after is not determinative in this case, is it? Or even CT scans? A. I think the CT scans were important." To my mind the doctor was reiterating what he had earlier said and that the comparison to which he was drawing attention was between the 1986 investigations and those carried out following the accident. Certainly this is an available view of the evidence and it is clear that it was one which was adopted by her Honour. She, importantly, had an opportunity of hearing the doctor give his evidence and no doubt would understand better what the doctor was driving at than I would on a mere reading of the written material. In those circumstances I do not accept that the learned judge misunderstood Dr Segelov's evidence. Nor do I agree with the proposition that Drs Cummine and Fernside had access to the pre-accident investigations which, in Dr Segelov's view, were of importance on the issue of causation. The only reservation I have had on this issue is whether Dr Segelov did have CAT scans taken in 1986. The evidence on this question is not clear. Nonetheless, as Dr Segelov clearly considered the comparison between the investigations in 1986 and those carried out post accident was important, it does not seem to me that the lack of clarity matters. Although that conclusion disposes of the appellants' major argument I would wish to make it clear that I have myself carried out an analysis of the evidence which leads me to conclude that her Honour was correct in her conclusion on causation simply because the evidence was overwhelmingly in favour of such a finding. It is apparent from what I have said so far that Dr John Segelov considered that the bus accident caused the disc protrusion and the symptoms which led to the operation in 1993. According to Dr Segelov the respondent's history between August 1990 and the time of the operation were consistent with the development of the disc protrusion on which he operated. Dr Morris, who was called by the appellants, considered that the respondent was exaggerating her problems but on the issue of causation agreed with Dr Segelov that the 1991 and 1993 CAT scans demonstrated a disc prolapse at L4/S and indicated that he found it difficult to rule out the bus accident as a contributory factor leading to the back problems of which she complained following 20 August 1990. It follows that, although Dr Morris did not agree with Dr Segelov as to the severity of the problems, he did agree with the view that the respondent had a disc prolapse to which the bus accident had contributed. At least he would not rule out a contribution. It will be recalled that Dr Segelov referred to reports of Dr Fernside and Dr Cummine in terms which indicated that they considered that the respondent had suffered only a soft tissue injury in the lumbar spine in the bus accident. Dr URJ CHALKER and ANOR v MITCHELL (Clarke JA) 7 Fernside can be ruled out of consideration simply because no evidence was led from him and there is no reason to draw an inference in the appellants' favour to the effect that Dr Fernside, whose report was said to be dated 21 May 1991, had seen any CAT scans other than the series taken in August 1990. That leaves only Dr Cummine opposed to Dr Segelov's views on causation. His reports were tendered and in them he does express a strong opinion to the effect that the bus accident caused a transient aggravation of an underlying degenerative lumbar spinal condition and that any symptoms suffered more than a period of about twelve months after the accident were simply the consequence of the continuing degeneration of the spine. His views are expressed in reports dated 13 September 1991 (at which time he had access only to the series of CAT scans taken in August 1990) and 7 May 1992 (when he also had access to the scans taken on 24 October 1991). It will be recalled that the latter scans were reported as demonstrating evidence of a large central L4/5 posterior protrusion. Dr Cummine noted that the CAT scan report made this statement but said that, having examined the scan itself, he considered the appearance to be within normal limits. Having formed that view he saw no reason to differ from the opinion he expressed before he saw that scan to the effect that after a few months her symptoms related to her pre-accident back condition. The difficulty with Dr Cummine's views is that they were clearly based upon a false premise. The doctor's reading of the 1991 CAT scan was mistaken. There can, in my opinion, be no doubt about this. He thought the CAT scan did not demonstrate a disc protrusion at L4/5. Not only is that view inconsistent with the views of Dr Segelov, Dr Morris and Dr Shirtley (the radiologist) but the only opinions expressed in relation to the 1993 CAT scan were to the effect that it also demonstrated a protrusion at the critical joint. (Dr Cummine did not see this scan.) More importantly, the 1993 CAT scan led Dr Segelov to carry out a laminectomy and at operation he saw the protrusion the existence of which Dr Cummine denied. It follows, in my opinion, that Dr Cummine's view should not be accepted for the reason that it was based on the mistaken opinion that there was no protrusion. In all these circumstances there is no acceptable evidence which contradicts Dr Segelov's opinion that the bus accident caused the disc protrusion at L4/5 and that the respondent's symptoms were consistent with the existence of that condition. Her Honour was correct to make a finding of the relevant causal connection. The appellant next challenges the assessment of damages for non-economic loss which her Honour brought in at 55 per cent of a most extreme case. The appellant submitted that there was virtually no corroboration for the various complaints that the respondent made in respect of the period after the 1993 operation and contended that her Honour had failed to take account of the effect of two incidents in 1994 and 1995 which led to a deterioration in the respondent's back. Her Honour referred in detail to the two incidents, the first of which being a rather unsavoury incident which occurred on 30 December 1994. In that incident the respondent was said to have punched and kicked police officers who attended at her home in response to calls concerning a violent argument between her elder son and her two nephews. The respondent denied that she had kicked and punched police officers in the manner described by them and her Honour was not disposed to make a formal finding that the facts were as the witnesses described it in the absence of evidence from other police officers involved in the incident. Much was made of her Honour's declining to make such a finding by 8 UNREPORTED JUDGMENTS counsel for the appellants but it seems to me that, in the light of her Honour's finding that the respondent did physically enter into the fracas that occurred, it matters little that she was not shown to have actually punched and kicked a police officer. It appears to me that her Honour also believed that the respondent's participation in the incident indicated, as the appellants claimed, that on that occasion her physical capacity was much better than it was shown to be at other times. On the other hand her Honour did not accept the submission that the incident caused a lasting exacerbation of her back problems. In reaching that conclusion her Honour referred to a video tape taken of the respondent while in the watchouse cell after her arrest on 30 December 1994, the report of a medical officer who examined the respondent at the cell and the report from the Director of Medical Services at Bundaberg Base Hospital in which it was said, inter alia: "The patient had reduced straight leg raising bilaterally and a reduction in the power of all movements of the lower extremity. This, however, was unchanged from previous examinations performed by the staff orthopaedic surgeon." No other evidence was led to show that the incident in 1994 had exacerbated the respondent's back and I see no reason to interfere with her Honour's finding on that matter. The second incident to which her Honour referred was a motor vehicle accident on 7 October 1995 as a result of which the respondent was admitted to hospital on 11 October 1995. The records of the hospital record that: "During this admission she was seen by Dr Singham who could identify no changes in her neurological examination from prior examinations in the pain clinic." Her Honour was of the view that the accident in October 1995 contributed to "the severely disabled condition which Mrs Mitchell presented to the court in both November 1995 and January 1996, particularly in relation to Mrs Mitchell's claim of neck pain". In my opinion the appellants have failed to demonstrate that her Honour did not deal in an appropriate manner with the two incidents nor did they establish any reason why this Court should interfere with the assessment of damages on the ground that her Honour had failed to accord due weight to those incidents. The broad overall submission was then made that, in the light of her Honour's statement that the respondent's evidence could only be accepted if it was corroborated, the assessment at 55% of a most extreme case was clearly excessive. In making that assessment her Honour had regard to the continuous history of medical treatment until the date of trial in the light of the appellants' assertions that: "These medical records are based upon Mrs Mitchell's accounts of her symptoms and that they are based on a continuing course of exaggeration with the purpose of maximising the value of her claim." In answer to that submission her Honour said: "There is a consistency in the nature of the complaints and in the range of treatments provided in an attempt to relieve Mrs Mitchell's back pain which lends credibility to these records. Treatments included surgery, epidural blocks and traction. There is also evidence of two incidents of drug overdose apparently arising from the frustration of being unable to gain relief from pain." In respect of the period before 1993 there is, in my opinion, a deal of support for the respondent's complaints. That is to be found primarily in the evidence of Dr Segelov and the objective CAT scan findings. URJ CHALKER and ANOR v MITCHELL (Clarke JA) 9 Following the operation the respondent was recovering quite well until she attended Dr Segelov urgently on 22 July 1993 suffering severe low back pain. She was admitted to hospital for some days. In November 1993 she moved to Bundaberg to be near her mother who was dying of cancer. She there came under the care of Dr Jesurasingham who operated the pain clinic at Bundaberg Base Hospital and she remained under his care for the following two years and undertook a number of different forms of treatment including an epidural block. In a report dated 20 July 1995 addressed to Dr E J Heymann at Millmerran, where the respondent lived, Dr Jesurasingham said, relevantly: "T first saw Mrs Mitchell on 11 November 1993 complaining of chronic low back pain which started 25 years ago. She has had three laminectomies 1985, 1986 and 1993 and she has seen orthopaedic surgeons and has also attended the Pain Relief Clinic at the Royal Prince Alfred Hospital in Sydney where a posterior ramus block was performed between L3 and LS. she has also had an epidural steroid injection once which did help her for a few hours.... She was on Panadeine, Valium and non-steroidal anti-inflammatory drugs. She takes about 6 tablets of Panadeine on rising. She has had TENS machine, lazer and ultrasound in the past. She does not want any more operations. She feels angry, irritated and gets no sleep. Both her knees ache and her legs shake and wobble. She has put on weight and she smokes about 50 cigarettes a day. She had no ankle jerks on the right side. She was also seen by our Orthopaedic Surgeon, Dr Philip Dupre, and our Physiotherapist and she was keen to have physiotherapy and this has been arranged. She has also had some relaxation therapy in the Mental Health Unit. I put her on Clonazepam 0.25 mg nocte. Her next appointment was on 27 January 1994 when she told me that she had TENS machine at the physiotherapy which helped her for about 4-5 weeks and did not require any pain killers. On 20 January 1994 she took an overdose of Voltaren about 30-40 tablets and she was hospitalised and discharged on Sunday 24 January 1994. When I saw her on 27 January she told me that she went to Moore Park Beach about 4 weeks ago and the waves hit her knee and the back pain started. She claimed that the TENS machine does help with the pain but on turning the machine off the pain recurs in about 1-1 1/2 hours. At that time she was taking Mersyndol tablets three times a day and in 1982 she had acupuncture which helped her for about three weeks. At one time she was also on the membrane stabilising Mexilitine 50mg TDS. She wanted to continue with the Clonazepam but wanted to discontinue the Mexilitine because of indigestion. When I saw her on 7 April 1994 she was complaining of pain in her left hip. Patient was examined by Dr Philip Dupre who diagnosed trochanteric bursitis. At this stage she was put on Endone 5mg Q6H. Again when I saw her on 7 July 1994 she said that the back was not bad and she had not taken any pain killers for one month. Her last appointment at the Pain Clinic was on 10 November 1994 when she said that she was off all pain killers for one week. She had no more Morphine and that the back ache had gone. She had a bit of stabbing pains in the sacral area on certain movements only. She was seen by our Physiotherapist Mrs Tina Wallace who did a short term diathermy, TENS machine and ultrasound." At this stage it should also be noted that a CAT scan taken on 30 September 1994 (that is before either of the two incidents to which I have earlier referred) disclosed that she still had a large mid-line posterior L4/LS5 disc protrusion. 10 UNREPORTED JUDGMENTS The records of Bundaberg Base Hospital referring to the respondent were also tendered and these reveal attendances at the hospital by the respondent at fairly regular intervals during the two year period between November 1993 and the time of trial. Apart from submitting that the records were based upon subjective complaints designed to maximise the claim brought by the respondent Senior Counsel for the appellants referred the court to reports written by Dr Jesurasingham in which he said, as at 19 May 1994, the respondent said she was not suffering from pain at the moment and, as at 7 July 1994, she looked cheerful and she said that her back was "not too bad": These comments by the doctor, made on isolated occasions, indicate that there was a variability about the respondent's back condition. There is nothing unusual about that and I cannot accept that they vitiate her Honour's statement. It seems to me that, having particular regard to the continuing existence of the disc protrusion, the evidence supports the trial judge's conclusion and there is no proper basis on which to interfere with her assessment. The appellants also attacked the assessments of the impairment of the respondent's earning capacity, both past and future. It was submitted that on those issues the lack of corroboration was very important. It was also contended that there was no reliable evidence that the respondent had employment at the time of injury. Furthermore, there were important questions whether she would have been willing to work if she had not been injured, whether she was ever likely to get any work in the light of her pre-existing back disability and whether her need to look after her mother would have interfered with her ability to obtain employment. The appellants also contended that her prior criminal record, her dishonesty and her domestic complications all threw a cloud over her claim for impaired earning capacity. What the court did know was that in 1989 the respondent entered the workforce and worked without interruption for 14 months until she ceased work, about 6 or 7 weeks prior to the accident, to attend to a medical condition suffered by her child. Not only did the respondent attest to these facts but there was clear corroboration of her claim to having worked for the period of 14 months. In these circumstances, the assessment of the impairment of earning capacity was a complex matter requiring an assessment of the chances that the respondent would, if uninjured in 1990, have returned to the workforce. It also required an examination of the type of work that the respondent, if she had returned to the workforce, would have been involved in. Her Honour approached the assessment upon the basis that at the time of the bus accident the respondent was only fit for light work but that as a consequence of the accident she was no longer fit for any work. Senior Counsel for the appellants, while relying on the matters to which I have referred, emphasised the enormous uncertainties that faced the respondent even if she had not had the bus accident. She had a degenerate spine which had given her some pain from time to time and she had other domestic problems as well. He contended that even if she had returned to the workforce the pattern of work she would be likely to have followed was one of irregular part time employment and the trial judge had awarded her far too much. Ihave been much troubled by this aspect of the appeal as, I think, her Honour was. In order to accommodate those uncertainties her Honour discounted the claim for past economic loss by 20 per cent which is, on any view, a relatively high discount for past economic loss. She also discounted the future claim by 35 per cent. These are substantial discounts and, while I am not confident that I URJ CHALKER and ANOR v MITCHELL (Clarke JA) 11 would have approached the assessment of future economic loss in precisely the way her Honour did, I am not prepared to say that there is any error in her approach. Given the complexity of the assessment and the consequent wide range available to her Honour it seems to me that it cannot be said that her Honour's assessment was beyond the bounds of a reasonable evaluation of the claim. The last element of the judgment which was challenged by the appellants was the allowance of $21,325.00 for voluntary assistance provided to the time of trial and $68,647.00 for voluntary assistance in the future. In her judgment her Honour referred to the claim which was made in the following terms: "(1) Mrs Mitchell gave evidence that she is able to do little of her own housework. Mr Dungay and Mrs Mitchell's daughter have apparently provided her with a considerable amount of assistance. She assessed the time which they provided at 3-4 hours per day. (2) Her claim under s79 of the Act is for 2 hours per day or 14 hours per week of which 8 hours is compensable. The rate proposed is $14 per hour, on the basis of average weekly earnings, discounted by 20% to take account of the history of back pain. (3) The amounts claimed are $24,300 for past care and $78,454 for the future. (4) In response to this claim, the Defendants noted that no independent evidence had been presented to assess precisely the extent to which Mrs Mitchell has and will continue to require assistance. The court was urged not to speculate on this aspect of the claim." In making her assessment her Honour said: "T am not satisfied that Mrs Mitchell is constantly in need of home help to the extend claimed, although during episodes of acute aggravation of her condition she will clearly require substantial assistance. I note that this part of her claim is based on an average of the hours required. Nevertheless, I have discounted the amounts claimed for past and future home help by 30%." It will be seen that her Honour allowed the claim in broad outline but discounted by 30 per cent instead of 20 per cent. The appellants primary submission is that there is no corroboration for the respondent's claim. While the respondent gave evidence which would properly have supported the award her failure to call any of the relevant witnesses who performed the assistance for her meant that her evidence remained uncorroborated and her Honour should, in accordance with her initial statements, have declined to accept it. The evidence which the respondent gave in support of the claim was as follows: "Q. As being the situation at the present time, are you able to sit for along periods of time? A. Not without pain. Q. What about standing? A. Not without pain. Q. Are you able to attend to the domestic tasks around the place such as making beds? A. No. Q. Sweeping or vacuuming? A. No. Q. Mopping? A. No. Q. What about lifting boxes? A. No, I can't lift nothing. Q. Do you do the ironing? A. I can't stand, I can't sit that long enough to do the ironing. Me neck would ache, me back would ache, me legs would ache, me feel. Q. For how long has that been the situation, you can't do those sorts of things? A. Since the bus hit me. 12 UNREPORTED JUDGMENTS Q. What about showering, are you able to shower yourself? A. If I sit on a chair. Most times I can wash my body but someone has to wash me feet. Q. And as far as dressing, do you need any assistance for that? A. I need assistance, when I've got pain I need assistance with all me dressing. If the pain eases off I just need assistance with me shoes and underwear. Q. Who is it that gives you that assistance in those various tasks? A. Normally Troy, Troy Dungay(?). Q. And are you able to drive a motor car? A. Sometimes. Q. Is that a manual or an automatic car that you drive? A. It was an automatic, sorry, a manual. It was a manual car but I can't drive no more, in the last few weeks, three, four weeks." That evidence was supported, to a degree, by that of Dr Segelov who thought it reasonable that she be given assistance in carrying out ordinary household tasks, such as the vacuuming, the ironing and the sweeping. In my view that evidence provides only limited support for the respondent's evidence and it is true that she did not lead any corroborative evidence. If that were all that there was to the point I would agree with the appellants. Unfortunately for them, they did not challenge the evidence given by the respondent on this issue at the trial. They did not cross-examine her on those aspects of her claim. In these circumstances it seems to me to be too late now to raise the matter in this Court and to rely on her failure to call corroborative evidence. Where a party stands by and allows evidence to go unchallenged at the trial, a claim that that evidence should not be accepted, should not, in my opinion, in general, be entertained. There may be circumstances where it may be appropriate to treat the evidence as unacceptable despite the absence of a direct challenge to it. This may occur, for instance, where it is apparent from the whole of the cross-examination that a party's evidence on every subject should be taken to be disputed and regarded as unreliable. Although in this case there was a widely based challenge to the evidence of the respondent I do not think it can be said that it was unreasonable for her legal advisers to treat the evidence that she gave as to the need for care as not having been put in issue. In these circumstances I would reject this challenge also. For these reasons, in my opinion, the appeal should be dismissed with costs. Handley JA I agree with Clarke JA. Giles AJA I agree that the appeal should be dismissed with costs, and subject to the additional matters which follow with the reasons given by Clarke JA for that result. The additional matters concern the issue of causation. Sidis DCJ did not speak with complete accuracy when she said that there was "radiological evidence in the form of CT scans taken before and after the accident". The position before the accident came from Dr John Segelov's knowledge of "investigations in 1986", which were not clearly shown to have been or included CT scans and in whatever form they took were not themselves in evidence. However, I am satisfied that her Honour had in mind Dr Segelov's comparison between the 1986 investigations and the CT scans of 1990, 1991 and 1993, and for the reasons given by Clarke JA it was open to her Honour to accept Dr Segelov's opinion that the mild disc bulge in August 1990, which may or may not have been present prior to the accident, progressed to the large disc protrusion in May 1991 as a result of the accident. URJ CHALKER and ANOR v MITCHELL (Giles AJA) 13 At one point the appellant seemed to submit, relying on the answer to the effect that the CT scan of August 1990 "showed what was the position as it had been before the accident, so far as anyone could ascertain", that the large disc protrusion in May 1991 should not have been found to be a result of the accident rather than the product of natural degeneration. In the preceding answer Dr Segelov had agreed that there was no focal lesion immediately after the accident. The appellant referred to the further evidence - "Renshaw: Q. Would you agree with the proposition that it's always hard to interpret CT scans post-operatively? A. Yes, it is. Q. And that there would've appeared to have been no focal lesion post-accident? A. One week after the injury, that's correct. Renshaw: Q. Now, I take it that the radiology doesn't confirm that the process, namely the injury, caused the disc, broad-based disc protrusion, in a mechanistic sense? A. That's correct. Q. But if it were to be causally related, one would expect it to manifest within a period of a month or so, I imagine? A. No, it may take quite some time. Q. And the longer it takes, the more difficult it becomes to estimate the causation, I take it? A. One has to rely on the symptomatology." It was suggested that where one had to rely on the symptomatology an essential link on the issue of causation was Mrs Mitchell's account of her symptoms, and that on her Honour's view of Mrs Mitchell's credit her uncorroborated evidence of her symptoms did not make out the link. I do not think the submission should be accepted. First, Dr Segelov nonetheless thought the CT scans important, and quite apart from the symptomatology regarded significant trauma as relevant (explaining that the disc could be weakened and gradually give way). Mrs Mitchell undoubtedly suffered from a significant disc protrusion in May 1991. In determining whether the disc protrusion was caused or contributed to by the accident or was a natural occurrence, it was clearly open to her Honour to arrive at the former conclusion notwithstanding her view of Mrs Mitchell's credit. Appeal dismissed with costs. Counsel for the appellant: JE Maconachie QC and AJJ Renshaw Solicitors for the appellant: Abbott Tout Counsel for the respondent: CE O'Connor QC and RB McCloghry Solicitors for the respondent: Eugene Lepore and Associates, Fairfield