BROCK and ANOR v RIVERS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL HANDLEY and POWELL JJA, and SMART AJA 25 June 1997, 25 June 1997 [1997] NSWCA 50 Damages — Tort — Assessment — Future events — Future economic loss Damages — Negligence — Causation — Proof of — Accident materially contributing Powell JA This is an appeal by the Defendants in an action which was heard by Herron DCJ in March 1995, in which action the Respondent sought to recover from the Appellants damages for injuries which he (the Respondent) claimed to have sustained in a motor vehicle accident on 6 February 1991. At the time of the accident the Respondent, who was then a young man of eighteen years, was riding his motor cycle in Pelican Street Sydney, near the New South Wales Police Centre, when a vehicle driven by the First Appellant and owned by the Second Appellant did a U-turn at a time when the Respondent was at a point adjacent to the off-side rear of the Appellants' motor vehicle. In the result, the Respondent was thrown across the bonnet of the Appellants' motor vehicle and was thrown to the road. After the accident, the Respondent was taken by a fellow employee to the nearby St Vincent's Hospital where he was admitted to Casualty and x-rayed, following which he was released to home. X-rays taken at the St Vincents Hospital at the time revealed that there were minimally displaced fractures of the bases of the left transverse process of the second and third lumbar vertebrae, but no other fractures or dislocation were noted. At the time of the Respondent being discharged to home he was provided by the hospital with a letter of referral addressed to the Westmead Hospital, which one assumes was at the time the hospital nearest to his home, which letter of referral was as follows: "Thank you for your review of this eighteen year old salesman who had a minor accident on his motor(sic) - and has fractured transverse processes Ll and 2. There is no parathesia or blood in urine, he is to have Panadeine Forte for analgesia. I would be grateful for your further management." The Respondent attended Westmead Hospital on the following day when further x-rays were taken. The radiology report of 8 February 1991 records: "This examination confirmed the slightly displaced fractures through the bases of the transverse processes of L2 and L3 on the left side. The remaining spine appears to be intact. Sacralization of the right side of L5 is incidentally noted." (As I understand it sacralization denotes a condition in which the LS vertebra is fused, or partly fused, to the sacrum and it is usually of a congenital origin.) At the time the Respondent attended the Westmead Hospital he complained of paraesthesia or transferred pain on his left side, a fact which appears to have obtained a greater degree of significance at a later stage. 2 UNREPORTED JUDGMENTS After about a week or so at home the Respondent returned to his employment as a spare parts salesman with a motor cycle organisation, apparently known as "Action Suzuki", which was located in Wentworth Avenue, Sydney. The Respondent continued in that employment until about July 1991 when he left, but the reason for his leaving was in no way associated with any complaint of pain or the like. The Respondent obtained employment in the building industry in early October 1991 but, within a day or two of his commencing in that employment, he began to complain of lower back pain and transferred pain in his leg and, accordingly, left that employment before the week was out. The Respondent appears not to have obtained further employment until the end of 1991 when he obtained a labouring type position, at which time his complaints of pain in the back and transferred pain in the leg resumed. The Respondent saw his general practitioner in Mittagong in early 1991, at which time he complained of back and leg pain and paraesthesia and referred pain. As a result, the Respondent's general practitioner referred him for a CAT scan by a radiologist in Bowral. The report of that scan appears to have been in the following terms: "The transaxial scans through L4/5 disc revealed diffuse bulging of the disc, more pronounced to the right of the midline. This degree of disc protrusion may well be compressing the right LS nerve root as it transverses the intervertebral foramen. No free disc fragments are identified there is no evidence of significant disc lesion at L1/2, L2/3, L3/4 Dr LS/S1-levels. No other significant abnormality is detected." The Respondent's general practitioner then referred him to an orthopaedic surgeon, Dr Giblin, who arranged for a MRI scan of the Respondent's back, that scan, as I understand it, being undertaken with a view to determining whether more conservative treatment than a laminectomy could be undertaken. The report of 26 May 1992 records: "INDICATION: Probable L4/5 disc protrusion. Axial and sagittal images have been obtained. At the L4/5 level there is a focal right postero-lateral disc protrusion causing impingement upon the theca and the right sided nerve root. The annulus appears ruptured. There is elevation of the posterior longitudinal ligament, the posterior longitudinal ligament however appears intact. There is no significant canal stenosis. No other focal lumbar disc pathology can be detected............00.... Following that report, Dr Giblin arranged for the Respondent to enter hospital where a laminectomy was performed. The major question for debate in the present appeal has been whether or not the disc protrusion for which Dr Giblin undertook the laminectomy was caused - whether in whole or in part - by the injury sustained by the Respondent in the motor accident. The Appellants submit that the better view - and indeed the overwhelming view - of the evidence was that that injury was caused, not by the motor vehicle accident, but as the result of some less obvious injury sustained by the Respondent either in the course of his work as a labourer or in the course of his playing Rugby League football in the early part of the football season in 1992 prior to the operation carried out by Dr Giblin. " URJ BROCK and ANOR v RIVERS (Powell JA) 3 The evidence upon which the Appellants seek to rely in this regard is in part based upon the history given by the Respondent who it would appear was an energetic young man, and one who is obviously irked by the limitations which his condition now places upon him. In particular, the Appellants seek to place stress upon the apparent absence of symptoms between the Respondent's return to work and his commencing labouring duties in October 1991, and the fact that, in the early part of 1992, the Respondent was playing rugby league football. Further, the Appellants rely upon the reports provided by two orthopaedic surgeons retained on behalf of the Appellants, Dr Hume and Dr Cameron, each of whom records the view that it was unlikely that the injury to the L4/5 disc was caused, or contributed, to by the injury sustained in the motor vehicle accident. It should, however, be recorded that, in his last report, Dr Cameron, on 21 February 1995, records: "On the basis of the history as given to me, I consider it unlikely that Mr Rivers' subsequent disc problem was related to the motor vehicle accident of February 1991. However, I cannot absolutely rule out such a connection. I note the additional information of Westmead Hospital notes dated 7 February 1991 in which paraesthesia of the left buttock and thigh are reported. This suggests the possibility of some disc problem at that stage although it is noted that subsequent symptoms were right sided." To contrast with the medical reports to which I have just referred, the Respondent refers to the reports, and oral evidence, of Dr Giblin and Dr Ellis, a general surgeon, and a report of a Dr Conrad, who appears to be an orthopaedic surgeon.- Although, when he was first asked to comment on the-matter in September 1994, Dr Giblin appeared to be of the view that the Respondent's injuries were consistent with his work activities, when his attention was later drawn to the fact that the Respondent had earlier sustained injury in the motor accident, Dr Giblin reported: "Tt is more than likely that the motor bike accident did cause some damage to the lumbar 4/5 disc, but it was the heavy manual labouring work that created a situation such that the disc ruptured, requiring surgical intervention. On the balance of probabilities, I think it would be fair to say that there is an equal proportion between the motor vehicle accident and the workers compensation injury, as to the eventual rupture of the disc." Although, given his earlier opinion, Dr Giblin was cross-examined at some length on behalf of the Appellants, in the event he remained of the view which he had expressed in his later report. Dr Ellis' report, which was obtained in May 1994 for purposes of the present proceedings, concludes, as follows: "Mr Rivers has suffered a ruptured lumbar 4/5 disc, musculo-ligamentous contusion of his lumbar spine, fracture of the left transverse processes of lumbar vertebrae 1 and 2, as a result of the motor vehicle accident on the 6.2.91. The ruptured disc required surgical intervention because of nerve root pressure in June 92. Pain and disability are continuing and will be permanent. He is permanently unfit for heavy work. He is fit for light duty work only. There is a 35% permanent impairment of his back as a result of the injury. If he attempts to return to heavy work in future then recurrence and exacerbation of his condition can be expected. 4 UNREPORTED JUDGMENTS The injuries are consistent with the accident described. There is no evidence of psychosomatic illness". Dr Conrad's report, which was obtained in October 1994, is to much the same effect. He records the following "OPINION": "This man was involved in an accident as detailed under History. As a result of the motor cycle accident in February 1991 he sustained a ruptured L4/5 intervertebral disc for which Dr Giblin did a lumbar laminectomy and discectomy. This has relieved but not completely cured his back pain and right sided sciatica and he has ongoing symptoms of pain and weakness in the back and right leg. At this stage he needs conservative treatment and is fit for light work not involving heavy lifting, repetitive bending, standing or sitting in the one position for any length of time. He would be able to do very light tool making work but should not lift anything more than 5 kilograms in weight. He also should not do any labouring work involving lifting or bending. He has a 35% permanent impairment of his back and a 25% permanent loss of efficient use of the right leg due to his right sided sciatica." While it may well be that another Judge may have taken a different view from that taken by Herron DCJ, the material to which I have earlier referred, in my view, provided him with an ample basis upon which he could find - as he did - that the injury to the Respondent's spine which required the laminectomy undertaken by Dr Giblin was at least contributed to, if not wholly caused by, the injury sustained by the Respondent in the accident and that the subsequent disabilities from which the Respondent suffered, and continues to suffer, are thus to be causally related to the motor vehicle accident. I would therefore reject this ground of appeal which was taken on behalf of the Appellants The second ground of appeal is that the verdict found by his Honour for non economic loss, and for past and future economic loss, is excessive, which ground of appeal in my view, ought also to be rejected. It is clear that the Respondent is a young man who enjoyed an active life prior to his accident and that some of the activities in which he previously engaged by way of sport and the like are no longer open to him. Further it is clear, I would have thought from what I recorded above, that the Respondent has a significant continuing disability, which disability will, in all probability, get worse as he gets older. Assessing the Respondent's non-economic loss in terms of 35% of a worst case was, in my view, an opinion to which his Honour was entitled to come and I would not be prepared to disturb it. Nor do I think the challenge made to the amount allowed by his Honour for economic loss has been made out. It is clear that the evidence discloses that the range of employment positions for which the Respondent is now fitted is significantly less than would have been the case if he had not been injured, and the assessment made by his Honour of a 20% loss of earning capacity, which he quantifies in the order of $100 a week, was one which I think was eminently open to him. I propose, therefore, that the appeal be dismissed with costs. Handley JA I agree. Mr Walsh argued his challenges to the judgment of Herron DCJ clearly and persuasively but, in my judgment, the evidence supporting the Judge's findings was too strong to be overcome by good advocacy alone. I agree with Powell JA that the appeal should be dismissed with costs. Smart AJA I agree with Powell JA. URJ BROCK and ANOR v RIVERS (Smart AJA) 5 The appeal was dismissed with costs. Counsel for the Appellant: P B Walsh Solicitor for the Appellant: Judith Walker, Australian Broadcasting Corporation Counsel for the Respondent: A J Lidden Solicitor for the Respondent: Nevett & Co (Mittagong)