New South Wales Court of Appeal CITATION : Matthews v Hollis [2002] NSWCA 156 FILE NUMBER(S) : CA 40642/01 HEARING DATE(S) : 8 April 2002 JUDGMENT DATE : 27 May 2002 PARTIES : Douglas George Matthews (Appellant) Neville Hollis (Respondent) JUDGMENT OF : Stein JA at 1; Heydon JA at 2 LOWER COURT JURISDICTION : District Court LOWER COURT DC 125/99 FILE NUMBER(S) : LOWER COURT Patten DCJ JUDICIAL OFFICER : COUNSEL : Mr B M J Toomey QC/Ms M Kumar (Appellant) Mr R R Bartlett SC (Respondent) SOLICITORS : Stacks - The Law Firm (Appellant) Hunt & Hunt (Respondent) CATCHWORDS : ND LEGISLATION CITED : Motor Accidents Act 1988 DECISION : The appeal is dismissed; the appellant is to pay the respondent's costs of the appeal. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40642/01 DC 125/99 STEIN JA HEYDON JA 27 May 2002 DOUGLAS GEORGE MATTHEWS v NEVILLE HOLLIS Judgment 1 STEIN JA: I agree with Heydon JA. 2 HEYDON JA: This is an appeal by the plaintiff below against the quantum of damages awarded to him by Patten DCJ on 24 July 2001 after a trial on 14, 16 and 17 May 2001. The appellant was seriously injured in a motor vehicle accident on 30 July 1998 in which his neck was broken; the respondent admitted liability; the trial judge awarded damages in the sum of $336,074.61. 3 Of the items making up that figure, the appellant contends that the awards for non-economic loss ($113,500) and diminished future earning capacity ($80,000) were erroneous. Because the evidence relating to each category to some extent overlaps it is convenient to consider them together. There were grounds of appeal and written submissions contending that the trial judge gave too little for domestic assistance, but those contentions were abandoned when the appeal was called on for oral argument. Difficulties facing the trial judge 4 The task confronting the trial judge was far from easy. 5 One source of difficulty was that there was a conflict of medical opinion before him as to the effect of the accident on the appellant's existing spinal condition. It was common ground that the accident, a head-on collision in which the respondent's semitrailer came onto the wrong side of the road and collided with the appellant's sedan, caused a C2 fracture. It was also common ground that below the C2 level there were already present degenerative changes. One school of thought was that the accident temporarily precipitated symptoms in regard to that underlying condition. Another available conclusion was that the effect would be longer lasting. A third school of thought was that the effect of the accident was to worsen, not merely the symptoms of the underlying condition, but the condition itself by causing acute disc bulging. 6 Another source of difficulty was that even if the third school of thought were correct, as the trial judge thought, there were conflicts about how far the appellant was disabled from work in the future. It was common ground that he would be ill-advised ever to engage in physical labour again. But opinions varied between the possibility of doing an hour or two hours of sedentary work per day on an irregular basis, and the possibility of fitness for fulltime non-physical work. 7 These difficulties were increased by the fact that the appellant had tried, and to some extent succeeded, though on occasion at the cost of increased pain, to resume his pre-accident non-working activities such as sporting activities with his children and service as a Bush Fire Brigade captain. In this regard the trial judge took account of video films taken of the appellant which revealed him as lacking any apparent pain or restriction and which suggested to the trial judge that, though the appellant was not consciously exaggerating, he was not as disabled as he sought to make out. 8 A final source of difficulty was the fact that the appellant had made only limited attempts to find work since the accident. The trial judge's findings 9 The appellant was 46 at the time of the trial. 10 The trial judge found that the injuries to the appellant were such as to justify a selection of the figure of 40% of a most extreme case for the purposes of s 79A of the Motor Accidents Act 1988. 11 That figure was selected after the trial judge had reviewed much of the evidence in detail. After that review but before stating the figure, he said: "It is beyond argument that the Plaintiff is entitled to be compensated for the fracture at C2, the fracture of the left first metacarpal and the fracture of his left big toe. These were directly caused by the violence of the accident. On the probabilities, it seems to me that there is a causal connection between the accident and the other lesions in his lower cervical spine. Although I accept that these were degenerative in origin, I find that they were asymptomatic at the time of the accident but were aggravated and rendered symptomatic by it. I accept the evidence of Dr Hopcroft in this regard. I also find that the Plaintiff developed and still suffers from a Post Traumatic Stress Disorder and that he has suffered episodes of depression which predispose him to further such episodes, particularly if his physical symptoms deteriorate. There is I think no doubt that the accident and its sequelae have had a major impact upon his life, as to which, in general terms I accept his testimony and that of his wife and Mr Dyson. Although there may have been some exaggeration of his complaints and disabilities, I do not think that he deliberately sought to mislead the court. For the most part the many doctors he has seen have accepted the genuineness of his complaints. The medical evidence overwhelmingly establishes, in my view, that he has been and remains unable to return to his pre-accident employment. I accept his evidence that his sporting and recreational pursuits have been restricted and that he is limited in what he can do as Bush Fire Brigade Captain. On the other hand, the videos portray, for the days they were taken, a man going about an ordinary life without apparent pain or restriction. To an extent, I accept that the videos portray a well motivated person anxious to overcome the consequences of the accident and 'get on with his life', but, there is an element in them which suggests that the Plaintiff is not as disabled as he sought to make out or, perhaps, as he himself may believe. These matters bear upon the important issue of the extent to which his earning capacity has been diminished." 12 They also, of course, bear upon non-economic loss. 13 In relation to the impairment of the appellant's future capacity to earn, the trial judge said: ""The question of compensation for future diminished earning capacity raises, perhaps, the most difficult question in the case, the evidence being unanimous that he is unable to return to his previous employment, or employment which places similar strains on his neck. However this is not the case of a man who by training and expertise is only fitted for employment which requires substantial physical exertion. For about 10 years prior to 1990 he held clerical or managerial positions and, despite the views of Dr Hopcroft, I see no reason why he should now not be able to rejoin the workforce in a similar capacity. It is inconceivable to me that an employer would not give him the opportunity, at intervals, to move about or stretch. It is likely, of course, that a period of training will be required and it may mean a move to a more populous area. To meet those circumstances there should, I think, be a substantial lump sum award which will also take account of the fact that the Plaintiff's disability may hamper him in an open job market. I assess the appropriate sum at $80,000." 14 The testimony of the appellant, of his wife and of Mr Dyson to which the trial judge referred had been summarised earlier as follows: "Some months after the accident, he returned to work and attempted the duties he had been performing prior to it. He said that after two days he experienced spasm and stiffening down his left side, including his left arm and leg. He concluded that he was unable to follow his previous employment, a view apparently shared by the Commonwealth Rehabilitation Service, which granted him a disability pension which has continued to the present. By March 1999, he said he was having 'difficulty with thoughts' and contemplated suicide. According to his testimony, this arose from the fact that his recovery was not as he had anticipated. He said that his 'mind wanted to do more than his body would allow'. He continued to experience pain and muscle spasms. He consulted Mr Gary Grant, Psychologist, in a number of sessions and discussed his psychological and emotional state with Dr Leggett, who prescribed Zoloft. In July 1999 his employment with Kempsey Council was terminated on medical grounds. He said that this made him feel 'useless'. Nonetheless, later in 1999, he became Vice-President of the Lower Macleay High School Establishment Committee, whose object was the establishment of a high school at Southwest Rocks. This involved his attendance at meetings of the committee and the making of submissions to government which were largely unsuccessful. Throughout this period, he said that his neck remained sore and restricted his physical activities. In January 2000 however, he felt well enough to apply to Kempsey Council for a position as Environmental Services clerk, a position which did not involve physical labour. He was disappointed not to be granted an interview but was told that he did not meet the relevant criteria. He has however continued his involvement with the Bush Fire Brigade, although he has found this more and more difficult because of his neck. He said, in effect, that for the last year or so, whilst remaining captain of the Brigade, he now involves himself only in training programmes and setting tasks for others to perform. He said that any physical work worsens his neck pain and obliges him to rest afterwards and that his condition has remained largely unchanged since the accident, a circumstance which he has found difficult to accept, even with Mr Grant's counselling. He has, however, some days which are better than others and said that he tries to do what he can but at a slower pace than previously. Exertion produces neck pain which progressively worsens. He said that if he could afford to do so he would pay others to do the work which he now attempts, even though productive of pain. He no longer does as much as he used to do about the house. Asked about his physical activities since the accident he said that he had tried body surfing once but had been dumped by a wave and had not attempted it again. He helped his father recently in the building of a pergola but found the work very hard and had to stop before it was finished. When he helped a friend erect a fence he said that he was 'laid up two days afterwards'. Asked by Mr Leatherbarrow, SC, his senior counsel, who appeared with Mr Gilbert, as to the present situation of his neck, he said that it is painful continuously 24 hours a day, but the level of pain varies in ways which he has found impossible to predict. When the pain is severe, his range of neck movement is limited. He said that he suffers headaches about twice a month which emanate from the back of his neck. When he exerts himself and suffers increased pain as a consequence, he seeks relief by resting, spending up to one and a half hours in bed each day. He tries to avoid taking medication. As to his attempts to find suitable employment, he said that he has been to the Wesley Employment Service but was told that his prospects through that agency were not good. He considered moving away from Southwest Rocks but chose against that course after receiving advice that employment opportunities for him were not much better elsewhere. He accepts that he could perform clerical work in a situation where he was able to move about, but doubted whether he would be able to work a full day. He said that he would not be able to sit over a desk for hours at a time without being able 'to get up and stretch'. He presently has limited computer skills. He presently is not undergoing any medical treatment but takes some prescribed medication including Ducine and Zoloft, the latter because it 'improves what's going on in my mind'. When asked by his counsel to elaborate upon this, he said that his 'thoughts are confused', and that he worries about being unable to support his family; being unable to do things which he did before and being unable to play games with his children. His disability has not, however, affected his relationship with his wife although sometimes their sexual relationship is compromised when he is experiencing pain at a high level. As advised by Dr A G Hopcroft, Orthopaedic Surgeon, he wears a cervical collar on occasions, particularly when driving a motor vehicle. He is able to drive and enjoys doing so on country roads which does not involve much neck movement. Pain, he said, disturbs his sleep but he seeks to avoid taking medication to counter this. Often at night, he said that he gets up and wanders about. Asked whether he has problems with his hands, arms and fingers, he said that it is 'alright' if he is careful, but otherwise he experiences spasms. Cross-examined by Mr Murray QC, counsel for the Defendant, the Plaintiff agreed that with retraining he would be able to perform the work he performed as an Internal Sales Coordinator with Parker Hannifin in 1985. He denied that the state of his health before the accident caused him to be depressed and the suggestion that he had not been trying to find suitable work. He said that he had made a number of telephone calls to the Commonwealth Rehabilitation Service and has asked friends in business for suitable work. He agreed, however, that he had not registered with Centrelink and that he has not been to an agency in Port Macquarie. He also agreed with Mr Murray that he is able to work about his house, but said that he performs at a slower pace. For instance, washing and polishing his car which used to take a morning now occupies him for one and a half days. Mowing his lawn, which used to take half an hour now takes double that time. He agreed with Mr Murray that helping his father build a pergola required physical work, including the manhandling and sawing of timber, climbing a ladder etc. During the cross-examination a number of videos were played. They were taken over 17 days in May 2000 and January 2001. The first depicted the Plaintiff in the vicinity of his home. He was shown sweeping a verandah and moving freely, albeit, slowly. He appeared to have no difficulty bending. A second video depicted him driving a car, walking freely and engaging with others in unloading, what appeared to be, moderately heavy objects from the back of a truck. A further video depicted him at a soccer game with his young son. He agreed that he was coach of his son's team and that, on occasions during training, he caught and kicked balls and ran. Still another video followed the Plaintiff as he drove to some shops. As he drove he appeared to be able to turn his head without difficulty and, once outside the car, seemed to move freely. He was shown in apparently cheerful and quite animated conversation with acquaintances he met in the shopping area. On other occasions he was depicted gesticulating and waving his right arm. He agreed with Mr Murray that each of the videos showed him engaged in a range of normal movements, without apparent restriction, including walking at normal pace with his left hand in his pocket swinging his right arm. The Plaintiff's wife, Stephanie, and another lay witness, Mr Gregory Dyson gave evidence in his case. Mrs Matthews testified, to the effect, that the Plaintiff was basically in good health at the time of the accident. She said that he was passionate about fishing, surfing, swimming, touch football and his family and rode a bicycle to work each day. She described his personality as, 'easy going, friendly, warm and outgoing'. He played a lot with the children and spent time working about the house, both inside and outside. Immediately after the surgery, she said that it was like 'having a baby' as she had to help him shower and dress. She described his neck as 'very vulnerable'. For a time she said she provided domestic assistance which she would not otherwise have provided to a level of about 2 hours per day. Over the past three years since the accident, she said that her husband had become withdrawn and depressed, although he tries 'to put on a brave face'. She said that he interacts less with the children than he did previously; that he is difficult to engage in conversation and that their sex life has deteriorated. She said that he is much slower in all his activities and that he has at least one rest per day, of one to one and a half hours. Although her husband participated with the Bush Fire Brigade in fighting bush fires last year, he was completely exhausted at the end of each day and stayed in bed for a day or so afterwards. After he assisted his friend with a fence, she said that he came home complaining of soreness, took medication and went to bed. She saw him assist his father with the pergola and said that he performed very slowly the work that he did and went to bed early afterwards. When it was suggested that mostly the Plaintiff gets things done in their yard, she replied, 'No, the garden is full of weeds now'. She declined an offer of additional hours of work as a teacher because of her need to be at home with her husband whom, she said, 'falls in a heap unpredictably'. Mr Gregory Dyson, a friend of the Plaintiff of some ten years standing and previously a fellow worker at Kempsey Council, described the Plaintiff as a very active worker who 'ran' from one task to another. He said that he regarded him as hyperactive. Outside work, Mr Dyson and the Plaintiff used to go fishing every weekend. They also were associated through the Bush Fire Brigade. In the time leading up to the accident, Mr Dyson said that the Plaintiff demonstrated no physical disability. He described him as very good natured and good company. They remain friends since the accident and have been fishing together on several occasions. It is not, however, according to Mr Dyson, the same as before, in that the Plaintiff seems to find it necessary to rest after about half an hour and is unsteady on his feet on the rocks. He complains of pain in his neck. Mr Dyson said that he is now the Plaintiff's deputy in the Bush Fire Brigade and has fought fires with him on many occasions. Whereas he used to be very 'hands on' according to Mr Dyson he now stands back and moves slowly, particularly in uneven country. Mr Dyson said the Plaintiff appears unable to manhandle the fire hoses and virtually performs only a supervisory role." 15 The trial judge had also summarised or quoted from the evidence of Dr Hopcroft, Dr Parsonage, Dr Cook, Associate Professor Holland, Dr Moore and Dr Parameswaran. Written submissions of appellant 16 In his written submissions, the appellant attacked the reasoning of the trial judge in the following terms. "In his judgment … his Honour considered the medical evidence tendered in the case on behalf of the appellant. Dr Hopcroft gave oral evidence at the trial and assessed that the appellant had the capacity to work approximately one hour a day and believed that the situation would be permanent. Dr Hopcroft opined that by age 55 that the appellant would only be able to walk with his head and neck in a rigid position and that he would be likely to suffer daily headaches. The doctor felt there would be no hope that the appellant would work to the age of 65 and believed that the changes in his lower cervical spine are a direct result of the C2 fracture, which he sustained in the accident. His Honour … accepted the evidence of Dr Hopcroft and also found that the appellant has developed and still suffers from Post Traumatic Stress Disorder and that he has symptoms of depression which predisposed him to further episodes of depression, particularly if his physical symptoms deteriorate. His Honour … found that ' the accident and its sequelae have had a major impact upon his life and that … although there may have been some exaggeration of his complaints and disabilities, I do not think that he deliberately sought to mislead the Court'. His Honour found … that ' the medical evidence overwhelmingly establishes, in my view, that he has been and remains unable to return to his pre-accident employment'. Whilst his Honour believed that the videos shown portrayed ' a man going about an ordinary life without apparent pain or restriction' … it is submitted on behalf of the appellant that the videos showed no more than a man going about his life as best as possible and attempting to overcome the consequences of his accident. The appellant's age and the background of the medical evidence that his condition will deteriorate, his inability to do his pre-accident employment or indeed any employment for more than 2-3 hours a day in a situation where rest periods were allowed, the fact that he has young children, demonstrate that the impairment on his ability to live a normal life is in the vicinity of two-thirds and not 40 percent as was found by his Honour. … An allowance of $80,000 for future economic loss, bearing in mind that the appellant's working life is a further 19 years translates into a weekly loss of approximately $150 per week. When this allowance is considered in the light of the appellant's pre-accident earning capacity then, in the absence of other considerations, the Court has made a finding that the appellant has suffered less than a 30 percent loss in his earning capacity, notwithstanding that he has also found that he has had a total loss of earning capacity between the date of the accident and the date of the trial and in circumstances where the evidence of Dr Hopcroft in relation to his further deterioration has been accepted by the Court. In the report of Andrew Hart, Senior Rehabilitation Counsellor …, the appellant offered uncontroverted evidence of the labour market in the Kempsey and South West Rocks area, with specific reference to the availability of positions, as suggested by the respondent's vocational expert which would be available for the appellant, bearing in mind his physical restrictions. That report noted … that the unemployment rate in New South Wales in February 201 was 6.7 percent whilst that in the Kempsey District was 13.7 percent. The video evidence that was shown depicting the appellant walking, driving a motor vehicle, attending a soccer game with his son, and having friendly conversations with local people within the South West Rocks village depict no more than a person who was attempting to get on with his life and cope as best as he can with the disabilities that he has. Evidence was given in the appellant's case by his wife Stephanie and another lay witness, Mr Gregory Dyson. Both of these witnesses gave evidence as to the appellant's pre-accident and post-accident level of activity … . In his judgment … his Honour accepts the testimony of both Mrs Stephanie Matthews and Mr Gregory Dyson. Dr Hopcroft gave evidence on behalf of the appellant … . When cross-examined as to the concessions made by the appellant in his evidence as to his ability to do things, the following evidence was given: 'Q. Were you here when I took him through his past career? A. Yes. Q. And you heard him admit that he could do many of those jobs now? A. Yes. Q. You don't agree with him? A. No, I do agree with him, I do agree that he can do it. I disagree that he can do it on a continuing basis and I must add that he will have symptoms arising from the deterioration and condition of his neck if he persists. Q. This is not speculation on your part? A. It is not speculation, this is derived from seeing injuries like this over many years deteriorate rapidly with relatively small lifting injuries, lifting manoeuvres.' … Evidence given by Dr Hopcroft specifically deals with the way in which the appellant gave his evidence under cross examination as to his ability to involve himself in the work place in the future. The picture that he paints is of a man who is hopeful and only 46 years of age and being able to do a wide range of tasks but in all practical reality will be severely restricted in his ability to hold down paid employment in the future. In his Honour's judgment … his Honour encapsulates the evidence of Dr Hopcroft, which does not paint a hopeful future for the appellant's employment prospects in years to come and suggests that by the age of 55, the appellant will be severely disabled. The appellant has resided in the South West Rocks area for a number of years. He lives there with his wife and three children aged 12, 10 and 6 and has resided there for 12 years. He is heavily involved in the community and his children are educated in the area. The appellant had work with the Kempsey Shire Council between 1990 and July 1998 at which time he was injured in the accident, which was the subject of these proceedings. It is unreasonable to suggest that the appellant should move to another area in order to try and obtain some employment, which would, in essence, be on the evidence most impossible for him to carry out with his physical restrictions. The Court has made no allowance for the increased costs of living in a more populated area than South West Rocks and there was no evidence offered whatsoever by the respondent as to the availability of work in other areas. Indeed, the only evidence in relation to the labour market was that offered by the appellant in the report of Mr Hart. The Court has also made no allowance whatsoever for the cost of relocation, re-training and of the appellant and his family reintegrating into another community." Written submissions of respondent 17 In written submissions the respondent submitted: "The appellant has suffered an injury to his cervical spine which causes some degree of ongoing symptomatology which would prevent him from carrying out heavy activities on a constant basis. He had one period of hospitalisation immediately after the accident at Dalcross Private Hospital for ten days … . There is no suggestion that the appellant will require further surgery or hospitalisation. He still suffers some degree of psychological problems, including episodes of depression. However, he has the physical capacity, as demonstrated in the video and on his own evidence, to carry out outdoor activities, such as mowing lawns, whipper snipping, washing and polishing his car, albeit it may take slightly longer. He can drive. His medication can be a couple of times a week or once a fortnight … . He no longer takes Zoloft which assisted him previously in relation to his psychological problems … . He has the capacity to carry out a range of clerical and management work in a full time position. He coaches or assists in coaching his son's soccer team once a week (during winter) …, he goes shopping and when he does with his wife he does all the packing and unpacking … . He is still heavily involved with Bush Fire Brigade activities as Captain, which includes attending upon and fighting bush fires for periods of three weeks up to eight hours a day. Since his accident he has become involved in and is Vice President of the Lower Macleay High School Establishment Committee which meets once a month. He is still able to go rock fishing with Mr Dyson, apparently for lengthy periods, albeit he has to have a bit of a rest from time to time … . … He was assessed by Colin Bass Human Resources Pty Ltd on testing of having intellectual potential to successfully complete post secondary and tertiary qualifications and was well suited to clerical/administrative training programs and other positions which have a significant clerical component and the capacity to successfully complete a wide range of vocational retraining programs … . The appellant believed that he has organisational skills and managerial skills as demonstrated through his work as being Captain of the Rural Fire Brigade …, being consistent with his other voluntary activities including the Tidy Town Committee … and Vice President of the Lower Macleay High School Establishment Committee … . There was considerable medical evidence which stated that the appellant was fit to carry out full time clerical and managerial type work … . The appellant since his accident has only made one formal application for work, that being in January 2000 as an environmental services clerk at the Kempsey Shire council. He has made some informal inquiries with his friends, attended Wesley Employment Agency but did not complete a form to be registered with same. He has not registered with Centrelink at any centre near to him or at all. He has not attempted retraining and appears to be more involved in his voluntary activities, particularly with the fire brigade. It is submitted that there is more than ample evidence, particularly on the findings made by his Honour in relation to the appellant's physical capacities, to come to the determination of the appellant having the capacity to rejoin the workforce in a clerical, managerial or similar capacity, which is the type of work he performed for a considerable period of his prior work life when assessing injury to future earning capacity. His Honour did not make a finding that it would be necessary for the appellant to move to a more populous area to find work. The fact that the appellant may be required to move to a more populous area to find employment is a factor which his Honour took into consideration in determining the quantification of the injury to the appellant's earning capacity. The appellant had not moved to South West Rocks until 1989/90. Before that time he lived in Sydney and Brisbane … . The appellant gave evidence that he would be prepared to relocate if it meant getting work … . The appellant's wife, Mrs Matthews, gave evidence that similarly she would be willing to move to enable the appellant to get work … . His Honour's statement, therefore, is in accordance with the history and stated intentions of the appellant and his wife in respect of finding suitable employment in the future. It is submitted when considering his Honour's assessment in relation to the sum allowed for future diminished earning capacity he did so on the basis that although the appellant was not fit for his pre-accident work or manual work he was fit to perform work which had constituted a significant part of his previous working life. The appellant had the intellectual capacity and skills to return to that work, but probably with some assistance by way of retraining. The wage rates set out in the report of Colin Bass Human Resources in suitable clerical type [work] were around $640 to $719 gross per week which were at least the equivalent, if not greater, wages than the appellant's pre-accident work situation … . It is submitted that the assessed sum of $80,000 for future diminished earning capacity is more than adequate allowance to take into consideration any difficulties the appellant may have in finding and maintaining suitable work in the future, being a sum representing approximately one-third of the appellant's future economic loss if he was totally and permanently disabled for any kind of work. Such allowance on his Honour's findings as to the capabilities of the appellant, his work history and intellectual capacity is an appropriate sum in respect of measuring diminished injury to the appellant's future earning capacity. It is also to be remembered that when assessing injury to earning capacity which applies equally in respect of the past and future, see Husher v Husher (1999) 197 CLR 138, his Honour has allowed the appellant's full loss of wages up to the date of trial, namely $62,422.90, notwithstanding the appellant has had a capacity to perform suitable work for a significant period of time up to the date of trial and had made less than enthusiastic endeavours to obtain suitable work or retrain himself to obtain suitable work." Oral submissions of appellant 18 In oral address the approach of the parties became more refined. 19 In the first place, the appellant abandoned his claim to the two-thirds figure as a percentage of a most extreme case and substituted 50-60%. 20 The appellant submitted that the crucial decision to be made by the trial judge was to resolve the medical issue found in the conflict between Dr Hopcroft and Dr Holland. Before a MRI scan was reported on on 28 March 2000, and at a time when only CT scans were available, Dr Hopcroft's opinion was submitted by the appellant to be "that the plaintiff had serious spinal changes, not only at the site of the fracture, which was at the second cervical vertebra, but also in those cervical vertebrae below it; that is, from C3 to C7/D1." The appellant submitted that those views were to be contrasted with the views of doctors such as Dr Holland, who examined the appellant on behalf of the respondent. 21 The MRI results were reported as follows: "The craniocervical junction defines normally. The fixation screws produce mild susceptibility artefact in the mid field system and alignment of the C2 fracture appears good. There is no evidence of any bone or soft tissue encroachment on the spinal canal in this region and no abnormal signal in the cord. There is disc thinning and desiccation at C3-4, C4-5, C5-6, C6-7 and C7/D1. There are spondylotic subligamentous disc protrusions at C4-5, C5-6 and C6-7 most marked at C5-6, C6-7 and C7-D1. The C7-D1 protrusion indents the central dural sac and lies close to the cord but does not deform the cord. The protrusions at C5-6 and C6-7 indent the dural sac. There is no abnormal cord signal. There is no marked narrowing of the intervertebral foramina." 22 After receiving that report, Dr Hopcroft said on 22 May 2000: "This patient's significant ongoing neck problems have now been reliably diagnosed by this MRI scan investigation, and it is obvious that along with the fracture of the C2 vertebra he has suffered significant problems of all his remaining cervical intervertebral discs with significant protrusion and indentation of his dural sac at the C5/6 and C6/7 levels." He adhered to that position thereafter. 23 Thus in oral evidence he said: "Q. Do you carry on a specialist general surgeon's practice in High Street, Taree? A. Specialist orthopaedic practice. Q. I think you have appointment to the Manning Base Hospital? A. That's correct. Q. And have had for many years? A. That's correct. Q. I think you carry out any orthopaedic surgery required in that hospital from motor vehicle accidents and the like on the Highway? A. Orthopaedic trauma. Q. Doctor you had the plaintiff in these proceedings referred to you by his solicitors, I think for the first time in March last year. A. That's correct. Q. And you can assume Doctor that your reports are in evidence before his Honour. I think you have had the benefit of reading the reports of Dr Sears as well, is that correct? A. Yes I have. Q. Can I just ask you a couple of questions in relation to the injury itself Doctor, he had a C2 body fracture? A. That's correct. Q. Which Dr Sears has described as an 'unusual fracture of the C2, down through the body of C2, it really looks like a rather anteriorly placed hangman's fracture', what level of force is required to fracture the body of C2, is it different to other cervical bodies? A. Well no it's not different to the other cervical bodies, but it is significant force and that can be answered by saying that it takes the weight of a human body dropped on a rope to break it, that's the sort of force that will break it. Q. You have sat through this afternoon's cross-examination of the plaintiff by Mr Murray? A. That's correct. Q. You have seen a film of some activities of the plaintiff? A. That's correct. Q. I think you're aware that he has since his surgery done on occasions, fairly heavy work with the local Bushfire Brigade and built some fences with friends and other sorts of activities. A. I understood he's done that, yes. Q. Doctor, first of all in relation to the film, did anything on the film cause you to change the views that you've expressed? A. No. Q. Do they support your views in any way? A. Yes. Q. How? A. Well it was quite obvious that the left arm moved quite out of synchrony with the right arm, he used his left arm significantly less than one would have expected him to use it under the circumstances when he was on the verandah. Q. What's the cause of that in your view? A. I think this is a natural protective reflex, when he was bending over, significantly flexed over doing the work on the ground or the flooring of that verandah, his left shoulder was starting to swing past about 40 to 50 degrees of abduction, which was really obviously restricted. Q. Is that related to his original injury? A. I believe it is probably significantly related to the injury yes. Q. And what do you mean by that? A. Well I believe that while those muscles involved in the left arm and the sensation of the left arm are not involved with the C2 fracture, that the MRI scan of his neck have shown significant changes below that and the significant changes are the indentation on the thecal sac, of the disc prolapses at two levels lower down, and those levels correspond to the musculature that is supplied by the nerves from those levels. Q. Doctor perhaps I'll come to that, you I think suggested that he undergo the MRI scan? A. Yes, I thought that it was important that that happen. Q. And the results of the MRI scan contained within your report and I think it's described basically as 'various disc type problems at levels below and in fact above the original injury'? A. Not above, all below, it was the C2 fracture, which harnessed everyone's attention, because that was the life threatening injury and the two major protrusions are between the 5th and 6th cervical vertebrae and then between the 6th and 7th. Q. Would you, bearing in mind that this man is now 46 years of age and last year was 45 when the MRI was undertaken, would you expect to find such changes in a man's neck with his work background? A. No. Q. What in your view is the cause of those protrusions that you mentioned? A. I think it has taken significant trauma on a neck which obviously had pre-existing changes before his C2 fracture and with such extensive spondylitic changes it usually takes even more force to cause such acute disc bulging. Q. If he was asymptomatic prior to the motor vehicle accident, even bearing in mind the degree of pre-existing degenerative changes that you've just spoken of, may he have remained asymptomatic until the age of 65 in any event, without trauma? A. Yes, may well have done so. Q. Doctor you've expressed some views in relation to his capacity for work, what in relation to physical work do you think he is presently or is presently contra-indicated? A. I believe any work that involves repetitive lifting of weights and I'd put a limit on that of 10 kilograms, any activities that involve repetitive flexion or forward bending of the head and neck or rotation of head and neck. Q. In relation to work, you've heard him I think a little while ago, accept that he – it was suggested that he could now do various jobs that he's done in the past, such as taking orders by phone, taking orders by letter, he wasn't asked for how long he could do those, but he accepted he could do them, do you see him having any problems now in relation to clerical type work? A. If you presume by that question that he's going to be in that job for protracted periods of time, like months at a time, I think this fellow would be totally unreliable, there'd be times when he would be having increasing symptoms of pain and headache from his neck and almost certainly increasing problems with his arm or arms from those disc protrusions. Q. Do you think he could, in relation to physical work, put in a full week's work, such as driving a tractor or doing lawn mowing work or that sort of thing? A. Well he'd be contra-indicated, it would be wise for someone to tell him not to do it, because the deterioration is irretrievable, he would be wise not to do it, he might try to do it, but he would break down fairly soon if he did. Q. In relation to clerical type duties, what sort of hours do you think he could – would not be contra-indicated? A. I don't believe he could undertake full time clerical duties involving forward flexion of his head and neck. Q. Do you believe therefore he could undertake part time duties? A. Yes. Q. To what level on a regular basis? A. Well he might be able to do some of the clerical duties in the Fire Brigade for an hour or two a day, yes. Q. Do you think he could put in a full day's clerical job on a continual basis? A. No I think he's demonstrated clearly that he can't sit still for an hour and that would be his retraining problem, he would be an unreliable person in that position. Q. Do you think he could do three or four hours a day clerical work? A. In segments he would probably cope with that without putting himself at risk. Q. Doctor, bearing in mind that he's now 46 years of age, what – and the changes that have been noted on the MRI scan that you referred him, is the present position likely to remain the same as he gets older or is it likely to change? A. No I think this man is inevitably going to see some third degree neurosensory deficit signs in his upper limbs, in other words he will have numbness and weakness becoming a permanent feature in his upper limbs in the future. Q. Does that mean your view as to his present fitness for work will change in relation to coming years? A. Yes. Q. And by the time he's 50 or 55, what do you see his ability to perform any sort of work to be? A. I would think by the age of 55 he'll be walking with a very rigid neck, with limited movement, he will have daily severe headache, he will have daily sensory changes in his upper limbs, which may be constant or variable, in other words the density of those changes may vary and I would think he certainly has no hope of working to the age of 65. Q. To any degree? A. Unless it is one of these menial chores, like an hour of clerical work here and there, where he literally gets out of his house to keep himself occupied, I can't see him being reliable in that sort of situation." 24 Dr Holland had not seen the appellant before the MRI. On seeing the appellant and looking at the MRI he said: "On looking at his MRI, which I think is the important one, there is certainly nothing that I can suggest that is pressing on his spinal cord or nerve roots. The major problem of course is on the left hand side at C2, perhaps involving C3. The other fairly minor degenerative changes commented upon, and I would accept the report because I am not a radiologist, I doubt are related to the accident, and I do not think they are significant anyway." 25 The appellant submitted that though the trial judge accepted Dr Hopcroft's evidence that there was a causal connection between the accident and the lesions below C2, he may not have appreciated that there was a causal connection between the accident and the symptoms. Dr Hopcroft had concluded that the appellant's capacity to work in future was very limited, and that conclusion rested not only on the C2 fracture but on the lesions below it. The appellant submitted that if Dr Hopcroft was right and the other doctors wrong in concluding that the extreme forces engendered by the accident not only caused the C2 fracture but also the lesions below it, it is strange that Dr Hopcroft's view of the significance of those lesions in causing the appellant's symptoms was not also preferred to those of the other doctors, who saw the appellant's symptoms as less serious. The appellant pointed out that Dr Hopcroft did not deny that the appellant could do various activities of a non-sedentary type, and could do various activities which are part of sedentary work: the problem was that it was foolish of him to do these things in view of the risk of harm they carried. In one respect these submissions represented a retreat from the appellant's written submissions: the written submissions contended that the trial judge had accepted the totality of Dr Hopcroft's opinions, whereas the oral submissions proceeded in accordance with what is unquestionably the case, namely that the trial judge accepted the opinions of Dr Hopcroft as to the causal connection between the accident and the lesions below C2, but not in relation to capacity to work. 26 The second major complaint of the appellant in oral argument was that the trial judge failed to appreciate the extent of the appellant's physical injuries and the likely effect of this on earning capacity. Though the trial judge allowed the appellant full recovery of economic loss from the date of the accident to the date of the trial, the figure of $80,000 for impairment of future earning capacity, ignoring costs of retraining and relocation, was only $145 per week after the normal 15% deduction for vicissitudes was made. That was about 27% of what was claimed. 27 Thirdly, the appellant submitted that if one assumed that to buy a house in Newcastle, Taree or Port Macquarie would cost the appellant $100,000 more than he would get by selling his existing house, the lost interest over the remaining 32.8 years of the appellant's life amounted to $49,211. If relocating cost $30,000, the appellant would have recovered nothing. Yet relocation was inevitable if work was to be obtained, because of the relatively high unemployment rate of 13.7% in South West Rocks and because an agency had told the appellant he had no chance of getting a job there. The appellant also submitted that relocation should not be required of him because, after a troubled youth, he had settled down, married, fathered three young children, and made a niche for himself in the community of South West Rocks. Further, his wife had a job as a teacher there. 28 Counsel for the appellant submitted that the appellant faced the following difficulties in obtaining employment: "What you are dealing with here is a forty-six year old man who has not done any clerical work for thirteen years, who has a fractured spine with resultant protrusions below that area, who has a childhood injury which gives him a less than perfect left hand. One would have to say he is not much of a catch for an employer … when he walks in the door and is asked, 'What was your last job', and he says, 'I haven't worked since June 1998 because I had a fractured spine' … ." 29 The appellant did not oppose the technique of selecting a buffer for future economic loss instead of a product of various weekly figures. But, in short, the appellant submitted that if one were to allow him a loss of $300 per week (ie assume that he could earn an average of $200 per week), that equates to $164,781 after allowing for vicissitudes of 15%, plus retraining and relocation costs if they were thought appropriate; if one were to allow a loss of $250 per week, his loss would be $109,854 plus retraining and relocation costs; if one allowed $30,000 for retraining and relocation and 15% for vicissitudes, the trial judge had only given the appellant $91 per week loss; and that an appropriate figure for the appellant's future economic loss would have been $175,000 instead of $80,000. The appellant submitted that the trial judge had placed too little weight on the best-qualified medical expert, Dr Hopcroft, and this had led him to reach too low a percentage of a most extreme case and to allow only "very little loss" in relation to earning capacity given that the appellant had suffered a serious C2 fracture, serious sequelae in the lower cervical spine, and recurring depression. The disparity was so great as to suggest that there was some unexpressed error in the trial judge's reasoning. Oral submissions of respondent 30 The respondent submitted orally that the trial judge could not be criticised for accepting Dr Hopcroft's evidence that there was a causal connection between the accident and the lesions below C2, but not accepting his evidence as to fitness for work. The findings were not internally inconsistent; they did not rest on any misunderstanding of Dr Hopcroft's evidence, but only on an acceptance of one part of it and a non-acceptance of another part. A judgment as to the effect on the appellant of his injuries turned in large measure on the trial judge's view of the appellant and of his activities as revealed in evidence, including the video evidence. The respondent pointed to the fact that the appellant had continued his activities with the Bush Fire Brigade, including fire fighting, traffic control and flood work over eight hour periods, albeit more in a managerial and training role than formerly; had continued most home activities, albeit at a slower pace than formerly; had supervised his son's activities at soccer; and on the video films revealed a capacity to unload objects from a truck, turn his head freely, move freely, and walk at normal pace. 31 It followed, the respondent submitted, that the appellant was no worse than 40% of a most extreme case. 32 The respondent pointed out that the appellant was not someone who had worked all his life as a labourer; much of his career had been taken up in training for or working in clerical and managerial positions, apart from the eight years before the accident with Kempsey Council. A psychological aptitude test had revealed that the appellant had the capacity for clerical work. The extent of any necessary retraining was diminished by his past training and experience; on the cost of retraining there was no evidence. Judicial notice could not be taken that relocating would cost the appellant money; he might make money. 33 The respondent pointed out that while the trial judge said that the appellant had "made some attempts to obtain employment", these boiled down to an application to Kempsey Council to be Environmental Services clerk (he was not granted an interview and was told he did not meet the relevant criteria), a visit to the Wesley Employment Service, informal inquiries of friends, and receipt of advice that employment opportunities away from South West Rocks were not much better than they were at South West Rocks. The respondent relied on the fact that only one application for a specific job had been made; on the fact that the appellant had not registered with Centrelink; and on the fact that the appellant had not attempted to obtain retraining. This history did not support a conclusion that no clerical work was to be found near the appellant's home. 34 The respondent also submitted that what was compensable was impairment of the appellant's capacity to earn, both before the trial and after the trial; that the appellant had been generously compensated in relation to the period up to the trial by receiving an award of $62,422.90, representing his full loss (together with past superannuation of $5,782.21): and that in assessing the adequacy of the award of $80,000 for the future, it was proper to remember that in truth the appellant had received nearly $150,000 for the period since the accident. 35 The respondent relied on extensive medical evidence, coming from both the appellant's doctors and the respondent's doctors, that the appellant was fit for clerical work. Indeed, while no doctor said he was fit for his pre-accident duties, Dr Hopcroft was the only doctor who denied that he was fit for non-physical work. 36 In short, the respondent's submission was that the trial judge was entitled to accept the evidence that the appellant was fit for clerical work, to rely on his past training and experience in non-physical occupations and to rely on the goodwill of employers to avoid the appellant being made to sit for lengthy periods in unsatisfactory postures, particularly since the trial judge found that there was no certainty that the appellant would have to leave the area where he lived, the appellant had failed to test thoroughly the local labour market, and the fact that retraining would not have to be extensive. To select the figure of $80,000, when the pre-trial recovery was taken into account, was not appellably erroneous. Conclusion The nature of the trial judge's task 37 While it is entirely possible that other minds might have arrived at a higher percentage of a most extreme case and a higher buffer for impairment of post-trial earning capacity than $80,000, decisions about the issues in a case of this type, with key areas of the evidence as they were, turn in considerable measure on matters of impression and degree, and on decisions which in a loose sense approach discretions. It is relatively difficult for persons in the position of the appellant to succeed in overturning a judgment like that under appeal, namely one which is lengthy, deals with much of the evidence, gives an appearance of care and thought, and proceeds from a judge of some little experience in the field. In my opinion, with respect to the careful and thoughtful submissions advanced on behalf of the appellant, the present challenge fails for the following reasons. What was the appellant's post-accident capacity? 38 First, the trial judge was entitled to prefer all other medical opinion to that of Dr Hopcroft on the issue of the appellant's capacity to perform clerical work. There was some force in Dr Hopcroft's view that the appellant's attempts at physical activity were dangerous, and some support in lay evidence that in the past the appellant suffered a bad reaction after those attempts. But these were matters which the trial judge took into account. The appellant's submission that Dr Hopcroft was a practising orthopaedic surgeon, while Dr Cook and Dr Holland were neurologists and Dr Bowers was a rehabilitation physician, did not by itself compel acceptance of Dr Hopcroft in all respects. Dr Sears was the appellant's treating neurosurgeon, and in an admittedly early report, he said that the appellant could return to most activities not requiring repetitive or forced rotation of his neck. Nor, contrary to an impression which the appellant's submissions gave, is it the case that Dr Hopcroft's capacities are supported by his having arrived at the causation theories which the MRI scan confirmed before it was made: in fact he did not propound any, saying only in his first report that an MRI scan was necessary in order to establish what damage the appellant's cervical spine had suffered. There is no perfect correlation between the proposition that severe force caused the damage below the C2 level and the proposition that that damage rendered the appellant almost totally unfit for work. Acceptance or rejection of the latter proposition depended on the appellant's own evidence, on lay evidence about the appellant, and on the videos. In addition, though the trial judge did not specifically mention Dr Bowers, the only medical expert apart from Dr Hopcroft to give oral evidence, by name, he would have noticed that a key element in Dr Bowers' evidence was not explicitly challenged in cross-examination. Dr Bowers said in his 29 November 1999 report that while the plaintiff was "unable to return to any type of physical work", he "has performed sedentary work in the past and he will be able to return to this type of work on a full time basis". He repeated that conclusion in evidence in chief. He said his opinion was not altered by the reports of Dr Boyce, Dr Hopcroft and others, nor by the videos. There was some cross-examination directed to establishing that some aspects of clerical work would cause complaints of pain, that the appellant's pain would slowly increase, causing his ability to work slowly to decrease, and that Dr Hopcroft's opinion as to the extent of change below the C2 level caused by the accident was correct, but there was no explicit or successful challenge to the proposition that the appellant was suitable for fulltime sedentary employment. Indeed, the following question, answered affirmatively, revealed an assumption on the part of the cross-examiner of the correctness of the evidence in chief: "It's one thing of course Doctor to say that the man is fit for certain forms of work, and a completely different thing for such a man to obtain such work?" 39 The appellant's arguments about the videos are difficult arguments to succeed in on an appeal. The trial judge saw the appellant give evidence in chief and in cross-examination; he also saw the videos. In SS Hontestroom v SS Sagaporack [1927] AC 37 at 47 Lord Sumner said of factual findings by trial judges after receiving oral evidence: "If his estimate of the man forms any substantial part of his reasons for his judgment the trial judge's conclusions of fact should, as I understand the decisions, be let alone." That is so in Australian law unless trial judges have failed to use or palpably misused their advantages. There is no suggestion that the trial judge in the present case was guilty of these errors. The assessment of the extent to which the capacity to enjoy life has been impaired when there is some conflict between different areas of testimony and between contemporaneous evidence from videos was pre-eminently a matter where the trial judge had to make an "estimate of the man". That estimate has not been demonstrated to be erroneous. The trial judge must be assumed to have taken account of all the medical evidence in the light of the lay and video evidence, and to have assessed each element in the light of every other element. It was thus open to the trial judge to accept Dr Hopcroft on causation of the condition of the appellant's spine, but rely on other evidence as to the effect of that condition on the appellant's capacity. What opportunities for work did the appellant have after the accident? 40 Secondly, though the trial judge was perhaps a little generous to the appellant in saying that he had "made some attempts to obtain employment", it cannot be said that the appellant had, by intensive and repeated but unsuccessful efforts to get a job, ruled out any reasonable prospect of getting clerical work locally, particularly in view of the fact that he appeared to have become a well-known, happy and useful member of society. That latter fact, of course, would disincline him to move. Both sides relied on the appellant's evidence that if he was likely to get work away from where he now lives, he was prepared to relocate, and on his wife's evidence that while it would be hard to move, if the appellant wanted to relocate and got a job, she would support him, come with the family and start afresh. The stance of the appellant that he would move to a job, but would not move merely on the chance of getting a job, and the corresponding stance of his wife, do not appear unreasonable. On the other hand, there was evidence that since unemployment was lower elsewhere, it would be easier to get a job elsewhere. But one great difficulty in the evidentiary picture before the trial judge was that it was not possible to evaluate either the difficulty of getting local work or the ease of getting work elsewhere in the absence of evidence that the appellant had put matters to the test in a practical way much more persistently than he had. The relevance of the appellant's pre-accident history 41 Thirdly, the trial judge was entitled to take into account, as he did, the appellant's history in clerical and managerial positions and to assume, as he apparently did in the absence of contrary evidence, that the expense of retraining would not be great. He was also entitled to treat the need for relocation as a possibility, not a probability. The relevance of the pre-trial award for economic loss 42 Fourthly, though the trial judge did not reason by saying that he was awarding $150,000 for the total impairment of the appellant's working capacity, any preliminary reaction against the award of $80,000 for the post trial period as being appellably low has to be tempered by the relative generosity of the award for the pre-trial period. 43 It has not been demonstrated that the trial judge made any significant error of law or fact, took into account any irrelevant matter, or failed to take into account any relevant matter. Nor has it been shown that the conclusions to which the trial judge came are so unjust as to suggest some concealed error of those kinds. In consequence, the appellant has failed to succeed in his challenge against the trial judge's decision that, serious though the appellant's injuries were, they did not rise above 40% of a most extreme case or render him so largely unemployable as to justify an award of more than $80,000 for impairment of future earning capacity. Orders 44 The following orders are proposed: 1. The appeal is dismissed. 2. The appellant is to pay the respondent's costs of the appeal. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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