New South Wales Court of Appeal CITATION : Hunter v Aubrey & 1 Ors [2003] NSWCA 236 HEARING DATE(S) : 2 July 2003 JUDGMENT DATE : 26 August 2003 JUDGMENT OF : Sheller JA at 1; Beazley JA at 2; Santow JA at 3 DECISION : Appeal upheld; ORDERS; (1) The verdict entered by the trial judge for the defendant be set aside; (2) The matter be remitted to the District Court for a re-hearing on damages; (3) The appellant to be paid the costs on appeal; costs in the court below shall be in the discretion of the judge hearing the re-trial. CATCHWORDS : DAMAGES - personal injury suffered in motor vehicle accident - whether qualifying under applicable thresholds of Motor Accident Act 1988 - damages for non-economic loss - damages for future economic loss - alleged exacerbation of injury by pre-existing condition and subsequent pregnancy. Judicial failure to have regard to certain evidence (principally medical) - failure to refer at all to appellant's explanation. Re-trial rather than substituted verdict LEGISLATION CITED : Motor Accident Act 1988 s70A; s79A(4) CASES CITED : Purkess v Crittenden [1965] 114 CLR 164 Corinne Gaye Hunter (Appellant) PARTIES : Jennifer Aubrey (First Respondent) Hunter Area Health Service (Second Respondent) FILE NUMBER(S) : CA 40819/02 COUNSEL : B M J Toomey, QC/ G R Graham (Appellant) M J Neil, QC/ G J Bellew (Respondents) SOLICITORS : Emery Partners (Appellant) Blake Dawson Waldron (Respondents) LOWER COURT District Court JURISDICTION : LOWER COURT DC M27/01 FILE NUMBER(S) : LOWER COURT Rein DCJ JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40819/02 DC M27/01 SHELLER JA BEAZLEY JA SANTOW JA 26 AUGUST 2003 Corinne Gaye HUNTER v Jennifer AUBREY & 1 Ors Judgment 1 SHELLER JA: I agree with Santow JA. 2 BEAZLEY JA: I agree with Santow JA. 3 SANTOW JA: INTRODUCTION On 31 December 1998 the appellant suffered injury, when the first respondent drove her employer's vehicle into the rear of the appellant's vehicle while it was stationary, as the appellant was waiting to make a right-hand turn. 4 The trial judge agreed that she had suffered damage but described it as from a fairly low-level soft tissue injury. He concluded that a subsequently observed C6 bulge in her spine was not caused by the accident so that any pain resulting from it was not a consequence of this injury. The trial judge placed considerable weight on her absence of complaint until five months after the birth of her third child, some 17 months after the accident. He also placed reliance on his interpretation of the medical evidence. None of it was, however, tested by cross-examination. The trial judge concluded that she failed to qualify under the applicable thresholds of the Motor Accident Act 1988 ("MAA"). 5 The first applicable threshold is that contained in s79A(4), precluding damages for non-economic loss unless the severity of that loss is at least 15% of the most extreme case. Second, there is the threshold in s70A, precluding damages for future economic loss or damages for diminution of future economic capacity. This is where the claimant has not satisfied the court there is at least a 25% likelihood that the claimant will sustain a future economic loss or that there is at least a 25% likelihood that the claimant will sustain a diminution of future economic capacity. 6 This appeal seeks a re-trial rather than a substituted verdict. It was accepted by the appellant that the court would need to have the benefit of observing the evidence for itself. It was common ground that when the trial judge entered a verdict for the defendant he was in error as the plaintiff had incurred out-of-pocket expenses of $3,346.46. It was common ground that the trial judge was bound to enter judgment in favour of the plaintiff for at least that amount. 7 The grounds of appeal centre upon alleged failure by the trial judge to have regard to certain evidence, principally of a medical nature, or misdirecting himself as to that evidence, being influenced by "significant matters" which were findings said to be against the medical evidence and the weight of it. It is said that had the trial judge not done so, he must have reached a different conclusion in regard to the relevant thresholds. This was in the regrettably familiar context where, upon matters of critical difference not capable of ready resolution without testing of the medical evidence, there was no cross-examination of any of the experts. It was also contended that the trial judge ignored, or gave insufficient weight to, the evidence of the appellant's treating general practitioner, Dr Booth. RESOLUTION OF APPEAL 8 The salient facts are not in dispute other than those pertaining to what the appellant contends were her injuries relating to the accident. The respondent contends that these injuries resulted from a pre-existing condition, perhaps exacerbated by the physical effort of carrying her third child after it was born, 18 months after the accident. 9 The appellant at the time of the accident was a relatively young woman aged 28 years and already mother of two young children born 1994 and 1996. Her third child was born 12 months after the accident, in January 2000. She had been employed as a shop assistant and then barmaid until shortly before the birth of her third child. 10 She complained that as a result of the accident in which she suffered a significant whiplash injury to her neck, she suffered the following injuries. A flexion extension injury to the cervical spine with bulging of disc at the C5/6 level, injury and contusion to the low back, seat-belt bruising, and wrenching of her right shoulder. These injuries are recorded by Dr Bracken, an orthopaedic surgeon retained on behalf of the appellant, in his report of 20 June 2000; quoted by the trial judge at [11] Red, 53). She also complained of relatively severe pain and headaches. In her Pt 9 r27(2) statement she listed her disabilities as follows: " DISABILITIES (a) Pain and restriction of neck movement. (b) Pain in the low back particularly with sitting. (c) Disturbed sleep. (d) Right arm pain with intermittent pins and needles in the arm and in the right hand and restriction of movement in the right shoulder. (e) Numbness in the right dominant arm. (f) Headaches. (g) Dizziness. (h) Inability to fully attend to childcare and household duties. (i) Anxiety when travelling in motor vehicles. (j) Inability to undertake activities with right arm above shoulder height." Her treating doctor, Dr Booth, and the various experts provide further elaboration and I look at their evidence more closely below. 11 The appellant visited the local hospital following the accident at the suggestion of her general practitioner, so that she should have a blood test to establish she had not been drinking. The notes at the hospital indicated that she had a mild ache in her right shoulder but had a full range of movement. The MRI scan revealed a "small right para-central disc protrusion at C5/6 which compressed the anterior theca but does not significantly compromise the AP diameter of the spinal canal. No foraminal stenosis or nerve root effacement. There is a mild disc bulge at the C3/4 level on the left"; judgment [8] Red, 53. 12 It would be wrong to describe the accident as trivial. The appellant was, as I have said, in the stationary car which was a four-wheeled vehicle. She was struck from behind by the car driven by the first respondent at some 60 kph (AB, 132 entry of Dr Booth in her clinical notes for 31/12/98). 13 The clinical notes of Dr Booth contemporaneous with the accident start with those for 31 December 1998 as follows: "1.20 – MVA [motor vehicle accident] today: 12.25, stationary vehicle hit from behind. - 60 kph. Sore lower back and neck, whiplash. ROM [range of movement] back - decreased flexion. Pain in neck almost normal ROM. Try ice, Nurofen." 14 Then on 4 January 1999 the clinical notes of Dr Booth record: "4/1/99 Back settled. Ache R arm, R side neck was stiff. Went to work. 100/50. Neck ROM N [normal]. Back N ROM. Continue exercise. Thrush-canesten." 15 What is significant in the above entries, as the appellant submits, is the record of lower back pain and neck pain from whiplash injury. While four days later that is qualified by the entry on the 4th January 1999 "back settled", there is still a recording of an ache in her right arm and that the right side of her neck was stiff. 16 It was significant to the trial judge that there was no apparent further complaint to her treating doctor until 29 June 2000. This was some 17 months later when she sought treatment for her neck and shoulder, and five months after her third child was born. The entry in her treating doctor's notes records the following: "29/6/00 Headaches behind left ear. 5½ months post; 115/70. Whiplash 18/12 ago. Pain R supraspinatus with ironing. Plan: neck exercises, mobilisation, Nurofen." 17 Entries for earlier visits make no mention of any apparent effect from the accident. Reference is made to a locked left knee from an earlier incident when she was aged 16 and to a sore tailbone. Neither were related to the accident. 18 The appellant, however, did seek to explain her absence of complaint. She did so by affidavit of 19 October 2001 (AB, 126) to which no reference was made at all by the trial judge. She refers to continuing to experience neck pain radiating across to her right shoulder and into the right arm, headaches, and increased pain once the third child was born. She said that when the baby was resting on her right arm "it was really very painful". I should quote the relevant parts of the affidavit. They bear upon the appellant's statement of her condition and why she did not do more about it, attributing this to her pregnancy, her husband away and she being so busy at work and with a young family (AB, 126-7): "4. In about March of 1999 I became pregnant with our third child. That child was born on the 23rd January 2000. My position throughout 1999 was thus that I was, with the exception of a limited number of weeks, a pregnant sole parent with two children to care for. In addition, I had casual work as a bar attendant at the George and Dragon Restaurant in East Maitland. I continued with that work through until September 1999. 5. …. 7. Throughout 1999 and up to the time of the birth, I continued to notice neck pain which radiated across to my right shoulder and into the right arm. I also noticed headaches. To some extent, I put the various aches and pains down to my pregnancy as my experience before had been that one can get various problems during the course of a pregnancy. Apart from that, I was just so busy with work and looking after the family that I kept saying to myself "Switch it off, it will go away." 8. Once our third child was born, I began to notice increasing problems. I particularly recall that when I was breast feeding with the baby resting in my right arm, it was really very painful. The other thing that I noticed was that when I was carrying her in a sling on my right side, I had quite a bit of pain. This did begin to worry me as I never noticed anything like this with the other two children. 9. The final problem that sent me back to the doctor was that I was getting really bad headaches. They were in fact so bad that I was concerned that I had some significant brain problem. 10. I thus went back to my doctor on the 29th June 2000. I returned to see her on the 24th July, 28th August and 8th September. On that latter date I was told by Dr Booth that a CT scan showed a small bulge of the C5/6 disc. Annexed hereto and marked with the letter "B" is a true copy of the notes of my general practitioner which show the entries for the 29th June through to the 8th September 2000." 19 It is important to emphasise that, by the trial judge's failure to refer at all to the appellant's explanation, he failed to engage with evidence capable of reducing the weight to be given to her absence of complaint. It was not implausible that she was experiencing pain. But at the time of her pregnancy she attributed it to the problems one might experience during the course of pregnancy, given that she was so busy with work and looking after her young family with her husband away. Her evidence was that she endured the pain in the hope that it would go away. This still leaves the question, to what extent did other evidence either support or detract from the appellant's subjective account of her symptoms and how she dealt with them? 20 I should go first to her evidence in examination in chief which was consistent with her affidavit evidence. She had pain symptoms for sore neck extending into the top of the shoulder and also had an aching lower back. But she did not see a physio "because I had a fair bit on my plate and I just thought it would go away with time" (T, 13). Her husband was away for most of the time and she was at home with two small children. She was working two shifts going down to one shift just before she left her job (T, 14). Her account continues that she experienced stiffness lifting her left hand up towards her right shoulder but "sometimes thought it was due to the pregnancy… like you know your body changes" (T, 14). 21 Her evidence then was to the effect that after the birth of her third child she developed severe headaches and feeling sore in her neck, went to see her treating doctor (Dr Booth) to see what was wrong. She did so after experiencing that it really hurt her when she put into and carried her young child in a sling (T, 15). The following question and answer seeks to explain her tardiness in going to Dr Booth: Q. When you say that's when you went to the doctor did you do that straight away or did you leave that for some time? A. No I didn't do it straight away because I was at home. I was just sort of trying to cope with life and switched that off, that was – I had really lots of things on my plate at the time. It's when it got really bad that I thought something is wrong." 22 She also gives evidence that during this latter time she was trying to do all her normal housework as well as looking after her children but that she couldn't iron as it "really aggravated the shoulder" and in answer to the question, "Who's been doing the ironing for you?" she replied, "my mother" (T, 16). 23 Again, none of this evidence is referred to by the trial judge. But it is referred to by Dr Sekel, one of the experts. 24 It is necessary to consider more closely the medical evidence, particularly as it related to the disc protrusion at C5/6 and whether that was a pre-existing condition. There is also the injury to her shoulder to which I have earlier referred. The trial judge posed the question in these terms: "21. If the condition caused by the motor vehicle accident settled down either completely or sufficiently for the Plaintiff to require no medical attention for more than a year the question then arises: was the subsequent pain experienced a result of labour and carrying of the infant, solely or did those activities re-ignite an existing problem caused by the motor vehicle accident which now did not resolve when the carrying of the infant ended?" 25 I should add that he did not add a third possible question, namely did the accident exacerbate a pre-existing problem so as to bring into play the principles in Purkess v Crittenden [1965] 114 CLR 164 at 165. That is to say, "Where a plaintiff has by direct or circumstantial evidence, made out a prima facie case that incapacity has resulted from the defendant's negligence, the onus of adducing evidence that his incapacity is wholly or partly the result of some pre-existing condition or that incapacity, either total or partial, would in any event, have resulted from a pre-existing condition, rests upon the defendant." Per Barwick CJ and Kitto and Taylor JJ. 26 I should say that no appeal ground or argument was directed to the principles of Purkess v Crittenden. In the way I see this case, it is not necessary for me to explore that aspect further. 27 I turn now to the medical evidence starting with the way in which the trial judge summarised it: "22. Dr Sekel explains this as a possible temporary exacerbation of 'pre-existing minor adhesions', (p6) arising because the Plaintiff was, on her account, lifting up her arms. Dr Reece, Dr Milder and Dr Bracken rely on the disc protrusion at C5/6 level as being the source of the problem. These doctors do not explain why the disc problem did not cause the Plaintiff significant concern in the period before the third child was born. Dr Sage (whose report, I have noted, was tendered by the Plaintiff) thought the bulge was highly likely to be unrelated to the accident and Dr Harvey was of a similar view as was Dr Korber and inferentially Dr Sekel." 28 I should clarify that the reference to "this" in the trial judge's summation of medical evidence is evidently a reference back to the "neck or shoulder" condition referred to in [20]; see Red, 58. 29 So understood, but also taking into account the evidence regarding disc protrusion at C5/6, there are considerable difficulties in the way in which the trial judge summarised that evidence. I start with Dr Bracken's evidence as contained in his report of 20 June 2001. This report was of his examination of the appellant some 18 months after the accident. He clearly concludes that "as a direct result of the accident that occurred on 31 December 1998 this woman suffered a significant whiplash injury to the neck which has resulted in a significant central posterior disc protrusion at C5/6 level"; AB, 161. 30 Dr Bracken then deals with the consequence of that disc protrusion from the whiplash, concluding, "there is no evidence that this disc protrusion irritates nerve roots but it does cause significant general restriction of movement in her neck associated with pain predominantly at mid-neck level and to a lesser extent in the right trapezius" (AB, 161-2). Importantly Dr Bracken accepts that disc protrusion caused the appellant pain, though it did not irritate the nerve roots. 31 He then deals separately with the injury to her right shoulder and in that respect the trial judge's summation of the significant matters which he took into account, totally ignores that evidence, making no mention of her shoulder injury. I quote again from Dr Bracken's report concerning her suffering a "significant capsular injury at the shoulder joint" and its effect: "In addition it seems certain on the balance of probabilities that at the time of impact she did wrench her right shoulder. The conditions found at her right shoulder are not of impingement type or rotator cuff type but indicate that she suffered a significant capsular injury at the shoulder joint which restricts terminal movement in forward flexion and abduction and it seems probable that there is some somatic referral of pain to the forearm from the shoulder joint." 32 The trial judge is clearly aware of Dr Bracken's evidence in his report as the trial judge actually quotes a section at [11] (Red, 53). Dr Bracken concludes by making reference to her significant residual disability in these terms: "That having been said it is evident that following the significant course of physiotherapy she has significant residual disability. As she presents on 20 June 2001 there is now present as a direct result of the accident of 31 December 1998 permanent impairment of her neck equivalent to 13% of total value thereof. There is now present permanent loss of efficient use of the right arm at and above the elbow joint taking into account all disabilities present in the right arm equivalent to 10% of total value thereof. There is no indication that any surgical treatment is needed in respect of her neck or right shoulder. Any further treatment will be conservative in the form of medical and physical therapies as needed. In respect of her future working capacity it is my opinion that she will in future be fit for work requiring use of her right arm below chest level only and in which she is not required to lift more than 8kg with the right arm and any such lifting must be intermittent." 33 This evidence has particular significance. This is because of what the trial judge says first at [22] (Red, 58). There Dr Bracken is said to rely on the disc protrusion at C5/6 level "as being the source of the problem" (meaning from the context the pain she was experiencing). But it is quite apparent from Dr Bracken's evidence that the source of the problem as he saw it was not only the disc protrusion at C5/6 but also the shoulder injury to which I have earlier made reference. 34 But more significant still is the trial judge's conclusion by way of summing up as to the significant matters that influenced him. Thus at [29(2)]: "(2) the fact that a number of the medical experts in the case including Dr Sage were of the opinion that the C6 bulge was not caused by the accident a view which I accept on the evidence. If that bulge is responsible for such pain as the Plaintiff complains of , as Dr Reece and Dr Bracken opine then any disability which exists is not established to result from the accident." [emphasis added] 35 Quite clearly Dr Bracken did not opine that the bulge was responsible for such pain as the plaintiff complains of, as I have just explained. That pain is also attributable to the shoulder injury. With respect, the trial judge appears to have overlooked this. 36 I turn next to the evidence of Dr Reece. She should have been more accurately described as one of the appellant's treating doctors rather than as "retained on behalf of the plaintiff to express her opinion" (at [10]). Her report recounts the appellant's history of post-accident pain as recounted to her. Her report identifies "generalised weakness and discomfort in the right shoulder" and notes that "there was radiation of pain down her arm on examination of the shoulder joint"; AB, 155. She also refers to the disc bulge at C5/6 and the x-rays and diagnostic tests that she has done. Under "Diagnosis" Dr Reece said that "she had mild right sub acromial bursitis and irritation of the C6 nerve root from the C5/6 disc degeneration". Under "Prognosis" it is said that "she will probably still have problems with this right arm with some weakness for some period" though "still improving". Under "Opinion regarding permanent impairment" it is said that she would suffer a permanent impairment of her neck at 10% with uncertainty as to whether she is going to "end up with permanent impairment of the right arm". Importantly, Dr Reece stated "I believe the injury sustained in the motor vehicle accident on 31 December 1998 did not aggravate a previous condition but was the beginning of the problems with her cervical spine and right shoulder"; AB, 156 [emphasis added]. Again, that evidence is not, with respect, entirely fairly summarised by the trial judge (at [22]) in saying "Dr Reece ….. rely on the disc protrusion at C5/6 level as being the source of the problem". As the emphasised portion makes clear, Dr Reece is referring to problems attributable to the accident not only with her cervical spine but also her right shoulder. 37 I should refer, finally, to Dr Milder being the third in the trio of experts who is a consultant neurologist. His report of 16 April 2002 refers to MRI scans of the cervical spine evidencing bulging both of the C3/4 intervertebral disc and a posterior protrusion to the right of the mid-line of the C5/6 intervertebral disc; AB, 165. 38 His opinion appears at 166: " OPINION I feel Mrs Hunter has sustained lumbar and thoracic soft tissue and ligamentous injuries. The possibility of an annular tear or protrusion of a thoracic intervertebral disc is suggested. She appears to have sustained trauma to the C3/4 and C5/6 intervertebral discs, possibly resulting in irritability of the right fifth and/or right sixth cervical nerve roots. She suffers migrainous headache, that is post-traumatic. Numbness and paraesthesiae within the fingers of the right hand may be due to carpal tunnel compression of the right median nerve. Should this be the case, it is unrelated causally to the accident. OUTLOOK The outlook is uncertain. A reduction in lumbar, thoracic and cervical pain may take place with the use of appropriate analgesic and anti-inflammatory medication and physiotherapy. Her headache may diminish with appropriate prophylactic and analgesic medication. Nevertheless longstanding tendencies to lumbar, thoracic and cervical pain may remain. A predisposition towards the accelerated development of cervical spondylosis is likely to result. A longstanding tendency to headache may remain." 39 I turn now to Dr Sage's report. This was in fact tendered by the plaintiff though obtained by the insurer. It is cited by the trial judge as concluding that "the bulge was highly likely to be unrelated to the accident". 40 Dr Sage, a neurosurgeon, concluded that the disc bulge at C5/6 "is probably degenerative bulging rather than bulging from the accident". He stated that insofar as it is relied upon as evidence of what happened to her after the accident (meaning the pain) "this could be chronic and unrelated and I think that is highly likely". 41 He observed "this [disc bulge] could be related to the birth of the child and will possibly lessen as the child gets older and more independent". But there is one serious difficulty with his evidence. In answer to the question "Has the accident been a substantial contributor" he says "Yes" (AB, 218). One simply does not know what to make of that answer in circumstances where there has been no cross-examination of Dr Sage. Again, the trial judge makes no reference to this apparent contradiction. 42 To add to the confusion, under "Impairment Assessment", in his further report of 19 October 2000 Dr Sage concludes that, as to the neck, the disability "is mild and would equate to a 3% whole person impairment" and as to the right arm, again that "it is mild and would equate to a 3% whole person impairment"; AB, 219. Finally, there is a reference to the coccyx, said to equate also to a 3% whole person impairment. But it is clear that the accident was not responsible for any injury to the coccyx. When therefore he concluded that "there is a 9% whole person impairment" stating that "the above would be net to the accident", it is difficult to know what to make of such a conclusion without the absence of cross-examination or other explanation. 43 I turn now to Dr Harvey who concluded under "Diagnosis" that the patient may have suffered soft injuries to the neck and lower back (AB, 230). Then, under "Further Comment" he said this: "I note the minor disc pathology seen in the CT and MRI scans. I don't believe that this pathology has any clinical relevance. It certainly would not explain the patient's widespread complaint of pain in the various parts of the spinal column. I believe that the changes are degenerative in nature and not the result of trauma. It has been shown that if one does MRI surveys in the normal asymptomatic community changes such as this are a common finding. Their significance can only be determined on clinical grounds. One would not expect a traffic accident of this magnitude to cause any permanent physical impairment in a healthy young individual such as this. I don't consider that her present symptoms have any basis in physical disease. Certainly the widespread complaint of pain which extends down the whole length of the spinal column is quite unlike what one would expect to find following spinal trauma. Normally when a patient experiences spinal trauma one or two areas of the spinal column take the brunt of injury and the tenderness and pain is more localised." 44 I turn now to consider Dr Korber. He, unlike Dr Harvey, is wrongly quoted by the trial judge as concluding that the "bulge was highly likely to be unrelated to the accident" (at [22]). Instead as is clear from the quoted opinion below, Dr Korber thought it was equally possible that the C5/6 disc protrusion was or was not responsible for the pain: " OPINION : There is a relatively small posterocentral disc protrusion at the C5/6 level. This is a common level at which disc abnormalities occur. It is a matter for clinical determination as to whether this lesion explains the patient's right arm pain. It is my experience but not my expertise to suggest that is probably does not as there is no neurological compression of right sided structures. It is possible that this could be post traumatic but likewise it could also be degenerative in nature." 45 Next, I should refer to Dr Sekel who noted a "previous tear of some of the muscle fibres that have subsequently healed with adhesions in her right trapezius muscle at the base of the neck"; AB, 225. 46 Dr Sekel's evidence first noted that "for the past one year Mrs Hunter's mother has done all of her ironing for her". But he then said, in somewhat contradictory fashion: "She remains fit for all of her normal housework and caring for her children, although it is reasonable to accept that she does have discomfort in the right suprascapular region when holding her baby for lengthy periods, and does have discomfort when attempting to iron with her right hand (she is right handed). These symptoms may persist indefinitely ." [emphasis added] 47 As to her employment capacity generally, Dr Sekel stated that, "Mrs Hunter would have long term difficulty performing work which involves frequently raising her right arm above shoulder height. For most jobs, this is not a necessary manoeuvre. She would be able to return to her various previous jobs as a shop assistant, seamstress and bar attendant." (AB, 225) 48 Here the trial judge interpreted Dr Sekel as "inferentially" supporting that the bulge was highly likely to be unrelated to the accident. That is a fair summation. 49 It is necessary now that I return to the various matters relied upon as significant for the trial judge's conclusion. He concluded that he was not persuaded "that the plaintiff has suffered any significant impairment as a result of the accident and certainly not an impairment which would be equivalent to at least 15% of the most extreme case". He similarly was not persuaded "that the plaintiff's earning capacity has been affected as a result of the accident or there is at least a 25% likelihood that it will be or at least a 25% likelihood that she will sustain a future economic loss". I have referred to several matters which, cumulatively, militate against that conclusion or deny it a sufficient basis. Thus there are medical experts who have been cited by the trial judge in his reasons, contrary to what they actually concluded. Then there is the difficulty, recognised by the trial judge, from the fact of there being no cross-examination of the medical experts or the treating doctor. Then there is the reliance on the admitted absence of treatment after 4 January 1999 for 17 months after the accident. But the adverse conclusion drawn by the trial judge from that fact takes no account at all of the appellant's own affidavit and examination in chief where she gave a not implausible reason for that inaction, to which I have earlier made reference. 50 Finally, I should note that the trial judge did not make reference to the evidence of Dr Booth that the plaintiff had been prescribed with neurontin/gantin for her chronic pain in her neck and right shoulder. That is, by itself not so significant, but adds to the other matters. 51 I should then refer to the remaining matters relied upon for the trial judge's conclusion, taken from judgment [29], Red, 61: "(6) the fact that the Plaintiff continued work after the accident and has not sought work since the birth of her third child, notwithstanding that even on her evidence she did not know whether she would be affected in any work of the type she had been performing before the accident leads me to doubt that the accident has caused any impairment to her earning capacity. (7) the fact that the Plaintiff engaged in work at her house which was not of a type likely to be performed by a person with a continuing shoulder problem or at least one which would be an impediment to her obtaining work. (8) In answering questions in cross-examination I was left with the impression that the Plaintiff was concerned about the extent to which she had been observed doing things which were inconsistent with her claims to be unable to undertake various activities because of her injuries, and I did not have confidence in the Plaintiff's account of her incapacity. (9) It is clear that there has been problems in the Plaintiff's relationship with her husband and the fact that she has had three children to look after often without the assistance of her husband has no doubt led to an increased domestic work load at home which has brought assistance from her mother but I am not persuaded that any of the assistance arises from the Plaintiff's incapacity due to the accident. No adequate medical explanation has been given as to why the sort of work the Plaintiff's mother was performing could not be done by her but the type of work she was performing in the garden and yard could be. (10) the evidence about her present possible incapacity for work was unconvincing, particularly given her explanation for not having returned to work." 52 The appellant's capacity to work after the accident is an issue. She suffered a post-accident inability to lift her arms above the shoulder for the frequent lifting her bar job required, because as a barmaid she would need to lift bottles above her shoulder to place onto shelves. 53 Much was made of the work she did in house renovation. But a fair consideration of her lacquering doors (T, 41), gardening (T, 55), giving due recognition to the advantage of the trial judge in observing the witness, does not render the matters in (7) and (8) sufficient of themselves to justify the conclusion reached by the trial judge. 54 As to her mother's domestic assistance, particularly as regards ironing, there is no obvious justification for what is said by the trial judge under (9) above. I refer here to the observation that there was "no adequate medical explanation …. given as to why the sort of work the plaintiff's mother was performing could not be done by her but the type of work she was performing in the garden and yard could be". Indeed the respondent's expert, Dr Sekel, refers to her mother doing the ironing and makes no mention of any inconsistency between that difficulty with housework and what she was supposed to have done in the garden and yard. CONCLUSION AND ORDERS 55 I have concluded that the instances where the medical evidence has not been properly taken into account by the trial judge, coupled with the other difficulties to which I have made reference in the reasons, are sufficiently significant as to undermine the conclusions he reaches that the relevant thresholds under the MAA could not be met. I consider that the appeal should succeed and a new trial ordered. I would propose the following orders: (1) That the verdict entered by the trial judge for the defendant be set aside. (2) That the matter be remitted to the District Court for a re-hearing on damages. (3) The appellant to be paid the costs on appeal; costs in the court below shall be in the discretion of the judge hearing the re-trial. ********** Last Modified: 09/02/2003 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.