New South Wales Court of Appeal CITATION : Wilkinson v Campton [2003] NSWCA 325 HEARING DATE(S) : 8 October 2003 JUDGMENT DATE : 13 November 2003 JUDGMENT OF : Meagher JA at 1; Tobias JA at 2; Foster AJA at 68 DECISION : Appeal to be dismissed with costs CATCHWORDS : NEGLIGENCE damages quantum - ND LEGISLATION CITED : Supreme Court Act, s75A Motor Accidents Act 1988, s70A para 35, s79A Dunn v Firth (2003) NSWCA 280 CASES CITED : Agbaba v Witter (1977) 51 ALJR 503 State Bank of NSW v White (1995) 36 NSWLR 622 PARTIES : Michael Wilkinson Mathew Geoffrey Campton FILE NUMBER(S) : CA 41094/02 COUNSEL : A: Mr J Guihot R: Mr J D Hislop QC / P Maiden SOLICITORS : A: Hunt & Hunt, Newcastle R: MBT Lawyers, Coffs Harbour LOWER COURT District Court JURISDICTION : LOWER COURT DC 131/00 FILE NUMBER(S) : LOWER COURT Rolfe, J JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41094/02 DC 131/00 MEAGHER JA TOBIAS JA FOSTER AJA 13 November 2003 MICHAEL WILKINSON v MATHEW GEOFFREY CAMPTON Judgment 1 MEAGHER JA: I agree with Tobias JA. 2 TOBIAS JA: This is an appeal from a decision of his Honour Judge Rolfe of the District Court who, on 8 November 2002, awarded the respondent damages in the sum of $219,136. The proceedings arose out of a motor vehicle accident, which occurred on 19 February 1999 when the respondent was a passenger in a four-wheel drive vehicle driven by the appellant. 3 The existence of a duty of care and a breach of that duty was admitted. However, the appellant pleaded contributory negligence on the part of the respondent and there was a significant contest with respect to the damages to which the respondent was entitled. The primary Judge found that there was no contributory negligence and although two of the grounds of appeal related to that finding, the issue was abandoned in the appellant's written submissions. Accordingly, the appeal related only to the quantum of damages awarded by the primary Judge. The facts 4 The respondent was born on 8 May 1980 and was 22 years of age at the time of the trial. Although he obtained his Higher School Certificate, he was not interested in pursuing a tertiary education with the consequence that, after leaving school, he had to find work as a labourer. 5 At the time of the accident he was a casual service assistant employed by Coles. After the accident he was unable to work for a short time but being a person who was, as the primary Judge found, "fairly determined" he became bored with being on sickness benefits and was keen to return to the workforce. He initially began to assist his father who was building his house although he undertook light work at that time. Notwithstanding the fact that he was still experiencing considerable discomfort from the injuries received in the accident, in or about October 1999 the respondent obtained work as a brickies labourer. In about March 2000 he obtained work as a concrete labourer in connection with a certain road works contract, which ultimately expired. He then obtained employment as a concrete finisher and this lasted from approximately March 2000 to October 2001 when he had time off work as the result of an accident when he fell off the back of a truck when on a goat shooting expedition with friends. 6 In January 2002 he obtained further employment as a concrete renderer, which continued until he commenced work with Brambles on 31 October 2002. At the time of the trial he was the driver of a Triple 7 100 tonne dump truck at a goldmine near Orange. Although he was only on a six month contract he was hopeful of renewing it and continuing that form of employment. He was also interested in driving bulldozers. 7 The primary Judge found that the respondent was a very truthful and honest witness. He was also of the view that the respondent underplayed the extent of his injuries and disabilities. According to his father, whose evidence the primary Judge accepted, this was because he was not a complainer but was a young man who was intent on getting out into the community and working: his attitude was "she'll be right, Dad". The respondent also said that he was not in the least bit interested in receiving the dole. There was no challenge by the appellant to these and other credit based finding. 8 As a consequence of the accident the respondent suffered injuries to his neck and lower back. He was admitted to Coffs Harbour Hospital where a neck brace was applied but he was discharged the following day. He experienced severe pain in his neck and particularly in his back, the former causing him to suffer headaches, which ultimately receded although his neck pain remained. At the time of trial his neck was not so painful but the respondent said, and the primary Judge accepted, that his lower back had always been painful since the accident. It was extremely painful for the first nine months after the accident after which it improved slightly due to the respondent undergoing intense and regular physiotherapy. In particular he was only able to work as a brickies labourer because he had physiotherapy three times a week. 9 The respondent ultimately ceased physiotherapy as he had been shown a series of exercises to perform and he was diligent in adhering to his regime. As a consequence of his discipline, which the primary Judge regarded as "commendable", he was able to continue to undertake employment. Nevertheless, the primary Judge accepted the respondent's evidence that when he was performing physical work he was generally in pain which became worse at the end of each day and that he would wake up in the mornings stiff and in pain. In order to obtain some relief from the pain it was necessary to ensure that he performed his exercise routine and to undertake a hot shower in order to keep mobile. He was also able to relieve the pain by swimming. 10 The respondent further said, and the primary Judge accepted, that when he was performing concrete labouring he still experienced pain. The extent of this varied depending on the particular job that he was undertaking. For example, when he drove a Bobcat he was thrown around and that caused him quite a deal of pain, which was excruciating on occasions. The primary Judge found that the respondent was not a person who exaggerated and he thus accepted his description of the impact which his employment had upon him. 11 As I have noted, at the time of trial the respondent had recently undertaken employment by Brambles, driving what he referred to as a Triple 7 dump truck at a goldmine near Orange. This was a relatively new vehicle that had power steering and, according to the respondent, was easier to drive than the family car. It had an air-conditioned cabin and a special driver's seat, which was designed to absorb shock. The respondent said that although he was still in pain when driving this vehicle it was less than when he was working as a labourer. He indicated that it was his intention to continue to drive such a vehicle and, if he could afford it, to attempt to obtain licences to drive various other machines of a similar type. 12 Although at the time of the trial the respondent was required to work 7 days a week for 11½ hours per day, this was interspersed with two periods of rest. He was asked how his back was at the end of an 11½ hour shift and he replied "pretty crook". As I have indicated, the primary Judge accepted the evidence of the respondent in all its aspects and, in particular, with reference to the extent of the pain and discomfort that he suffered in the various jobs he had undertaken since the accident. So far as his current job at the time of the trial was concerned, the primary Judge considered that it demonstrated that the respondent was a person with initiative. 13 The respondent also gave evidence as to his non-employment activities. Prior to the accident he had been a very keen sportsperson but, due to his injuries, had given up playing rugby league. Apart from hunting pigs, he swam, surfed and played golf. However, since the accident he was only able to bodysurf and was unable to use a surfboard because paddling hurt him "a fair bit". The primary Judge found that, notwithstanding his disability, the respondent engaged in sporting activities but his assessment was that he was unable to do so to the same extent as before the accident. The primary Judge's assessment of damages 14 The primary Judge acknowledged that the respondent's claim for non-economic loss was required to be made in accordance with the provision of s 79A of the Motor Accidents Act 1988 (the Act). Section 79A(4) provided that no damages could be awarded for non-economic loss unless the severity of the non-economic loss of the injured person was at least 15% of a most extreme case. At the trial, the appellant submitted that the severity of the non-economic loss sustained by the respondent was 20% of a most extreme case. For reasons to which I shall advert below, the primary Judge assessed the respondent's non-economic loss as 33% of a most extreme case. This translated into an award of damages for non-economic loss of $101,970. The appellant has mounted vigorous challenge to this assessment. 15 So far as the economic loss sustained by the respondent was concerned, the primary Judge rejected a claim by the respondent that he had suffered a 30% loss of capacity which, on the basis of his earnings of between $600-$800 net per week, assuming a retirement age of 65, applying a discount rate of 5%, and allowing 15% for vicissitudes, would result in an award the respondent for future economic loss of between $143,000 and $192,000 together with superannuation in the order of $47,000. However, his Honour considered that it was more appropriate, as the appellant had submitted, to award the respondent a buffer or cushion which he then determined in the sum of $95,000 including an allowance in respect of superannuation. The appellant submits that that sum was outside the range of amounts which might have been awarded contending that the appropriate range for such an award for diminished earning capacity was between $20,000 and $50,000. 16 Apart from amounts which are not disputed, the primary Judge also awarded the respondent $18,500 for future expenses being $14,000 for future physiotherapy and $4,500 for the cost of annual reviews by a general practitioner and neurosurgeon. The appellant also challenges these awards. The medical evidence 17 As appears to be common practice in the District Court, the reports of the medical experts retained on behalf of each party were tendered without objection and admitted before the primary Judge without any requirement for any of those experts to attend for cross-examination. This was somewhat unfortunate given that the medical opinion of the appellant's medical experts was significantly at odds with that of the respondent's experts. There was no way they could be reconciled. 18 The respondent relied on a report of Dr G.A. Miller, specialist surgeon, dated 20 July 2000. Dr Miller recorded that the respondent claimed that he suffered intermittent pain in his lumbosacral region which radiated into his left buttock and left leg. The respondent claimed that bending, stooping and lifting aggravated his problem and this was particularly noticeable if he was required to shovel or bend down to smooth concrete. On physical examination the respondent was tender to palpation over L3, L4 and L5. Dr Miller opined that the respondent had suffered a flexion/extension injury to his cervical and lumbosacral spine and that he had developed a myofascial syndrome affecting his cervical and lumbar regions. He did not consider that the respondent was fit to work as a labourer and he considered that the restrictions which the respondent was then experiencing would continue into the future. 19 On 25 July 2001 the respondent underwent a CT scan of his lumbar spine by Dr Lars Bark. Dr Bark's conclusion was as follows: " L4-5: There is a large central and paracentral disc protrusion encroaching upon the thecal sac and impinging upon both sides lateral recesses and corresponding nerve roots bilaterally. L5-S1: There is a broad based central and left lateral disc protrusion encroaching upon the thecal sac and at least the left L5 nerve root probably also to some degree involves the right side. Conclusion: Disc protrusion at L4-5 and L5-S1. " 20 On 26 July 2001, armed with the result of the CT scan, the respondent was seen by Dr John Davis, an injury management consultant in occupational medicine. In his report of 28 July 2001, Dr Davis set out the respondent's then complaints which included constant pain in his lower back, radiation of symptoms through his buttocks and intermittent shooting pains through his thighs as far as his knees which was aggravated on bending, twisting, heaving lifting and after a hard day's work. On examination he noted tenderness in the mid-line over the interspinous ligaments at C2/3, C3/4 and bilaterally over the facet articulations at 0/1, 1/2 and 2/3. He also noted tenderness at L3/4, L4/5 and L5/S1 in the mid-line although it was more marked at the lower two levels. 21 I set out Dr Davis' comments because they were ultimately adopted by the primary Judge: "Mr Campton suffered with facet joint trauma in the cervical region as well as injury to the myofascial components and the joint capsules. There is no evidence on clinical examination or available investigations that he has suffered a disc injury although injury to the disc endplates is certainly not uncommon as a result of such a mechanism of injury. He has also suffered injury to the lower two lumbar discs where there are quite obvious large protrusions impinging upon the sac and nerve roots. Whilst not obvious on his CT scan I believe that an MRI scan would clearly demonstrate internal disc derangement by way of desiccation. Injury to the discs results from enzymatic degradation of the nucleus which then spreads by radial fissures into the annular region. It is the outer half or third of the annulus itself which contains the nociceptive afferent pain fibres which are sensitised and stimulated by mechanical and chemical stimuli. I believe that there is quite a good possibility that in fact there is even an annular tear present. His injuries are consistent with his history and I would accept that they have achieved maximal medical improvement. Mr Campton is quite obviously a person who just gets on with things and is prepared to put up with a substantial amount of discomfort or pain. Despite his good intention and motivation however the work which he is undertaking is obviously unsuitable to his current condition and it will only be a matter of time before he suffers further gross injury to his back with resulting unremitting sciatic symptoms and requirement for a decompression procedure at a cost all up of around $10,000. It would certainly be preferable that he sought alternative employment at this time rather than wait until his disc is totally ruptured……. ………. I estimate Mr Campton to be suffering with a 20% permanent impairment of his neck and a 30% permanent impairment of his back when compared to the most extreme case. His condition may really be described as being like a cannon waiting to go off. There is also a 12% permanent impairment of each lower limb." 22 On 2 August 2002 Dr Peter Wilson performed an MRI scan on the respondent's lumbar spine by. His findings were as follows: "….. There is a focal central disc protrusion at L4/5. This is seen to indent the anterior aspects of the dural sac, but no clear neural compression is seen. There is some high signal intensity in the posterior disc annulus here consistent with an annular tear. At L5/S1, there is mild broad base posterior annular bulging of the disc, which is slightly more marked in the most left lateral posterior portion of the disc, where it extends into the inferior aspect of the intervertebral foramen. No clear neural compression is evidence here. The L5 lumbar nerve appears to exit without compression. ….. Conclusion: Disc protrusions at L4/5 and L5/S1 as described without clear neural compression. Annular tear in the posterior disc annulus at L4/5, which may give rise to back pain. " 23 On 8 October 2002, Dr Miller provided a further report in which, after having the benefit of Dr Bark's CT scan of 25 July 2001 and Dr Wilson's MRI of the lumbar spine, confirmed the disc protrusion at L4/5 and L5/S1. He concluded that in his belief the injury on 19 February 1999 more probably than not caused a prolapse of the respondent's L4/5 and L5/S1 discs and that this explained his lumbosacral pain. He further said that these radiological investigations confirmed the opinion expressed in his report of 20 July 2000. 24 On 9 October 2002, Dr Davis also provided a supplementary report in these terms: "Thank you for your further correspondence dated 18 September 2002 and the attached copies of reports of a CT scan dated 25 July 2001 and an MRI scan dated 2 August 2002. In fact the CT scan had been reviewed by me earlier. The MRI scan however does demonstrate an annular tear at the L4/5 level and thus confirms my earlier impression of a possible annular tear as noted in the Comment of my report dated 28 July 2001. Whilst such information adds weight to my diagnosis and opinion, I do not believe that there is any indication for me to alter my previously expressed comments or percentage impairment estimates." 25 The respondent was also seen by Dr Geoffrey Boyce, consultant neurologist, who in a report dated 30 May 2002, noted that he had intermittent pain in his neck and back which, periodically, would shoot down both legs. He noted that the CT scan of 25 July 2001 of Dr Bark showed a central and paracentral protrusion at L4/5 encroaching on the sac and impinging on the lateral recess bilaterally. On clinical examination he noted that there was full movement in the neck and back but tenderness to palpation. He opined that the respondent had suffered lumbar and cervical sprain as a result of the accident which had almost certainly resulted in the disc changes noted in the CT of his lumbar spine. His prognosis was that the respondent was likely to develop osteoarthritic degeneration in his lumbar spine at an earlier age than he would have anticipated. 26 On behalf of the appellant the respondent was seen by Professor Frederick Ehrlich, a specialist in orthopaedic rehabilitation, on 22 May 2002. In his report of the same date, Professor Ehrlich noted the respondent's present complaints to the effect that his neck was on occasion a little stiff and his lower back "may ache if he has a really heavy day". He noted Dr Bark's CT scan showing disc bulging at the lowest two levels and opined that the respondent should be considered to have sustained strains of his cervical and lumbar spines in the subject accident. In his view the respondent currently had minimal symptomatology and no objective abnormalities. He considered that the respondent was clearly fit to do heavy physical work and that no treatment or rehabilitation of any kind was indicated. He also said this: "The only matter which might be a subject for debate is the radiological appearance of disc bulging. Such appearances are not uncommon in individuals who have got no symptoms whatever and in any case disc pathology is more commonly of spontaneous origin rather than the consequence of injury. If it were argued that his disc bulgings were the consequence of this accident then it is clearly not a source of ongoing disability of any kind." 27 In a further report of 5 November 2002, Professor Ehrlich noted Dr Wilcock's MRI radiological report of 2 August 2002. He considered that that report and the earlier CT scan report of Dr Bark were virtually identical and referred to disc pathology at the levels of L4/5 and L5/S1. Although he considered that it was not impossible that these disc lesions were associated with the car accident in question, he repeated the observation which I have set out in [17] above, namely, that the majority of disc lesions occur quite spontaneously without anything at all being involved. He considered that the respondent was now clinically quite normal and that whatever the origin of the disc pathology, it was not troubling him to any significant extent at that time. 28 Dr Ross Mellick, a consultant neurologist, also saw the respondent on behalf of the appellant. In his report of 19 June 2002, he observed that at the time of his visit the respondent told him that he was troubled by "a bit of pain in the neck and in the back" but that the symptoms were intermittent and lasted for only about 5 minutes. He noted the findings of the CT scan performed by Dr Bark but then opined that his clinical assessment of the respondent was entirely in keeping "with the normality of the radiological findings". He does not explain why a large central and paracentral disc protrusion at L4/5 and a broad based central and left lateral disc protrusion at L5/S1, as revealed by the CT scan, was "normal" radiological finding. He then said this: "The CT findings which I refer to are not abnormalities due to trauma. Protrusions of the type seen there are commonly identified in CT scans and the medical literature emphasises the need to correlate those findings closely with the clinical features. Changes of that type represent consequences of disc dehydration. That is an age-related change and begins as early as the onset of the third decade. The CT findings are accordingly not aetiologically connected to the accident in 1999 nor do they represent a radiological basis for the symptoms which he describes." 29 Dr Mellick then opined that the respondent should be regarded as having fully recovered from the accident as he exhibited no consequential symptoms or abnormalities of function. 30 Finally, the appellant relied upon report of Dr W G Donaldson, orthopaedic surgeon, of 17 June 2002. In that report Dr Donaldson noted that the respondent was able to swim and fish without feeling pain in his back or neck and that he worked as a cement renderer, pushed a wheelbarrow and carried heavy bags without pain. On examination he was not tender locally on palpation of the spinous processes in the lower back. He noted the CT scan of Dr Bark of 25 July 2001, but, notwithstanding Dr Bark's finding, he opined that the respondent had no physical signs of a mechanical disorder such as an internal disruption of an intervertebral disc. He noted that the respondent suffered lower back pain but he considered that the reason for this was the labouring work that the respondent was undertaking. He noted that the respondent had said that the symptoms resolved after he had attended a chiropractor and masseur. His opinion was that the pattern of his residual backache did not reflect a substantial spinal intervertebral disc derangement. 31 It is significant that there was no cross-examination of the respondent in respect of the matters allegedly conveyed by him to Dr Donaldson and which Dr Donaldson recorded in his report as to his then current symptomatology. Nor for that matter was there any cross-examination of the respondent in respect of any of the respondent's complaints recorded by the appellant's medical experts in suggesting that they were inconsistent with the respondent's sworn evidence as to his symptomatology or that he was otherwise exaggerating his assertions of pain and other disabilities. The primary Judge's acceptance of Dr Davis 32 In assessing the divergent views of the medical experts, the primary Judge considered that the "critical evidence" in that regard was the MRI scan carried out by Dr Wilson on 2 August 2002, of the respondent's lumbar spine. After setting out Dr Wilson's findings, his Honour considered that his report constituted: "a clear clinical finding consistent with the plaintiff's complaints to the doctors, and the history recorded by them of his complaints." 33 The primary Judge then said this: "Of the doctors who have examined the plaintiff, only Dr Davis had the benefit of the MRI scan. I therefore consider his opinion more reliable than that of the other doctors. I therefore prefer it." 34 After then referring to Dr Davis' reports the primary Judge noted in particular that Dr Davis had opined that: "It will only be a matter of time before he suffers further gross injury to his back with resulting unremitting sciatic symptoms." and that "his condition may really be described as being like a 'cannon waiting to go off'." 35 The primary Judge then referred to the opinion of Dr Miller that the respondent was not fit for work as a labourer and should be confined to sedentary work. Having said that he had taken this into account in coming to his earlier finding, that the respondent had crossed the 25% threshold referred to in s 70A of the Act, he concluded in the following terms: "I am also comfortably satisfied that the plaintiff has suffered the injuries described and opined by Dr Davis. I accept the plaintiff's evidence about the way these have affected him. Accordingly, in relation to the plaintiff's claim for non-economic loss I assess the plaintiff at 33% of a most extreme case." The appellant's arguments 36 The appellant first asserted that the primary Judge had made two important factual errors. The first was that he had incorrectly stated that employment of the respondent by Mr Ray Ellicott in January 2002 "lasted for a relatively short period of time. The plaintiff was then out of work until he commenced work with his current employer on 31 October 2002". 37 There is no doubt that this was an error as the respondent's employment with Mr Ellicott lasted some 8 or 9 months. It was submitted that it is implicit in his Honour's finding which I have quoted in the preceding paragraph, that the respondent ceased his employment as a concrete renderer with Mr Ellicott due to the his injuries. Although, as I have said, his Honour was factually incorrect in terms of the period that Mr Ellicott employed the respondent, I cannot read into his observation that the respondent "was then out of work until he commenced work with his current employer on 31 October 2002", a finding that the reason he was "out of work" was due to his injuries. Accordingly, in my opinion there is no substance in this point. 38 The second factual error concerns the primary Judge's finding that of the doctors who examined the respondent "only Dr Davis had the benefit of the MRI scan". It is not clear whether his Honour was referring to the scan itself or to Dr Wilson's report of 2 August 2002. Certainly Dr Miller, a medical expert for the respondent, recorded in his report of 8 October 2002, the fact that he had been supplied with "MRI scan of Dr P Wilson dated 2.8.02". 39 The appellant submitted that Professor Ehrlich had also received the MRI scan. However, it is clear from Professor Ehrlich's supplementary report of 5 November 2002 that it was based on his receipt of Dr Wilson's written radiological report rather than the scan itself. Even if this were so, the appellant submitted that Dr Davis also only received a copy of Dr Wilson's report and not the scan itself. Reliance was placed upon the first paragraph of Dr Davis' report of 9 October 2002, which I have extracted at [24] above. 40 It is apparent that the primary Judge's preference for Dr Davis' opinions was because he considered them more reliable as he had had the benefit of the MRI scan and the other medical experts had not. As I have said, it is not clear whether his Honour was referring to the scan itself or to Dr Wilson's radiological report with respect to it. Equally, there is some ambiguity in Dr Davis' report of 9 October 2002, as to whether he was reviewing Dr Wilson's report or the scan itself. Furthermore, there is nothing to indicate that either of those medical experts differentiated between the two. Dr Davis in his report of 9 October 2002, said that the MRI scan demonstrated an annular tear at L4/5 and this is the conclusion that Dr Wilson expressed in his report of 2 August 2002. Similarly, Professor Ehrlich in his supplementary report of 5 November 2002, was clearly referring to Dr Wilson's report which referred to "disc pathology at the levels of L4/5 and L5/S1". 41 Accordingly, I consider that there is substance in the appellant's complaint as to the basis upon which the primary Judge preferred the opinions of Dr Davis insofar as he had the benefit of the MRI scan and the appellant's experts did not. 42 As the primary Judge's assessment that the severity of the non-economic loss of the respondent was 33% of a most extreme case was predicated upon his adoption of Dr Davis' opinions, and as his sole reason for doing so was, in my opinion, erroneous, it must follow that appealable error in his Honour's reasoning has been demonstrated: see Dunn v Firth (2003) NSWCA 280 at [28]-[29]. I shall return to the consequences of this finding after consideration of the appellant's other arguments. 43 The appellant next submitted that the primary Judge erred in concluding that the radiological results of Dr Wilson constituted a "clinical finding". In my opinion, there is no substance in this complaint. Dr Wilson's conclusion from his consideration of the MRI scan was as much a "clinical finding" as the findings made by the medical experts on their respective examinations of the respondent. 44 The appellant then submitted that the primary Judge erred in failing to consider properly a video (Exhibit 4) taken in July 2002, which shows the respondent working in his job as a concreter. His Honour found that video: "reinforced the view I have of the plaintiff. It simply demonstrated that he has done the sort of work about which he frankly gave evidence in chief. This demonstrated to me that the plaintiff was a very truthful and honest person. Furthermore, the video material in my observation demonstrated that the plaintiff had to go about his labouring tasks with care. Whilst I am not saying that the videos showed the plaintiff favouring his back, they did demonstrate to me that he was careful about the way in which, for example, he used a shovel and the way in which he bent over. This is what one would expect of a person with severe back injuries." 45 The appellant submits that the foregoing passage indicates that the primary Judge erred in principle by first evaluating the oral evidence and then turning to see whether the video negated that evaluation whereas his task was to weigh the evidence as a whole. Reliance was placed upon what Barwick CJ said in Agbaba v Witter (1977) 51 ALJR 503 at 505G-506A where his Honour said: "These paragraphs, in my opinion, indicate error. His Honour's task was to weigh the evidence as a whole: ie what the film has portrayed as well as the oral evidence. First to evaluate the oral evidence and then turn to see whether the films denied that evaluation was, in my opinion, erroneous." 46 I do not consider that the primary Judge has committed the error alleged. It is important to bear in mind in this regard that there was no challenge to his Honour's finding that the video demonstrated that the respondent had performed the sort of work about which he had given evidence in chief and in cross-examination. Significantly at no time was it suggested to the respondent in cross-examination that there was any inconsistency between any of the evidence he had given and what was portrayed in the video. Again, there was no challenge by the appellant to the primary Judge's acceptance of the respondent as a truthful and honest witness: or, in particular, to the primary Judge's findings as to the continued pain in his lower back notwithstanding his admitted ability to carry out the work which the video evidenced. 47 The real complaint of the appellant was that the respondent's symptomatology was, so it was asserted, inconsistent with the manner in which he was performing the work portrayed in the video. However, in my opinion, there is no such inconsistency. There is no necessary inconsistency between the respondent being able to perform the tasks depicted in the video on the one hand and his complaints as to pain in his lumbar region when doing so on the other. Given that the appellant does not seek to challenge the primary Judge's acceptance of the respondent's complaints of pain during and/or at the end of his working day, and the fact that it was never suggested to the respondent in cross-examination that he was able to engage in the tasks portrayed in the video without pain or discomfort, I see no basis upon which the appellant can legitimately argue that the primary Judge had failed to properly assess the respondent's evidence and what is depicted in the video "as a whole". 48 Equally, I am of the opinion that there is no inconsistency between the primary Judge's acceptance of the opinion of Dr Davis and the video. Dr Davis was aware of the nature of the work which the respondent continued to perform, noting that he was a person who "just gets on with things" and was prepared to put up with a substantial amount of discomfort or pain. He thus recommended that he seek alternative employment "rather than wait until his disc is totally ruptured". Dr Davis did not suggest that there was any inconsistency between the respondent's complaints of pain whilst undertaking heavy labouring work and his ability to physically perform that work. In my opinion there is not. 49 The appellant further submitted that there was no basis for the primary Judge's findings that the video demonstrated that the respondent had to go about his labouring tasks with care or that it demonstrated that he was careful about the way in which, for example, he used a shovel and the way in which he bent over. I see no error in these observations. His Honour made it clear that he was not suggesting that the video showed the respondent as favouring his back. Clearly he was not. But equally (and I have viewed the video) I see no reason to interpret what the video depicts in a manner different to that adopted by the primary Judge. In my opinion, no appealable error as to the manner in which the primary Judge considered the video has been demonstrated. 50 The appellant next submitted that even upon the basis that the primary Judge was entitled to adopt the opinion of Dr Davis, he appears to have assessed the respondent's non-economic loss by reference only (or primarily) to his pre-accident circumstances and failed to have proper regard to the requisite proportionality of the respondent's non-economic loss as compared with the notional "most extreme case". It was submitted in this context that the primary Judge's assessment of non-economic loss failed to give proper regard to the nature and extent of the work undertaken by the respondent subsequent to the accident and, in particular, to the fact that it involved heavy physical activity particularly as a brickies labourer and subsequently as a concrete labourer and renderer. Further, it was submitted that his Honour failed to have regard to the fact that the respondent had not consulted a treating doctor, had not taken pain relief medication for some years and that, since the accident, he had continued to play touch football, surf, swim, hunt pigs, play golf and fish (including scuba diving and spear fishing). Furthermore, it was asserted that his Honour failed to take into account the fact that the respondent engaged in snowboarding in 2002 when he was injured. 51 On the basis of the foregoing, it was submitted that the proper range for non-economic loss under s 79A of the Act was between 15%-20% of a most extreme case, consequently the primary Judge's assessment of 33% was outside the range of severity which his Honour could have assessed without falling into error. 52 I would reject the foregoing submission. It is clear that the primary Judge recited all of the matters (which the appellant asserts he failed to take into account) in his judgment. All of those matters were consistent with his Honour's finding that the respondent underplayed the extent of his injuries and disabilities because he was a young man who was intent on getting out and working and was not a complainer. He considered that the respondent was a person with initiative and that his philosophy, in effect, was to get on with his life. He accepted Dr Davis' observation that the respondent was prepared to put up with a substantial amount of discomfort or pain and that he was motivated to do whatever work he was able to, notwithstanding that that work might cause the discomfort and pain of which he complained. 53 Once Dr Davis' opinions are accepted (which involves the implicit rejection of those proffered by the appellant's medical experts) and the respondent is accepted as a truthful witness in respect of the disabilities and pain which he said he continued to experience, it must follow that, although at the top end of the range, the primary Judge's assessment of the respondent's non-economic loss at 33% of a most extreme case was within the discretionary range which he was entitled to adopt. Accordingly, no appealable error has been determined. 54 The appellant then submitted that the primary Judge had failed to properly apply the statutory test imposed by s 70A of the Act in that, although the respondent may have suffered a diminution in earning capacity, it had not been demonstrated that that diminished earning capacity was or may be productive of economic loss. It was submitted that as the respondent had obtained and maintained full-time employment from about October 1999, and had worked in a range of occupations involving heavy physical work albeit with difficulty, it had not been established that whatever diminished earning capacity the respondent had sustained it had not been productive of economic loss and was unlikely to do so in the future. It was suggested that the respondent had given evidence that he had no intention of working in any other field "such as doing a lighter duty job or studying". (It is true that the respondent gave that evidence but he qualified it with the words "not at this stage"). 55 In light of the opinions of Dr Davis, which the primary Judge accepted, this submission must fail. His Honour expressly found that despite the respondent's good intentions and motivation the work which he was undertaking was unsuitable and, as Dr Davis had opined, it was only a matter of time before he suffered further gross injury to his back and that his condition was properly described as being "like a cannon waiting to go off". In these circumstances, the submission that his diminution in earning capacity may not be productive of future economic loss must be rejected. 56 The appellant conceded that if the Court considered that s 70A had been satisfied and if it also upheld the primary Judge's findings with respect to the respondent's injuries and disabilities, the respondent would be entitled to an award for future loss of earning capacity to provide for the possibility of his employment as a driver or some comparable occupation not continuing and to recognise that in such circumstances the he might have difficulty in carrying out work which he would otherwise have been able to perform. However, it was submitted that given the respondent's pre-trial employment involving heavy labouring work, such an amount ought to be "moderate". A range of $20,000-$50,000 was suggested. 57 It is noteworthy that the primary Judge rejected the respondent's contention that he should be entitled to receive damages for future economic loss based upon a 30% loss of capacity until he was aged 65 subject to appropriate discounts. His Honour rejected this approach upon the basis of the very matters on which the appellant now seeks to rely, namely, the labouring work which he had undertaken since the accident prior to trial. He therefore adopted an approach which involved the awarding of a buffer or cushion. As the "cushion" of $95,000 included, as his Honour indicated, an allowance in respect of superannuation, given the respondent's age at the time of trial and the potential for a further working life of some 40 years, I find it impossible to conclude that the award of $95,000 was outside the ambit of a proper exercise of his Honour's discretion. Accordingly, the appellant's submissions on this issue are rejected. 58 Finally, the appellant submitted that there was no basis for the primary Judge's award of $18,500 for future expenses being $14,000 for physiotherapy and $4,500 for annual reviews by a general practitioner and neurosurgeon. His Honour's reason for adopting the $14,000 for future physiotherapy was because he considered that the respondent would benefit from physiotherapy and would undertake it if he had the funds to do so. Although the appellant submits that there was no evidentiary foundation for that finding I consider that his Honour was justified in making the findings in question. Dr Davis had recommended that the respondent continue with a maintenance program involving hydrotherapy and physiotherapy to a cost of $1500 per year. Although the respondent had indicated that he had ceased physiotherapy because he had substituted a regime of exercises for it, I see no reason why the primary Judge was not entitled to conclude that, if specific funds were awarded to him for the purpose, he would not undertake physiotherapy in the future to relieve his symptoms. 59 Again, given the evidence of Dr Davis, that it was only a matter of time before the respondent would suffer further gross injury to his back with unremitting sciatic symptoms, it was appropriate for the primary Judge to award what is clearly a very modest sum for future medical attention from both a general practitioner and a neurosurgeon. 60 I now return to my conclusion in [42] that the primary Judge erred with respect to the basis upon which he preferred the opinion of Dr Davis as being more reliable than those of the other medical experts. In my opinion there is no reason why, given the other findings of the primary Judge to which I have referred and which, in my opinion, they have resisted the appellant's attack upon them, this Court should not reconsider the question as to which of the medical experts should be accepted without the necessity of a new trial. The appeal to this Court is one by way of rehearing: Supreme Court Act 1970, s 75A. It is appropriate that this Court determine the disputes between the parties insofar as it can do so upon the evidence which is before it: State Bank of NSW v White (1995) 36 NSWLR 622 at 628B. 61 I have already made reference to the acceptance by the primary Judge of the symptomatology which the respondent had given in his evidence in chief. Furthermore, as I have already observed, it is of singular significance that not one question was directed to the respondent in cross-examination to suggest that the evidence which he had given regarding the pain and discomfort he suffered during or at the end of the working day was in any way exaggerated or otherwise incorrect. In particular it was never suggested to him that he could perform the heavy labouring work which he described in his cross-examination or which the video portrayed him performing in a pain-free manner. In these circumstances, it is appropriate to assess the opinions of the medical experts based on the primary Judge's findings with respect to the respondent's symptomatology and to accept those experts whose views are consistent with those findings. 62 It is noteworthy that Professor Ehrlich's opinions were based upon his conclusion that the respondent had "minimal symptomatology" and was "now clinically quite normal". Furthermore, he was of the view that the disk lesions and other radiological findings set forth in Dr Wilson's report of 2 August 2002 were not due to the accident in which the respondent was involved. He opined that the disk pathology was more commonly of spontaneous origin rather than the consequence of any injury. 63 Dr Mellick also recorded a history of the respondent being troubled by "a bit of pain in the neck and the back" which was intermittent and lasted for only about 5 minutes. As I have already noted, this symptomatology is inconsistent with the primary Judge's findings and was not, in any event, put to the respondent in cross-examination to suggest that he was exaggerating. Furthermore, Dr Mellick considered that the radiological findings and abnormalities were not due to trauma but represented consequences of disk dehydration which was an age-related change beginning as early as the onset of the third decade. 64 On the other hand, Drs. Davis and Miller were of the opinion that the respondent's disk protrusions were not only caused by the injuries he sustained but also explained his lumbosacral pain. Dr Wilson contemplated the consequence of back pain from the disk protrusions in his report on the MRI scan. 65 In my opinion, the respondent's evidence as accepted by the primary Judge was wholly consistent with the opinions expressed by Dr Davis and Dr Miller and were quite inconsistent with those expressed by Dr Mellick and Professor Ehrlich. Deciding the matter for myself, I would have no hesitation in accepting the opinions expressed (by Dr Davis in particular) as more reliable than those of the other medical experts and, in particular, those tendered on behalf of the appellant. It follows that the primary Judge was correct in preferring the opinions of Dr Davis as more reliable than those of the appellant's medical experts, albeit for different reasons than those which his Honour adopted. 66 Once it is confirmed that the primary Judge was correct in adopting the opinions of Dr Davis it follows, in the light of my rejection of the appellant's other criticisms of the primary Judge's reasoning, that the challenges mounted by the appellant should be rejected. 67 Accordingly, I would propose that the appeal be dismissed with costs. 68 FOSTER AJA: I agree with Tobias JA. ********** Last Modified: 11/19/2003 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. 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