New South Wales Court of Appeal CITATION : STATE OF NSW v. SARGEANT [2004] NSWCA 426 HEARING DATE(S) : 08/11/2004 JUDGMENT DATE : 23 November 2004 JUDGMENT OF : Hodgson JA at 1; Bryson JA at 2 DECISION : Appeal dismissed with costs; Cross-appeal dismissed; Each party to pay own costs of cross-appeal CATCHWORDS : DAMAGES - personal injury - contentions of error in findings re - causation of continuing disability where plaintiff's arm re-fractured by police while recovering from earlier fracture in motor accident - unsuccessful attacks on assessments for - non economic loss, domestic care past and future - economic loss past and future - appeal and cross-appeal dismissed - ND LEGISLATION CITED : Civil Liability Act 2002 s.15 PARTIES : State of New South Wales - Appellant Gary Sargeant - Respondent FILE NUMBER(S) : CA 40105/2004 COUNSEL : Mr P. Menzies QC with Mr M. Hutchings - Appellant Mr J.M. Neil QC with Ms G. Preston - Respondent SOLICITORS : I.V. Knight, Sydney - Appellant Leitch Hasson Dent, Sydney - Respondent LOWER COURT District Court JURISDICTION : LOWER COURT DC 4209/2002 FILE NUMBER(S) : LOWER COURT SORBY DCJ JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40105/2004 HODGSON JA BRYSON JA TUESDAY 23 NOVEMBER 2004 STATE OF NEW SOUTH WALES v. GARY SARGEANT Judgment 1 HODGSON JA: I agree with Bryson JA. 2 BRYSON JA: The respondent (plaintiff in the District Court) was injured on 22 June 2000. Senior Constable Wraith, one of the four police officers attending at the respondent's home at Doncaster Avenue, Casula, in response to a domestic incident involving the respondent and his de facto wife Kerrie Anne Kennedy, restrained the respondent from moving from the lounge to the kitchen. The respondent suffered a refracture of his left humerus, which had already been broken in a motor accident on 13 April 2000, in which he had lacerations to the right elbow which required stitching, dislocation of the left shoulder which was reduced in the casualty ward, and the fracture to the left arm which was reduced to which a plaster cast was applied. On 22 June 2000 the respondent's recovery from the earlier fracture was well advanced, but was not complete. His principal injury on 22 June 2000 was a further fracture at the site of the earlier fracture to the left arm. The event in which the injury occurred was stated in these terms in the findings of Sorby DCJ: (Red 48) 4. Senior Constable Wraith on the Plaintiff's left and Constable McGlynn on the Plaintiff's right, took hold of each arm in a forward wrist lock hold and as the Plaintiff was forced back onto the lounge, Senior Constable Wraith swung the Plaintiff's left arm from in front of the Plaintiff to behind the Plaintiff's back in a wrenching movement that fractured the Plaintiff's left humerus; and 5. To maintain control of the Plaintiff in this manoeuvre, Senior Constable Wraith put considerable pressure on the Plaintiff's left shoulder with his, (Senior Constable Wraith's) left hand. 3 The respondent brought proceedings for damages against the State of New South Wales in the District Court at Sydney. After a hearing of 6 days in September and October 2003 Sorby DCJ gave judgment for the respondent on 30 January 2004, and assessed damages at $404,571.50. The Trial Judge determined that the police officers acted within their powers in restraining the respondent, but there was negligence in the exercise of their powers in that the two police officers who attended first had been informed that the respondent's arm had recently been fractured and that he was vulnerable, but did not pass this information to the officers who attended later, so that they were unaware of the respondent's vulnerability when they restrained him. The appeal relates to the assessment of damages, and the liability of the State to pay damages is not in issue in the appeal. 4 Assessment of damages at trial and on appeal does not involve decision of any legal principle. There are factual complexities because the respondent had not completely recovered from his earlier fracture, and when assessing the effects produced by his second injury the continuing effects which the first would otherwise have produced have to be determined not on actual experience but on a hypothetical basis. Although the hearing was lengthy, the main claim on attention was what in detail had happened when the police officers attended at the respondent's home; examination and testing of medical evidence was less complete than seems appropriate from the retrospective view on appeal. Some matters of detail were not proved as fully as they might well have been and no medical witness was examined orally or cross-examined to elucidate further facts or fuller expositions than appear in their reports. It appears to me that the Trial Judge was left to do the best he could on material which could well have been more helpful to him, and that his Honour could not and did not turn aside from the fact-finding task on the basis that there was less than the ideal amount of material in evidence. 5 The Trial Judge determined that damages were to be assessed under the Civil Liability Act 2002; this has not been challenged. A consequence of the decision is that the respondent did not recover exemplary damages or aggravated damages. Elements in the damages awarded were: Non-economic loss – 30% of a most extreme case - $88,500 Out of pocket expenses – past – as agreed - $13,404 – future - $12,500 Domestic care past and future - $60,000 Economic loss – past - $34,200 – future - $195,967.50 6 The appellant on appeal challenges the elements for non-economic loss, for past and future domestic care and for past and future economic loss. In a cross-appeal the respondent contends that the amounts awarded for domestic care and past and future economic loss were inadequate and should be increased; and alternatively seeks to maintain the assessment made by the Trial Judge. 7 A central matter, which has influence on all challenges on appeal, is the extent to which the respondent had recovered by 22 June 2000, and the extent to which he would have eventually recovered if he had not been injured again. The Trial Judge found that on 22 June 2000 the respondent had nearly recovered from the earlier injury to his left arm. The respondent brought separate proceedings against some other person claiming damages for his injuries in the motor accident of 13 April 2000. At the outset of the hearing those other proceedings were settled and the respondent was awarded $100,000 damages by agreement. No evidence establishes to what losses in particular the $100,000 related, or in respect of what losses it was calculated (if there were any calculations). Out of the $100,000 the respondent repaid $63,001.81 Workers Compensation payments, including long-continuing weekly payments which he received because the motor accident occurred during a periodic work journey. 8 The respondent underwent an operative procedure, transposition of the ulnar nerve, in or about the year 1994, to deal with an ulnar nerve dysfunction. There is no medical evidence dealing directly with that event, but on the evidence of the respondent, the only evidence based on any direct knowledge, the operation was successful, the dysfunction was cured and no longer troubled him, and there were no continuing adverse effects; in any event none were referred to by him, and it was not suggested to him in cross-examination that there were any. 9 The Trial Judge reviewed evidence tendered on behalf of the respondent by Dr Dave, the treating Orthopaedic Surgeon, and on behalf of the appellant by Dr Bentivoglio, a Consultant Orthopaedic Surgeon who examined the respondent on behalf of the appellant (Red 54-55). After reviewing opinions relating to the mechanism of the fracture the Trial Judge accepted the views of Dr Dave on what the nature of the fracture indicated about the likely mechanism by which it occurred. The Trial Judge then reviewed and quoted extensively from the opinions of those doctors relating to the effects of the two fractures, the likely state of the respondent's injury on 22 June 2000, and the likely further progress if there had not been a refracture. The Trial Judge then said: (Red 57 & 58) The symptoms and signs of the Plaintiff's noted by the doctors are consistent with what the Plaintiff said in evidence. The Plaintiff said [T 4] that within weeks of the first injury to his left arm and just before the incident 22nd June 2000 his left arm did not hurt at all and he was due to return to work. He said a week after the 22nd June 2000 incident he was still "in extreme pain" and the pain had lasted ever since. He has scarring to his left arm where Dr Dave operated. He said prior to the June incident the mobility in his left arm "nearly normal" but now cannot extend it fully or can he manage to do things above his head using his left arm [T 6]. He said now his arm was sore and weak and he has daily pain in his left arm. He no longer plays with his children as he once did and his sexual relations with his wife have been effected. He no longer participated in fishing competitions or takes his children out in the boat. His sleep is disturbed by the pain. Prior to the fracture of his left arm at the hands of the police, the Plaintiff was about to return to work. In my opinion the Plaintiff has ongoing symptoms and signs principally wasting and limited movement in his left arm directly attributable to the fracture on 22.6.00. At that time he was nearly recovered from an earlier injury to the same arm. Taking the earlier injury into account, and its effect upon the Plaintiff as at 22.6.00 in my opinion, as a result of the 22.6.00 fracture, the severity of the Plaintiff's non-economic loss is at least 15% of a most extreme case and I assess it at 30% and award $88,500. 10 This passage shows that the Trial Judge accepted the respondent's account of his condition as of 22 June 2000, found that at that time the respondent was nearby recovered from the earlier injury to his left arm, and attributed ongoing symptoms and signs, principally wasting and limited movement of the left arm, directly to the refracture on 22 June 2000. 11 Central to much argument on appeal was the contention by Senior Counsel for the appellant that these findings were wrong. It was said to the effect that while it was open to the Trial Judge to accept the respondent's version of how he felt, the Trial Judge had gone on to make his own diagnosis and had decided, on the basis of accepting the respondent's description of his symptoms, that it followed that the second accident was implicated rather than the first. It was contended: (Orange 9M) That finding was not open to [the Trial Judge], in the light of the evidence of Dr Bentivoglio which completely contradicted that diagnosis and in circumstances where Dr Bentivoglio's evidence was uncontradicted. The medical evidence called on behalf of the [respondent] not addressing this issue, and Dr Bentivoglio was not cross-examined, [the Trial Judge] should have accepted Dr Bentivoglio. 12 In my opinion, in the state in which the evidence was limited to the respondent's own account in evidence of his symptoms and conditions, limited as its value was by his lack of medical expertise, such evidence was of considerable importance, and it is not surprising the Trial Judge so treated it. 13 It was further contended: (Orange 8-9) 2 The uncontradicted evidence of Dr Bentivoglio, retained by the Appellant, was, relevantly: (a) The first fracture was on its way to healing but had not totally consolidated at the time the Respondent had the further injury, the subject of this Appeal. (b) As a result of the treatment to the refracture the arm was united in a near anatomical position; a better result than after the first injury. (c) His ongoing symptoms are as a result of the original fracture and not as a result of the refracture. (d) The symptoms in his left upper arm are due to the original injury and not as a result of the refracture. (e) The refracture delayed his return to the workforce by a period of about three months. 14 In support of this contention the appellant's Senior Counsel referred to passages in the report of Dr Bentivoglio of 30 August 2002; and all these passages appear in parts of Dr Bentivoglio's report which the Trial Judge set out: (RED 56-57) Dr Bentivoglio in his report of 30.8.02 at p2: "This gentleman would have sustained a fracture of his left humerus in the motor vehicle accident he had on 13th April 2000. There is still litigation pending for this. The fracture was on its way to healing, but had not totally consolidated, at the time he had a further injury to his arm on 22nd June 2000. He refractured through the original fracture site. It required that he have open reduction and internal fixation of the fracture and the fracture has now united in a near anatomical position (better than the original position following the motor vehicle accident). He still has residual symptoms present in his right upper limb with ongoing physical findings ( the muscle wasting present in his left arm region ) to suggest that his symptoms are entirely genuine . His ongoing symptoms however are as a result of the fracture of his right humerus not as a result of the refracture. He is not at risk of developing degenerative osteoarthrosis present in his elbow and shoulder regions at a later stage. The impaired movement in his elbow once again is a result of the original injury and not as a result of the fracture." (emphasis added) He concluded at p 3: "In summary, this gentleman would have sustained a fracture of his left humerus in the motor vehicle accident. The fracture had not completely consolidated at the time of the second injury causing a refracture. As a result of open reduction and internal fixation of the fracture the fracture has now united, although he still has residual symptoms present in his arm. I believe that the fracture has delayed his return to the workforce by a period of about three months and as a result of the refracture he now has almost an anatomical alignment of his humerus. I believe that the symptoms he has in his left upper limb, are due to the original injury and not as a result of the refracture." (In his judgment the Trial Judge emphasised the underlined passage.) 15 There are no corresponding passages expressing opinions in the reverse sense in the reports of Dr Dave, the respondent's treating Orthopaedic Surgeon, answering in terms Dr Bentivoglio's statement: "His ongoing symptoms however are as a result of the fracture of his right humerus not as a result of the refracture." This statement was contained in Dr Bentivoglio's first report, which he made on 30 August 2002 after seeing the respondent for the first time on 27 August 2002 (Blue 222). Dr Bentivoglio saw the respondent on one further occasion on 7 April 2003 and made a report of 10 April 2003 (Blue 225). 16 Appellant's Senior Counsel also contended that to a significant extent the continuing disability was related to the shoulder dislocation suffered on 13 April 2000. However medical evidence does not support attribution of continuing muscle wasting to the dislocation. Dr Davis, whose report was tendered by the respondent, said on the basis of examination in March 2003, there was good stability of the shoulder and there had been no recurrent dislocations (Blue 114). He further referred to significant wasting around the left shoulder (Blue 115) and made a prognosis for continuing wasting around that region: "This results in weakness of the shoulder and reduced functional ability". Dr Davis recommended continuing gym membership to maintain as much muscle bulk in the left shoulder as possible and said "[the respondent] should avoid activities such as heavy lifting, forceful pushing and climbing etc and is permanently unfit to return to his pre-injury duties." This evidence does not attribute the muscle wasting to the dislocation or clearly show to what it should be attributed. It is however clear that it does not support the appellant's contention. Dr Bentivoglio (Blue 226) related muscle wasting in the left forearm to the left ulnar nerve dysfunction, but gave no reasons for this view. 17 The picture relating to the fracture of 13 April 2000 presented by the respondent's evidence, including medical evidence, shows a fracture treated straight away in the casualty ward by reduction and uneventful continuing conservative treatment towards a contemplated return to work a few weeks later than 22 June 2000. No surgical intervention is referred to in the evidence. In a strong contrast, the refracture was dealt with within a day by surgical intervention involving local bone graft and internal fixation of a plate and screws (which remain in position), and thereafter complete bone reunion appears to have been achieved only after rather more than seven months. Dr Bentivoglio's repeatedly expressed opinions that ongoing symptoms were a result of the first fracture are not accompanied by any exposition of the basis underlying this attribution. Nor is there any exposition of the implications of the almost anatomical alignment of the humerus existing after the refracture and surgical intervention; although it was Dr Bentivoglio's expressed view that the near anatomical position was better than the position following the motor vehicle accident, there is no exposition of respects in which any advantage followed from this, or of any interaction (if there was any) between this subject and the opinions about the causation of ongoing symptoms. 18 It should also be said, although the Trial Judge did not mention this matter, that Dr Bentivoglio referred in his first report of 30 August 2002 to an impingement syndrome in the rotator cuff tendon which it was said was shown by an MRI scan; this statement was withdrawn in the second report which stated that the MRI scan did not reveal any evidence of any impingement syndrome. This matter, and an unfortunate verbal lapse in which Dr Bentivoglio referred to fracture of the right humerus and not of the left humerus, might not have disposed the Trial Judge towards confidence in Dr Bentivoglio's opinions when finding facts. The Trial Judge did not mention these subjects, and I would not wish to overstate their importance, which may not be inherently high. 19 I set out Dr Bentivoglio's diagnosis and opinion in his second report of 10 April 2003: (Blue 225-226) [The respondent] would have sustained a fracture of his left humerus in the motor vehicle accident he described on 13 the April 2000. Litigation is still pending for this. The fracture was well on the way to healing and had not totally consolidated when he had a further injury to his arm on 22nd June 2000. he refractured it at the original fracture site. This required open reduction and internal fixation of the fracture. The fracture has healed in a near anatomical position. He still has some residual symptoms present in his left upper limb that will remain with him indefinitely. The muscle wasting present in his left forearm is almost certainly related to his previous ulnar nerve dysfunction giving rise to the transportation of the ulnar nerve that he had in the past. The lack of movement that he had in his elbow (106 of loss of extension of his elbow) relates to the fracture of his humerus. Even if the internal fixation devices were to be removed, this would not improve his elbow function. Indeed removal of the plates and screws is inherently dangerous to the radial nerve. I would not suggest that they should be removed. He is not at risk of developing degenerative osteoarthrosis present in his shoulder or elbow regions in the future. Ideally he needs to avoid activities that are arduous in nature or require him to use his upper limb excessively. I cannot see his symptoms altering significantly in the short term. 20 From the point of view of a reasonable person finding the facts in a system in which fact-finding follows probabilities, the impact of the second fracture upon the respondent, involving as it did an open reduction operation, permanent fixation of a plate with screws, and the elapse of many months before an altogether satisfactory union was achieved, seems likely to have had a much greater influence on continuing adverse sequelae than the first injury which, for all that appears from medical records and opinions in evidence, was proceeding in a fairly uneventful course towards recovery at the time of the second injury. 21 In my opinion it does not appear that the Trial Judge took a view which was not reasonably open to him, or made any error at all, in his findings and views overall about the relative influence of the second fracture on the respondent's long term outcome. The state of the evidence did not in my view commit the Trial Judge, proceeding on a reasonable basis, to upholding Dr Bentivoglio's views as the only basis on which the facts could be found. 22 Ground 1 of the Amended Notice of Appeal relates to the allowance of damages for non-economic loss of 30% of the most extreme case. The Trial Judge's determination of 30% was the product of his Honour's findings on the attribution of continuing disabilities to the second injury and not to the first. My earlier observations show the grounds on which I do not treat this attribution as erroneous. The step from findings on disabilities to relatively specific expression as a percentage of a most extreme case is always difficult to expound and to review; but in my opinion 30% was a conclusion within the range reasonably available. The appellant's contention that the appropriate finding should be 20% appears to me to be below, or at the lowest possible extent of the range of findings reasonably available. Expressions in evidence of the respondent's disability and its impact on his life and circumstances appear to me to support the finding which was made. 23 In Ground 2 of the Amended Notice of Appeal the appellant challenged the allowance for $60,000 for past and future domestic care as excessive; it was contended that the allowance failed to: (a) take account of the respondent's previous fracture (b) expose his Honour's reasoning for such an award; (c) identify the basis of such an assessment. Ground 1 of the Notice of Cross-appeal contended that the same allowance was inadequate. 24 After referring to s.15 of the Civil Liability Act 2002 the Trial Judge gave the following reasons for disposing of the claim for domestic care: The Plaintiff claims for the past (171 weeks) at a total of $143,640 at 42 hours per week at $20 per hour. The Plaintiff claims $874,878 at the same hours and rates for the future. On the basis of the evidence of the Plaintiff and Ms Kennedy, this figure is excessive. I accept that following the fracture of his left arm on 22nd June 2000 the Plaintiff, on his return from hospital, could do little for himself for a few weeks. He said [T 3 16.9.03] that Ms Kennedy had to do everything for him, including washing and dressing him. He said before the motor vehicle accident he used to help around the house, such as mopping and vacuuming and cleaning the bathroom. He said he had got back to these activities prior to June 2000 as he had with gardening. Since June 2000 he can't do this type of activity he said. Ms Kennedy, who from time to time has been in ill health, has had to do these activities, she said in evidence. Although the Plaintiff claims domestic assistance at so many hours per week, no evidence was given as to how many hours were actually spent on housework by the Plaintiff before and after June 2000. Nor how many hours his partner spent each week doing the type of chores he used to perform. There is no home care type of report that might have assessed the Plaintiff and his wife and assisted me in arriving at the appropriate calculation. However I do accept that in the immediate weeks and months after the accident his partner had to do things for him and instead of him. He has returned to work, albeit in a lighter type job. He says it exhausts him and he is very tired when he gets home. However s.15 of the Civil Liability Act sets the parameters for domestic care claims. Having heard the Plaintiff and Ms Kennedy and read the medical evidence as to the Plaintiff's limitations and taking into account the existing residual incapacities he had at June 2000, I think the most appropriate approach for past and future care is to award a lump sum of $60,000, such sum to reflect more than 6 hours per week for 6 months after the accident and since and for the future. 25 In part the appellant's attack on this allowance relates to the Trial Judge's view of the causation of the respondent's ongoing symptoms and disability; I have already stated why this part of the attack cannot succeed. It was also contended to the effect that there was no evidence showing how many hours in the week were spent on housework by the respondent before and after June 2000, or how many hours Ms Kennedy spent doing the type of chores he used to perform. It was further contended that the Trial Judge was in error by making an observation that no evidence was given as to how many hours were actually spent on the respondent for domestic. The appellant's submission reflects the fact that the observation made by the Trial Judge was not correct, as evidence was given on those matters but was extremely confused. I do not find it possible to follow that evidence, except to say that I have a strong impression that Ms Kennedy's account of this part of the facts appears to have been so far overstated in relation to what is in any way probable, that it could not be acted on. The appellant contended that there was no basis upon which the Trial Judge could have found that the limit prescribed by s.15 of the Civil Liability Act 2002 had been exceeded, that is that services had been provided for more than six hours per week and for more than six months. On behalf of the respondent it was contended that evidence of Ms Kennedy to the effect that she provided an extra six hours a day of domestic assistance should have been accepted and acted on, or alternatively should have been acted on to the extent of allowing three hours per day. Calculations were offered supporting an assessment of damages at $143,640 on the basis of six hours per day or $71,820 on the basis of three hours per day up to the time of the trial, and alternatively $874,078 and $437,439 for the future. These calculations were supplemented by supposed inferences based upon the respondent's having recovered $100,000 in settlement of his other claim; there is no evidence upon which any relevant inference could be based on that fact. 26 It was contended by the appellant's Senior Counsel that the respondent would have been disabled, and would have long required continuing home care services, even if he had not been injured on 22 June 2000. The Trial Judge's findings, which were based on his Honour's acceptance of the respondent's evidence as to his condition at that time, do not support this contention, but show otherwise. 27 It appears to me to be clear from the nature of the respondent's injury and disability that there was a need for domestic assistance; but quantification on any rational basis is very difficult. It is not accurate for the Trial Judge to say that no evidence was given as to how many hours were actually spent, but the evidence was so difficult to follow that its effect on quantification was much as if there had not been any. There was no case which called for serious consideration to the effect that a very large loss continuing a long way into the future had been incurred and should be compensated for. The Trial Judge was not in a position to ignore the claim or to award nothing for it, but was required to make a modest assessment of damages for a loss which in practical terms it was not possible to quantify with precision. Although I have a general sense that the subject has not been dealt with in an altogether satisfactory way, I have not been persuaded by either party that his Honour's conclusion was wrong, and in my opinion his Honour's findings on domestic care should not be disturbed. 28 I now turn to deal with the damages for past economic loss. The respondent actually resumed work on 10 July 2000. At first he worked for short hours and on very restricted duties. At all times since his return to work his duties have been restricted; he has done more and heavier work as time passed and he progressed, but he has never reached the level of heavy manual labour which were parts of his duties before 13 April 2000. His employment depends on the continuing availability of work for his long-term employer. 29 On the fifth day of the hearing the Trial Judge was informed by counsel of an agreement to the effect that before the motor accident of 13 April 2000 the respondent's take-home pay was $720 per week, and that after the motor accident and following his return to work his take-home pay was $410 per week (Black 2/271). The implication is that he had a loss, which continues, of $310 per week arising out of his not being able to perform the full duties he performed before 13 April 2000. 30 The Trial Judge disposed of past economic loss for reasons stated at Red 60-62. His Honour reviewed the evidence of the respondent about his return to work and the duties he has been performing, made references to the evidence of Dr Dave and Dr Bentivoglio, and concluded: (Red 61-62) For past economic loss the Plaintiff claims the sum of $410 net from the date of his second fracture to date of trial, a period of 171 weeks being his current weekly loss compared to what he would have been earning. However I believe there should be a discount to reflect the arm fracture in the motor vehicle accident. He had not returned to work after the motor vehicle accident – heavy manual work - and how he would have coped is speculative as is when if ever he returned to all his heavy lifting duties. I think an appropriate rate is $200 net per week to reflect this discount for a total of $34,200 ($200 X 171 weeks). 31 The claim by the respondent might have been $410 per week but the loss established by agreement was $310. It will be seen that the Trial Judge regarded the first fracture as contributing to the respondent's disability and incapacity to return to his pre-injury earnings, addressed the questions how the respondent would have coped on returning to heavy manual work and whether he would ever have returned to all his previous heavy lifting duties, and adopted $200 per week for the whole period to the date of trial as the economic loss relevantly attributable to the injury of 22 June 2000. 32 The fact that the respondent received weekly payments of Workers Compensation for a long period does not enter into the calculation of his loss of earnings because he refunded all those payments out of his $100,000 damages. Further, there is no evidence which enables the $100,000 damages or part of it to be recognised as damages for loss of earnings. 33 In Ground 4 of the Appellant's Notice of Appeal the appellant contended that the damages assessed for past economic loss at $200 for 177 weeks were excessive, and in Ground 4A contended that there should have been no allowance. The appellant's contentions were based upon the view which I have rejected about the causation of the respondent's continuing disability, and the allegation that the respondent's incapacity to work caused by the second accident was limited to a period of eight weeks (or perhaps twelve weeks) after the second injury. This contention cannot succeed, as it was not well based on the facts and the findings of the Trial Judge. 34 In Ground 2 of the Notice of Cross-appeal the respondent contended that the damages awarded were inadequate. The respondent's contention was based in part on conjectures relating to the amount recovered for the motor vehicle injury, and in part on the allegation that the Trial Judge had taken an excessive view of the continuing effects of the first injury and that an appropriate discount would have been a minimal discount of 5 to 10%. It appears to me that the Trial Judge made a discount of $110 of $310 per week or 35% loss of earnings when he attributed $200 per week or 65% to the second injury. Neither party has been able to show clear grounds in the evidence to challenge the Trial Judge's assessment of past economic loss. There clearly was a loss of this kind, but an attempt to make a precise finding was defeated by the state of the medical evidence, which each party left to be dealt with on the reports of medical specialists and implications from hospital records and records of X-ray examinations. In the state of the evidence in which the Trial Judge was left to dispose of the matter, an altogether satisfactory disposition was not attainable. It appears to me that the Trial Judge was left to do the best he could upon the material before him, and it has not been shown that his Honour made any error. 35 The Trial Judge dealt with future economic loss in the following terms: (Red 62) Future loss The Plaintiff has a serious arm injury. He may require further surgery. I have found he has wasting and limitation of movement of his arm principally the result of his second injury. He is well motivated and has continued in manual employment, all that he knows. He is fearful that his job may not last and with his injury he may not be able to find work elsewhere. To his credit he has kept working. He has managed a forklift job with minimal lifting. He is in pain. He takes painkillers and he favours his right arm at work. He claims $540 net per week for the next 25 years. The plaintiff is now only 40. At his age unemployment and finding employment would be daunting. In my view a discount must again be made to reflect the impact of the earlier fracture on his future employment on the one hand and his continuing employment on the other. He has demonstrated by his work a significant residual work capacity. I consider an appropriate wage loss to be $250 net per week for the future. For the future I allow the sum of $195,967.50. ($250 X 922.2 X .85). 36 It will be seen that the Trial Judge attributed $250 of the agreed $310 of loss of income to the injury of 22 June 2000. 37 In Ground 3 of its Notice of Appeal the appellant contended that the allowance for an award for future economic loss of $195,967.45 or $250 per week until age 65 was excessive. This contention was based upon the appellant's general position about the causation of continuing disability which I have rejected, and on the consideration that the respondent had in fact been working full time for some three years at the time of the trial. The second consideration has to be taken with the evidence which plainly shows that the respondent has not been performing his full pre-accident duties. 38 Grounds 3 and 4 of the Notice of Cross-appeal contended that the allowance for future economic loss was manifestly inadequate, and that no reasons were provided for the assessment of a discount for the prior accident, and that there was no finding specifying the residual earning capacity. In support of the cross-appeal counsel referred to Exhibit B (Blue 2) a letter from the respondent's employer, but what that exhibit may show about loss of earnings at the time of the trial was overtaken by the agreement of loss of $310 recorded at Black 2/271, of which the Trial Judge was informed several days after Exhibit B had been tendered. Submissions to the effect that the Trial Judge had proceeded by making a discount against a sum of $540 per week, a wage loss for which the respondent's counsel contended at the trial on the basis of the figures contained in Exhibit B, and that the $250 per week which the Trial Judge adopted was in some way a result of a discount calculation are not borne out by the Trial Judge's expressions which I have set out above. 39 It was also contended to the effect that no discount should have been allowed for the effect of the first arm fracture on loss of earning capacity; the Trial Judge plainly attributed some continuing loss of earning capacity to the first injury, although attributing a greater proportion of such loss to the second injury, and his Honour's treatment of this element has not been shown in my view to be incorrect. A fairly wide range of conclusions was open having regard to the state of the medical evidence. 40 I am conscious that throughout these reasons I have often resorted to the paucity of evidence and the overriding need for the Trial Judge to come to some conclusion on the evidence available whether or not the evidence is really satisfactory. Once it is clear that loss has occurred a Court cannot readily turn aside from assessing damages for it. Still the overall consideration which I have given to the issues on appeal does not appear to me to be truly satisfactory or convincing. I have sought to step back and form an overall impression of the total amount of damages awarded as an expression of the losses which the evidence shows. This process has not indicated to me that the assessment is not in the appropriate order. I hope that Trial Judges are not often or usually left with so little exploration of issues on which evidence, particularly medical evidence, could throw light. I see no sufficient grounds for an intervention on appeal. 41 In my opinion the Court of Appeal should order: 1. The appeal is dismissed with costs. 2. The cross-appeal is dismissed. 3. Each party is to pay its or his own costs of the cross-appeal. ********** Last Modified: 11/29/2004 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.