Reported Decision : 153 IR 73 New South Wales Court of Appeal CITATION: DARKE v EL DEBAL; EL DEBAL v NETWORK WELDING PTY LTD (IN LIQ) ;EL DEBAL v KARI & GHOSSAYN PTY LTD [2006] NSWCA 86 HEARING DATE(S): 27, 28 March 2006 JUDGMENT DATE: 21 April 2006 JUDGMENT OF: Mason P at 1; Santow JA at 105; McColl JA at 106 DECISION: New trial as to some issues CATCHWORDS: APPEAL AND NEW TRIAL – Improper admission or rejection of evidence – Failure to consider all relevant evidence – Decided points not put by counsel – Failure to address all pleaded causes of action – Failure to give reasons. - NEGLIGENCE – Employer's duty of care – Duty to provide safe system of work – Where employer typically hires out the services of its employees – Employer to acquaint itself with the system of work in the place to which its sends its employees. - NEGLIGENCE – Construction safety – Requirement that any person who directly or by their servants or agents carries out construction work owes a duty of care – May be more than one person owing duty – Head contractor and subcontractor jointly liable – Construction Safety Regulations 1950, regs 73 and 80. - NEGLIGENCE – Motor vehicle accidents – Damages – Non-economic loss – Recoverable only where degree of permanent impairment actually greater than ten per cent – Whether recoverable if degree of permanent impairment potentially greater than 10 per cent – Medical assessor's certificate under motor accidents compensation legislation – Provides conclusive evidence as to whether degree of permanent impairment greater than 10 per cent – Whether evidence as to potential degree of permanent impairment certifiable – Motor Accidents Compensation Act 1999, s 61(2)(a). - NEGLIGENCE – Motor vehicle accidents – Damages – Non-economic loss – Medical assessor's certificate under motor accidents compensation legislation – Provides conclusive evidence as to matters certified regarding degree of permanent impairment – Rejection where certificate not made in circumstances affording procedural fairness to a party – Where certifying doctor fails to consider plaintiff's description of injuries – Procedural fairness concerned with process not outcomes – No basis for rejecting certificate established – Motor Accidents Compensation Act 1999, s 61(4).(D) Construction Safety Regulations regs 73 and 80 LEGISLATION CITED: Law Reform (Miscellaneous Provisions) Act 1946 Motor Accidents Compensation Act 1999 Workers Compensation Act 1987, s151N American Medical Association's Guides to the Evaluation of Permanent Impairment, Fourth Edition Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] HCA 72, 222 ALR 411 Booksan Pty Ltd v Wehbe [2006] NSWCA 3 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Davey v Skinner [1961] SR(NSW) 648 H C Buckman & Son Pty Ltd v Flanagan (1974) 133 CLR 422 Harrison v Lau Nay Nominees Pty Ltd [2004] NSWCA 18 Hodgson v Crane (2002) 55 NSWLR 199 CASES CITED: Kioa v West (1985) 159 CLR 550 Kolodziejczyk v Grandview Pty Ltd [2002] NSWCA 267 Lenz v Trustees of the Roman Catholic Church [2005] NSWCA 446 Maggiotto Building Concepts Pty Ltd v Gordon [2001] NSWCA 65 Pro-Krane Pty Ltd v Nobbs, CA unrep, 15 November 1996 Thompson v Woolworths (Queensland) Pty Ltd (2005) 221 CLR 234 TNT Australia Pty Ltd v Christie [2003] NSWCA 47 Van der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2006] 2 WLR 428 Michelle DARKE v Khaled EL DEBAL PARTIES: Khaled EL DEBAL v NETWORK WELDING PTY LTD (in liq) Khaled EL DEBAL v KARI & GHOSSAYN PTY LTD FILE NUMBER(S): CA 40013/2005; 40186/2005; 40272/2005 Darke: A Robertson SC/ D J Cutler El Debal: R S McIlwaine SC/ D R J Toomey COUNSEL: Network: H Halligan Kari: R R Bartlett SC/ S Finnane Abigroup: S A Kerr Darke: Ferguson Lawyers El Debal: Carroll & O'Dea SOLICITORS: Network: Edwards Michael Kari: Hunt & Hunt Abigroup: Wotton & Kearney LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 3576/2002 LOWER COURT JUDICIAL OFFICER: Christie ADCJ IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40013/2005 CA 40186/2005 CA 40272/200 DC 3576/2002 MASON P SANTOW JA McCOLL JA Friday 21 April 2006 Michelle DARKE v Khaled EL DEBAL Khaled EL DEBAL v NETWORK WELDING PTY LTD (in liquidation) Khaled EL DEBAL v KARI & GHOSSAYN PTY LTD & Anor JUDGMENT 1 MASON P: Regrettably, there must be a new trial on almost all issues. In a reserved judgment prepared with the assistance of a transcript, but obviously delivered ex tempore, the primary judge overlooked critical evidence, failed to address all pleaded causes of action, decided points that had not been argued and failed to give reasons for several key findings. The matters not requiring a new trial were found against the plaintiff, but since the evidence was clear and uncontradicted, the plaintiff should have the benefit of this Court's determination of them in his favour. 2 Three proceedings in the District Court were heard concurrently by Christie ADCJ. The plaintiff in each was Mr Khaled El Debal. 3 The claims related to an industrial accident on 15 April 2000 at the Kari & Ghossayn (K & G) workshop at Chipping Norton, an industrial accident on 2 May 2000 at the Olympic Village, Homebush and a motor vehicle accident on 18 October 2000 involving the admitted negligence of the appellant Darke. 4 The plaintiff was employed by Network Welding (Network), a body hire company specialising in welding that hired out the services of its employees to companies that, it was alleged, assumed their own duty of care analogous to that of an employer (see TNT Australia Pty Ltd v Christie [2003] NSWCA 47. See also Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2006] 2 WLR 428 (Eng CA)). 5 The accident on 15 April 2000 occurred at the workshop of K & G to which the plaintiff had been sent under such an arrangement. The plaintiff's primary task was to weld two long steel beams that weighed hundreds of kilograms. When the beams were joined parallel to each other they formed what was known as a "soldier". An overhead crane travelling along a fixed beam on the roof and operated by a K & G employee moved them to a pile where they were stacked. The welded soldier was supported by two chains that converged to a single chain attached to a hook. As it travelled east-west and was then lowered to the stack a little to the south, the load was steadied by the plaintiff who was acting under the direction of the K & G employee. The plaintiff's right shoulder was wrenched when one of the chains around the soldier shifted or slid and the load he was steadying with his right hand moved suddenly to the left. 6 The plaintiff sued Network as employer (in DC 8848/01) and K & G as the person to which his services had been hired (in DC 3576/02). The claims were framed in negligence, including allegations of an unsafe work system. Network and K & G cross-claimed against each other for indemnity and/or contribution under the Law Reform (Miscellaneous Provisions) Act 1946. 7 On 2 May 2000 the plaintiff injured his lower back when a ladder gave way under him because it wobbled or slipped on damp grass that was sloping or uneven. On this occasion he had been sent by Network to work for Abigroup Pty Ltd (Abigroup), the head contractor constructing the Olympic Village. He took his working instructions from Mr Todd Williams, an Abigroup employee, whom the plaintiff regarded as the foreman on site. 8 The plaintiff had to weld mesh screens onto the first floor balconies of villas. The balconies were well over two metres above sloping ground that had recently been turfed and was wet from sprinklers. On previous days the plaintiff had used a cherry-picker or a scissor-lifter, equipment supplied by Abigroup. But, because of the state of the grass, Mr Williams instructed the plaintiff to work from an "A" frame aluminium ladder that he provided. The ladder was unaccompanied by any timber to secure its base, any rope or wire to secure it to the balcony, or any assistant to steady it generally. The plaintiff was forbidden access to the balcony from the inside, because new carpet had recently been laid. Throughout the day the plaintiff moved the ladder from time to time as the particular workplace changed. He noticed that its legs were sinking into the grass. The fall occurred at about 3pm when he was working near the top of the ladder wearing a welding mask, carrying welding equipment in one hand and steadying himself on the ladder with the other hand. 9 The plaintiff sued Network as his employer (in DC 8848/01) and Abigroup as the head contractor for whom he was working (in DC 3576/02). The pleaded causes of action were negligence and statutory counts under regs 73 and 80 of the Construction Safety Regulations. Network and Abigroup cross-claimed against each other relying upon the Law Reform (Miscellaneous Provisions) Act 1946 and contractual rights said to stem from their sub-contract agreement. 10 As indicated, negligence was not in issue for the motor accident on 18 October 2000. Damages for that injury were to be assessed in accordance with the Motor Accidents Compensation Act 1999 (MAC Act). 11 The trial took place over six days in late October and early November 2004. The plaintiff was the only witness and he was accepted as truthful in relation to his description of the events that befell him (J p9). His claims of negligence and breach of statutory duty were supported by the unchallenged report of an engineering and ergonomics expert. There was also a slew of medical reports, none of them challenged. As the judge acknowledged, the plaintiff was entitled to favourable Jones v Dunkel inferences given the unexplained absence of key defence witnesses, including Mr Ghazi the foreman/crane driver at the K & G workshop, Mr Kari, the proprietor of K & G who witnessed the accident, Mr Williams, the Abigroup supervisor or anyone from the plaintiff's employer, Network. 12 A major issue in the motor accident case was whether the plaintiff passed the 10 per cent whole person impairment threshold required by the MAC Act. The defendant in those proceedings had a "conclusive" certificate to the contrary, but the plaintiff contended it was vitiated for want of procedural fairness. 13 The reasons for judgment were delivered ex tempore on 14 December 2004. They are discursive and the transcript is unrevised. Sometimes relevant evidence is set out. At other times the judgment merely cites a string of transcript references as support for a proposition (nothing wrong with that). Unfortunately, there are areas where the critical evidence is neither set out nor cited and where statements that there was no evidence on a particular matter are demonstrably wrong. The crane accident 14 The claim in relation to the accident with the crane was rejected because, in his Honour's words: [The plaintiff] simply describes what he says occurred, that is that the soldier moved away from him and made no mention of any slipping of a chain. That is important. (page 13) and: The plaintiff's description of the incident does not involve the soldier slipping through the chain slings at all. (page 23) and: There is no evidence that the soldier slipped through the chain slings and rapidly slid out of control. (page 24) and: … the plaintiff has not proved how the first of these two accidents occurred. Indeed I am given to the view that nobody appears to know what it was that caused the beam or the soldier to move away from the position in which the plaintiff appears to have had his hand on it. (page 25). 15 These findings are demonstrably wrong. On one view, they are inconsistent with the portion of the plaintiff's evidence (Black 18) quoted in the judgment at page 11. They are certainly inconsistent with the totality of the unchallenged evidence, including in particular what the plaintiff said at Black 156, a passage omitted from the string of references provided at page 13 of the judgment. 16 The plaintiff said that the beam was attached to the overhead crane by two chains looped around the bottom, but not fixed to the beam or themselves horizontally separated. The plaintiff's task was to steady the beam "to stop imbalance" as the crane moved across the factory and then lowered the beam on top of an existing stack of beams onto two pipes used as rollers (Black 17, 18). The crane driver "lowered it, and when he lowered it suddenly the chain came this way and the beam went to the south while I was holding on the beam". The cross-examiner clearly understood this to mean that one of the chains slid or moved, because he asked the plaintiff whether the chain moved back towards the line of travel of the crane and was told that it did (Black 18. See also 130). 17 When cross-examined, the plaintiff agreed that the chain went to his right and the beam went suddenly to his left (152,154). Later he said that the chain slipped or "'swung' same thing, isn't it?" (156-7). 18 The plaintiff completed a compensation claim on 2 June 2000, describing the accident as follows (Blue 295): When I was holding a channel beam – which was being lifted by a crane (to be stacked) suddenly the chain swung and pulled me with it which caused a torn muscle in the shoulder. 19 A similar description of the mechanics of the accident is recorded in the report of the plaintiff's expert, Mr Shepherd (Blue 9). The plaintiff's testimony was that the facts stated in that report were accurate (Black 19). Indeed, they had been recounted to the expert in the presence of Mr George Kari, one of the K & G bosses, who had himself witnessed the accident (Black 20, 155). Mr Kari was not called to refute this evidence. 20 There was ample evidence that this was an unreasonable and avoidable system of work. The plaintiff said that he was simply directed by the supervising crane operator, Mr Ghazi, whom he described as the workshop foreman in charge of the welders (Black 15). This was in accordance with the system previously instructed by K & G when the plaintiff had been an employee of that company (147, 179). It is possible that the plaintiff had himself slung the particular load, rather than the crane driver, but nothing turns on this, because the plaintiff followed the familiar K & G system and the supervision of Mr Ghazi (128-9, 147-8, 155). 21 The expert's unchallenged evidence was that this K & G system, involving lowering a suspended beam onto a loose pipe that would then "roll" the beam away from the hoist, was a hazardous one given that there was no positive securing of the beam to prevent it moving quickly and unexpectedly (Blue 11). Given the risks involved, the engineer (who had ergonomic expertise) opined that the hazards associated with manual handling could have been managed by adopting any of the following control measures (Blue 14-15): • Installation of a fit-for-purpose overhead hoist. Given the need to lift beams and then move them south to place them in a stack, the overhead travelling crane system should have the ability to move north-south as well as east-west. Such an overhead crane system would provide the flexibility required to ensure loads are lifted safely and can be place on the back of trucks or onto a stack as required. The availability of such an overhead travelling crane arrangement may benefit other tasks within the factory/workshop. • Use of the mobile crane or forklift to lift mobile cranes. An alternative to using the hoist is to use a forklift or mobile crane to lift the beams and place them onto a stack without the need for manual intervention. For example forklift jib attachments are available as seen in Figure 5 . In a similar fashion, a mobile crane could be used to lift and transport the load. A two sling arrangement involving a horizontal 'separator' bar would be beneficial to ensure load stability during lifting. • Work Procedure to remain clear of suspended loads. Regardless of the material handling equipment employed, it should be ensured that manual handling of suspended loads is not required and that all persons remain clear of the suspended load until it is securely stacked. Such a procedure should be documented, part of training and enforced in practice. 22 This unchallenged evidence satisfies me that K & G implemented and Network permitted an unreasonably unsafe system of work for the plaintiff who was Network's employee and under the control of K & G as if he were an employee. As to K & G's duty of care extending to the system of work on its premises, see also Thompson v Woolworths (Queensland) Pty Ltd (2005) 221 CLR 234. The risk of injury eventuated in circumstances where a favourable causation finding is well-nigh inevitable. There is nothing to support the defence of contributory negligence especially given that this was a negligent work system case. 23 The plaintiff gave unchallenged evidence that he went home immediately. It was a Saturday. He consulted his general practitioner the following Monday and was off work for three days with a medical certificate (Black 20-1. See also Dr Murad's report at Blue 83). 24 In the circumstances, the trial judge should have found negligence on the part of both Network and K & G in relation to the first accident. There was ample evidence to conclude that the system was unsafe in that it involved human intervention to balance the beam in circumstances where it was liable to move suddenly, especially as it was tilted. 25 I do not overlook Network's submission that it was not in breach given that it had no reason to know that the plaintiff would be "crane chasing" in this manner. In my view, the employer ought reasonably to have acquainted itself with the system of work in the place to which it sent its employee, putting him under the K & G foreman's day to day direction, a fortiori where that particular system had been used when the plaintiff had worked there previously, as K & G's employee. 26 There should be a verdict for the plaintiff against Network and K & G on the negligence issue. There must however, be a new trial to determine damages and the cross-claims for contribution. The ladder accident 27 The judge accepted that the plaintiff was obeying the directions of Abigroup employees "who seem to have been in charge of quite a lot of building activity" going on at the Olympic Stadium (J p15). Abigroup was the head contractor. Through its supervisor Mr Williams it controlled the plaintiff's activities at the site, and it exercised a relevant coordinating role. 28 His Honour records that the plaintiff undoubtedly fell from a ladder and that nobody disputed this. The evidence about Mr Williams refusing access to the accustomed scissor-lifter and cherry-picker because of the newly laid lawn was also set out. Likewise the evidence about the plaintiff doing welding at the top of the ladder that suddenly fell over. This unchallenged evidence was apparently accepted, as it should have been. 29 Other passages from the plaintiff's evidence are set out in the judgment, demonstrating that, as far as the plaintiff knew, the ladder simply went from under him (esp Black 190). It was also recognised that the plaintiff had himself put the ladder in its place knowing it was unsupported and on uneven ground. The plaintiff had fallen from a ladder once before. 30 I interpose that this shows that there is a live issue as to contributory negligence in the claims against the employer, Network (Workers Compensation Act 1987, s151N). But the defence is not available to Abigroup in relation to the statutory counts having regard to the fact that the plaintiff was not a "worker" qua Abigroup and to the date of the accident (see Booksan Pty Ltd v Wehbe [2006] NSWCA 3 at [160], [172]-[173]). 31 The reasons for judgment are opaque as to why this negligence claim failed. At times his Honour appeared critical of the plaintiff for not taking greater precautions to secure the ladder. But the operative grounds appear to be two-fold. First, Judge Christie rejected the suggestion that requiring the plaintiff to work from a ladder bespoke negligence in the employer or head contractor (J pp25-26). Later in the reasons, during discussion of the expert's report concerning this accident the judge observed (p28): What is missing from that is whether the assumed system involving the ladder was itself inherently dangerous. Secondly, his Honour fixed on the fact that the plaintiff did not know what happened, stating that there was no evidence to establish that the ladder gave way at all. 32 The judge concluded that "the plaintiff has not discharged the onus in relation to either of these two incidents". 33 This analysis failed to engage with the unchallenged evidence from the plaintiff and his expert. I have already recounted the plaintiff's evidence about being instructed not to use the previously available cherry-picker or scissor-lifter and not to access the balcony from inside. He was directed to use the unsecured ladder without the offer of an assistant to hold it. True, the plaintiff himself chose where to position the ladder on the grass and it was also open to him (in theory at least) to refuse to work on the balconies without proper means of access. But the duties falling on Network and Abigroup were not satisfied by Mr Williams merely providing the ladder. 34 In my view, the unchallenged evidence led to a clear inference that the ladder fell over because it was unheld, unsecured and on a soft, uneven, sloping surface into which it could sink and become unstable. The nature of the task required a safer means of access to the place of work and it was readily available. With respect to his Honour, the ladder was an "inherently dangerous" method of access in the circumstances. Such inferential reasoning is a matter of common sense. Its necessary steps are also spelt out in the expert's report (Blue 38). Mr Williams' own report on the accident suggested the following action to eliminate the possibility of a similar accident occurring (Blue 302): Ensure that ladders are positioned on level ground and braced or fixed off to prevent ladders from slipping. All persons to be inducted into safe use of ladders . 35 The employer and the party owing a duty analogous to that of an employer did not discharge their pro-active duties of care by leaving it up to the plaintiff to do the best he could in the circumstances. The High Court has recently described the employer's duty as: … a duty to take reasonable care to avoid exposing the employee to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work. ( Czatyrko v Edith Cowan University [2005] HCA 830 at [12]). 36 There may well have been some contributory negligence that Network can point to, but the defendants were themselves unreasonable in the discharge of the duties that lay upon them. 37 The case is distinguishable from Van der Sluice v Display Craft Pty Ltd [2002] NSWCA 204, invoked by the relevant defendants, because the plaintiff was directed to use the ladder in obviously risky circumstances. The defendants ought reasonably to have foreseen the risks involved in the very task of climbing the ladder and working from it wearing a mask. 38 It is no answer for Network to contend that it did not learn of Mr Williams' requirements about the ladder before the accident happened. The non-delegable nature of the relevant duty meant that it could not be discharged merely by sending the employee into the care and control of another. Unlike cases such as Pro-Krane Pty Ltd v Nobbs, CA unrep, 15 November 1996 and Harrison v Lau Nay Nominees Pty Ltd [2004] NSWCA 18, invoked by Network, it is easy to identify what ought to have been done for this plaintiff on the day in question, to have avoided the accident. 39 There is an even clearer reason why Network and Abigroup were each liable to the plaintiff for the injury suffered from his fall from the ladder. This is because of breaches of regs 73 and 80. These breaches were pleaded and are addressed in detail in the expert's report (Blue 30-37), yet they were not considered in the judgment under appeal. 40 Relevantly, reg 73 provides: 73 Safeguards and accident prevention measures for construction work Any person who directly or by his servants or agents carries out any construction work shall take all measures that appear necessary or advisable to minimise accident risk and to prevent injury to the health of persons engaged in such construction work and for this purpose, without limiting the generality of the foregoing, he shall, subject to Regulation 74: (1) provide suitable and safe scaffolding, which shall conform to the requirements of these Regulations, for all work which cannot be done safely by a person standing on permanent or solid construction, except when such work can be done safely from ladders constructed in conformity with the provisions of these Regulations, (2) provide and maintain safe means of access to every place at which any person has to work at any time, (3) provide means by fencing or otherwise for securing the safety of any person working at a place from which he would be liable to fall a distance of more than 1.8 m…. 41 Relevantly, reg 80 provides: 80 Provision and use of ladders and step ladders (1) In this Regulation, unless the context or subject matter otherwise requires, the terms "ladder" and "step ladder" shall have the respective meanings assigned to them by Regulation 142. (2) Every ladder and every step ladder used for any purpose covered by these Regulations shall be designed and constructed as prescribed by these Regulations. (3) Any person who directly or by his agents or servants carries out any building work shall provide and maintain in place during working hours such ladders as are necessary to provide safe means of access to all floor levels and to all places where any person has to work until such time as temporary or permanent stairways are completed and are available as such safe means of access. (4) Ladders shall be placed so that: (a) each side rail or stile has a level and firm footing and the top rest for each side rail or stile is level, reasonably rigid and of adequate strength to support the maximum applied load, and (b) the side rails or stiles are not supported by boxes, loose bricks, or other loose packing. … (6) Every ladder shall so far as practicable be securely fixed so that it cannot move either from its top or from its bottom points of rest. If it cannot be so securely fixed it shall where practicable be securely fixed at the base or if such fixing at the base is impracticable a person shall be stationed at the base of the ladder to prevent slipping. … (9) A step ladder shall be set up on a level and firm footing and shall not be stood on loose bricks or other loose packing. …. 42 Unlike the previously used cherry-picker and scissor-lifter, the unheld, unsecured and unstable ladder was not a safe means of access to the outside of the balconies (cf reg 73 and reg 80(3)), nor was its placement and securing compliant with reg 80(4) and (6). The plaintiff was working between 2.4 and 3.4m above ground level (Blue 65, Black 174). 43 I do not understand Network or Abigroup to contend to the contrary. And they accept, as they must, that the judge's failure even to address this component of the plaintiff's case means that a new trial on this ground would be the minimum remedy to which the plaintiff is entitled, subject to what follows as regards Abigroup. The plaintiff contends on the other hand that the evidence of breach of the regulations is entirely in his favour. I agree with the plaintiff on this point. 44 The one defence to liability on the statutory counts, raised only by Abigroup, was the contention that this defendant was not a person that directly or by its servants or agents carried out any construction/building work at the Olympic Village site. 45 The leading case dealing with the scope of this provision is H C Buckman & Son Pty Ltd v Flanagan (1974) 133 CLR 422. The decisions in this Court were recently reviewed in Lenz v Trustees of the Roman Catholic Church [2005] NSWCA 446 at [49]-[64]. 46 Abigroup contended that Network alone was actively carrying out the relevant building work at the site. We were taken to provisions in the Formal Instrument of Agreement between Abigroup and Network (Blue 449), especially the terms requiring the subcontractor (Network) to execute and complete the work it had quoted for and to supply the necessary equipment and materials. Abigroup placed particular reliance on a clause requiring Network to supply "all necessary scaffolds, mobile scaffold, scissor lifts etc" for the work (Blue 507). 47 The plaintiff agreed that he would ask the Network supervisor, Mr Elias, if he needed anything. However, his understanding is not conclusive, nor does it exclude Abigroup from having a relevant involvement in the construction work in which the plaintiff was involved. 48 The Buckman line requires close attention to be paid to the tasks actually performed on the worksite. However, the regulations do not require that only one person in the chain may be liable if injury occurs. It is conceivable that both a contractor and a head contractor may each be so actively involved in a relevant portion of building work as to render each "the active person, that is the one who carries out the work in actual fact" (Davey v Skinner [1961] SR(NSW) 648 at 651, Buckman at 428, Lenz at [58]). The ultimate inquiry is a factual one, as Heydon JA pointed out in Kolodziejczyk v Grandview Pty Ltd [2002] NSWCA 267 at [83]. 49 Here the evidence showed that, despite the terms of the formal contract between head contractor and subcontractor, Abigroup provided and regulated the means of access required by the welders as they performed their tasks at the Olympic Village. Thus it was that Abigroup supplied the cherry-picker or scissor-lifter used by the plaintiff up to the day of the accident. In any event, it was definitely Abigroup that supplied the ladder. Ladders are not mentioned expressly in the Contract as a Network responsibility, but it would not matter if they were. In the Agreement, Abigroup retained the right to give directions to its subcontractor (Blue 468). 50 In my view, Abigroup did not wholly delegate the welding work. It coordinated and supervised it on site in the same way that the head contractor Maggiotto did in Maggiotto Building Concepts Pty Ltd v Gordon [2001] NSWCA 65 (see Lenz at [61]-[62]). Abigroup did more than just supply the ladder (cf Buckman at 429). Through Mr Williams, it instructed the plaintiff not to use the accustomed access of a cherry-picker of scissor-lifter or the safe access from inside the villas. 51 I do not understand Network to suggest that it was exempt from liability under the regulations. Its concern is to preserve its claim to contribution against Abigroup. 52 For these reasons, both Network and Abigroup were liable for the injury suffered in the ladder fall. These should be verdicts for the plaintiff accordingly. The matter should be remitted for a new trial limited to the issues of damages, contributory negligence (Network only) and the cross-claims between the tortfeasors. Damages in the motor accident case 53 The plaintiff was the driver of a motor vehicle struck at an intersection when a vehicle driven by Ms Darke came through a red light. Negligence was admitted. 54 Judge Christie entered a verdict for the plaintiff in the sum of $120,000 made up of: • General damages: $32,500 • Past economic loss: $25,000 • Past superannuation loss: $2,000 • Agreed out of pocket expenses: $2,180 • Future economic impairment: $60,000 $121,680 (rounded down to $120,000) 55 At issue in the appeal were the awards of damages for non-economic and economic loss. 56 Under the MAC Act no damages can be awarded for non-economic loss unless the degree of permanent impairment as a result of the injury caused by the motor accident is greater than ten percent (s131). Since there was a dispute on this issue, the court was precluded from making an award unless the degree of permanent impairment had been assessed by a medical assessor under Pt 3.4 (s132(1)). 57 Section 61 is in Pt 3.4. It provides: 61 Status of medical assessments (1) The medical assessor or assessors to whom a medical dispute is referred is or are to give a certificate as to the matters referred for assessment. (2) Any such certificate as to: (a) whether the degree of permanent impairment of the injured person is greater than 10%, or (b) whether any treatment already provided to the injured person was reasonable and necessary in the circumstances, or (c) whether an injury has stabilised, is conclusive evidence as to the matters certified in any court proceedings or in any assessment by a claims assessor in respect of the claim concerned. (3) Any such certificate as to any other matter is evidence (but not conclusive evidence) as to the matters certified in any court proceedings or in any assessment by a claims assessor in respect of the claim concerned. (4) In any court proceedings, the court may (despite anything to the contrary in this section) reject a certificate as to all or any of the matters certified in it, on the grounds of denial of procedural fairness to a party to the proceedings in connection with the issue of the certificate, but only if the court is satisfied that admission of the certificate as to the matter or matters concerned would cause substantial injustice to that party. (5) If a certificate as to any matter is rejected under subsection (4), the court is to refer that matter again for assessment under this Part and adjourn the proceedings until a further certificate is given and admitted in evidence in the proceedings. (6) However, if a certificate as to whether or not the degree of permanent impairment of the injured person is greater than 10% is rejected under subsection (4), the court may, if it considers it appropriate, substitute a determination of the court as to the degree of permanent impairment of the injured person (assessed by the court in accordance with section 133) instead of referring that matter again for assessment under this Part. (7) Except as provided by subsection (6), a court may not substitute its own determination as to any matter referred to in subsection (2) (a), (b) or (c). (8) This section: (a) does not prevent a court from referring a matter again for assessment under this Part (as provided for by section 62), and (b) does not require a court to refer a matter again for assessment under this Part if the matter is not a matter referred to in subsection (2) (a), (b) or (c). (9) A certificate is to set out the reasons for any finding by the medical assessor or assessors as to any matter certified in the certificate in respect of which the certificate is conclusive evidence. 58 Section 61(2)(a) should be read as if it stated "whether or not the danger of permanent impairment of the injured person is greater than 10%". This is well open on the language and it accords with the evident purpose of the statutory scheme. 59 At trial, counsel for Ms Darke tendered a s61 Certificate from Dr Lew Pierides (Blue 548) together with the documents previously lodged by the parties with the Medical Assessment Service in relation to the permanent impairment dispute (Blue 593, 605). 60 The Certificate was to the effect that there was a permanent impairment of cervical strain assessed as giving rise to a whole person impairment which, in total, was not greater than ten percent. The cervical strain injury was also certified as stabilised. There was an accompanying statement of reasons (cf s61(9)). 61 The Certificate was conclusive evidence in the District Court as to those matters, unless and until it was rejected under s61(4) or displaced by an inconsistent certificate stemming from a referral for further assessment (s62) or revoked in consequence of a review by a review panel of medical assessors (s63). Only s61(4) was invoked in the present case. 62 The admissibility of the Certificate was challenged at trial for denial of procedural fairness (cf s61(4)). 63 We were informed that a notice of motion with supporting affidavit had been filed to that effect, in accordance with the practice in the District Court, but that the hearing of the motion was stood over to the trial. In the upshot, the affidavit was not read, but the plaintiff gave oral evidence about what passed between him and Dr Pierides. It was this unchallenged evidence that was relied upon at trial in support of the claim of denial of procedural fairness. 64 The parties presumably addressed on the procedural fairness issues, but there is no record of the submissions. The transcript records (Black 283): RECORDING EQUIPMENT SWITCHED OFF AT HIS HONOUR'S REQUEST 65 Christie ADCJ awarded general damages of $32,500 in relation to the motor accident. His reasons were: I did not mention and I do not think I gave reasons on the previous occasion that the defendant was in possession of a certificate which indicated no impairment of the plaintiff, a certificate which would disentitle the plaintiff to recover under the Act if the certificate were found to be valid. The plaintiff challenged that certificate on the grounds that he was denied natural justice in terms of its preparation. I do not think I said anything about my decision at the time. I think I said I would include my decision in these reasons. I am not sure. But the plaintiff gave a number of pages of evidence as to what occurred at this particular examination by this particular doctor and his evidence was quite detailed as to what he was and was not asked, and as to what symptoms he was and was not presenting with at the time. Indeed the certificate itself appears to be somewhat at odds with some of the other medical material that was in existence at the very time. The long and the short of it is this, and that is why I did not waste a lot of time on it during the course of the hearing, there is no evidence that the plaintiff was even aware that the certificate could have the consequences that it might have had. I think in terms of natural justice one would need to acquaint a person with the fact that the certificate that was about to come into existence following this particular examination could disentitle him to recover. But not only that. The plaintiff gave some significant evidence as I say, extending over some pages. That was the subject of some modest cross-examination but was not the subject of any evidence led by this defendant to meet the assertions made by the plaintiff. In those circumstances, in such a serious issue as denial of natural justice or fairness, I would have no hesitation – in the absence of any evidence from the opponent in regard to such a matter, I would have no hesitation in finding that he was denied proper fairness and natural justice. Indeed if I was required so to be satisfied I would be certainly satisfied to the extent of the principles required in Briginshaw v Briginshaw if not to the extent of being satisfied beyond a reasonable doubt. So that I have attempted to assess the damages in relation to this matter virtually in isolation, as I say, from verdicts in any other matters but, having read all of the evidence and all of the medical evidence in relation to all of the injuries that befell the plaintiff, I am satisfied that the plaintiff passes the threshold required under the Act, and that I then assessed the general damages of common law principles. I have reached the following conclusion that damages, that is general damages in relation to his neck injury, should be awarded in the sum of $32,500. 66 This assessment miscarried in several fundamentals. Senior counsel for the plaintiff, Mr McIlwaine SC concedes that the award cannot stand because it proceeds upon an argument not put at trial and because of want of reasons. He submits that a new trial must take place in this regard. Ms Darke's senior counsel, Mr Robertson SC, opposes a new trial on non-economic damages because it would be a futility in light of the Certificate conclusively establishing that the statutory threshold was not reached. 67 If a court is able to award damages for non-economic loss in a motor accident claim then they are to be assessed on common law principles, so long as the statutory cap in s134 is not breached (see Hodgson v Crane (2002) 55 NSWLR 199). But it is a fundamental principle of justice that the court state the facts upon which the assessment proceeds, making findings as to the nature and extent of the injury, its symptoms, intensity and duration. The evidence of the plaintiff and any pertinent medical reports should be summarised or at least adverted to. In a case such as the present, where earlier incidents caused injury, then the judge needs to grapple with the task of disentanglement given that a defendant is only liable for the consequences of his or her tort. 68 No such information is provided by the trial judge. The passing reference to his Honour "having read all of the evidence and all of the medical evidence in relation to all of the injuries that befell the plaintiff" falls very far short of the judicial obligation. 69 There is a further difficulty that stems from such of the reasoning that is exposed. Assume for the moment that Judge Christie was correct in rejecting the Certificate on the grounds of denial of procedural fairness to the plaintiff (cf s61(4)). Subsections (5), (6) and (7) of s61 would then have come into play. Subsection (5) prescribed the general response to rejection of a certificate (ie the court is to refer the matter again for medical assessment and to adjourn the proceedings until a further certificate is given and admitted in evidence). However, subs (6) permitted the court to substitute its determination as to the degree of permanent impairment "if it consider[ed] it appropriate". But in that event the court was required to assess the degree of permanent impairment (ie the threshold issue) in accordance with s133. This is clearly spelt out in the parenthetical clause in subs (6). Section 133 relevantly required any such assessment to be made in accordance with the American Medical Association's Guides to the Evaluation of Permanent Impairment, Fourth Edition. There was no attempt to do this in the present case and no reasoning indicating the pathway whereby his Honour, in his words, became "satisfied that the plaintiff passe[d] the threshold under the Act". 70 The appellant Darke nevertheless resists remittal of the assessment of damages for non-economic loss in the motor accident claim. This would be a futility if, as she contends, there was no basis for rejecting the Certificate. The plaintiff argued that there was evidence on the procedural unfairness topic and that procedural fairness itself entitled the plaintiff to a proper trial on this issue. 71 The lengthy first paragraph in the extract quoted from the judgment discloses two broad grounds upon which Judge Christie rejected the Certificate. 72 One ground is stated in the two sentences commencing "The long and the short of it". His Honour held that there was no evidence that the plaintiff was even aware that the Certificate could have the consequences that it might have had. This conclusion is quite untenable. We were informed that no such proposition had been advanced at trial and it is easy to see why. The plaintiff had been represented by solicitors who completed on his behalf the detailed application for the Certificate (Blue 593). The application form contained a body of explanatory material that made it crystal clear that its function was in aid of a medical assessment to resolve a dispute. After Dr Pierides had been nominated by the Medical Assessment Service the solicitors supplied additional information to him for the purpose of the exercise, disclosing that the ambit of dispute was confined to neck injury (see Blue 551). The solicitors then arranged for the plaintiff to attend Dr Pierides. No evidence was led to suggest that the plaintiff did not know what was happening or the purpose of the medical assessment. 73 A medical assessor will have to take notice of any relevant information provided by the plaintiff or the plaintiff's agents, but it is not part of the assessor's task to provide an unsolicited explanation of the statutory scheme. 74 The second ground of rejection appears (albeit dimly) in the balance of the lengthy first paragraph I have set out, although once again, the reasons are entirely deficient in their analysis of facts and legal principles. It was not enough to state "the plaintiff gave a number of pages of evidence as to what occurred" at the consultation with Dr Pierides. Dr Pierides' own report ought to have been taken into account as to what was said and done in the surgery: it was an error to state that the plaintiff's evidence was "not the subject of any evidence led by this defendant". The question whether admission of the Certificate would cause substantial injustice (cf s61(4)) ought to have been addressed. And it was irrelevant to the procedural fairness issue for the judge to state that the Certificate issued by Dr Pierides "itself appears to be somewhat at odds with some of the other medical material that was in existence at the time". 75 In this Court, senior counsel for the plaintiff took us to the plaintiff's unchallenged evidence about what he told Dr Pierides and what happened in the medical examination conducted by the doctor. The Court was asked to compare this material with the reasons given by Dr Pierides in the report accompanying his Certificate. At one stage, Mr McIlwaine was so bold as to contend that the evidence was all one way and that this Court should determine the issue of the Certificate's invalidity in the plaintiff's favour. Mr Robertson SC on the other hand argued that the doctor had not been shown to have denied procedural fairness in his assessment. 76 Mr Robertson correctly pointed out that a person with authority to decide a matter does not deny procedural fairness simply because he or she rejects the propositions advanced by those who seek the decision. Those parties are entitled to have the opportunity to place relevant information and arguments before the decision-maker, which is very different from saying they have a right to a favourable decision. Procedural fairness is concerned with process, not outcomes (Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591, Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] HCA 72, 222 ALR 411 at [16]). Senior Counsel is also correct in submitting that there is a huge gap between the self-diagnosis of a lay patient interested in an outcome and the complex medical inquiry required for the purpose of a whole person impairment assessment in accordance with the statutory guidelines. The Act does not permit merits review of a certificate by the court and it precludes judicial review on grounds other than denial of procedural fairness. A party seeking review on the merits should invoke ss62 and/or 63. 77 Further errors on the judge's part are disclosed, although it is almost captious to extend the litany of appellate complaint. His Honour's reference to the absence of evidence from the defendant in regard to what passed between the plaintiff and Dr Pierides was wrong in fact, because the doctor's reasons for issuing the Certificate contain such evidence. It was also wrong to have hinted at the application of Jones v Dunkel principles, because the plaintiff had to establish grounds for rejecting the Certificate and Dr Pierides was not in the camp of one or other of the parties. 78 The plaintiff led no evidence of a medical nature to suggest that it was not open to Dr Pierides to reach the conclusions that he did, based upon the information provided in advance of the examination and his examination of the plaintiff. 79 This leads conveniently to the appellant Darke's submission that there is simply no material to indicate denial of procedural fairness in the medical assessment. The starting point is recognition that the only injury referred for assessment by the plaintiff's solicitor was that identified in the application form as follows (Blue 599): Area of the body injured Nature or type of injury Neck Disc bulge at C3/4 and 4/5 levels Postero-lateral disc protrusion at C5/6 Broad based disc bulge at C6/7 level The application form (MAS Form 2A) states: The medical assessor will only assess the injuries listed here. 80 The material led at trial relevant to the procedural fairness issue was the testimony of the plaintiff and the medical assessor's statement of reasons. 81 The plaintiff said (Black 47-49): Q. Do you remember in June last year being asked by your solicitors to see a doctor at Blacktown so you could be assessed for the Motor Accident Authority? A. Yes. … Q. Did you go to his rooms? A. Yes. Q. Did he ask you to tell him what happened? A. Yes. Q. And did you tell him what happened? A. Yes. Q. Did he ask you how you were feeling? A. Yes. Q. Did you tell him how you were feeling? A. Yes. Q. What did you tell him? A. I told him all the problem I was having with the neck. Q. Tell us what you told him. A. I told him I had neck spasm; numbness; cracking noise; I can't sleep on it at night; I have to keep changing positions. Q. Did you tell him about your hands? A. Yes, told him. Q. What did you tell him? A. I told him that it goes numb and goes down all the way to my fingers in both arms – sometimes one arm, sometimes both of them. Q. Did you tell him how often that happened? A. Yes. Q. What did you tell him about your sleeping? A. It is very hard for me to fall asleep. I keep waking up at night all the time. Q. Did you tell him what it is that wakes you up at night? A. Yes. Q. What did you tell him? A. I wake up at night, change positions, and basically it's very hard for me to fall asleep. Q. Did you tell him why that was? A. From the pain in my neck. Q. The pain where? A. In my neck. Q. Did you tell him generally how your neck is during the day? A. Yes. Q. What did you tell him? A. Same, always still, making cracking noises when I move it and the numbness that comes in both arms. Q. Did he examine you? A. For about one minute. Q. Can you tell his Honour what he did? A. He asked me to get up, measured my arms. Q. What part of your arms did he measure? A. Biceps here. Q. And did he do anything else? A. That's it. Q. Did he ask you to move your neck? A. I can't remember. Q. Did he ask you to look up or down? A. No. Q. Did he feel your neck, touch your neck at all? A. No. Q. How long do you think you were in his rooms? A. 7 or 8 minutes. Q. Did he do anything to measure the strength of your grip? A. No. Q. Did he do anything to measure the strength of your upper arms? A. No. Q. At any time did he ask you to move your shoulders? A. No. Q. Or your elbows? A. No. Q. Or at any time did he measure or test your forearms? A. Yes, with the tape measure. Q. Did he measure your forearms? A. This one (indicating) Q. No, your lower arm. A. No, just the top of it. 82 During cross-examination there was the following additional evidence (Black 239): Q. You are aware that Dr Pierides, in his report of 5 June 2003, says that you complained to him of some numbness in both arms which occurred mainly at night? A. Yes. Q. Remember that? A. Yes. Q. You were aware, no doubt, that in his report he makes mention of no other complaint by you? A. I did complain to him. Q. No, I didn't ask you that? A. Yes. Q. He makes no mention in his report of any other complaint? A. Yes. 83 Dr Pierides' report to the Medical Assessment Service explaining the reasons for his decision in the s61(1) Certificates stated (emphasis in original): Thank you for asking me to assess Khaled Eldebal whom I saw at my Blacktown rooms on the 3rd June 2003. He was unaccompanied. I confirm I received all the documents listed on the applications forms and all the documents listed on the reply forms. I was aware I was to assess the following issues in dispute: Whether the injuries have stabilised. Whether the injuries sustained in the subject motor accident have given rise to a permanent whole person impairment which exceeds 10%. History of Accident Mr Eldebal told me he was driving a mid 80's model Ford and was proceeding through a green light. A car came through a red light and hit the left hand side of his vehicle. The police and ambulance attended. The car was towed and not repaired. He did not go to hospital. The following day he saw his family practitioner complaining of neck pain. Prior to his motor vehicle accident he had had 2 previous accidents, one on the 15th April 2000 related to a work injury where he injured his right shoulder. On the 2nd May 2000 he had a further injury to his back while at work following a fall. He was not at work at the time of the motor vehicle accident due to being on workers compensation for these injuries. He did not bring any of his investigations with him but they were kindly supplied by Caroll O'Dea, his lawyers. The following investigations were supplied. He had a right shoulder ultrasound and x-ray dated the 19th April 2000 which was reported as normal. He had a thoraco-lumbar spine x-ray dated the 3rd May 2000 which suggested the L5/S1 disc may be narrowed He had a CT scan of his lumbar spine dated the 17th May 2000 which suggested there was a mild bulge at L5/S1 disc. He had an MRI gadolinium scan of his right shoulder on the 29th September 2000. This revealed some right shoulder pathology. He had an MRI scan of his back on the 30th October 2000 which revealed degenerative change in the L5/S1 disc with minor bulging. The investigation relevant to his current presentation was done on the 25th May 2001 and was a cervical thoracic MRI scan. This investigation report was in the correspondence you sent me. This investigation revealed degenerative change within the middle cervical discs from C3/4 to C6/7. At C5/6 it was reported that he had a moderate left postero lateral disc protrusion with osteophyte formation causing moderate to marked compression of the cervical spine cord and some possible associated flattening. Examination I examined his cervical spine as this was the only area of injury mentioned on the application and reply forms. He did have other injuries related to workers compensation claims which were currently before the courts and these were not examined. I confined my examination to his cervical spine. Examination of his cervical spine showed a lack of the normal cervical lordosis. He had a full range of movement of his cervical spine. There was no muscle spasm or guarding in the para cervical or trapezius muscles. Reflexes in the upper limbs were normal. There was no muscle wasting in either upper limb with both upper limbs measuring equally in the mid upper limb and mid forearm circumference. There were no radicular signs. He had good strength in both upper limbs. Grip strength, elbow flexion and extension and shoulder abduction and flexion all appeared to have equal and normal strength. Issues in dispute Whether the injuries have stabilised. I am of the opinion his injury has stabilised in that it has now been 2 years and 8 months since the subject motor vehicle accident. I am of the opinion [he] has a whole person impairment that will not change substantially or by more than 3% in the next year with or without medical treatment. Whether the injuries sustained in the subject motor vehicle accident have given rise to a permanent whole person permanent impairment which exceeds 10%. I utilised the American Medical Association Guidelines to the Evaluation of Permanent Impairment, Fourth Edition and the Motor Accidents Authority Guidelines 2000 when assessing whole person permanent impairment. With reference to his cervical spine I am of the opinion he belongs to Diagnostic Related Estimates Category 1, Complaints & Symptoms. The reason for my opinion is there was significant degenerative change in his cervical spine but he had no radicular signs, no muscle spasm or guarding and no significant clinical abnormalities. There was no dysmetria. He did complain of some numbness in both arms but this occurred mainly at night. It was not in any particular radicular distribution. Whole person permanent impairment of all assessed injuries Body part or Stabilisation Chapter No in AMA Guides Table No. %WPI * System Cervical Spine Yes 3 73 0% Total estimated whole person permanent impairment (*WPI) 0% There were no injuries that were not stabilised 84 The submissions filed on behalf of the plaintiff in this Court explain the manner in which the procedural fairness issue is pressed. It is accepted that the circumstances of a particular case may indicate what response is appropriate (Kioa v West (1985) 159 CLR 550 at 594, 611-12). 85 It was submitted that the matters raised by the plaintiff when he attended the assessor were of crucial importance. According to the plaintiff's evidence, he complained about neck spasm, numbness, cracking, inability to sleep, numbness down both arms and into the fingers and pain and stiffness in the neck. The plaintiff said that the doctor did not do anything to measure the strength of his grip or the strength of his upper arms. 86 The plaintiff submitted that the doctor's recording of his presentation did not accord entirely with the plaintiff's account, in evidence, of the complaints he made to the doctor. Significantly, Dr Pierides noted that there was "no muscle spasm", whereas spasm was one of the symptoms specifically mentioned. Further, it was submitted that the plaintiff gave evidence that the numbness he experienced down both arms was sometimes in one arm and sometimes in both, whereas the doctor proceeded on an assumption that the arm numbness occurred at night only. 87 In my view, the plaintiff did not establish a basis for rejecting the Certificate. 88 The notified medical dispute was confined to the issue of determining the level of permanent impairment, in accordance with the Guides, referable only to the neck injury. The medical assessor had before him the Application for Assessment completed by the plaintiff's solicitors (Blue 593), the insurer's Reply (Blue 605), the medical reports provided by the solicitors and the plaintiff's Personal Injury Claim form (see Blue 551, 600). Dr Pierides was required to assess permanent impairment in accordance with the Guides (s133). 89 Relevant extracts from the Guides were in evidence. As regards spinal impairment, the assessor was directed to use the DRE (ie diagnostic related estimate) model for assessment and to start with Table 70 as amended in the Guides as a guide to the appropriate category for the spine impairment (Guides Chapter 4 §4.5, Blue 638). It is common ground that Table 70 directed the assessor to an inquiry as to the application of DRE Cervicothoracic Category III Radiculopathy. If present, there is a 15% whole-person impairment. The Guides state: Description and Verification: The patient has significant signs of radiculopathy, such as (1) loss of relevant reflexes or (2) unilateral atrophy with greater than a 2-cm decrease in circumference compared with the unaffected side, measured at the same distance above or below the elbow. The neurologic impairment may be verified by electrodiagnostic or other criteria (differentiators 2, 3, and 4, Table 71, p109). 90 Assuming in the plaintiff's favour that his sworn testimony recalling what occurred in the surgery is to be preferred to Dr Pierides' nearly contemporaneous written report, the fact remains that the plaintiff was a layman. Merely because he complained of certain symptoms does not establish that those complaints were overlooked. The Guides speak of "significant signs of radiculopathy". They state that impairment estimates are to be based on the history, objective findings and data, and any other information collected during the evaluation (§4.11). The assessment must follow the pathways stipulated in the following extract (emphasis in original): Radiculopathy 4.25 Radiculopathy is the impairment caused by malfunction of a spinal nerve root or nerve roots. Assigning of a DRE for spinal injury includes the presence or absence of radiculopathy (Category III in the lumbo-sacral region). In general, in order to conclude that a radiculopathy is present two or more of the following signs should be found: • loss or asymmetry of reflexes (Table 71, p109 AMA 4 Guides) • muscle atrophy and/or decreased limb circumference (Table 71, p109 AMA 4 Guides) • muscle weakness which is anatomically localised to an appropriate spinal nerve root distribution • reproducible sensory loss which is anatomically localised to an appropriate spinal nerve root distribution. 4.26 Note that radicular complaints of pain or sensory features that follow anatomical pathways but cannot be verified by neurological findings do not constitute radiculopathy. They are described as guarding in Table 71 (p109 AMA 4 Guides). 4.27 Global weakness of a limb related to pain or inhibition or other factors does not constitute weakness due to spinal nerve malfunction. 4.28 Electrodiagnositc tests are rarely necessary investigations and a decision about the presence of radiculopathy can generally be made on clinical grounds if a competent examination is performed. 4.29 Exceptional cases of radiculopathy may have pain of radicular nature and only sensory changes, confined to an anatomical distribution of a specific spinal nerve root. 4.30 Imaging studies must support clinical findings of radicular malfunction. That is to say that the anatomical features reported to be abnormal on the imaging studies must be consistent with the distribution of the radicular malfunction. If more than one modality of imaging has been performed there should be anatomical consistency in the findings of abnormality. 91 Dr Pierides' report shows that he examined the plaintiff's cervical spine. He twice records absence of muscle spasm and of radicular signs. The reference to numbness occurring "mainly at night" does not show that the doctor proceeded on the assumption that arm numbness occurred at night only, as submitted. 92 As to the level of whole person permanent impairment, the doctor utilised the Guides referable to the cervical spine, this being the only area of injury mentioned on the application and reply forms. The doctor noted the plaintiff's complaint of some numbness in both arms, recording that this occurred mainly at night. He stated that the numbness was "not in any particular radicular distribution". 93 The plaintiff led no medical evidence to show that the assessor had not complied with the Guides nor to suggest that the symptoms complained of (according to the plaintiff's recollection) disclosed clinically significant signs of radiculopathy assessable by the criteria in the Guides. In this, I include the finding of normal grip strength, not overlooking the plaintiff's evidence that the doctor did nothing to measure the strength of his grip. 94 In this Court, senior counsel for the plaintiff submitted that the symptoms complained of provided clear evidence of referred pain and of radiculopathy as per the Guides. I cannot accept either proposition. 95 Nor can I accept counsel's invitation to infer want of procedural fairness merely by placing the plaintiff's evidence at trial as to his symptoms side by side with the medical assessor's report (cf CA Tr p91). In my view, the plaintiff has not established any denial of procedural fairness. It is unnecessary to address the additional requirement of establishing that admission of the Certificate would cause substantial injustice to the plaintiff. 96 The award of $25,000 for economic loss was modest, but so flawed as to justify Ms Darke's complaints in grounds 21-30 of her Notice of Appeal. No reasons were provided beyond the bald statement that "his past economic loss, which I assess broadly speaking at approximately $100 a week but round it out to a figure of $25,000" (sic). There were additional problems deriving from his Honour's attempt, earlier in the reasons, to apportion the economic loss stemming from the earlier injuries and the injuries in the motor vehicle accident. The judge suggested various percentages (J31, 32) which read as little more than stabs in the dark lacking any attempt to grapple with the factual and legal issues involved in apportioning the respective impacts of the three accidents. 97 At the time of the motor accident the plaintiff was not working, but in receipt of workers compensation. The appellant Darke had argued that the motor vehicle accident was insignificant in its level of aggravation of the earlier injuries. There was medical evidence to support such an argument (Blue 108, 382, 418). The appellant was entitled to have these arguments addressed. Likewise the possible application of ss126 and 127 of the MACA. 98 The issue of economic loss referable to the motor accident must be remitted to the District Court. This includes past and future economic loss and superannuation. Disposition 99 For these reasons, the verdicts for the defendants in proceedings DC 8848 of 2001 and DC 3576 of 2002 must be set aside. In lieu, there should be verdicts for the plaintiff for damages to be assessed with a new trial to take place on the issues of damages, contributory negligence concerning the ladder claim (Network only) and the cross-claims between the defendants. 100 In the appeal concerning the motor vehicle case (DC 4591 of 2003) the appeal should be upheld with the issues of economic loss being remitted for determination at the same time as the new trial in the other two proceedings. 101 The plaintiff should have the costs of the first trial referable to the industrial accidents. The costs of the first trial referable to the motor vehicle accident should be determined by the judge hearing the new trial having regard, among other things, to the plaintiff's failure to challenge the Certificate successfully and to the amount ultimately recovered in those proceedings. 102 In each of the appeals the respondent or respondents should pay the appellant's costs and, if qualified, have a certificate under the Suitors' Fund Act 1951. 103 It is well known that a certificate under the Suitors' Fund Act is less than a full indemnity. This is particularly disturbing in the present case given that the conduct of the parties at trial has in no way contributed to the litany of errors patent in the judgment below. I propose that the Registrar be directed to send a copy of this judgment to the Attorney General with a request that he give favourable consideration to an ex gratia payment covering so much of the costs of trial as were thrown away in consequence of the manner in which the issues were handled in the judgment. 104 The parties are urged to attempt to settle their remaining differences. Indeed I would reserve liberty to any of them to apply within 14 days for an order directing a referral to mediation if there is not agreement to do so. Absent any such application, the orders I have proposed should be made 14 days after publishing these reasons. 105 SANTOW JA: I agree with Mason P. 106 McCOLL JA: I agree with Mason P. ********** 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.