New South Wales Court of Appeal CITATION: STATE OF NEW SOUTH WALES v MAXWELL [2007] NSWCA 53 HEARING DATE(S): 22 March 2006 JUDGMENT DATE: 21 March 2007 JUDGMENT OF: Mason P at 1; Beazley JA at 120; McColl JA at 1 DECISION: Appeal allowed in part. CATCHWORDS: APPEAL AND NEW TRIAL – interference with judge's findings of fact – findings based on impressions of credibility of witness – alleged unreliable, dishonest witness – where judge prefers evidence of witness over prison officers - APPEAL AND NEW TRIAL – points and objections not taken below – point not taken at trial or in submissions – not allowed to be raised on appeal – contrary to assumption on which trial was held - APPEAL AND NEW TRIAL – damages – assessment – amount manifestly excessive – average weekly earnings – vicissitudes – where other unrelated factors present to diminish earning capacity not taken into account by judge - NEGLIGENCE – duty of care – special relationship – state and prisoner – prisoner operating crane – fall when alighting from crane – crane wheels normally used for alighting not fixed to the ground - WORKERS COMPENSATION – assessment – percentage whole person impairment – whether claimant meets threshold – where expert evidence does not directly deal – where court determines percentage impairment – Workers Compensation Act 1987, s 151H – Workplace Injury Management and Workers Compensation Act 1998, s 322 – Workcover Guidelines – Crimes (Administration of Sentences) Act 1999, s 122 – Interpretation Act 1987, s 30(1)(c) Civil Liability Act 2002 Civil Liability Amendment (Offender Damages) Act 2004 Crimes (Administration of Sentences) Act 1999 LEGISLATION CITED: Interpretation Act 1987 WorkCover Guides Workers Compensation Act 1987 Workers Compensation Legislation Further Amendment Act 2001 Workplace Injury Management and Workers Compensation Act 1998 Attorney-General (WA) v Marquet (2003) 217 CLR 545 Beaumont v Yeomans (1934) 34 SR (NSW) 562 CASES CITED: Kartinyeri v The Commonwealth (1998) 195 CLR 337 Leichhardt Municipal Council v Montgomery [2007] HCA 6 State of New South Wales v Watzinger [2005] NSWCA 329 PARTIES: STATE OF NEW SOUTH WALES Anthony John MAXWELL FILE NUMBER(S): CA 40164/2005 COUNSEL: Appellant: D Davies SC/ S C Finnane Respondent: L Kings SC/ G Walsh SOLICITORS: Appellant: I V Knight - Crown Solicitor Respondent: Mark Capolupo - CMC Lawyers LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 818/04 LOWER COURT JUDICIAL OFFICER: Ashford DCJ IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40164/05 MASON P BEAZLEY JA McCOLL JA Wednesday 21 March 2007 STATE OF NEW SOUTH WALES v ANTHONY JOHN MAXWELL Judgment 1 MASON P and McCOLL JA: A verdict for the plaintiff (the respondent in this Court) is challenged as to liability and the damages assessed for past and future economic loss. 2 The respondent was an inmate at Cessnock Correction Centre on 28 August 2001 when he claims to have injured his back as he descended from a mobile crane. 3 He had been at Cessnock since January 2000. While there, he was taught by a TAFE instructor how to operate one of the two cranes located within the complex. He passed written and practical tests and obtained certification from the WorkCover Authority. He was then assigned to crane driving duties within the prison compound. 4 The respondent claimed that his injury occurred while working on the blue crane in the middle compound. He was assisted by two other prisoners one of whom (Shane Gorton) was driving a tractor and the other (Kenny Wales) was working as a trainee dogman. It was windy and the dogman needed help placing onto piers demountables that were being lifted by the crane. The respondent climbed down from the cabin to give him a hand. 5 At this stage the outriggers of the crane were out, which meant that the wheels of the truck supporting the crane were off the ground. 6 The respondent said that he stood up from the chair in the cabin, turned around so that he was facing into the cabin, and came out of the cabin backwards, placing one hand underneath the seat frame and the other hand on the side of the door framework. He put his right foot on top of the tyre and went to put his left foot on "that little checker plate round thing in the middle of the hub". But as he placed his foot on it, the wheel rotated, he slipped and landed on the ground on his buttocks. 7 He had used this method of climbing down on previous occasions (Black 21). 8 The respondent called out to Wales to get the prison officers because he had hurt himself and could not get up. He said that it took the officers, one of whose name was Jarmain, about five minutes to arrive. His fellow inmates then assisted him back into the top compound to the clinic. The officers accompanied them and opened the security gate. He was given heat lamp treatment and some anti-inflammatory medication. 9 The respondent attended the clinic a few days later when he was experiencing severe pain extending to his right leg and ankle. He said that he had never experienced similar back pain or pain down his right leg prior to that date. A nurse at the clinic gave him heat treatment. He saw a doctor at the clinic the following day. He received medical treatment at the clinic and at hospital over the ensuing months as set out in the reasons of the primary judge at pages 5 and 6. Did the accident occur as alleged by the respondent? 10 The learned trial judge effectively accepted the respondent's version of the accident, as summarised above. 11 The appellant submits that the judge erred in finding a verdict for the plaintiff. Various challenges to credibility findings were made. The grounds in the notice of appeal were that the judge erred in failing to make "crucial findings of fact", in particular: (a) as to where a conversation between Corrections Officer Jarmain and the respondent took place after the alleged fall; and (b) whether the respondent told the officer: (i) that he injured his back as a result of jumping out of the cabin of the crane; (ii) that he already had a back condition; (iii) that he would have his back brace sent into the gaol; and (iv) that he would continue working and not go to the clinic. 12 The trial judge is also said to have erred in the manner of assessing the respondent's credibility, particularly because she paid no regard to certain opinions expressed by Dr Lucire, psychiatrist. 13 The appellant's written submissions went further, arguing that the respondent was an unreliable, dishonest witness who invented the circumstances of the accident, having a pre-existing back condition which came to a head two days before 28 August 2001. These submissions went beyond the grounds of appeal, suggesting (in one variant) that no incident occurred at all on the day in question. The argument was developed in detail (Orange 20-22) by reference to the respondent's history of drug abuse, his criminal history, and answers recorded in the report of Dr Lucire, in which the respondent admitted having told lies in gaol, including misrepresenting his back condition to prison authorities (Blue 247). Particular reliance was placed on concessions that the respondent had a history of low back pain before the alleged accident; and the fact that he had used the expression "jumped" to describe his manner of descent from the crane (Black 82, 110, 130). 14 Medical records of the Department of Correctional Services show that on 28 August 2001 the respondent presented at the clinic complaining of lower back pain with pain running down the right leg. The unidentified author of that record has inserted, but between the lines, "for past 2 days". The record continues: Has history of LBP, was previously on Naprosyn same recommenced. 15 The respondent's wage records (Blue 430) show him as working on Tuesday 28 April 2001, but not on the preceding Sunday. 16 There is an official record of an "inmate accident" occurring and reported on 28 August 2001. The reporting officer was Stephen Jarmain (Blue 214). The details recorded in that document describe the work location as "Demountables", the injury as "back injury" and provide the following details: Inmate Maxwell while working a crane in demountables, jumped from the cabin. He twisted his back on landing causing a pain in his back. He had a pre-existing back condition. 17 Prison clinical notes of 6 September 2001 stating: "Slipped and landed on his feet" (Blue 56) provide further, albeit partial corroboration. 18 The appellant's case as recorded in Officer Jarmain's reports and advanced in court was that the respondent "jumped from the cabin" instead of using the available handrail and foot brackets. Mr Jarmain also recorded that the respondent had an existing back condition (Blue 211, 214). 19 It was put to the respondent in cross-examination that on 28 April 2001 he told the two prison officers that he had jumped off the vehicle. The respondent agreed, stating that this was "just a phrase of talking … the way I spoke" (Black 130). 20 It was further put to the witness that he had invented the whole story about being injured either by jumping or falling (Black 130) and that the only problem with his back stemmed from a previous injury. The respondent did not agree with these propositions. 21 At trial the appellant called Officer Jarmain. He said that he was working with Officer Gibson on 28 August when the respondent "came over" and said "I've just jumped out the crane. I've hurt me back. I'll be all right. I've got a back brace and I've got a bad back and I'll get the back brace" (Black 142). Mr Jarmain said that the conversation took place about 15 to 20 metres away from the crane (Black 143) and not at the foot of the crane as alleged by the respondent. He said he saw the respondent walk slowly and stiffly back towards his crane and that he and Mr Gibson then walked to the workshop. He also said that the respondent continued working even though he was twice asked if he wanted to go to the clinic. 22 This was in sharp contrast to the respondent's evidence that he could neither stand nor walk after the fall, that he was in unbelievable pain, and that he asked inmate Wales to fetch the officers who came to him after a delay of about five minutes. The respondent had also said that one of the officers radioed to the clinic and gave him permission to go to the clinic assisted by Wales and Gorton. On his evidence, one of the officers accompanied him to the clinic, opening the security gates to let them pass through (Black 26). 23 The trial judge (Ashford DCJ) was fully alive to the contest about whether the accident happened at all on 28 August 2001 and/or happened in the manner alleged by the respondent. 24 Her Honour found that the respondent had noticed occasional problems and back strain following heavy work from as early as his first stint in gaol in 1992/93. She also recorded that, in cross-examination, the respondent agreed that from time to time prior to the accident he had experienced back problems following heavy lifting. She noted, however, that he denied having severe back and leg pain of the type experienced by him in August 2001. 25 The reasons set out in some detail the matters put to the respondent in cross-examination by way of challenging his account of the accident and its immediate aftermath. Her Honour records the respondent's history of drug abuse and criminal activity and other matters raised about his credibility. 26 Her Honour observed that the non-attendance of the fellow inmates Wales and Gorton had been explained. Attempts had been made to locate each of them without success. 27 The judge set out the evidence of Mr Jarmain, including documents he had prepared that corroborated that an incident involving back injury associated with the respondent "jumping" from the truck occurred on 28 August 2001. 28 Mr Jarmain agreed that a security gate would need to be opened to get to the clinic. 29 The judge was alive to the fact that there was some conflict between the evidence given by the respondent and that of Mr Jarmain. Her Honour was nevertheless satisfied that the accident occurred in the manner described by the respondent. In doing so, she recognised that the credit of the respondent was critical, all the more so because he was a prisoner and because he admitted to having "told the odd lie". 30 The judge's decision to accept the respondent's case in its essentials recognised that there were various histories (including the Inmate Injury Questionnaire) in which the respondent was recorded as having spoken of jumping or leaping from the crane, or slipping and falling. The respondent had explained them by saying that he really believed all those descriptions to fit within the circumstances of how he fell. Her Honour concluded that this was a reasonable and (by implication) acceptable explanation. The judge said: I thought him to be a fairly simple man and I accept he has little education and his difficulties in reading and writing except in the most basic forms. I did not think him to be attempting to mislead the court in respect of the circumstances of his injury. 31 Judge Ashford was in our view entitled to accept the respondent's explanation for using these words. We would add that "jumping out of the crane" appears to be an apt description of the response to the dogman's call for urgent assistance in the windy conditions. 32 The judge implicitly rejected the evidence of Mr Jarmain where it did not support the respondent's case. In doing so, she appears to have formed the view that in some respects the conflict went to a matter of irrelevant detail, in other respects the respondent's case was corroborated (eg as regards the need for an officer to open the gate to give access to the clinic). In yet other respects the appellant's case was not assisted by the failure to call or explain the absence of Officer Gibson who was in attendance at court but was not called to testify. The judge described Mr Jarmain as "a defensive witness… unwilling the make any concession which, in his view, may have assisted the plaintiff". 33 The defence case relied upon the answers attributable to the respondent set out in forms prepared by Mr Jarmain on 3 September 2001. An Inmate Injury Questionnaire in Mr Jarmain's handwriting signed by the respondent records that the injury was sustained when he respondent "leapt out of mobile crane" (Blue 216). In answer to a question about who was considered responsible for the injury the recorded answer is: Myself for not using hand railing that is provided on the crane. 34 The trial judge did not overlook this material. Nor does the written material establish appealable error that would require the credit-based findings to be set aside. As indicated, the judge concluded that a statement about jumping or leaping from the crane was consistent with the more detailed account given in evidence. 35 The appellant complains in its submissions about the judge not having resolved, and resolved in its favour, the disputed evidence as to where the conversation took place between the injured respondent and the prison officers. Nothing turns on this matter of detail. 36 Other matters raised by the appellant, including the references to the respondent having a pre-existing back problem (eg Blue 248, 332, 422) and issues about the time that elapsed between the accident and the respondent being taken to the clinic do not make the judge's ultimate conclusions "glaringly improbable" or otherwise lead to the overturning of the finding of negligence. To have a pre-existing back problem does not render a person immune from fresh injury. Mr Jarmain's evidence as to the respondent's answers in the questionnaire referring to an earlier history of back pain are themselves given in a context that shows that something definitely happened on 28 August 2001 in consequence of the respondent descending from the cabin of the crane. 37 Medical records from John Hunter Hospital record the respondent's admission on 6 October 2001 (Blue 332). The reported symptoms were severe back pain and right leg pain. The recorded history was: Patient has had severe backpain for past 6-7 yrs. Injured his back further around 5 wks ago after jumping off truck. Patient describes shooting pain from back, radiating down to feet. Toes feel numb. 38 The judge addressed the evidence about the pre-existing back condition at some length (Red 34-5). She accepted the respondent when he said that he had never experienced pain of the kind that occurred in August 2001. Her Honour observed that he had performed heavy lifting both in prison and in general labouring duties prior to August 2001, without recourse to medical treatment. 39 When her Honour came to assess damages for economic loss she adopted the appellant's submission that the deduction for vicissitudes should be made at 25%, in lieu of the standard 15%, "noting a history of some prior back problems necessitating medication at times, and in looking to the fact of some pre-existing degenerative condition" (Red 43). 40 We do not accept the submission that the trial judge overlooked the central issues, or misused her advantage, or failed to explain her reasons for accepting the respondent's case on liability. Contributory negligence 41 The briefest of submissions were addressed in support of the ground of appeal contending for error in not finding contributory negligence (CA Tr p31). Senior counsel conceded that "the problem is her Honour accepted the accident happened in the way the plaintiff said". We agree and can see no error in the rejection of contributory negligence. Did the State discharge its duty of care by arranging competent training? 42 The finding of breach of duty was also challenged on the basis that the State discharged its duty of care by having the respondent trained and certified by WorkCover officers. 43 The respondent was a prisoner, not an employee or contractor. It is nevertheless clear, and undisputed, that the appellant owed a duty to take reasonable care for the respondent's safety whilst in custody (State of New South Wales v Watzinger [2005] NSWCA 329). 44 The respondent's case at trial was that the system of work was not reasonably safe. He relied upon the report of Dr B N Emerson, a chartered professional engineer, to establish negligence in the system of work. That report, which was unchallenged, described the mechanism of the crane in detail (Blue 9, 11). Relevant to negligence, it said: The intent of both the steps and a hand grip mounted in rear of the cabin and inaccessible to the Plaintiff, was that such provision would give access to the back tray and the crane but not the front cabin. The step being 850mm diagonally away from the front cabin door was inaccessible from the front cabin and it was not possible for the 170cm tall Plaintiff to reach it to alight from the front cabin. … With the high step down the Plaintiff without proper hand holds had to span a wide gap with his legs to the extent that he was stretching to reach a difficult step ring which in addition rotated. In this position he was unstable and while attempting to locate his boot on an unstable ring step he was most likely to slip and fall to the ground which in fact he did. Therefore it was obvious that he would inevitably fall. This evidence was accepted by the trial judge (Red 30, 33-34). 45 Mr Commons was a trainer and WorkCover assessor called as a witness by the appellant. In May 2001 he issued the respondent with a certificate of satisfactory assessment in relation to 20 tonne crane operation. Mr Commons had not himself been involved in training the respondent. The practical assessment included the task of getting in and getting out of the crane, but only, it seems with its wheels on the ground (Black 182X, cf 179V). 46 Mr Commons described the correct procedure for getting in and out of the vehicle when its wheels were down. It involved facing the machine and placing the right foot onto the wheel rim and then the left foot onto a stirrup or step. When the vehicle was in an elevated position with the outriggers down, the wheel "freewheeled" because there was no locking mechanism. Mr Commons said that the wheel had to be used with care in these circumstances because of the freewheeling (Black 181). This was because (Black 182): When he put his right foot onto the wheel hub, he had to be very careful that the wheel didn't spin, so as close to the top as possible on either side, so it wouldn't spin around, but that's only in case of emergency. 47 Dr Emerson was not cross-examined, nor was any evidence called to rebut what he had said about the dangers presented to a driver who found it necessary to demount while the wheels were not on the ground. Mr Commons' evidence would only have reinforced this aspect of the respondent's case. At best, Mr Commons was saying that the situation was risky and that a driver should not alight when the vehicle was elevated, except in an emergency. 48 Judge Ashford's reasoning as to breach is quite sparse. Having accepted the respondent's version of the accident, she said: From the evidence before me and noting the evidence of Mr Commons, Dr Emerson and the evidence of the plaintiff, I am satisfied the plaintiff did alight from the crane in the manner described by him which was the unsafe method and clearly an unsafe system of work. I am satisfied the defendant owed a duty of care to the plaintiff and that whilst the plaintiff was trained by TAFE in the operation of the crane the defendant had absolute control of the plaintiff during his incarceration, and I am satisfied there has been a breach of the duty of care such as to cause injury to the plaintiff. 49 Mr Bull was the TAFE teacher who trained the prisoners in the use of cranes in 2001. He was called by the appellant at trial, but his evidence came to an abrupt end when it emerged that he had given training in the use of a yellow crane at Cessnock, but not on the blue crane on which the accident occurred (Black 185). The extent of the difference in the configuration of the two cranes was not explored in the evidence, so far as we are aware. 50 At trial, the appellant sought to meet the negligence claim by arguing that the Department of Correctional Services discharged its duty of care by using professionally qualified persons to train and certify in the use of cranes (Black 199). When senior counsel for the appellant sought in this Court to develop or expand his attack on the finding of negligence, he submitted that the Department's duty of care was not of a non-delegable nature and was in fact discharged by engaging two competent persons, Mr Bull and Mr Commons, to train and certify. 51 The High Court has recently cautioned against expanding the existing categories of non-delegable duty of care (Leichhardt Municipal Council v Montgomery [2007] HCA 6). However, the thrust of the respondent's case was not about his training or certification. It was that the equipment provided was not reasonably safe given the inaccessibility of the step located well behind the cabin (Blue 34) and the tendency of the wheels to spin when the wheels were elevated. Referral to a third party for instruction about coping with such a deficient system does not adequately meet the gravamen of the complaint. 52 This complaint had not been raised in the grounds of appeal nor in the written submissions filed in the appeal. More to the point, it is contrary to the assumption on which the trial took place, namely that the duty of care was analogous to that as between employer and employee (CA Tr p8). It would be quite unjust to contemplate setting aside the verdict on this basis or ordering a new trial to enable a matter barely explored at trial to be developed afresh. Damages for permanent impairment calculated correctly? 53 Damages were assessed at $145,100. This was based on an award for past economic loss (109 weeks at $200 per week) in the sum of $21,800; and an award for future economic loss (30 years at $200 per week, subject to a 25% deduction for vicissitudes) in the sum of $123,300. 54 Under the relevant legislative scheme (discussed below) the only damages available to be awarded were for economic loss. No damages were to be awarded unless the injury resulted in a degree of permanent impairment that met or exceeded a 15% threshold determined in accordance with WorkCover Guidelines. The judge is said to have erred in the process whereby she concluded that the respondent achieved the threshold. There are additional complaints as to the quantum awarded for past and future economic loss. Legislative scheme 55 At the time he was injured the respondent was performing community service work in an activity approved by the Minister for Corrective Services, (s3(1) Crimes (Administration of Sentences) Act 1999). That brought into play s122 of the Crimes (Administration of Sentences) Act 1999 which relevantly provided: (1) Divisions 1 and 3 of Part 5 of the Workers Compensation Act 1987 apply to any award of damages in respect of: (a) any injury to which this section applies, … (2) In subsection (1): award of damages (where firstly occurring) means an award that is made against a person involved in community service work, against the Crown, against the Commissioner or against an officer or other employee concerned in the administration of this Act. injury to which this section applies means a personal injury arising out of or in the course of an offender's performance of community service work, … (3) In the application of Division 3 of Part 5 of the Workers Compensation Act 1987 (a) a reference to a worker is taken to be a reference to an offender who performs community service work, … 56 Section 122 was omitted from the Crimes (Administration of Sentences) Act 1999 by cl [6], Sch 2.2 of the Civil Liability Amendment (Offender Damages) Act 2004. The latter Act inserted Pt 2A, "Special provisions for offenders in custody", into the Civil Liability Act 2002. Part 2A, which applied in respect of an award of personal injury damages against, among others, the Crown, in respect of an injury to a person received while the person was an offender in custody (which the respondent was) did not apply to or in respect of an award of damages in proceedings commenced in a court before 15 January 2004, which these proceedings were (Civil Liability Act 2002, Sch 1, Pt 5 cl 16(2)(a)). 57 There were no express savings provisions in the Civil Liability Amendment (Offender Damages) Act 2004 which preserved the operation of s122 to proceedings commenced prior to the dates referred to in cl 16, Pt 5, Sch 1 of the Civil Liability Act 2002. 58 Although s122 was omitted rather than repealed, there is no doubt that the legislative intention was to effect its repeal: see Beaumont v Yeomans (1934) 34 SR (NSW) 562 at 569; see also Kartinyeri v The Commonwealth (1998) 195 CLR 337 at [67]; Attorney-General (WA) v Marquet (2003) 217 CLR 545 at [46] - [47] per Gleeson CJ, Gummow, Hayne and Heydon JJ and at [126] - [127] per Kirby J. 59 The omission of s122 was not accompanied by any express provision saving its operation in respect of matters taking place prior to 17 November 2004. However the operation of s122 to the respondent's action was preserved by s30(1)(c) of the Interpretation Act 1987 which preserved the appellant's substantive right (and the respondent's concomitant liability) that any damages the respondent might be awarded should be assessed in accordance with s151H of the Workers Compensation Act 1987 (WC Act). 60 The respondent's injuries were suffered prior to 27 November 2001. The proceedings were commenced on 26 September 2002 and, accordingly, his action was governed by the amendments to the WC Act effected by Sch 1 of the Workers Compensation Legislation Further Amendment Act 2001 which commenced on 27 November 2001: See WC Act Sch 6 ("Savings, Transitional and Other Provisions"), Pt 18C ("Provisions consequent on enactment of 2001 Amending Act"), cl 9 ("Amendments relating to common law damages") to the WC Act. 61 Following the 2001 amendments s151H relevantly provided: (1) No damages may be awarded unless the injury results in the death of the worker or in a degree of permanent impairment of the injured worker that is at least 15%. Note. Section 322 of the 1998 Act provides that the assessment of the degree of permanent impairment is to be made in accordance with WorkCover Guidelines. That section also provides that impairments that result from the same injury are to be assessed together. (2) In assessing whether the 15% threshold has been met (that is, whether the degree of permanent impairment resulting from an injury is at least 15%): (a) Impairment resulting from physical injury is to be assessed separately from impairment resulting from psychological injury, and … (c) The 15% threshold is not met unless the degree of permanent impairment resulting from physical injury is at least 15% or the degree of permanent impairment resulting from psychological injury is at least 15%. Note. This does not prevent an award of damages in respect of both psychological and physical injuries together once the 15% threshold has been met for one or the other. (3) In assessing the degree of permanent impairment that results from a physical injury, no regard is to be had to any impairment or symptoms resulting from a psychological injury. (4) The degree of permanent impairment that results from an injury is to be assessed as provided by this section and Part 7 (Medical assessment) of Chapter 7 of the 1998 Act…. 62 The only heads of damages available to be awarded were for past and future economic loss (s151G). 63 So far as is presently relevant, s322 (in Ch 7, Pt 7 of the Workplace Injury Management and Workers Compensation Act 1998, (the "WIM Act") referred to in s151H(4)) provided that the assessment of the degree of permanent impairment of an injured worker for the purposes of the WC Act was to be made in accordance with WorkCover Guidelines issued for that purpose. 64 The WorkCover Authority of New South Wales is authorised pursuant to s376 of WIM Act to issue guidelines with respect, among other matters, to the assessment of the degree of permanent impairment of an injured worker as a result of an injury. 65 In June 2002 WorkCover issued guidelines, known as WorkCover Guides, for the evaluation of permanent impairment. 66 It was common ground that pursuant to those Guides, the degree of the respondent's permanent impairment was to be assessed as follows. 67 Chapter 4 of the Guides deals with the spine. Clause 4.4 provides that the diagnosis-related estimate (DRE) model for assessment of spinal impairment should be used. Clause 4.9 required all spinal impairments to be expressed as a percentage whole person impairment (% WPI). 68 Table 4.3 sets out the steps to be followed in evaluating impairment of the spine: "Table 4.3: Procedures in evaluating impairment of the spine History Physical examination Diagnosis Find the condition in Table 4.1 Use clinical findings to place an individual's condition in a DRE category according to Box 15.1, AMA5 pp382–383 Choose the category that determines the percentage impairment: Lumbar region AMA5 Table 15–3, p384 Thoracic region AMA5 Table 15–4, p389 Cervical region AMA5 Table 15–5, p392" 69 Because the respondent had low back pain with radiculopathy (impairment caused by malfunction of a spinal nerve root or nerve roots, cl 4.24) he was to be assessed as DRE III pursuant to Table 4.1. Next, because his injuries were in the lumbar region, Table 4.3 directed that the category that determined percentage impairment was to be undertaken in accordance with AMA5, Table 15-3, p 384. That Table relevantly provided: DRE Lumbar Category III 10% – 13 % Impairment of the Whole Person Significant signs of radiculopathy, such as dermatomal pain and/or in a dermatomal distribution, sensory loss, loss of relevant reflex(es), loss of muscle strength or measured unilateral atrophy above or below the knee compared to measurements on the contralateral side at the same location; impairment may be verified by electro diagnostic findings or history of a herniated disc at the level and on the side that would be expected from objective clinical findings, associated with radiculopathy, or individuals who had surgery for radiculopathy but are now asymptomatic … 70 Clause 4.30 acknowledged that Table 15-3 did not adequately account for the effect of surgery upon the impairment rating for certain disorders of the spine. Operations where the radiculopathy had resolved were to be considered under the DRE category III (AMA5, Tables 15-3, 15-4, 15-5). However, Table 4.4, which formed part of that clause, indicated additional ratings which were to be combined with the rating determined using the DRE method where an operation for an intervertebral disc prolapse or spinal stenosis had been performed and where there was residual radiculopathy following surgery. Table 4.4 relevantly provided that, in the case of impairment of the lumbar region, there having been a discectomy, or single-level decompression or with residual signs and symptoms, that 3 per cent was to be combined with the impairment rating determined using the DRE method. 71 There was no direct evidence at the trial about whether or not the respondent had suffered a 15% degree of permanent impairment as required by s 151H(1) of the WC Act. The respondent sought to establish that proposition by tendering, among others, reports the appellant had obtained from respectively Dr Connelley and Dr Harvey. It was by taking the second of those reports into account and adjusting it, as we shall shortly explain, that her Honour was able to conclude that the respondent satisfied the 15% threshold. 72 The primary judge approached the case on the basis that it was a matter for the court to determine whether the respondent had established that he had suffered a degree of whole person impairment that was at least 15% using DRE and applying the abovementioned provisions of the Guides (Red 35-36). This was in accordance with the manner the issue was addressed at trial. 73 Her Honour first addressed the respondent's medical reports. She referred to a report from Dr J Harrison of 29 March 2004 which diagnosed the respondent as having sustained "significant postero-lateral disc protrusion with sequestrated disc at L5/S1 on the right hand side which had responded to a decompressive laminectomy but with continuation of some radiculopathy of the right leg." Dr Harrison thought the condition substantially attributable to the accident as to work described. Her Honour noted that Dr Harrison had made no assessment of impairment but concluded that "clearly his opinion places the respondent within the guidelines of 4.4 of the table", referring to Table 4.4 of the Guides. 74 In Dr Harrison's opinion, the respondent was unfit for employment up to December 2001 and thereafter fit for light restricted duty until the end of December 2002. From that time, the doctor thought him fit for light restricted duties but unfit for heavy labouring work or work involving repetitive lifting, bending or carrying, or walking on uneven ground, because of the residual problems with his right leg. 75 The judge then dealt with a report from Dr G Bonnette whose diagnosis was that the respondent had suffered a ruptured L4/5 disc producing a right L5 nerve root compression. Dr Bonnette did not express any opinion as to a percentage of permanent impairment. His view was, however, that the respondent continued to be partially unfit with restrictions on lifting. 76 Her Honour then dealt with the appellant's medical reports tendered by the respondent. Dr Connelley's recorded history noted a prior history of backache going back over six or seven years, but with the respondent insisting that this was only of the type that might come after very heavy labouring work. In his report of 15 June 2004 Dr Connelley opined that the respondent had suffered a permanent impairment of 10% of a whole person (ie the bottom end of the scale of 10%-13% for DRE Lumbar Category III) based on a history of significant disc herniation with some good improvement following surgery for radiculopathy. He also assessed the respondent as having a 5% of a most extreme case level of impairment of his right leg because of the persistence of radiculopathy and the evidence of a weak right ankle jerk, which he translated into a whole person impairment of 2%. He therefore concluded that the respondent had a 12% whole person impairment. 77 The judge correctly observed that Dr Connelley's assessment did not appear to be in accordance with Table 4.4. 78 Her Honour then turned to Dr Harvey's reports. 79 Dr Harvey first reported to the appellant's solicitors on 17 February 2003 on which occasion he diagnosed the respondent as having an L4/5 disc protrusion with nerve root compression (Blue 264). He described the condition as essentially degenerative in nature, while noting that it could have been aggravated and the onset of symptoms precipitated by "the incident [involving falling as the respondent stepped down from a crane] that occurred in the Cessnock Correctional Centre on 9 [sic] August 2001". 80 As the primary judge observed, Dr Harvey recorded that operative treatment had been performed after the fall at Cessnock. On examination, Dr Harvey noted continuing complaints of pain in the lower back radiating down to the outer aspect of the right lower limb to the right foot. 81 In a second report, also dated 17 February 2003, Dr Harvey opined that the respondent had a 10% whole person impairment and would fall into DRE Lumbosacral Category III, a patient with a radiculopathy. He said he believed his assessment was in accordance American Medical Association's "Guides to the Evaluation of Permanent Impairment" (4th Ed.) (Blue 266). 82 Dr Harvey reported again on 31 March 2004. It is apparent that he had been asked how much of the respondent's impairment was due to the injury he suffered in August 2001 and how much to any pre-existing degenerative changes. After noting that the matter whether the respondent had, in fact, suffered pre-existing degenerative changes depended upon a judicial assessment of the respondent's credibility, he expressed the opinion that if the statement recorded at John Hunter Hospital on 6 October 2001 that the respondent had suffered severe back pain over the past six or seven years was true, then he regarded only 50 percent of the respondent's impairment to be as a result of the 2001 incident (Blue 267). 83 Dr Harvey's final report was dated 28 June 2004 and responded to a letter of 4 June 2004 (Blue 268). That letter was not in evidence but it is apparent that the doctor had been asked to make an assessment of impairment using the WorkCover Guides which he thought was "a little different" because it was based on the 5th Ed. of the AMA Guides. Dr Harvey continued: Under these Guides, the patient would fall into DRE Lumbar Category III. Under these Guides, one is allowed to make an assessment between 10-13% according to how much his back condition interferes with his activities of daily living. If one therefore took the most liberal view he would be assessed as having a 13% whole person impairment. 84 Her Honour observed (Red 40) that: Again this does not appear to take into account table 4.4 and the plaintiff submits this assessment should properly be recorded as 16 per cent, being 13 per cent plus 3 per cent in respect of the radiculopathy. 85 This statement clarifies what the judge had in mind with her earlier finding that Dr Connelley's assessment did not appear to be in accordance with Table 4.4. Neither doctor allowed an additional 3% for the fact that radiculopathy persisted despite surgery. (As indicated, Dr Harrison was of a similar view as regards the persistence of post-operative radiculopathy.) 86 Her Honour then said: In looking to those DRE III guidelines, the medical reporting, the plaintiff's complaints, and continuing difficulties, and assessing the matter overall, I am satisfied the plaintiff does achieve the 15 per cent whole body impairment threshold on balance, noting again the injury, condition found at surgery, and the continuing leg symptoms which are all accepted by the medical practitioners. Accordingly the plaintiff is able to succeed in establishing his entitlement. 87 The judge then proceeded to assess past and future economic loss. 88 The notice of appeal originally contended (in ground 1) that the judge erred in ignoring the mandate of s151H(4) which requires the degree of permanent impairment that results from an injury to be assessed as provided by s151H of the WC Act and Pt 7 (Medical Assessment) of Chapter 7 of the WIM Act. That ground of appeal was abandoned. 89 It was recognised by the appellant that Dr Connelley had assessed a 12% whole person impairment on 15 June 2004 (Blue 260) and that Dr Harvey had assessed a 13% whole person impairment on 28 June 2004 (Blue 268). Section 326(1)(a) of the WIM Act provides that an assessment certified in a medical assessment certificate pursuant to a medical assessment under the WIM Act is conclusively presumed to be correct as to the degree of permanent impairment of the worker as a result of an injury in any proceedings before a court with which the certificate is concerned. But the certified assessments referred to are those arising out of a medical dispute referred for assessment under Pt 7 of Chapter 7 of the WIM Act (see s321). The two medical opinions referred to did not arise out of such a process and they were, the appellant conceded, not required to be conclusively presumed correct as per s326. They were the opinions of qualified experts, but no more than that. 90 The appellant accepted the judge's entitlement to assess the degree of permanent impairment of the respondent's injuries, according to the methodology in the Guides. But the complaint, on appeal, is that her Honour relied on assessments of Dr Harvey that were at least 18 months old at the time of trial. (The trial took place in December 2005.) It was further submitted that the report was based, in part, upon the history given by the respondent which (according to the appellant) conflicted with the evidence in the case. Significantly, Dr Harvey was not informed that the respondent was working fulltime and that he considered himself fit enough to work as a crane driver. 91 As indicated, the trial judge formed the view that neither Dr Connelley nor Dr Harvey had followed the dictates of Table 4.4 which relevantly provided that, where there had been a discectomy with residual signs and symptoms, 3% was to be added to the impairment rating determined using the DRE method mentioned in Table 4.3. In this her Honour was, with respect, perfectly correct. 92 Mr Davies SC submitted that it was unsafe for the trial judge to reach the conclusion she did when there was no cross-examination of the two doctors (Connelley and Harvey) whose reports at least grappled with the Guides. We do not accept this submission. There was obviously a live issue at trial as to whether the respondent reached the statutory threshold. This entailed consideration of the respondent's condition as revealed in the evidence, applied to the criteria in the Guides. 93 Having regard to the way the case was conducted, the respondent was entitled to use the reports as a springboard for his case, while pointing to errors or deficiencies in them. The evidence did not suggest that his disabilities had resolved. There were findings that they had not. The respondent was also entitled to rely upon additional evidence, including that drawn from his own doctors' reports, that tended to show persisting radiculopathy despite surgery, thereby creating a basis for reliance on Table 4.4 to top up the "10%-13% Impairment of the Whole Person" derived from Table 15-3. 94 We do not accept the submission that the judge failed to pay regard to the evidence about the respondent returning to crane driving when testing the evidence of Dr Harvey concerning the Guides. Working is not inconsistent with persistent post-operative radiculopathy. 95 It was further submitted that her Honour erred in failing to allow for the respondent's pre-existing injuries in determining the percentage of whole person impairment. We do not agree. Section 323 of the WIM Act provides: 323 Deduction for previous injury or pre-existing condition or abnormality (1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality. (2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence. Note . So if the degree of permanent impairment is assessed as 30% and subsection (2) operates to require a 10% reduction in that impairment to be assumed, the degree of permanent impairment is reduced from 30% to 27% (a reduction of 10%) . (3) The reference in subsection (2) to medical evidence is a reference to medical evidence accepted or preferred by the approved medical specialist in connection with the medical assessment of the matter. (4) The WorkCover Guidelines may make provision for or with respect to the determination of the deduction required by this section. (5) (Repealed) 96 The Guides gave the following relevant instruction as regards deductions for pre-existing injury or condition: (AMA5 Section 1-6, p11) In assessing the degree of permanent impairment resulting from the injury, the assessor is to indicate the proportion of WP1 due to any previous injury, pre-existing condition or abnormality. This proportion is known as "the deductible proportion". If this amount is difficult or costly to determine, the assessor should indicate this in the report. In this case, for the injury now being assessed, the deduction is 10% of the impairment, unless this is at odds with the available evidence. 97 The doctors were aware of the pre-existing condition of the respondent's back. Dr Connelley reported on 1 April 2004 (Blue 259): Clearly your records indicate a prior complaint of back disability, and bearing in mind Mr Maxwell's work history, this may not be surprising. However, there seems no doubt that the fall as described by Mr Maxwell as occurring in August 2001 when he slipped and fell heavily in a sitting position when he was getting out of a crane, I believe was the precipitating cause of a significant disc herniation, necessitating surgical treatment. 98 Dr Harvey recorded a history involving problems with the back (Blue 262-3). He thought the condition to be essentially degenerative in nature, but could have been aggravated and the onset of symptoms precipitated by the incident at Cessnock. As indicated above (para 82), he would have regarded only 50% of the impairment to be the result of the incident at the prison if it had been the case that the respondent had suffered severe back pain over the previous 6 or 7 years. This, however, was not the judge's finding. Dr Harvey thought that if the history of back pain was as the respondent had reported to him then the whole of what he found to be the 10% impairment was attributable to the accident. 99 When the judge expressed her conclusion about the statutory threshold being achieved (par 86 above), she noted the continuing leg symptoms. Earlier, her Honour had found: There were various histories given which relate him to have experienced prior back symptoms for seven or eight years and that he had at times utilised a back brace. The plaintiff did not admit to having used the back brace prior to injury. He agreed he may have given a history of occasional back aches for seven or eight years as described by him in the evidence, however the evidence does not go so far as to cause me to believe he had any major pre-existing back condition noting in particular that the plaintiff performed heavy lifting both in prison and in general labouring duties prior to that time without recourse to medical treatment. 100 The submission that the pre-existing injury was overlooked must therefore be rejected. 101 It was further submitted that the awards for past and future economic loss were manifestly excessive. 102 The reasons do not disclose the judge's basis for calculating the diminished earning capacity at the rate of $200 per week beyond statements that this was the amount claimed in the respondent's submission and that it seemed "entirely reasonable and appropriate" (Red 43). Earlier, her Honour had referred to submissions by counsel for the respondent that the minimum average earnings of a crane driver were in the sum of $674 per week gross; and the submission by counsel for the appellant that the average weekly earnings of a New South Wales employee in 1999, ie the time before the respondent's incarceration, was a gross figure of $750.30 per week. 103 There was no ground of appeal based on absence of reasons explaining the process whereby the judge fixed upon $200 per week as the allowance of diminished earning capacity. 104 The respondent gave evidence that he was unemployed between discharge from gaol in December 2002 until about 20 January 2005. He was no longer able to manage heavy lifting. He told prospective employers of his back operation and found that he could not "get a foot in the door" (Black 38). He was required to apply for work as a condition of his unemployment benefits. He had applied for hundreds of jobs, but without success. 105 The respondent returned from Queensland to New South Wales in January 2005 because he had obtained a workplace offer to do work "picking orders" at an automotive spare parts business at Hornsby. He was being paid $500 a week clear, but was on a three month trial as a casual. This work did not involve lifting heavy weights. The trial took place in February 2005. 106 For past economic loss the judge allowed 109 weeks at the rate of $200 per week, totalling $21,800. 109 weeks was the period from the respondent's release from prison in December 2002 until, it seems, the date of judgment on 15 February 2005. 107 As to future economic loss, the judge adopted the same rate of $200 per week as the reflection of diminished earning capacity. As indicated, she calculated the award in the conventional manner save that the allowance for vicissitudes was 25% and not the standard 15% "noting a history of some prior back problems necessitating medication at time, and in looking to the fact of some pre-existing degenerative condition". For 30 years using the 5 per cent tables with a multiple of 822, a weekly loss of $200 produced $164,400. When 25% was deducted for vicissitudes the resulting award was $123,300. 108 The complaint in the notice of appeal was that in calculating loss at the rate of $200 per week the judge made no allowance with respect to the respondent's lifestyle, work history and his pre-existing back condition. It was argued that her Honour should have recognised that the respondent would have had significant difficulties in obtaining employment whether or not he had been injured. He had a fairly significant criminal record; he had spent several years in prison (his stint at Cessnock not being the first time in custody); he had a pre-existing back problem; when he was released from gaol he immediately went back to drugs (Black 65); on his own admission he continued to use "pot" and "speed" until a few months before the trial; and in early 2004 he spent time in custody for breach of an apprehended violence order. 109 In short, it was also submitted that the judge made insufficient allowance for the respondent's poor work record, his criminal background, his drug-taking, his problems with anger management and the prospects of him resuming his criminal lifestyle and the effect of his pre-existing back condition. 110 The appellant submitted that as far as the future was concerned, given the respondent's chequered work history and other factors, the preferable course would have been to provide a 'buffer' rather than to adopt the traditional methodology used by her Honour. As will appear, we do not agree that a 'buffer' approach is appropriate in this case, although we accept the submission that greater allowance ought to have been made for certain factors. 111 In our view, and with one important qualification, the appellant has not made good its broad challenge to the conclusion that the diminished earning capacity ought to be reflected at the rate of $200 per week. 112 The judge did not overlook the pre-existing back problems. In light of the medical evidence she was entitled to conclude that a significant aggravating event occurred in the accident at the prison and that it had lasting impact on the respondent's earning capacity. The respondent was aged 35 at trial. Despite surgery, he was left with a significant permanent disablement. The accident meant that he was no longer capable of securing and/or retaining crane-driving work. No employer was likely to engage him to do any manual work that would involve any substantial lifting. His capacities and training did not equip him for skilled work. 113 However, the appellant is on firmer ground in its submission that her Honour erred in making no allowance for the difficulties that the respondent would have encountered, even if uninjured. He would have needed more than favourable references from within the prison system to get anywhere near maximising the earning capacity inherent in his formal crane-driving qualifications. Even as an unskilled labourer he would have had difficulties in securing and retaining employment in light of his criminal record and his personal disposition. 114 One hopes that this comparatively young man will readjust his lifestyle and climb out of his long pattern of drug dependency and associated criminality. There have, however, been incidents since his release from prison indicating that controlling anger and avoiding the use of illegal drugs remains a significant problem. And it is to be expected that some prospective employers will shy away from engaging him, at least in the short term until he (hopefully), builds up a record of responsible employment. 115 These difficulties ought to have impacted on the awards for past and future economic loss. 116 Neither party seeks a new trial unless it is unavoidable. The Court must do its best to determine what awards are justified. 117 More than the pre-existing back problem should have been allowed for by way of "vicissitudes", assuming the conventional model of calculating economic loss by reference to the balance of an anticipated working life as a certificated crane operator. We think that 50% reduction in the award would more accurately reflect the probable loss stemming from all of the circumstances. 118 A 50% reduction in the award for past economic loss is also justified on similar reasoning. Disposition 119 We therefore propose the following orders: 1. Appeal allowed in part. 2. Vary the award of damages by substituting $93,100 for the award of $145,100. 3. No order as to the costs of the appeal. 120 BEAZLEY JA: I agree with Mason P and McColl JA. ********** 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.