Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Kwong v Abdulwahab [2016] NSWCA 107 Hearing dates: 21 April 2016 Decision date: 13 May 2016 Before: Basten JA at [1], Simpson JA at [20], Barrett AJA at [98] Decision: (1) The time in which to appeal is extended to 22 September 2015; (2) Appeal allowed in part; (3) Set aside the judgment for $534,695; (4) In lieu thereof enter judgment for the plaintiff for $524,695. Catchwords: APPEAL – civil – whether primary judge erred in findings of fact – challenge to findings of fact without foundation – findings of fact supported by evidence – no material errors made DAMAGES – negligent medical treatment – injury to plaintiff's right hand – liability admitted – past and future economic loss – diminution in earning capacity – whether attributable to hand injury or supervening back condition – onus of proof – challenges to findings of fact – finding that plaintiff manufactured back condition for ulterior purpose – unsubstantiated – failure of primary judge to undertake evidentiary analysis – power of Court of Appeal to make findings of fact – Supreme Court Act 1970 (NSW), 75A – loss of earning capacity attributable to hand injury APPEAL – civil – adequacy of reasons – whether primary judge failed to provide adequate reasons for quantification of economic loss – no submission that award was excessive or unsupported by evidence – Court of Appeal has powers and duties of court below – Supreme Court Act 1970 (NSW), s 75A(6) – inference drawn that earning capacity could be no more than $500 per week – absence of reasons not fatal to award DAMAGES – claim for damages for future medical expenses – unsupported by evidence – primary judge erred in making award – degree of probability of future medical treatment "so low as to be regarded as speculative" – Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638 – appeal allowed as to award of damages for future medical expenses only Legislation Cited: Civil Liability Act 2002 (NSW) Suitor's Fund Act 1951 (NSW) Supreme Court Act 1970 (NSW), s 75A Uniform Civil Procedure Rules 2005 (NSW), r 31.10(2) Cases Cited: Concrite Pty Ltd v Rogerson [2002] NSWCA 310 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Purkess v Crittenden [1965] HCA 34; 114 CLR 164 Qantas Airways Ltd v Lisica [2007] NSWCA 371 Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 Watts v Rake [1960] HCA 58; 108 CLR 158 Yarrabee Coal Co Pty Ltd v Lujans [2009] NSWCA 85; 53 MVR 187 Category: Principal judgment Parties: Dr Christopher Kwong (Appellant) Mohamad Abdulwahab (Respondent) Representation: Counsel: J Sandford (Appellant) R Sheldon SC/I Ryan (Respondent) Solicitors: TressCox Lawyers (Appellant) Brydens Lawyers Pty Ltd (Respondent) File Number(s): 2015/150408 Decision under appeal Court or tribunal: District Court Date of Decision: 24 March 2015 Before: Maiden DCJ File Number(s): 2012/385138 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. BASTEN JA: On 14 December 2009 Mohamad Abdulwahab suffered a nasty laceration of the index and middle fingers on his right hand, when using an angle grinder at his workplace. His supervisor sent him immediately to a nearby medical practice where the wounds were inadequately treated. An infection set in which, following further treatment at Bankstown Hospital and an operation to release tendons in his right index finger, left the claimant with a right index finger which is frozen in a partly flexed position and has no function. 2. Mr Abdulwahab ("the claimant") brought proceedings in the District Court against his first treating doctor, Dr Christopher Kwong, the appellant in this Court. Liability was conceded and the matter went to trial in the District Court for a limited purpose described as "assessment of damages." The claimant obtained a judgment in an amount of $534,695. 3. To describe the case as restricted to an assessment of damages is to obscure the real issue, which was to determine the extent to which the injury to the claimant's right index finger gave rise to a continuing diminution in his earning capacity after 25 February 2012, when he was treated for severe lower back pain. He had ongoing treatment thereafter up to the time of the trial for pain in his lower back. In short, the question was whether, and if so to what extent, there was work available to the claimant after his back injury which he was precluded from doing as a result of the injury to his right index finger. 4. For reasons which may be shortly explained, that question was not properly addressed at trial and the judgement must be set aside. 5. The bulk of the judgment ($330,000) was comprised of past and future economic loss, with most of the remainder (nearly $200,000) an award for pain and suffering. The extent to which the claimant was entitled to a significant sum for loss of earning capacity was materially dependent upon findings as to his credibility. (The same is true of the assessment of non-economic loss, although the appellant did not challenge the assessment of this head of damages.) The claimant submitted that, if this Court were to uphold the appeal, a retrial would be necessary. Although the appellant resisted that conclusion, the claimant's submission should be accepted. 6. So far as the past was concerned, and the trial judge treated it as governing the future, three dates were of critical importance. First, there was the date of injury (14 December 2009) when the inadequate treatment was provided; secondly, there was the date on which his lower back became symptomatic, (fixed as 27 February 2012, being the date on which he was treated at Bankstown Hospital for an epidural abscess); thirdly, there was the date of a surveillance film, showing the claimant bicycling to a place of work and undertaking rubbish removal activities (either 20 or 22 November 2013). The last date the trial judge treated as the first time he could be satisfied on the evidence that the claimant had recovered from any disability caused by the epidural abscess. The judge awarded past economic loss calculated at approximately 50% of his pre-injury earnings, from 20 November 2013. (It is not clear what the effect would be, in practical terms, of failing to calculate damages with respect to the period when he was undoubtedly disabled and on worker's compensation after the injury.) 7. In setting out the medical history, the trial judge noted as a "critical issue" the question of "back pain." [1] Apart from the hospital records in relation to the procedure on 27 February 2012, the bulk of the evidence in that regard was to be found in the records of numerous visits to his general practitioner, Dr Francis Vu, in Dr Vu's oral testimony and in the claimant's own oral testimony. Dr Vu recorded complaints of back pain from 25 February 2012 (two days before the operation) up to and continuing after 20 November 2013. The judge stated: [2] "The Court is required to find that effectively, the continuing complains after 22 November 2013 were an attempt by the plaintiff to obtain opioid or other prescription drugs in respect of a dependence or desire to use those medications." 1. Taken out of context, the meaning of that passage is unclear. The thrust appears to be that, unless such a finding were made, the claimant would not be entitled to damages for loss of earning capacity after 22 November 2013, because he was suffering from a supervening disability which was at least co-extensive with, if not greater than, the disability resulting from the injury to his right index finger. Further, the judge had in fact made such a finding at an earlier stage in his reasons, where he stated, after referring to the extensive complaints to Dr Vu in respect of his lower back: [3] "I find that in respect of those attendances during 2013 and 2014, that it was an attempt by the plaintiff to obtain opioid or other medications upon which he, the plaintiff, sought because of dependence or he sought rather than having to obtain illicit substances as he had previously admitted of both heroin and ice, that is, methylamphetamine." 1. The judge was invited to take this approach by the claimant himself. In written submissions, counsel for the claimant had stated that the issue of his back was "complicated due to the fact that the plaintiff appears to have been using back pain as an excuse to obtain narcotic medication." It was further submitted that Dr Vu's notes "graphically demonstrate this." It was said that Dr Vu's evidence (he having been called by the claimant) "should be almost entirely disregarded." Dr Vu was said to have "a major problem and that is that if his notes are to be believed, he continued to dispense narcotic-based medication to the plaintiff at a time when he knew the plaintiff was abusing it." The written submission continued: "He would hardly come along and admit this behaviour since his ability to practice [would] be jeopardised. For this reason he adopted the tactic of suggesting the plaintiff was suffering from a most serious back injury when this is obviously not the case." 1. In oral submissions, senior counsel for the claimant was equally dogmatic: [4] "Now, I've gone on in the submissions to say something about the plaintiff's back, and of course we have here a person who has turned into a drug addict, a narcotic user, and he's getting the narcotics for back pain. So it's hardly surprising, given that he wants to continue the use of the narcotics, that he's complaining about back pain. Now, poor old Dr Vu is in a very difficult position. He's hardly going to come along here and say, 'Well, I'm giving him this narcotic medication but really he's putting it on a bit as to the level of significance of the symptoms in his back,' but that's exactly what's going on in real time." 1. It was, to say the least, unusual that senior counsel for a claimant would submit that his own client had fabricated a complaint of back pain and maintained the fabrication over some years in consultations with his general practitioner. The reason for taking that course was, no doubt, that if his client were believed in that regard, it might be fatal to his claim for damages flowing from the injury to his finger. The further result was that the judge was being invited to conclude that both the claimant and Dr Vu had lied on oath in giving evidence during the trial. 2. That course was not merely unusual, it was outrageous. Neither the claimant nor Dr Vu had any such proposition put to them in the course of lengthy testimony. It is true that both were called in the claimant's case, but that does not permit nor excuse such an attack. 3. The fundamental requirement of the adversary process that a witness must be given the opportunity to answer a proposition critical of his or her evidence is not a mere construct of professional ethics; it is fundamental to the fairness of a trial. That fact is demonstrated by the attempt by counsel for the claimant (the respondent in this Court), neither of whom appeared at trial, to justify the submissions made below on the basis of references in Dr Vu's records. The records relevantly commence on 25 February 2012 when the claimant consulted Dr Vu for the first time with respect to his back pain. Dr Vu noted a history involving a work accident in 1997 when a 6.5 tonne beam fell on the claimant, noting he was off work for two years. What appears to be a reference to the current incident is then recorded: "Been painting.. severe lower back pain.. tender/spasm over R SIJ tender to touch .. unable to walk, sit and stand.. limited/restricted range of movement". Notably, the Court's attention was not drawn to any earlier complaints of back pain, although the trial judge accepted that he had used heroin and ice at earlier times. 4. There were then nine further consultations in 2012 following the operation, commencing on 8 March 2012 and continuing to 10 September 2012. Reference was made to the entry of 16 March 2012 which recorded "seem to be extreme pain.. walking with stick, support by son and daughters [-] having scan done.. and specialist appointment advise about treatment.. short term use of endone only [-] daughter lost the script.. reassurance". It was submitted that "daughter lost the script" might be a typical excuse by a drug addict seeking to obtain additional quantities of prescription medicine to feed a habit. However, there was no indication as to what prescription was lost and there was no evidence of Dr Vu having prescribed the strong opioid endone on a prior occasion. A prescription for endone was noted on that occasion, under the heading "Prescription added", possibly indicating it was a new prescription. 5. The entry for 2 May 2012 recorded Dr Vu "enquiring about drug history.. patient denied.. > 2 months.. case worker concerned and raised the issue.. refused drug detox/rehab..". Finally, the record for 10 September 2012 included the entry "advise about chronic pain.. refuse.. kapanol.. taking from his friends." Kapanol is another opioid and it may be inferred that Dr Vu refused to prescribe it. Nevertheless, there would undoubtedly have been powerful medical reasons not to prescribe opioids for lengthy periods for home use, despite satisfaction that the patient was experiencing significant pain. Dr Vu was not given an opportunity to proffer such reasons. 6. The submissions with respect to fraudulent complaints of back pain should not have been made; nor should they have been accepted. 7. As the trial judge appeared to recognise, absent a finding that the symptoms of back pain presented to Dr Vu, and confirmed by the claimant in his oral evidence, there would be a real question as to whether the disability resulting from the loss of function in the index finger on his right hand gave rise to any additional loss of earning capacity after February 2012. If the finding of fabrication of pain thereafter is set aside, the further issue remains to be resolved. 8. The principal reason why this Court cannot deal with the matter is that it remains unclear as to how the claimant would wish to deal with the issue of back pain. There remain issues of credibility, in particular with respect to the cross-examination of the claimant based on the surveillance film. Nor was this Court taken through the exercise of making findings as to the respective disabilities, on the assumption that the claimant had an ongoing problem with pain in his lower back. There was seriously conflicting evidence as to the extent of the disability arising from the inflexibility of his right index finger. 9. Accordingly, the judgment in the District Court should be set aside and the matter remitted to that Court for a rehearing. The respondent claimant must pay the appellant's costs in this Court. No doubt he is entitled to a certificate under the Suitor's Fund Act 1951 (NSW). 10. SIMPSON JA: By Statement of Claim filed in the District Court on 12 December 2012, the present respondent, Mohamad Abdulwahab (to whom I will refer as "the plaintiff"), claimed damages for personal injury suffered as result of the negligence of the appellant, Dr Christopher Kwong ("the defendant"). The negligence the plaintiff alleged was in medical treatment afforded to him by the defendant following a work injury sustained by the plaintiff on 14 December 2009. 11. The defendant admitted liability for the injury. The matter therefore proceeded in the District Court over three days in September 2014, and four days in March 2015, as an assessment of damages. 12. The plaintiff claimed damages under various heads, of which those relevant to the present appeal were past and future loss of earnings, past and future loss of superannuation payments, interest on past losses, and medical expenses anticipated to be incurred in the future. He also claimed an award of damages for past and future domestic assistance, but the primary judge declined to make such an award. Although the claim was governed by the provisions of the Civil Liability Act 2002 (NSW), no disputed issue arising from that legislation was identified. On 24 March 2015 the primary judge delivered judgment, awarding the plaintiff the sum of $534,695. 13. The primary judge awarded damages for non-economic loss (quantified in a way that is not the subject of challenge), and medical expenses to date of trial (also not challenged). Relevantly to the appeal, he allowed $37,500 in respect of past loss of earnings, interest thereon of $1,022.25, future loss of earnings quantified at $254,100, loss of superannuation to date of trial at $4,125, and future loss of superannuation quantified at $33,033. Finally, he allowed $10,000 in respect of anticipated future medical expenses. 14. The defendant appeals against the quantification of damages, with respect to every head other than non-economic loss, and past medical expenses. An application for an extension of time within which to bring the appeal was not opposed and ought to be granted. Background 1. The plaintiff was born in Lebanon in January 1969. He migrated to Australia with his family when he was a small child. He left school with the School Certificate and qualified as a boilermaker/welder. From 1997, he was employed in that capacity by L and A Pressure Welding Pty Ltd. On 14 December 2009 (when the plaintiff was 40) he suffered an injury to his right hand when a grinder he was attempting to repair started unexpectedly and cut the base of his index and third fingers. The injury to the index finger was severe. 2. The plaintiff was taken to the defendant's medical practice, which was retained by L and A Pressure Welding to deal with medical issues arising in the course of employment. The defendant was not the plaintiff's regular general practitioner. Dr Francis Vu had been the plaintiff's general practitioner since 2005. In fact, on the same day as he injured his finger, the plaintiff consulted Dr Vu, complaining that he was drowsy and sleepy, and had no energy. 3. It was the treatment administered to the plaintiff by the defendant that gave rise to the proceedings, and was, admittedly, negligent, and, also admittedly, resulted in injury to the plaintiff. The plaintiff underwent surgical procedures to wash out the wound on 20 December 2009 and on 30 December, and on 10 June 2010 underwent further surgery for release of tendons. He was left with a significant disability in his right hand, with no use of the index finger (although the extent to which that disability incapacitated him was in issue in the trial). 4. The plaintiff returned to work in July 2010, but underwent further surgery in October of that year. He again returned to work, on restricted hours and duties in March 2011. By September 2011, he had resumed his pre-injury working hours and duties, although with a modified technique. His employment was terminated in November 2011. 5. In February 2012 the plaintiff experienced severe back pain, which proved to have been caused by an epidural abscess. Surgical drainage of the abscess was performed in March, but he continued to experience pain. In May Dr Vu completed a Centrelink Medical Report for an application for a Disability Support Pension. He nominated "major depression" and "chronic back pain" as the basis for the application for the pension. The outcome of that application was not in evidence. 6. Dr Vu's medical records reveal that, on 9 November 2009 and 13 November 2009 (that is, about one month before the plaintiff's work accident) the plaintiff had consulted him complaining of depression, stress and lack of motivation. Dr Vu prescribed Pristiq, a drug used to treat major depression. Dr Vu's records also reveal a continuing history, up to the date of trial, of reports by the plaintiff of chronic back pain, for which he requested prescriptions for narcotic painkillers. At one point, Dr Vu expressed concern at the level of pain relief the plaintiff was asking for. On occasion Dr Vu (or another doctor in the practice) refused to prescribe painkillers or narcotics. Dr Vu's notes contain many references to a referral of the plaintiff to a Pain Clinic. 7. The plaintiff had a history of illicit drug use, notably heroin and amphetamines. There was evidence that he had been prescribed (apparently not by Dr Vu) Buprenorphine, a drug used to assist in withdrawal from heroin dependence. The trial 1. Evidence in the trial commenced on Wednesday, 17 September 2014. It was not in issue that the plaintiff suffered from a significant disability in the use of his right hand. His claim that that disability incapacitated him for any employment or for his pre-injury employment was in dispute. 2. Oral evidence was given in the trial by the plaintiff, his sister, and various medical practitioners. They were Dr Peter Conrad and Dr Matthew Giblin (orthopaedic surgeons who assessed the plaintiff for medico-legal purposes), Dr Peter Klug (a psychiatrist), Dr Vu and Dr Donald Faithfull. Dr Faithfull was an orthopaedic surgeon who initially became involved in the proceedings for the purposes of advising on liability issues, but who also provided opinion evidence with respect to the plaintiff's incapacity (attributable to his hand injury). 3. The position adopted on behalf of the defendant at trial was that the plaintiff's back condition was such as to incapacitate him, and thus to overtake the effects of the hand injury so far as his earning capacity was concerned: see Watts v Rake [1960] HCA 58; 108 CLR 158; Purkess v Crittenden [1965] HCA 34; 114 CLR 164; Concrite Pty Ltd v Rogerson [2002] NSWCA 310; Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; Qantas Airways Ltd v Lisica [2007] NSWCA 371. 4. During the cross-examination of the plaintiff, DVD footage was shown to him. The footage was the product of surveillance that had been conducted on 20 and 22 November 2013 by a private investigator, Mr Andre Abikhalil. The DVD had not previously been disclosed to the plaintiff's legal representatives, and was, prima facie, inadmissible by reason of the prohibition in Uniform Civil Procedure Rules 2005 (NSW) 31.10(2). However, relying on the exception contained in sub-r (2)(a), the primary judge stated his intention of admitting the DVD into evidence. 5. At the conclusion of the plaintiff's cross-examination, his senior counsel sought an adjournment, the purpose of which was to enable the plaintiff's medical practitioners to view and comment on the DVD. The application was granted on 19 September. 6. On 26 September, a Further Amended Defence was filed. It pleaded, for the first time, that any economic loss or loss of earning capacity in the plaintiff was attributable to low back injury with associated sciatica, for which the defendant was not liable. 7. The trial resumed on 16 March 2015. Over that and the following day, the plaintiff's medical evidence was called. This included evidence commenting on what could be seen in the surveillance DVD. 8. Two witnesses were called in the defence case. One was Mr Norman Chouaifaity, one of the principals of L and A Pressure Welding, the plaintiff's employer. The other witness was Mr Abikhalil, the private investigator who had conducted the surveillance of the plaintiff on 20 and 22 November 2013. The DVD footage of the surveillance was admitted. Some medico-legal reports were tendered. Also tendered in the defendant's case were some of the records of the plaintiff's consultations with Dr Vu, the medical reports provided by Dr Vu with respect to the plaintiff's application for a Disability Support Pension, and two questionnaires completed by the plaintiff at the Pain Clinic to which Dr Vu had referred him. The primary judgment 1. Judgment was delivered orally on Tuesday, 24 March, the evidence and submissions having concluded on the preceding Friday. The judgment has been described as "extempore" although that is not quite accurate. 2. Notwithstanding the plaintiff's history of drug use, the primary judge formed a favourable view of his commitment to work. He found that the plaintiff was "a willing worker and was at his mental best when working" and "a willing worker and a competent worker". He noted the record of depression (November and December 2009) in Dr Vu's notes and appears to have accepted that, at an earlier time, the plaintiff had suffered from anxiety and depression due to the breakdown of his marriage (although that does not appear from Dr Vu's notes). 3. He accepted that, by reason of his hand injury, the plaintiff would be unable to work as a welder in the future. He considered, however, that the plaintiff had a residual earning capacity "save for his depressive illness and in respect of his lower-back pain". He then considered the extent to which the plaintiff's back condition (which he accepted was unrelated to the defendant's negligence) had intervened to preclude the plaintiff from exercising his residual earning capacity. He concluded that the back condition did so until 20 November 2013 (the day of the video surveillance). (It seems to me that his Honour settled on that date, not because he was satisfied that that was the date on which the plaintiff had sufficiently recovered from the back ailment to be able to return to some form of work, but because the evidence was inadequate to establish any earlier date on which he had done so.) In reaching this conclusion, the primary judge had regard to the evidence of Dr Vu's records of multiple consultations by the plaintiff, in which the plaintiff had asked for pain relief. The primary judge concluded that these requests by the plaintiff, rather than being indicative of genuine requests for medication attributable to back pain, represented an attempt by the plaintiff to obtain opioids legitimately, rather than illicitly (as he had done in the past). He reached this conclusion, at least in part, because, in consultations with Dr Conrad and other medical practitioners, and in an assessment by an occupational therapist, the plaintiff had not given reports of lower back pain. 4. He concluded that, from 20 November 2013, the plaintiff was fit for light duties. In reaching this conclusion, he took into account his observations of the plaintiff as recorded in the surveillance DVD. 5. Accordingly, the primary judge determined to award the plaintiff damages for loss of earnings from that date. He found that the plaintiff's loss (attributable solely to the hand injury) was $500 per week which he awarded, calculated from 20 November 2013, discounted on the 5 per cent tables, and then reduced by 25 per cent for vicissitudes (an increase on the conventional 15 per cent, a reduction he arrived at by reason of the plaintiff's prior depressive illness, drug use and back condition). On that basis he also made awards for interest on loss of earnings to the date of trial, and loss of superannuation benefits past and future. 6. Medical expenses already incurred were agreed at $378.75. The primary judge then determined to allow an amount of $10,000 in respect of future medical treatment: "… because of the possibility, although evidence was not given by him that he would seek to have the finger straightened later, there are obviously the difficulties with the scarring and with having that particular finger checked from time to time in the future." The appeal 1. The grounds of appeal may conveniently be divided into four categories. Grounds 1 to 4 assert error in various findings of fact. By Ground 9 complaint is made of inadequacy of reasons for the finding that the plaintiff suffered a loss of earning capacity of $500 per week by reason of the defendant's negligence. Ground 10 challenges the award of $10,000 for future medical expenses. Grounds 5 to 7 inclusive are the principal basis of the appeal. They are directed to the conclusion that, by 20 November 2013, the plaintiff's loss of earning capacity was attributable to the injury to his hand, and not to his back condition. The outcome of these grounds of appeal is, essentially, determinative of the challenges to the awards under all heads of damage other than future medical expenses. 2. Grounds 1 to 3 can be disposed of quickly. Ground 1 focusses on one sentence in the judgment. The sentence is: "On or about 9 September 2009, there is reference in the plaintiff's general practitioner's records, that is Dr Vu, that the plaintiff discussed with that medical practitioner a prescription which is referred to in the notes as Butamorphine, but correctly is known as Buprenorphine, which is a medication which is used for persons seeking to withdraw from heroin dependence." 1. The actual note in Dr Vu's records is: "been resting in bed. waking in bed. currently butamorphine. been depressed. stress, no motivation." 1. The point of the complaint appears to be that an assertion to Dr Vu by the plaintiff that he had in fact been using Buprenorphine (as distinct from a note by Dr Vu that he had discussed with the plaintiff a prescription for Buprenorphine) established that he was, or had been, a user of illicit drugs. A note of a discussion of a prescription for the drug did not have the same effect. (Presumably, evidence of the plaintiff's prior drug use was thought to be relevant to his credit.) Since prior illicit drug use was accepted by the primary judge in any event, the error, such as it is, is of no moment. 2. By Ground 2 complaint is made of the treatment of the plaintiff's history of depression. The primary judge recorded that, on 9 November 2009 and 14 November 2009, the plaintiff consulted Dr Vu, reporting depression and/or anxiety. The sole complaint now made under this ground is that the primary judge failed to record another consultation, on 13 November 2009. (It may be inferred that the defendant would seek to rely on evidence of a history of depression as supporting his case that the plaintiff was incapacitated for work by conditions unrelated to the defendant's negligence.) Again, any omission in the judgment is overcome by the findings of fact actually made. The primary judge accepted that the plaintiff had some history of depression pre-dating the injury of 14 December 2009. (It is here pertinent to reiterate that these three reports of depression pre-date the plaintiff's injury by only one month. They do not establish a longstanding history, nor do Dr Vu's records indicate that the plaintiff lost any time from work as a result of this condition.) 3. By Ground 3 complaint is made of what is said to be a "finding" that Dr Vu had been the plaintiff's general practitioner "since 14 December 2009". The statement appears in a parenthetical observation about Dr Vu's prediction that the plaintiff would have no further improvement in his hand. 4. Dr Vu's records show that the plaintiff had in fact been his patient since 2005. It is quite apparent, elsewhere in the judgment, that the primary judge was well aware that Dr Vu had been treating the plaintiff prior to December 2009, and had been doing so since 2005. The misstatement was not intended to be a finding of fact, and certainly not a finding of contested fact. It is no more than a slip of the tongue in a judgment delivered orally. It is of no moment. 5. Ground 4 challenges the primary judge's conclusion that, prior to his injury, the plaintiff was "a willing worker and was at his mental best when working". The basis for the challenge, as presented in written submissions, was that (so it was said) the primary judge failed to take into account the evidence (to which he had earlier referred) of the plaintiff's reports to Dr Vu of depression, stress, lack of motivation, not eating, drowsiness and sleepiness, and that Dr Vu had prescribed Pristiq, a medication suitable for major depression. Underlying the ground appears again to be the suggestion that any work incapacity in the plaintiff was, or could be, attributable to a depressive illness. 6. This ground, too, is without foundation. As mentioned above, Dr Vu's records of the plaintiff's reports of depression begin only in the month leading up to his injury (although the primary judge appears to have accepted some earlier incidence of depression arising out of the failure of the plaintiff's marriage). There was no evidence that his depression in any way interfered with his work capacity, and no evidence that Dr Vu ever certified him as unfit for work for that reason. 7. The grounds challenging the factual findings should be rejected. 8. Ground 10 is concerned with the award of damages of $10,000 referable to future medical treatment. I have recorded above ([45]) the basis upon which the award was made. In particulars filed in the District Court in October 2014 the plaintiff had identified a claim for future medical treatment expenses that included possible further surgery to correct the flexion deformity in his right index finger, physiotherapy, and psychiatric or psychological treatment, medication and counselling. 9. Dr Jonathan Herald was the orthopaedic surgeon who operated on the plaintiff's right finger. He provided a report dated 12 September 2014. The report concluded: "[The plaintiff] is suffering with ongoing right index, middle finger PIP joint stiffness. His stiffness is permanent and he is also describing symptoms of intermittent numbness and changing colour of his finger which may be consistent with some degree of a pain syndrome. He is still suffering with depression and anxiety as a result of this and his condition is now stable and he will most likely to [sic] continue to be in this state for the foreseeable future." He made no mention of any future surgery. 1. Two possibilities of future treatment to the plaintiff's hand were mentioned (both fleetingly) in the evidence. One possibility was amputation. Dr Faithfull wrote: "[The plaintiff] has no use in his right index finger and in fact it does get in the way, particularly when he puts his finger in his pocket or when he washes his face. I have discussed with him the possibility of having a better functioning hand where the index finger and metacarpal to be removed, but he is concerned about the appearance of his hand and would rather keep a non-functioning index finger." 1. When cross-examined about the prospect of amputation, the plaintiff showed no enthusiasm at all. He said: "Who's ever keen to lose a finger or lose a – to lose a limb. No one's keen to lose anything but I'm not going to say that I'll be happy to lose my finger. No I'm not going to say that because I'm not going to be happy losing a, a finger like I'd be – I'd be deformed, you know? … But if it, if it comes to the stage that it's – it goes – it's going to save my life or if it becomes life threatening it's a different story." When asked if it was his position that, unless retention of his finger was life threatening, he would not be prepared to have the surgery, he answered: "Well, I can't, I can't give you a definite yes or a no because I, I haven't – I'm not in, in that situation yet to make that – to give you that answer, like I'm not going to make an answer if I'm not a hundred per cent thinking about the actual – losing it, because my brother, he had a, a fracture ankle and he lost his whole leg, his limb, up to the top in Liverpool Hospital." He said that at the moment he was not thinking of amputation. 1. However, in his evidence in chief. he had acknowledged that, if there were continued deterioration in the finger, he would "have to start thinking about [amputation]". 2. The second potential treatment mentioned in the evidence was straightening of the finger. This was the treatment for which the primary judge made provision. Dr Faithfull floated this possibility, but without endorsement, noting that that would "obviously cause significant interference with other functions of his right hand". 3. Dr Giblin stated his opinion that surgical intervention (unspecified) was not anticipated in the future. 4. In attempting to defend this award of damages, senior counsel for the plaintiff invoked the principles stated in Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638 in which the High Court, under the heading "Assessing damages for future or potential events", said (at 643): "If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high - 99.9 per cent - or very low - 0.1 per cent. But unless the chance is so low as to be regarded as speculative - say less than 1 per cent - or so high as to be practically certain - say over 99 per cent - the court will take that chance into account in assessing the damages … the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability …" 1. On the evidence, the degree of probability that the plaintiff will undergo further surgery, whether by amputation or straightening, falls within the "so low as to be regarded as speculative" category. Moreover, there was no evidence as to the potential cost of either procedure, and no estimate of when, if it were to be undertaken, it would happen. 2. The other forms of treatment particularised were not pursued. 3. This ground of appeal should succeed. Grounds 5, 6, 7 and 8 1. At the heart of these grounds is a contention on behalf of the defendant that the plaintiff was incapacitated for work by his back condition, and that, therefore, he suffered no economic loss (past or future) by reason of his hand injury. Counsel for the defendant accepted that he bore the onus of adducing evidence for the proposition that the plaintiff's incapacity was due to a cause other than the defendant's negligence, but maintained that he had satisfied that evidentiary onus: see Watts v Rake, and the other decisions cited above at [34]. 2. I would accept that the defendant discharged the evidentiary onus. The onus therefore lay on the plaintiff to prove that any incapacity for work was caused by the condition of his hand (for which the defendant was liable) and not by his back. 3. In this respect, there are difficulties in the judgment. First, the finding that the plaintiff's complaints of back pain in his attendances on Dr Vu were manufactured to enable him to obtain narcotic drugs was without adequate foundation in the evidence. The finding is significant because, concealed within it, is another finding, that is, that the plaintiff's back pain was less severe than a reading of Dr Vu's notes would indicate. The idea appears to have had its origin in reports of Dr Conrad of 27 October 2014 and Dr Giblin of 10 October 2014. In response to a question: "Q. What is the prognosis in respect of any back complaint which the plaintiff has and is affected by the contents of his general practitioner's notes as to his attempts to obtain narcotic medication?" Dr Conrad replied: "This is difficult to answer in view of the fact that [the plaintiff's] back has not been fully investigated. There is a possibility that his back complaint is associated with his attempts to obtain narcotic medication. This question should be answered by a Psychiatrist after a full history of this aspect of [the plaintiff's] condition (namely his Narcotic addiction)." In response to the same question, Dr Giblin wrote: "The general practitioner's notes indicate that his low back pain is an attempt to obtain narcotic medication." Neither had seen the plaintiff since the issue concerning his back arose. Neither could have taken any history from the plaintiff of fabricating a back complaint for the purpose of obtaining medication. Both comments were entirely speculative. 1. That suggestion was, however, taken up by the plaintiff's senior counsel with some enthusiasm, and adopted by the primary judge. It is unsustainable. It was no part of the plaintiff's case that he had fabricated symptoms so that he could obtain drugs; Dr Vu gave evidence that he accepted the plaintiff's complaints of back pain as genuine. 2. The finding is not integral to the ultimate question, which was (and, in this Court, is) whether, and, if so, to what extent, the plaintiff's back condition impeded his ability to work. On this, the evidence was conflicting. I will consider it below. 3. A further difficulty in the judgment concerns issues of the plaintiff's credibility. In written submissions provided on behalf of the defendant at trial, a sustained and multi-pronged attack was made on the plaintiff's credibility. The primary judge did not deal with that issue and made no express credibility findings. 4. Nor did he undertake the evidentiary analysis necessary to resolve the principal issue that was presented to him for determination. The primary judgment is deficient in that respect, even bearing in mind that it was delivered orally, shortly after the conclusion of the hearing. 5. I am of the view that there is no good reason why this Court should not undertake the analysis, which is not, in the end, complex: Supreme Court Act 1970 (NSW), s 75A. Ordinarily, the absence of credit findings would constitute a substantial impediment to that course being taken. This was not a case in which the plaintiff was accused of exaggerating his symptoms, or malingering; it is the reverse. Under cross-examination, the plaintiff maintained that he was able to perform basic labouring work. It does not appear to me that that question depends upon the plaintiff's credibility. Rather, it can be resolved by reference to the medical evidence, and the objective evidence of the surveillance DVD, which, in my opinion, was strongly supportive of the plaintiff's position. The footage, taken over two days, showed the plaintiff riding a bicycle (without apparent difficulty) and engaging in a variety of tasks on what appears to be a building site. While the activities he can be seen to undertake do not appear to be heavy, they do involve him lifting items and bending. 6. It is not without significance that, while the plaintiff's legal representatives took advantage of the adjournment to obtain additional medical evidence, the defendant's did not. In fact, the defendant adduced no evidence concerning any ongoing effects of the plaintiff's back condition. If it had him further examined during the adjournment, the results of such examination were not in evidence. Apart from answers given by Dr Vu in cross-examination, there was no medical evidence that the plaintiff suffered any ongoing incapacity attributable to his back. And Dr Vu's evidence in that respect was limited. He disagreed that the plaintiff's back condition would prevent him doing any work, saying that he could do some work, but that he would be precluded from doing work that involved lifting. 7. The anterior question is the extent (if any) to which his hand injury interfered with the plaintiff's capacity to work. In the concentration at trial on the condition of his back, this question appears to have been somewhat relegated to the sidelines, as it was in the primary judgment. It cannot now be so readily avoided. The evidence amply supported the primary judge's conclusion that the hand injury diminished the plaintiff's capacity to work as a welder. 8. In answer to a specific question about the effect of the injury to his hand on the plaintiff's "vocational capability", Dr Faithfull wrote (on 7 August 2013): "[The plaintiff] would have great difficulties undertaking any labouring work requiring the use of his right hand. He would also have significant problems doing office work requiring the use of his right hand. In summary, [the plaintiff] is unemployable and would only be able to undertake work using his left hand." 1. On 11 August 2011, Dr Giblin said: "He remains fit for work, but will have problems with fine manipulative work and the use of heavy vibrating tools and trigger guns etc." In a report dated 19 October 2012, Dr Conrad wrote: "At the moment [the plaintiff] would have difficulty in returning to do fullon work as a welder. He may be able to do light work, starting at about 15 to 20 hours per week in a position where he does not lift anything more than 5kgs in weight with his right hand and he does not do heavy, repetitive work with his right hand. He would have difficulty in using tools of trade, welding equipment or power tools. He may be able to do light cleaning work or similar work within the above parameters." (italics added) These reports were all written prior to the emergence of the issue of the plaintiff's back. This evidence establishes a clear diminution in the plaintiff's capacity to engage in his pre-injury employment of welding, by reason of his hand injury. 1. In a later report (10 October 2014), (in response to a request that he comment on the DVD) Dr Giblin said: "In general, it would appear that he was able to use his right hand relatively normally and that he is able to bend and lift without a great deal of discomfort." (underlining in original) As is apparent from the context in which that passage appears, Dr Giblin was there commenting upon the plaintiff's ability to perform labouring work of the kind he was seen doing in the DVD. Dr Giblin expressly adhered to his earlier stated opinion that the plaintiff would "have problems with fine manipulative work and the use of heavy vibrating tools and trigger guns". 1. In answer to further specific questions, he confirmed his earlier opinion that the plaintiff remained fit for work, but would "have problems with fine manipulative work and the use of heavy vibrating tools and trigger guns", and said: "It would appear that this gentleman's back injury is minor and he would remain suitable for work that didn't involve excessive, repetitive, heavy lifting." 1. A rehabilitation physician, Associate Professor Richard Jones, who assessed the plaintiff on behalf of the defendant, considered that his index finger was "of little functional use", and that: "… a possibility exists that he would be capable of returning to work similar to that which he was performing prior to the accident. The impaired function of the right index finger would minimally compromise his capacity to manipulate heavier items, but would not preclude him from working as a welder and indeed he could be capable of being a welder's supervisor." The plaintiff gave evidence that he was not a supervisor. Dr Jones' opinion is limited to "a possibility" of return to building work. It does not persuade me that the opinions of the other medical practitioners should not be accepted. 1. The plaintiff gave evidence that he had applied for jobs, suggesting that he perceived himself as having some work capacity. He said that his back was "okay", that he still had back pain at times, but that it would not stop him from doing his job as a welder. 2. The plaintiff was shown the DVD exposed in November 2013. On behalf of the defendant, considerable weight was placed on his responses to specific questions asked in cross-examination about his back condition. He agreed that, on 22 November, he seemed "a little bit awkward or ginger". He also agreed that he was: "… at some points walking a bit awkwardly or bending a bit awkwardly." and that he was suffering from leg pain. In cross-examination he denied that his back was extremely painful. 1. Contrasted with that is some documentary evidence. The plaintiff was twice referred to the Department of Pain Medicine at Liverpool Hospital for assessment of his back condition. The first assessment took place on 23 August 2013. The plaintiff completed a detailed questionnaire, by ticking numbers in a series of boxes, indicating, on a scale provided, his level of pain, his capacity to engage in certain activities, and the frequency of his engaging in activities. The overall thrust of the information then provided by him suggests a high degree of pain, discomfort, and interference with daily activities. He completed a second such questionnaire in June 2014, with similar answers. In particular, he circled, as "very true for me" the statement: "I[f] my pain continues at its present level, I will be unable to work." 1. Dr Conrad, with respect to the plaintiff's back condition, on 6 November 2014, wrote: "As a general statement, [the plaintiff's] main disability now is due to his right hand and his back condition was an acute infection, which has been treated and his level of pain due to his back has returned to the levels prior to the onset of his back infection. As he says that he was able to do fullon work as a welder, as far as his back was concerned, prior to the work-related incident of 14th December 2009, it is my view that his back condition now has settled down to the same levels that he would have had at the time of the accident of the 14th December 2009. His back condition now no longer affects his work capability. His restriction of work capability purely rests with the accident of 14th December 2009 and its aftermath." 1. With respect to work for which the plaintiff would be generally suitable, taking into account his back condition, Dr Conrad wrote: "My answer now has changed and is that [the plaintiff] had a mild level of back pain prior to the hand injury. He had an intervening and unrelated condition of an abscess in his back, which has been drained and his back problem has settled to the levels that he had prior to his hand injury. As far as his back is concerned, he would be able to work as a welder. The work restrictions are purely on the basis of the substantial disability that he has due to his right hand injury and the inadequate treatment following it." He repeated: "… I feel that [the plaintiff] would be able to work as a welder as far as his back is concerned, however is precluded from this due to his right hand condition. He might be able to the job of a pressure welder, however this would be restricted substantially by his inability to accurately use a welding torch. In summary, his present disability and work inability is purely governed by the injury to his right hand and this has been fully covered …" 1. Dr Giblin also expressed the view that the plaintiff's back was "not a major concern" although he considered that it had some potential psychological effect. 2. To those opinions may be added the video surveillance footage, which I have viewed in chambers. It is, in my opinion, clear objective evidence that the plaintiff's back does not prevent him engaging in some form of employment. I see no reason to disagree with the primary judge's assessment that that footage shows that, so far as the plaintiff's back is concerned, he is able to undertake light work. That view accords with the expert opinion of Dr Giblin. 3. The plaintiff's loss of earning capacity was attributable to his hand injury, and not his back condition. It is the hand injury that prevents him working in a skilled capacity as a welder. It may well be that the plaintiff's back condition constitutes an additional impediment to his ability to engage in work. If so, it is additional to the impediment constituted by his hand injury. 4. Accordingly, I would reject these grounds of appeal. Ground 9 1. By Ground 9 it was asserted that the primary judge failed to provide adequate reasons for the quantification of the plaintiff's economic loss at $500 per week. 2. There is some substance in the complaint. His Honour merely found that, because the plaintiff is now fit only for light duties, his earning capacity is reduced by $500 per week. (Although it is not entirely clear, he seems to have found that, uninjured, the plaintiff's earning capacity was in the order of $1,050 per week.) 3. The findings concerning economic loss did not reflect the position adopted by either party. The plaintiff claimed $1,150 net per year (sic – week) to the date of trial, an amount of $199,134, together with $800 net per week (appropriately discounted) for the future. The defendant argued for $971.25 per week (inclusive of superannuation) to February 2011, and from mid-November 2011 to mid- February 2012, and nothing thereafter, including for the future. 4. The absence of adequate reasons is not fatal to the award. By s 75A(6) of the Supreme Court Act, this Court has the powers and duties of the court below, including as to the drawing of inferences and the making of findings of fact. 5. The evidence quantifying the plaintiff's loss was scanty. A timesheet from L and A Pressure Welding appears to show that the plaintiff was in receipt of $1,050 per week, as the primary judge accepted. There was no firm evidence as to what the plaintiff could earn in his injured state, but I would be prepared to draw an inference that it would not be more than $550 per week, as found by the primary judge. I feel more comfortable in drawing that inference, given that the complaint on appeal is limited to the absence of reasons. Nowhere in the defendant's submissions was it suggested that, on the basis that the plaintiff's earning capacity was affected by his hand injury, the quantification was excessive, or unsupported by the evidence. Although the ground concerning the absence of reasons is made out, it does not affect the outcome of the appeal. 6. All of the grounds of appeal (except Ground 6) were directed to the conclusions concerning the impact of the plaintiff's back condition on his work capacity. The appeal, so far as it relates to all heads of damages except future medical expenses, should be dismissed. 7. I propose the following orders: 1. The time in which to appeal is extended to 22 September 2015; 2. Appeal allowed in part; 3. Set aside the judgment for $534,695; 4. In lieu thereof enter judgment for the plaintiff for $524,695. 1. BARRETT AJA: I have had the advantage of reading in draft the judgments prepared by Basten JA and Simpson JA. 2. The central issue at trial, raised by Grounds 5 to 8 in the notice of appeal, was whether reduction in the plaintiff's earning capacity, said by him to be attributable to the injury to his right index finger (liability for which the defendant did not contest), was in truth the product of lower back injury and back pain unrelated to the treatment administered to him by the defendant. For the reasons stated by the other members of the Court, the finding of the primary judge that the complaints of back pain had been fabricated by the plaintiff for an ulterior purpose (to obtain prescriptions for certain drugs) is clearly not sustainable and must be discarded. The finding was based on a submission that was unsupportable and should not have been made. 3. That leaves undetermined the question whether the plaintiff in fact suffered from a back injury and, if he did, whether that condition adversely affected his ability to engage in gainful employment. 4. There was some conflict in the evidence about the existence or effects of any back injury. The issue on which Basten JA and Simpson JA differ is whether this Court can, by reference to the material that was before the primary judge, satisfactorily resolve the conflict and make reliable findings on the balance of probabilities. If it cannot, there is no alternative but to order a new trial. 5. My assessment is that this Court can make the necessary determination consistently with the principles in Fox v Percy [5] and should do so. 6. In my opinion, the analysis made by Simpson JA on the matter of back pain deals fully and convincingly with the relevant issues. In particular, her Honour's detailed consideration of the evidence and her appraisal of the plaintiff's capability as shown by the surveillance film provide a secure basis for resolving such differences as might be thought to emerge from the medical evidence regarding mobility, bending, lifting and other activities associated with back injury and back pain. 7. I recognise that care must be taken in relying on photographic evidence: Yarrabee Coal Co Pty Ltd v Lujans. [6] In this case, however, the testimony of the photographer (including cross-examination) as to how he went about his task of preparing the surveillance film and what he saw is before the Court, as is the cross-examination of the plaintiff whose evidence on the matter of lack of any appreciable impairment through back pain is consistent with the depiction in the film. The plaintiff did not say that he had no back pain. But he made it clear that such back pain as he had was not disabling – an assessment fully borne out by the content of the film which showed him riding a bicycle, working effectively as a labourer on a building site and undertaking tasks that did not involve any kind of fine work with the hands. [7] His evidence was that it was the injury to the finger, not back pain, that interfered with the performance of a range of tasks related to the use of hand implements essential to his trade as a welder, as well as a number of activities of normal daily life. 8. In summary, the conclusion indicated on the balance of probabilities is, as Simpson JA explains, that there is no operative disability productive of economic loss caused by injury to the back. 9. With back pain thus eliminated from the inquiry, the only question is as to the economic consequences of the injury to the index finger. On that, Grounds 9 and 10 are relevant. Ground 9 raises the issue of the correctness or reliability of the figure of $500 as the weekly wages loss (and, specifically, whether the primary judge failed to give adequate reasons for his decision on that matter). Ground 10 raises an isolated and narrow question about future medical needs in relation to the finger. Beyond those matters, there is no other challenge to the decision of the primary judge on the economic consequences of disability attributable to the finger injury. 10. In relation to Ground 9 (the complaint of lack of adequate reasons for the primary judge's quantification of the plaintiff's loss at $500 per week), I agree with Simpson JA that the evidence on that matter supports that figure – which, importantly, was not said by either side to be inappropriate – and that this Court can and should, in accordance with s 75A(6) of the Supreme Court Act 1970 (NSW), endorse that quantification. Even if the primary judge's reasons on the matter were inadequate, there was not in reality any other conclusion pressed so there is no warrant for a new trial: Pollard v RRR Corporation Pty Ltd. [8] 11. As to Ground 10, I am of the opinion that, for the reasons Simpson JA gives, that ground must succeed and there must be a reduction in the quantum of damages accordingly. 12. I also agree with Simpson JA in relation to the minor factual issues or, perhaps more accurately, infelicities of expression raised by Grounds 1 to 4. 13. For the foregoing reasons – intended as a supplement to those of Simpson JA, with which I agree – I am of the opinion that the quantum of damages must be adjusted to reflect the minor reduction relevant to Ground 10, that the appeal otherwise does not succeed and that orders should be made as Simpson JA proposes. ********** Endnotes 1. Judgment, p 9 2. Judgment, p 17. 3. Judgment, p 11. 4. Tcpt, p 188(36). 5. [2003] HCA 22; 214 CLR 118. 6. [2009] NSWCA 85; 53 MVR 187 at [20]-[29]. 7. The activities depicted included swinging a leg up and over the bicycle, trotting after leaving the bicycle, sweeping with a broom, using a shovel and a hammer, bending to pick up items from the ground, stuffing material into plastic bags, dismantling a wooden crate, carrying (and, in some cases, throwing) bricks, lengths of timber and other debris, carrying a shovel, a hose, and a length of pipe and wheeling a wheelbarrow both empty and laden. 8. [2009] NSWCA 110 at [67]. Amendments 13 May 2016 - correct typographical error 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. Decision last updated: 13 May 2016