Damages - Personal injury - Calculation of interest on past loss of earnings - Allowance for superannuation contribution not reduced because of 80% incapacity - Failure to identify extent of injury in calculation of non-pecuniary damages - Whether gratuitous services required - Whether error in assessment of special damages - Turns on own facts

Damages - Cross appeal - Whether failure to award damages and make allowance for medical treatment - Whether excessive allowance made for retained earning capacity - Turns on own facts

Bowen v Tutte (1990) Aust Torts Rep 81-043

1 WALLWORK J: I agree with the reasons for judgment and the conclusions of Parker J.

3 MURRAY J: I have had the advantage of reading in draft the reasons to be published by Parker J. I respectfully agree with them and have nothing to add.

4 It follows that I agree that the appeal should be allowed and the cross-appeal should be dismissed. The award of damages by the District Court should be set aside and in lieu thereof the respondent should have judgment against the appellant in the sum of $173,166.

5 PARKER J: This is an appeal from a decision of her Honour Judge O'Brien in the District Court at Perth which was delivered on 23 July 2001. It was ordered that the appellant (defendant) pay the respondent (plaintiff) damages in the sum of $189,817 in respect of personal injuries suffered by the appellant as a consequence of a motor vehicle collision on 7 June 1990 between two vehicles driven by the parties.

6 The appellant seeks to have the decision of the District Court set aside and in lieu that there be judgment for the appellant or, alternatively, judgment in a lesser sum, substituted.

7 The trial before her Honour was the second trial of the action, a retrial having been ordered following an earlier appeal to this Court from the original trial.

"1. The learned trial judge erred in fact and law in finding that the respondent (plaintiff) suffered an injury to the lumbo-sacral spine by reason of the motor vehicle crash on 7th June 1990 ('the crash in question') (paragraph 78), such finding being against the evidence and the weight of the evidence and wrong, and the learned trial judge should have found that the respondent (plaintiff) was not injured in the crash in question.

2. The learned trial judge erred in fact and law in finding that from the date of the crash in question to March 1990 the respondent (plaintiff) endured back and neck pain (paragraphs 40, 46 and 78), such finding being against the evidence and the weight of the evidence and wrong, and the learned trial judge should have found that, insofar as the respondent (plaintiff) was not a witness of truth and was not 'a person who would put up with any pain or fail to seek medical attention for it', and in the absence of corroborative medical evidence, the respondent's (plaintiff's) self-serving evidence of symptoms in this period should not be accepted.

3. The learned trial judge erred in fact and law in finding (paragraphs 40 and 46) that the lumbo-sacral symptoms from which the respondent (plaintiff) complained from March 1991 were caused by the crash in question, such finding being against the evidence and the weight of the evidence and wrong, and the learned trial judge should have found that such symptoms were due to lumbo-sacral pathology which pre-existed the crash in question and was not causally related to it.

4. The learned trial judge erred in fact and law in finding that the respondent (plaintiff) had recovered from the effects of an earlier lumbo-sacral injury caused by a motor vehicle crash on 2nd June 1987, such finding being against the evidence and the weight of the evidence and wrong, and the learned trial judge should have found that:-

(a) the lumbo-sacral symptoms complained of by the respondent (plaintiff) from March 1991 were the same in nature as those suffered following the crash on 2nd June 1987 and were causally related to it; and

(b) it was not open on the evidence to find that the respondent's (plaintiff's) lumbo-sacral symptoms from March 1991 were causally related to the crash in question.

5. The learned trial judge erred in fact and law in allowing damages for past loss of earnings of $151,060.00 and past loss of superannuation of $7,769.00 for the reasons that:-

(a) the respondent's (plaintiff's) lumbo-sacral symptoms from March 1991 were not caused by the crash in question as contended in grounds 1 and 2 hereof;

(b) Her Honour's findings that:-

(i) from March 1991 the respondent (plaintiff) could have undertaken sedentary work and could have worked as an insurance claims officer as long as he exercised, had breaks from sitting for long periods and used an appropriate chair (paragraph 76);

(ii) the respondent (plaintiff) was not a witness of truth in relation to the nature and extent of his injuries (paragraphs 55, 62, 77 and 78); and

(iii) the weight of the medical opinions of incapacity was diminished due to the plaintiff having misled his medical advisors (paragraphs 51, 55, 69 and 74);

and her Honour's acceptance (paragraph 83) of Mr Vaughan's evidence that the respondent's (plaintiff's) condition was mild and did not incapacitate him from work, did not permit a finding that for five years from 1st July 1991 to 31st July 1996 was incapacitated to work as an insurance claims officer to the extent of 80%, and were inconsistent and incompatible with such a finding;

(c) the period of five years from 1st July 1991 to 31st July 1996 (paragraph 78) for which past loss of earnings was allowed was arbitrary, unsupported by the evidence and not otherwise open to the learned trial judge;

(d) the finding that the respondent (plaintiff) was incapacitated for five years from 1st July 1991 to 31st July 1996 was, having regard to all the evidence, inconsistent and incompatible with such a finding that after July 1996 the respondent (plaintiff) was not incapacitated by reason of the crash in question; and

(e) the learned trial judge erred in calculating interest on past loss of earnings and superannuation (paragraphs 80 and 81) resulting in an over assessment of this aspect of the award.

6. The learned trial judge erred in her assessment of general damages for pain, suffering and loss of amenity (paragraph 84) in that she did not make sufficient findings as to the nature and extent of any injury actually suffered by the respondent (plaintiff) as a result of the crash in question to base an assessment, her reasons for decision failing to disclose the extent to which the learned trial judge accepted the respondent's (plaintiff's) evidence in this regard.

7. The learned trial judge erred in her assessment of damages of $2,000.00 for gratuitous services (paragraph 87) for the reasons that:-

(a) the finding that the respondent (plaintiff) required the gratuitous services of his wife was inconsistent and incompatible with the learned trial judge's findings as to the respondent's (plaintiff's) lack of credibility, his fitness for work, and the accepted evidence of Mr Vaughan as to the mild nature of the respondent's (plaintiff's) condition, and the learned trial judge should have found that no need for gratuitous services of care was made out; and

(b) alternatively, the evidence did not permit, and the learned trial judge did not make, sufficient findings of fact upon which to base such an allowance.

8. The learned trial judge erred in exercise of her discretion in awarding $3,218.00 for special damages for the reasons that:-

(a) the respondent's (plaintiff's) lumbo-sacral symptoms were not caused by the crash in question as contended in grounds 1 and 2 hereof;

(b) the respondent (plaintiff) had a pre-existing history of Serepax consumption for his unrelated anxiety condition and it was not fair or reasonable to award damages for the cost of Serepax for five years form 1st July 1991 to 31st July 1996;

(c) there was no proof that the respondent (plaintiff) had expended $5.00 per month on Panadol in the five years from 1st July 1991 to 31st July 1996;

(d) the travelling expenses were only agreed as to quantum and the learned trial judge failed to make any findings as to what travel was reasonably undertaken for medical treatment in the relevant period, or reduce her allowance to reflect her finding that the respondent (plaintiff) should only be compensated for five years from 1st July 1991 to 31st July 1992;

(e) the uncontroverted evidence of Dr Eaton, the respondent's (plaintiff's) general practitioner, was that all accounts for consultations relating to the respondent's (plaintiff's) lumbo-sacral symptoms had been forwarded to the appellant's (defendant's) insurer and had been paid, and the evidence otherwise did not support an allowance of $400.00 for general practitioner consultations over and above what the appellant's (defendant's) insurer had paid; and

(f) otherwise, the evidence did not permit and the learned trial judge did not make, sufficient findings of fact to warrant any allowance for special damages,

and the learned trial judge should not have made any allowance at all."

9 By notice of cross-appeal dated 29 August 2001 the respondent seeks orders that the judgment be increased. The grounds of the cross-appeal are:

(para 46) that back pain suffered after the 1990 accident was causally related to that accident;

(para 78) the time from which the plaintiff would have been able to work as a claims officer should be fixed at July 1996; and

(para 44) that the pathology at L5/S 1 had not resolved as at 2000;

1. denying (para 84) any damages for pain, suffering and loss of amenity beyond July 1996.

2. denying (para 93) any consultation fees with his GP beyond July 1996 (notably those for three consultations conceded by the defendant) or (para 91) any allowance for a pain management program or for medication,

3. that the learned trial judge erred in fact by finding that he did not lodge tax returns (para 80), whereas the evidence showed that they were lodged, albeit late.

4. the calculation of past economic loss (para 80) already incorporates an excessive allowance for retained earning capacity given the crediting not only of a 20% retained earning capacity but also the $9,000 which had been earned partly from retained earning capacity before July 1991 and partly from retained earning capacity after July 1991."

10 While this is in the form of a cross-appeal, at the hearing counsel for the respondent took the position that by virtue of the nature of what was raised in the context of this appeal the grounds might more realistically be viewed as a Notice of Contention in support of the award made. Nevertheless, the notice stands as a cross-appeal.

11 Critical to an evaluation of the merits of the first four grounds of the appeal as well as the first two grounds of the cross-appeal are issues of fact. As will become apparent the factual issues which faced the learned trial Judge in this case were more than usually complicated because of the respondent's symptomology and because the respondent had also been involved in an earlier motor vehicle accident in which he also suffered back injuries. Further, her Honour was faced with differences of medical opinion on material issues and there were deficiencies in respect of the medical evidence led before her Honour - perhaps more accurately the failure to lead some medical evidence. The personal credibility of the respondent also loomed large as a critical issue. This credibility not only affected the direct evidence of the respondent but also the accounts of symptoms given by the respondent to a number of the medical witnesses. This, in turn, called in question the reliability of the basis upon which a number of medical opinions had been formed.

12 The remaining grounds of appeal and cross-appeal also turned essentially on matters of fact and, to a substantial degree, are affected by similar issues.

13 The respondent was born on 3 August 1955. After leaving school he made his career in the insurance industry. By December 1988 he had become a senior claims officer with the Commercial Union Insurance group in Perth on a salary of around $20,000 per annum. This was a clerical position.

14 He had, however, suffered from an ongoing anxiety condition since 1979 which had come to be treated, on medical advice, by the use of Serapax. In December 1988 the respondent resigned from his position due to what he described as "internal disputes" within his workplace. At that time he felt very distressed and tired.

15 Approximately six months later the respondent commenced working in Bunbury as an insurance assessor. It was the effect of his evidence that this work gave him no trouble and the changed lifestyle for himself and his family, by virtue of their moving to the Bunbury area, was much to their liking.

16 While continuing to live in the Bunbury area, in 1990 the respondent moved to set up his own business (in partnership with his wife) as an insurance assessor. He received his first instructions in May 1990 and it was his evidence that, thereafter, he had a reasonable stream of instructions, at least for some time. It was his evidence that he continued this work as a loss assessor until (at least) October 1992, by which time he claimed that he was unable to work in any capacity due to the effects of the motor vehicle accident on 7 June 1990. It is his case that he has been unable to work since that time.

17 Even though the respondent with his wife had established the loss assessing business by May 1990, it appears he was in receipt of unemployment benefits for a time. By virtue of this he was able to satisfy a prerequisite of the "New Enterprise System" of the Federal government and, thereafter, under that system he was in receipt of the equivalent of unemployment benefits for a year. However, before the expiry of that year, in March 1991 the respondent was certified to be unfit for work because of leg symptoms which will be considered further at a later point in these reasons. Having been certified to be unfit for work the respondent then received sickness benefits and the New Enterprise System payments were terminated. Since January 1993 the respondent has been in receipt of a disability pension.

18 On 2 June 1987 the respondent's car was hit by another car. Damage to the respondent's car was slight and was repaired for $300. It was the evidence of the respondent that he suffered minor injuries to his back and right leg in this accident. These did not require ongoing treatment and he had no time off work. He did claim damages for personal injuries and this claim was settled by the other driver's insurer in May 1989. It was the respondent's evidence that between May 1989 and the further vehicle accident on 7 June 1990 he experienced no problems with his back, being pain free.

19 On 7 June 1990 the respondent was stationary at an intersection in Bunbury in his motor vehicle when it was hit in the rear by a vehicle driven by the appellant. Damage to the front of the appellant's vehicle suggested that there was quite some force in the collision although the damage to the respondent's vehicle was not so extensive. In her Honour's finding, a towbar fitted to the rear of the respondent's vehicle absorbed much of the force of the impact.

20 It was the respondent's evidence that he felt a twinge of pain in his back and neck immediately after the accident, but these symptoms did not appear to him to be serious at the time and he did not seek medical attention until 10 July 1990. In the meantime, the respondent's evidence was that he had experienced pain in the spinal area and neck, which was irritating when he was driving, but he "soldiered on just like anyone who is starting off his business". These symptoms persisted, however, and eventually on 10 July 1990 he consulted a local general practitioner Dr Jorden.

21 Dr Jorden had died by the time of the trial but reports sent by the Doctor to insurers were admitted in evidence. Dr Jorden reported that on 10 July 1990 the respondent complained of "pain in his neck radiating to the lumbar spine and both buttocks. Examination revealed a very stiff back with limited movement but no neurological signs. [The respondent] was instructed in a back exercise programme and advised re physiotherapy."

22 Dr Jorden reviewed the respondent in December 1990 when he reported that the respondent "was virtually pain free and feeling well", although the respondent disputed in his evidence the accuracy of this note as a record of his symptoms, suggesting that he may have said he was feeling fit and well by way of automatic response to an introductory enquiry from the Doctor such as "How are you?". Dr Jorden had also noted "Takes 1/2 Serapax ... daily and feels good. Relief from back pain P.I.D. L 4/5."

23 The respondent saw another doctor, who was not called at the trial, who was a member of Dr Jorden's practice in January 1991. Then, in March 1991, as he got out of his car, the respondent found his right leg was extremely uncomfortable and his left leg he described as "totally paralysed and numb". It was the respondent's evidence that despite these leg symptoms he struggled to finish the assessment work he was then engaged in. He described these symptoms as "more of an exaggeration of previous symptoms", there having been some pain down his leg since the 1990 accident.

24 The respondent saw Dr Jorden again on 12 March 1991. Rest was advised and painkillers were prescribed as well as anti-inflammatories. Dr Jorden's note of the consultation was interpreted by her Honour as referring to the respondent having experienced three weeks of back pain and noting "numbness of [left] leg after driving his car".

25 However, when the respondent saw Dr Thompson, another member of Dr Jorden's practice, just three days later on 15 March 1991, it was then noted that the respondent gave a nine month history of a painful back with numbness and stiffness and restricted movements "with which he has coped but feels he cannot now". While Dr Thompson gave evidence before her Honour, he was not questioned about his note of a nine month history of back pain.

26 As indicated in his evidence, in a later report Dr Thompson said that the respondent had experienced considerable pain in his low back ever since the accident and "felt he could not cope with the limited amount of work he was doing". This pain was aggravated by driving a car. It was Dr Thompson who, in March 1991, certified the respondent to be unfit for work so that thereafter from time to time the respondent was on sickness benefits until he qualified for the disability pension in January 1993.

27 It will be apparent from this account that Dr Thompson first saw the respondent some nine months after the June 1990 accident so that his evidence and reports as to the respondent's condition in that nine months is substantially dependent on the respondent's account to Dr Thompson of his symptoms during that period. The disparity between that account and the apparent effect of Dr Jorden's reports as to the respondent's condition over that period is obvious. As has been noted, it is the unfortunate fact that Dr Jorden had died before the trial so that there is no direct evidence from Dr Jorden to help with this disparity and the questioning of Dr Thompson failed fully to explore it.

28 It was the evidence of the respondent that at least for sometime during the period from March 1991 to January 1993 he attempted to continue with his work as an insurance assessor. Increasingly, however, he said he found it difficult to drive the long distances necessitated by the work and to type the required reports. As her Honour noted in her reasons, there were complaints about the lateness of his reports. At times he found excuses to refuse work and his disability came to be known in the industry. Eventually, the work dried up and the business ceased, it seems by October 1992.

29 The effect of the respondent's evidence as to his condition since 1993 is summarised sufficiently by her Honour in the reasons for decision in these words:

"22. The plaintiff testified that despite back exercises, walking and swimming, his condition worsened. He said he could no longer play with or bathe his children, garden or vacuum. He was unable to drive long distances or walk or stand for any length of time. By the date of trial, the plaintiff said that he was virtually housebound, and experienced constant but fluctuating pain and anxiety."

30 While the respondent had experienced anxiety since 1979 and was taking medication for that condition before the June 1990 accident, nevertheless, the issue of anxiety did not feature in this trial or on appeal (save for an incidental issue considered later) because, as her Honour noted:

"23. There was no psychiatric evidence about the plaintiff's anxiety. The extent to which his anxiety impacted on his back pain and vice versa is unclear. There was no evidence about nature, cause, duration and intensity of the anxiety condition. It does not form part of the plaintiff's claim. Nor does the defendant allege that the anxiety contributed to or exacerbated the plaintiff's back symptoms."

31 It was in the context of this background of circumstances that, at the trial and on this appeal, it is a live issue whether any disability the appellant may have experienced or is now experiencing (if any) is due to the 1987 accident or the 1990 accident.

32 Although the respondent was seen by a number of medical practitioners following the 1987 accident, only one of them, a neuro-surgeon Mr Vaughan, was called at the trial. In addition, reports of a Dr Walsh and a radiologist Dr Gibson and a scan of the respondent's back taken on 13 May 1988 were in evidence by consent.

33 It was the opinion of Dr Gibson that "there may be very slight postero-lateral bulging of the annulus on the left side at the L4/5 level", but at the "L5/S1 level the appearances are within normal limits". While well aware of this opinion, and accepting that it could be argued with some degree of reasonableness, it was nevertheless the opinion of Mr Vaughan, reported in September 1988, that the 13 May 1988 scan "shows that at L5/S1 there has been some deterioration of the disc ... with likely some discal instability which would account for his pain state". At trial it was Mr Vaughan's opinion that following the 1987 accident the pathology was at the L5/S1 level, rather than L4/5.'

34 A rehabilitation physician Dr Holmes considered the scan taken in May 1988 when he reviewed the respondent in 1996 and again in 2000. It was Dr Holmes' opinion that there was "a very shallow disc bulge at L5/S1". Dr Walsh indicated in 1987 that the respondent's injury as a consequence of the 1987 accident was at L4/5 although no reason was noted for this opinion and, despite it, when Dr Walsh reviewed the respondent's history in March 1989 he noted that the respondent was "tender to palpitation over his L5/S1 level".

35 As her Honour correctly observed, "All other medical witnesses who gave their opinions about the effects of the 1990 accident appear to adopt the opinion of Dr Gibson that the pathology in 1988 was to the L4/5 level. All scans subsequent to the 1988 scan refer to L5/S1 pathology and refer to the L4/5 level as being within normal limits".

36 The reasons for decision reveal that her Honour was well aware of the evidentiary differences as to this issue and of the importance to the issue of causation in this case of the site of the spinal injury from the 1987 accident. Having carefully reviewed the varying evidence relevant to this issue, her Honour was persuaded, in particular by the opinion of Mr Vaughan and Dr Holmes, as well as other aspects of the evidence, that it was more probable than not that the 1988 injury was to the L5/S1 spinal level, rather than to L4/5. That view was clearly open on the evidence despite the existence of contrary opinions. That finding of fact is not disputed in this appeal or the cross-appeal by either party.

37 Necessarily, that finding heightened the difficulty presented as to the causation of the symptoms and disability experienced by the respondent from the 1990 accident. Her Honour dealt specifically with that critical question of causation, and with two closely related issues relevant to it namely, whether the 1990 accident caused the symptoms which the plaintiff experienced thereafter and whether the incident in March 1991 involving the respondent's legs was attributable to the 1990 accident.

38 In so doing the reasons of her Honour clearly reveal that she was conscious of all the relevant medical evidence, and its conflicts, inconsistencies and deficiencies, and that she gave careful consideration to it. It is not the case that material medical evidence has been misunderstood or overlooked. Further, her Honour also considered the effect of the lay evidence relevant to causation. This included, but was not confined to, the evidence of the respondent.

39 It will be evident that her Honour had the considerable advantage in a case such as this, where much turned on credit, of having seen and heard the lay witnesses, including the respondent, and those medical witnesses who were actually called to give evidence (as opposed to those whose reports or other records were merely tendered by consent). That advantage is one which this Court does not have. Nothing appears to indicate that this advantage has been misused. In this case, it is apparent that the advantage of actually seeing and hearing the witnesses might well be significant, even determinative, in resolving many of the conflicts or differences in the evidence, and this proved to be the case as her Honour sought to come to material findings in light of the evidence she had to consider.

40 In this process of assessing the credibility and determining what weight should be accorded to the evidence of particular witnesses, for reasons which her Honour spelt out expressly, and which appear both to be justified by the evidence and to justify the conclusions reached by her Honour, her Honour found herself with reservations about aspects of the credibility of the respondent.

41 For example, in one respect, her Honour concluded that the respondent's evidence bore the hallmarks of recent invention, and in this respect it was not accepted. Her Honour also had grave doubts as to the evidence of the respondent about the nature and extent of his pain and disability, particularly following March 1991. It was her Honour's finding that he had "significantly exaggerated the effects of the accident both to his doctors and in evidence". The reasons for this finding are set out specifically in her Honour's decision and involved no apparent misapprehension of the relevant evidence. In particular, her Honour relied on surveillance videotapes, differences between answers given by the respondent in evidence and on interrogatory, and differences between accounts given by the respondent to more than one medical witness and the respondent's evidence at trial.

42 There appears to be adequate justification for these findings of her Honour adverse to the credit of the respondent and it is clear from the reasons for decision that her Honour was very well conscious of the identified faults and failings in his evidence, and of their adverse effect on his credibility. In my view, the reasons for decision reveal that her Honour took all of this carefully into consideration in reaching her factual findings.

43 While these faults and failings in the respondent's evidence could, perhaps, have persuaded her Honour that his evidence was entirely without credit, as is submitted by the appellant, that was not the view reached by her Honour. While aspects of the respondent's evidence were rejected or their effect watered-down in favour of the appellant, nevertheless, her Honour did accept well identified aspects of his evidence. In particular this was so where other lay or medical evidence, which her Honour accepted, supported the evidence of the respondent.

44 Having reviewed all of this process of fact finding I am not persuaded that there has been shown to be any failure to weigh material evidence, or any misunderstanding of it, or any abuse of or failure to use appropriately the advantage her Honour enjoyed from having heard and seen the witnesses. Of course, at a number of material points, the evidence was also capable of supporting other findings than those made by her Honour. Indeed, some of these other possible findings are now urged on us by the appellant. They are supportable on the evidence and cannot be said to be obviously improbable. However, in my view, at each point the finding made by her Honour was open to her on the evidence and it has not been shown that there was material error in the process by which her Honour reached that finding.

45 It was by these means and in these circumstances that her Honour found, in particular, that:

• The respondent had recovered from the effects of the injury to L5/S1 suffered in the 1987 accident, before the 1990 accident, so that for "at least two years" before the 1990 accident the respondent suffered no effects from the 1987 injury;

• Following the 1990 accident the respondent experienced (intermittent) pain in his neck and back, which "pain endured" "between July 1990 and March 1991", although this pain was "not severe enough to prevent him walking";

• By March 1991 the pain had become more severe, the symptoms had become acute;

• This pain was due to a back injury at L5/S1 and was causally related to the 1990 accident; and

• The pathology at L5/S1 had not resolved at the time of trial.

46 The finding that following the 1990 accident the pain was due to a back injury at L5/S1 and was causally related to the 1990 accident relied, in particular, on evidence of Dr Spar, a neurologist, and Mr Olsthoorn, an orthopaedic surgeon. On the evidence of Mr Olsthoorn the injury at L5/S1 involved a "very minimal disc protrusion on the left L5/S1" suggesting a "disruption of a lumbar disc, perhaps a lumbo-sacral disc", although it was not clear to the doctor which of the disc rupture and the disc protrusion were of greater importance. It may be true that in some respects opinions expressed by Mr Olsthoorn were dependent on or influenced by accounts of symptoms given by the respondent, but a most material part of the evidence of Mr Olsthoorn was his appreciation based on scans of the spine. That was also the position with respect to the evidence of Dr Spar.

47 In reaching these findings it is clear from the reasons that her Honour was well aware, as the appellant now stresses, that Mr Vaughan, the neuro-surgeon, had not been prepared to express an opinion which of the two accidents caused the L5/S1 injury, and indeed ventured that there was a cumulative effect. In finding that pain commenced at the time of the 1990 accident and endured to March 1991 when the symptoms became much more significant, her Honour weighed carefully the differing medical views and considered with care her concerns as to the respondent's credibility affecting these symptoms. In the end, however, she gave weight to the evidence of the respondent and that of his wife which was confirmatory in material respects. There was also distinct and confirmatory evidence from a Mrs Rall of the change in the respondent's condition after the 1990 accident. In reaching these findings, and generally, I am not persuaded, for the reasons already canvassed, that the findings reached by her Honour were against the evidence or the weight of the evidence, although, as indicated, I accept that different findings were also open on the evidence.

48 As the findings made as to the spinal injury by reason of the 1990 accident were open on the evidence, ground 1 has not been made out. So, too, ground 2 fails because there was evidence, as indicated, which was capable of supporting the finding that the respondent endured pain from the date of the 1990 accident, that evidence in some respects being independent of the respondent's own evidence and his accounts to the relevant medical witnesses.

49 For similar reasons both grounds 3 and 4 have not been established. There was a sufficient foundation in the evidence for the finding that the respondent's lumbo-sacral symptoms, from March 1991, were caused by the 1990 accident, and that the respondent had recovered from the effects of the 1987 accident, including the lumbo-sacral injury that her Honour found was then suffered, before the 1990 accident. It will be obvious from what has been said that in respect of each of these findings, however, the evidence was also capable of supporting other findings, including findings such as those for which the appellant now contends.

50 I have drawn attention to the significance to her Honour's findings, in this case, about the credibility of the respondent and the adverse views which her Honour formed, and took into account, as to his credibility. Because of this, it is of relevance to draw attention once again to the observations of Brennan, Gaudron and McHugh JJ in Devries & Anor v Australian National Railways Commission & Anor (1993) 177 CLR 472 at 479 where it was said:

"More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge 'has failed to use or has palpably misused his advantage' or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable'."

51 As I have sought to indicate in these reasons, this does not appear to me to be a case in which there is a proper basis on which her Honour's factual findings can be impeached, or ought to be set aside, consistently with the law as indicated in Devries.

52 On a quite different footing the appellant also seeks to have her Honour's factual findings and decision set aside. Reliance is placed on State Rail Authority (NSW) v Earthline Constructions [1999] HCA 3; (1999) 73 ALJR 306, in particular at [4] and [63] per Gaudron, Gummow and Hayne JJ. It is suggested that in the present case the reasons for decision of her Honour failed, in respect of material findings, sufficiently to identify what particular evidence was accepted or rejected by her Honour, especially evidence of the respondent, and why, with the consequence in particular it is submitted that the appellant is unable adequately to advance his case on appeal.

53 In the State Rail Authority case the concern was that the trial Judge had made inappropriate findings about the credibility of a material witness, taking the view that her evidence was internally inconsistent in a number of respects, and ignoring documentary evidence and unchallenged evidence of other witnesses which supported her testimony in material respects. The majority of the Court was persuaded that notwithstanding the impressions of the witness gained by the trial Judge, in light of other evidence in the case which "provides significant support" for her evidence, those impressions provided too fragile a base to support a finding that the witness was unreliable. It was held, as a consequence, that there had not yet been a determination of the appellant's case upon a consideration of the real strength of the body of evidence the appellant had presented at trial: see [63]-[64]. In my view, that is a sufficient indication of the issues in that case to demonstrate that it may not properly be applied to the reasons in this case. The reasons of her Honour are sufficient to indicate clearly that she did consider the relevant material evidence. In respect of each material finding made, the evidence considered by her Honour is apparent, as is her Honour's appreciation of the essential merits and demerits of that evidence, and there is a sufficient identification of the basis upon which her Honour made each finding. This is not a case where material elements of the appellant's evidence have been disregarded on inadequately founded credibility grounds. On the contrary, in a number of respects, it is the respondent's evidence which has not been accepted, and reasons which are identified and are adequate are given for not accepting that evidence. In my view, this is a far cry from the issues facing the High Court in the State Rail Authority decision.

54 It does not follow, of course, that because an aspect of a witness' evidence is not accepted on the basis that it lacks credibility, all evidence given by that witness must be rejected. A finding adverse to the credibility of a witness in one or more respects may provide good reason for reservation about accepting other aspects of that witness' evidence and justify great care before any of it is accepted. But, for reasons sufficiently explained in her Honour's judgment in this case, she was prepared to accept and act on some aspects of the respondent's evidence notwithstanding her adverse appreciation of the credibility of the respondent. That was a course, in my view, open to her Honour in this case. No error in this regard has been demonstrated.

55 The appellant also relies on two further cases: the situations being considered in Lloyd v Faraone [1989] WAR 154, where there had been a failure by the trial Judge to evaluate the evidence and to make necessary findings, and Fane v Smart [2002] WASCA 62, where the Commissioner at first instance made no findings in relation to the evidence of material witnesses including the appellant, and merely recorded conclusions which appear to overlook a substantial body of medical evidence, are each quite different from the present case.

56 For these reasons the first four grounds of appeal have not been made out.

57 Many issues are advanced in support of this ground, but the fundamental point appears to be the contention that her Honour should have found that the respondent had failed to establish he was incapacitated for work by virtue of the 1990 accident. To the extent that her Honour relied on the evidence of the respondent in this regard it is also contended that she should have concluded that his evidence was not credible and, therefore, could not form a satisfactory basis for any finding of incapacity. Further, any finding of incapacity, it is said, contradicts other findings made by her Honour. It is also contended there are insufficient findings to support a conclusion that the respondent was 80 per cent incapacitated for five years to the beginning of July 1996 by virtue of the 1990 accident.

58 The respondent's case at trial, of course, was that he was totally incapacitated by virtue of the 1990 accident and that was still the position at the time of trial. It was the appellant's case that the respondent had not suffered any incapacity from the 1990 accident. What has been said already in these reasons concerning grounds 1 to 4 sufficiently identifies why, in my view, it was open to her Honour to conclude that there was some incapacity as a consequence of the 1990 accident, albeit that the onset may have been somewhat delayed.

59 Her Honour had significant reservations, nevertheless, as to the degree of that incapacity and its duration. These reservations were founded in her Honour's clearly identified concerns as to the credibility of the respondent. This affected both the weight she attached to the respondent's evidence and to the evidence of medical witnesses where, and to the extent that, their opinions depended on what the respondent had said to them. There was certainly adequate justification in the evidence for these reservations. The essential issue is whether sufficient weight was attached to these reservations, and the reasons for them, in reaching the factual findings.

60 At trial there was a body of medical and lay evidence which generally supported the respondent's case as to incapacity, including incapacity to the date of trial. Acceptance of the contentions of the appellant would require the rejection of this body of evidence. Her Honour was not persuaded to this course, even though, as she recognised, the evidence was capable of supporting such findings.

61 Her Honour's reasons canvassed the evidence relevant to the issue of incapacity or disability consequential on the 1990 accident and identified the matters which reflect adversely on the respondent's credibility and shows a clear appreciation of the relevance of those matters. As has been indicated earlier, her Honour's findings record that she had "grave doubts as to the nature and extent of his pain and disability", and that the respondent had "significantly exaggerated the effects of the accident both to his doctors and in evidence", and that he was "prepared to mislead the Court" in regard to these matters. It is made clear in the reasons that her Honour expressly rejected aspects of his evidence for reasons which in each case are adequately identified.

62 It is also apparent from her Honour's reasons that she was well aware of the nature and effect of the video surveillance evidence and took this carefully into her consideration as she assessed the effect of the totality of the evidence. By virtue of the video surveillance evidence, among other things, she was persuaded that the respondent "will avoid telling the truth to advance his own case" and had "exaggerated his symptoms especially to those doctors briefed to provide medico legal reports".

63 It was by virtue of these matters, and notwithstanding the clear medical evidence that the respondent did not have the capacity even at the time of trial "to work in the open workforce" and that there was "no likelihood of [him] re-entering the workforce in the near future", her Honour was persuaded to find that the respondent was capable of doing sedentary work, and "could have worked as an insurance claims officer as long as he exercised, had breaks for long periods and used an appropriate chair". There was adequate evidentiary support for such findings in the evidence.

64 The reasons indicate the specific consideration given by her Honour to the related questions of the degree and duration of the respondent's incapacity for work and when he could have resumed sedentary work of the type indicated.

65 As has been indicated the medical opinions on these questions varied widely. In respect of most of the medical opinions there were the further issues of the degree to which they depended on the respondent's accounts to the doctor of his symptoms, and how the opinion should be modified in light of the finding that these accounts had been exaggerated, or whether the opinion should be rejected altogether on that basis. It was also necessary to take into account lay evidence where it was relevant to these issues especially where they were the subject of differing medical evidence. Her Honour's observation that it "is very difficult" to make an appropriate assessment can be readily understood in this case, having regard to these matters, and it can be accepted, as a consequence, as her Honour indicated, that in some respects it was necessary in the circumstances to be somewhat arbitrary and to exercise a degree of judgment.

66 Her Honour found there was incapacity for five years from July 1991 to July 1996, after which the respondent had not established that "he was incapable of working as a claims officer to full capacity". Even during the five years to July 1996, her Honour was not persuaded the respondent was totally incapacitated for work notwithstanding the evidence which would have supported a finding of total incapacity in that period. In her Honour's finding the respondent "could have undertaken some sedentary work" although this would have required time off work when the pain became acute, it being in her Honour's finding not possible on the evidence to specify how often and to what extent this would be necessary. It was on this basis that her Honour came to accept the respondent's concession that he was 80 per cent incapacitated.

67 Her Honour also found, substantially by virtue of the video surveillance evidence, taken in September 1996 and the months of October and February that followed, that "At least from September 1996, the video evidence reveals the plaintiff to have no difficulty walking and driving". That video evidence also captured the respondent performing many physical functions, including assisting his wife with her cleaning job, without "any difficulty, hesitation, stiffness or awkwardness". The evidence was clear that this was not a new development in September 1996. As her Honour found, it was in late 1995 or early 1996 that the respondent commenced to assist his wife in her part-time cleaning job. For 10 months or so he drove her to and from work six days a week and he used a self-propelled floor scrubber.

68 It was on the basis of evidence of these matters that her Honour was persuaded to find that the respondent had not satisfied her that from July 1996 he was incapable of working as a claims officer to full capacity. Both parties dispute this finding. It is not one based on any specific piece of evidence, but represents a conclusion from the greatly varying evidence which her Honour had to consider. It clearly involves an acceptance of the video surveillance recorded evidence in September 1996, and its manifest illustration of what was by then an established physical capacity, even though the evidence of the respondent and of many of the medical witnesses have denied that capacity. In her Honour's words:

"[82] ... In summary, the reasons for this finding include the video evidence which shows the plaintiff to be walking and moving without any difficulty, together with the significantly diluted weight I can give to the medical opinions about the plaintiff's incapacity for work due to the plaintiff's lack of credibility. As well, Mr Vaughan ... is of the view that the plaintiff's condition is mild and does not incapacitate him from undertaking sedentary work."

69 I note that Mr Vaughan's evidence suggests that at all times from March 1991 the respondent could have performed some sedentary work. Her Honour's finding therefore necessarily involves the weighing of other evidence in forming a view as to the nature and extent to which the respondent could have performed sedentary work from time to time. In my view, that passage from her Honour's reasons - and there are others - is sufficient to identify the basis in the evidence for the finding made by her Honour which rejects the claim of the respondent to be incapacitated after July 1996 by virtue of the 1990 accident. This finding is not one which is capricious, or fanciful, and was made only after a careful weighing of the competing evidence, a task which in this case was clearly most difficult. Given the circumstances, the finding made, in my view, was one open to be made by the primary trier of fact.

70 It is true, as the appellant contends, that her Honour might well have been justified, by aspects of the evidence, in placing the date from which the respondent could have worked as a claims officer at some time late in 1995 or earlier in 1996, rather than July 1996. I have in mind in particular the evidence as to the assistance the respondent provided in his wife's cleaning work. While that view was open, and indeed there was much to commend it, I am not persuaded that it can be said that it represented the only view properly open on the evidence or that her Honour was in error in not reaching such a finding. While the finding which fixed on July 1996 may well be seen, in light of the some of the evidence, to have favoured the respondent, it cannot be said, in my view, to be a finding that was not properly open to her Honour.

71 In this respect it should be noted that par (b)(i) of ground 5 asserts that her Honour found that the respondent could have undertaken sedentary work "from March 1991". Reference was made to [76] of the reasons. In my view, the reference to "work post the March 1991 incident" in par [76] is not as clearly expressed as it might have been. When the paragraph is considered in its fuller context, including par [75] and the long factual analysis that proceeds it, and [78], it is my understanding that her Honour reasoned that from some date between 1991 and the trial, ie post March 1991, the respondent would have been able to work in a sedentary position but "It is difficult to precisely fix the time when this could have occurred ..." [78]. In my view, [76] is to be understood in this sense, and the finding ultimately made in [78] is that it was from July 1996 that the respondent would have been able to work to full capacity in a sedentary position as a claims officer, not from March 1991.

72 Ground 5 also raised issues of the calculation of interest on past loss of earnings and the award in respect of superannuation.

73 With respect to past loss of earnings her Honour appears to have proceeded on the reasonable basis that, were it not for the disability as she found it from the 1990 accident, the respondent would have returned to his long established employment as an insurance officer when his attempt to establish himself in business as a claims assessor proved unsuccessful. This seems to have become clear by about October 1992. On that basis her Honour accepted from the evidence and concessions that the average net income of a claims officer was $25,000 per annum. She allowed an average loss of $20,000 net per annum on the basis of an 80 per cent incapacity over the five year period to July 1996, ie a total of $100,000.

74 During a little more than the first year of this five year period the respondent had earned, however, $9,000 net from the insurance assessor business. This $9,000 was deducted by her Honour, leaving a loss of $91,000. The calculations in this respect are not disputed.

75 Interest was then allowed on the $91,000 over the period to judgment in July 2001. Her Honour calculated this period as 11 years whereas, as the appellant correctly admits, it was in truth 10 years. Her Honour also allowed interest at an average rate of 6 per cent per annum on the full amount of $91,000 over that period. During this 10 years the interest rates prescribed pursuant to s 142 of the Supreme Court Act 1935 (WA) were:

"To 29 May 1992: 12 per cent

To 30 July 1992: 8.5 per cent

To 12 September 1997: 8 per cent

Thereafter: 6 per cent"

It is to be noted, however, that the loss was of $91,000 progressively accrued over the five years to July 1996. Thereafter, no further loss accrued on her Honour's findings. In my view, this warrants a distinction in respect of the calculation of interest between the period over which the loss was accruing, ie the five years to July 1996, and the five year period thereafter to July 2001. In respect of the first of these five year periods it would be appropriate, in my view, to calculate the accruing loss on the standard formula applied in such situations of an interest rate of 4 per cent over the five year period. This happens to closely approximate an interest rate which is half of the prevailing average rate over that period. Thereafter, interest is reasonably calculated at the prevailing prescribed rate. Thus the interest calculations are:

76 Her Honour's calculation on the basis indicated led her Honour to allow a total figure of $151,060 for loss of earnings including interest, the difference being $12,376.

77 It is accepted that her Honour correctly allowed as loss the required employer's superannuation contributions over the five years to 1 July 1996 but that in calculating this she omitted to reduce the contributions by 20 per cent to reflect her finding of an 80 per cent loss of incapacity. If this omission is corrected the allowance for superannuation contributions should have been $4,680, rather than $5,850. Further, in calculating an allowance for interest in respect of superannuation contributions her Honour's calculations overstated the number of years to judgment. Given the statutory requirement the interest should have been calculated over four years to July 1996, and a further five years to judgment.

78 It is also submitted by the appellant that her Honour was in error in reducing this sum by 20 per cent for fund and management fees rather than 30 per cent. While 30 per cent has been allowed in some circumstances, eg Jongen v CSR Ltd (1992) Aust Torts Rep 81-192, that is not established as a universal percentage, and questions of contingencies and retained earning capacity are relevant to the determination of an appropriate percentage, eg Nolan v Hamersley Iron Pty Ltd (2000) WAR 287. In this case I am not persuaded that the 20 per cent allowance is necessarily in error. Applying 20 per cent, the allowance is reduced to $3,744. If the interest is calculated on this figure over the four years to July 1996 at 4 per cent and thereafter to judgment on the same basis as applied in the past loss of earnings, an appropriate interest allowance would be $1,812, producing a total allowance for superannuation with interest of $5,556, rather than the figure of $7,769 which her Honour allowed.

79 As with grounds 1 - 4, the appellant contends that her Honour failed to identify the extent to which she accepted the respondent's evidence and failed to make specific findings as to the nature and extent of the injury suffered from the 1990 accident. The reasons given in respect of grounds 1 - 4 sufficiently indicate my appreciation of the reasoning adopted by her Honour. Further, her Honour's express treatment of non-pecuniary loss makes clear that she also applied the "cut-off date" of 30 June 1996 to pain and suffering. In view of her adverse appreciation of the respondent's credibility she was not satisfied as to the cause of any symptoms the plaintiff experienced after that date.

80 With respect to the period from the 1990 accident to July 1996 there was a considerable body of evidence as to the pain, suffering and enjoyment of life in that period which supported the findings made in the reasons as to the adverse physical effects of the 1990 accident and their consequences. These findings would well support the award made by her Honour of $25,000. It must be accepted that her Honour's approach was general and not detailed but, given the evidence in this case, I am not persuaded that more could reasonably be expected or that error is demonstrated by this.

81 This concerns an award of $2,000 plus interest of $769 for gratuitous services. Once again, the primary basis advanced in support of the ground is that her Honour ought not to have accepted that gratuitous services were required in view of the respondent's lack of credibility, his fitness for work and the evidence of Mr Vaughan. What has been said in respect of grounds 1 - 4 provides adequate answers to this line of submission. Despite the lack of specific findings, the evidence, in particular of Mrs Greenhalgh and Dr Eaton, affords a sufficient basis for accepting the need for these services. The award made is limited indeed. The applicable rate having been agreed by the parties at $12.50 an hour, the award is in respect of only 160 hours over the whole of the period to July 1996.

82 I would not interfere with the award in this respect.

83 Six particulars (a) - (f) were advanced in support of this ground which is against the allowance of $3,218 for special damages.

84 Particulars (a) and (f) turn on the appellant's contentions that the respondent's symptoms were not proved to have been caused by the 1990 accident and the absence of specific findings of fact to warrant any allowance for special damages. What has been said in respect of grounds 1 - 4 sufficiently indicates the basis on which I do not accept these contentions.

85 The allowance made included $105 for Serapax at the rate of one packet each two months over the five years to July 1996, and $300 for Panadol at the rate of one packet a month over those five years. It is contended by particulars (b) and (c) that as Serapax was used by the respondent for anxiety before the accident, the $105 should not have been allowed. However, the evidence of Dr Eaton, the respondent's GP, was that Serapax was prescribed by him as an anti-inflammatory because of the back injury. In view of her Honour's finding that the back injury was due to 1990 accident the allowance is appropriate. In view of that finding the allowance for Panadol can also be accepted, the cost having been agreed between the parties.

86 Particular (d) concerns travelling costs for medical treatment. It is accepted that her Honour did make a transposition error when she allowed $2,363 for transport costs. The actual figure agreed between the parties was $701. It is further contended that her Honour failed to consider and to make necessary findings as to whether that agreed $701 should have been reduced in some respects by virtue of her finding that no disability was established for any period after 30 June 1996. The materials placed before us do not allow any analysis of how the agreed figure of $701 was made up. It cannot be determined whether any part of it was in respect of travel after 30 June 1996. Her Honour obviously dealt with travel expenses on the basis that they had been agreed between the parties. In the circumstances I am not persuaded that was inappropriate. Of course, there is the accepted error in that $2,363 was allowed rather than $701.

87 The final matter raised by the appellant in respect of special damages concerns general practitioner fees. Her Honour upheld the respondent's claim insofar as it related to consultations from the date of the 1990 accident to July 1996 and calculated these by reference to a schedule which was before her. This produced a total of $1,216.20 for these fees. Her Honour then reduced this figure to $400.20, which she allowed, on the basis that the appellant had already paid the balance of $816. This appears to have overlooked the evidence of Dr Eaton that all accounts in respect of the respondent's lumbo-sacral symptoms had been forwarded to the appellant's insurer and had been paid. As I understand of the submissions this is not disputed by the respondent but, as part of his cross-appeal, it is submitted that the parties had reached agreement pre-trial, as advised to her Honour's Associate by letter dated 25 June 2001, as to which of the GP consultations in the respondent's schedule related to the lumbo-sacral symptoms. This agreement included three consultations which were in 1998, 1999 and 2000 respectively. On this basis the respondent claims that these three consultations should have been allowed.

88 I have difficulty with that submission. Her Honour's finding in part was that any symptoms of the respondent from July 1996 had not been established to be causally related to the 1990 accident. This seems to accept, by implication, that there may indeed have been lumbo-sacral symptoms experienced in the years after July 1996 but, if that was so, the 1990 accident had not been shown to be causative of them. It would accord with such a finding that there should not be any award for consultations concerning lumbo-sacral symptoms from July 1996.

89 The first two grounds of the cross-appeal contend there was error, given the evidence and certain identified findings, in the failure to award damages and make allowances for medical treatment from July 1996 to trial. What has been said earlier in relation to grounds 1 - 4 of the notice of appeal deals adequately with these two grounds.

90 The third ground of the cross-appeal concerned an apparently mistaken observation in her Honour's reasons that the respondent did not lodge tax returns. The respondent points to evidence that they were eventually lodged, albeit late. It seems her Honour may have been misled in this matter as draft returns were tendered in evidence. In any event, nothing of substance turns on the issue.

91 The final ground is really advanced by way of part-counter to the relatively minor complaints advanced by the appellant about the precise calculations of damages and allowances which her Honour made. The respondent contends there had been an excessive allowance made for retained earning capacity as not only were past loss of earnings allowed to the extent of only 80 per cent, but in addition rewards of that earning capacity, ie the $9,000 from the assessing business, were also directly deducted from the award. While there may be some limited substance in this contention the position is not as clear or as significant as the respondent puts it. In particular, for the most part, the $9,000 was earned before the onset of disability and loss of earnings was only awarded, therefore, from July 1991, not from the date of the 1990 accident. Further, the loss of earnings are calculated by reference to wages that could have been earned in employment in an insurance office. In my view, no direct adjustment of the calculations is called for in this respect, although this factor has some relevance to the issue to which I now turn.

92 It is not enough that the appellant may be able to point to some mathematical or other error affecting the calculation of one or more elements of the award. The appellant must go further and demonstrate that, by virtue of those errors, the resulting award made is wrong, in the sense of being outside the range of a sound discretionary assessment or, as it is often stated, is a wholly erroneous estimate of the damage sustained: see Sorrell v Hitchin (1952) SR (NSW) 206 (Note); Victorian Railways Commissioners v Lord [1968] 2 NSWR 327.

93 In the present case it is a close-call whether, on the factual findings made by her Honour, the appeal should be allowed. In the end, I am persuaded, however, that the award made of $189,817 is sufficiently in error to warrant it being set aside and a fresh award substituted to reflect these reasons. For the reasons that have been given I would make an award as follows:

94 For these reasons the appeal should be allowed, the award of $189,817 made in the judgment entered on 23 July 2001 should be set aside and in lieu an award in the sum of $173,166 substituted. Otherwise, the judgment below should stand.