BROWN v LEWIS

PARTIES: Stephan Mark BROWN v Jake William LEWIS

COUNSEL: Appellant: K P Rewell SC/ G Smith Respondent: R Goodridge

SOLICITORS: Appellant: Sparke Helmore Respondent: Firths The Compensation Lawyers

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41080/2004 DC 98/2003

MASON P SANTOW JA McCOLL JA

Friday 21 April 2006 Stephen Mark BROWN v Jake William LEWIS JUDGMENT 1 MASON P: The appellant challenges the quantum of damages awarded in the District Court in a motor vehicle accident claim. 2 The respondent was a passenger in a vehicle driven by the appellant that ran off the roadway and collided with a wrought iron fence. Breach of duty was not disputed and an issue of contributory negligence was resolved in the respondent's favour at trial. 3 The respondent was born on 7 November 1979 and was 25 years old at the date of judgment, 10 November 2004. Included in the award of $254,098.59 were damages for non-economic loss ($85,000), past economic loss ($55,000), loss of superannuation ($6,000) and future economic loss ($95,000). These are the components challenged in the appeal. 4 The respondent's injuries were serious and included: • an injury to the neck with a comminuted fracture of C7 • a fracture of the left clavicle • a penetrating chest injury • a blow to the head with momentary loss of consciousness • a blow to the knees where they impacted with the dashboard. 5 The respondent was in hospital for six weeks. He underwent a reconstruction of the C7 vertebra. An MRI scan of the cervical spine confirmed extensive injury with perivertebral haematoma. An MR angiogram showed evidence of occlusion of the left vertebral artery at the level of the injury. On 6 November 1999 the respondent underwent a spinal fusion using plates, screws and a bone graft from the left iliac crest. The locking plates were applied from C6 to T1. 6 Open reduction and internal fixation of the fracture of the left clavicle was recommended by the orthopaedic surgeon, but the respondent declined the operation. His post-operative course was also complicated by a CSF leak which required the insertion of a lumbar drain. His wounds healed satisfactorily with antibiotics. 7 The respondent was immobilised in a Minerva jacket for eight weeks. This caused significant discomfort, particularly since it was worn during the summer months. 8 The trial took place at Newcastle before Judge Sidis on 24, 26 and 27 August and 11 and 12 October 2004. 9 Medical certificates and reports were tendered without objection and none of the doctors was cross-examined. 10 The respondent did not produce evidence from his treating doctors. He relied principally upon the following expert evidence:

• a Vocational Assessment Report of Ashley Douglass, a rehabilitation counsellor;

• three reports of Dr W G D Patrick, a surgeon, who examined the respondent at the request of his solicitors on 9 September 2002;

• a report of Dr Roger Pillemer, orthopaedic surgeon, who examined the respondent on 21 July 2003 at the request of the Motor Accidents Authority for the purpose of providing certificates under s61(1) of the Motor Accidents Compensation Act 1999 (the Act); and

• several reports of Professor Michael Fearnside, a neurological surgeon, based on consultations in October 2000, August 2002 and August 2003.

Certificates under Motor Accidents Compensation Act 1999 11 In accordance with s61(2)(a) of the Act, on 22 July 2003 Dr Pillemer certified the following impairments as permanent and giving rise to a whole person impairment which, in total, is greater than 10 per cent:

• Cervicothoracic spine • Left upper extremity • Right upper extremity • Chest • Thoracolumbar spine. 12 Dr Pillemer also certified that as at 22 July 2003 the five impairments were stabilised, with the exception of "left upper extremity" (cf s61(2)(c)). 13 Counsel provided helpful submissions as to the status and function of certificates under the Act. At the end of the day there was little or no disagreement on the topic. 14 Medical assessment is addressed in Pt 3.4 of the Act (ss57-65). The presently relevant provisions are:

58 Application (1) This Part applies to a disagreement between a claimant and an insurer about any of the following matters: (a) whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances, (b) whether any such treatment relates to the injury caused by the motor accident, (c) whether an injury has stabilised, (d) the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident, (e) the degree of impairment of the earning capacity of the injured person as a result of the injury caused by the motor accident. (2) This Part also applies to any issue arising about such a matter in proceedings before a court or in connection with the assessment of a claim by a claims assessor.

61 Status of medical assessments (1) The medical assessor or assessors to whom a medical dispute is referred is or are to give a certificate as to the matters referred for assessment. (2) Any such certificate as to: (a) whether the degree of permanent impairment of the injured person is greater than 10%, or (b) whether any treatment already provided to the injured person was reasonable and necessary in the circumstances, or (c) whether an injury has stabilised, is conclusive evidence as to the matters certified in any court proceedings or in any assessment by a claims assessor in respect of the claim concerned. (3) Any such certificate as to any other matter is evidence (but not conclusive evidence) as to the matters certified in any court proceedings or in any assessment by a claims assessor in respect of the claim concerned. (4) In any court proceedings, the court may (despite anything to the contrary in this section) reject a certificate as to all or any of the matters certified in it, on the grounds of denial of procedural fairness to a party to the proceedings in connection with the issue of the certificate, but only if the court is satisfied that admission of the certificate as to the matter or matters concerned would cause substantial injustice to that party. (5) If a certificate as to any matter is rejected under subsection (4), the court is to refer that matter again for assessment under this Part and adjourn the proceedings until a further certificate is given and admitted in evidence in the proceedings. (6) However, if a certificate as to whether or not the degree of permanent impairment of the injured person is greater than 10% is rejected under subsection (4), the court may, if it considers it appropriate, substitute a determination of the court as to the degree of permanent impairment of the injured person (assessed by the court in accordance with section 133) instead of referring that matter again for assessment under this Part. (7) Except as provided by subsection (6), a court may not substitute its own determination as to any matter referred to in subsection (2) (a), (b) or (c). (8) This section: (a) does not prevent a court from referring a matter again for assessment under this Part (as provided for by section 62), and (b) does not require a court to refer a matter again for assessment under this Part if the matter is not a matter referred to in subsection (2) (a), (b) or (c). (9) A certificate is to set out the reasons for any finding by the medical assessor or assessors as to any matter certified in the certificate in respect of which the certificate is conclusive evidence. 63 Review of medical assessment by review panel (1) A party to a medical dispute may apply to the proper officer of the Authority to refer a medical assessment under this Part by a single medical assessor to a review panel of medical assessors for review.

(2) An application for the referral of a medical assessment to a review panel may only be made on the grounds that the assessment was incorrect in a material respect. (3) The proper officer of the Authority is to arrange for any such application to be referred to a panel of at least 3 medical assessors, but only if the proper officer is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application. (4) The review panel may confirm the certificate of assessment of the single medical assessor, or revoke that certificate and issue a new certificate as to the matters concerned. (5) Section 61 applies to any such new certificate. 15 Sections 58 and 61(2)(b) and (c) reveal that medical assessment certificates may serve functions beyond their role in relation to damages for non-economic loss. 16 Damages for non-economic loss are addressed in Pt 5.3 (ss131-135). They may not be awarded unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10% (s131). If there is a dispute about the threshold, the court may not make an award unless the degree of permanent impairment has been assessed by a medical assessor under Pt 3.4 (s132(1)). Section 133 prescribes the method of assessing the degree of permanent impairment as follows:

133 Method of assessing degree of impairment (1) The assessment of the degree of permanent impairment of an injured person as a result of the injury caused by a motor accident is to be expressed as a percentage in accordance with this Part. (2) The assessment of the degree of permanent impairment is to be made in accordance with: (a) MAA Medical Guidelines issued for that purpose, or (b) if there are no such guidelines in force - the American Medical Association's Guides to the Evaluation of Permanent Impairment, Fourth Edition. (3) In assessing the degree of permanent impairment under subsection (2) (b), regard must not be had to any psychiatric or psychological injury, impairment or symptoms, unless the assessment of the degree of permanent impairment is made solely with respect to the result of a psychiatric or psychological injury. Note. See Part 3.1 for MAA Medical Guidelines.

17 If the medical assessment under the Act certifies that the degree of permanent impairment is greater than 10% then this is conclusive evidence of that fact (s61(2)(a)). If the certificate addresses anything else, it is evidence (but not conclusive evidence) as to the matters certified (s61(3)). 18 The conclusivity and the evidentiary effect of a certificate will yield to the outcome of a later assessment (cf s62), the outcome of a review (cf s63) or the rejection of the certificate by the court on the grounds of denial of procedural fairness, subject to the constraints and qualifications stipulated in s61(4)-(6). 19 A certificate is required to set out the reasons for any finding as to any matter certified in the certificate in respect of which the certificate is conclusive evidence (s61(9)). However, the Act distinguishes between the matters certified and the supporting material. Only that which is certified has the evidentiary effects stipulated in subss(2) and (3) respectively of s61. 20 A certificate to the effect that the degree of permanent impairment of an injured person is greater than 10% (cf s61(2)(a)) does no more than unlock the door to an award of damages for non-economic loss (see ss131 and 132). The latch having been opened, assessment proceeds according to common law principles, subject to the capping stipulated in s134 and with such additional assistance that the court may derive from information published by the Motor Accidents Authority (cf s135). The leading decision is Hodgson v Crane (2002) 55 NSWLR 199. 21 As to the percentage of permanent impairment, there is no requirement for a medical assessor to do more than certify whether the degree of permanent impairment is greater than 10% (see s61(2)(a)). If more information is provided in the certificate or the supporting reasons then it may cast evidentiary light (of a non-conclusive nature) upon the issue at hand. But it is fallacious to regard a high percentage (if the medical assessor chooses to go beyond what is required by s61(2)(a)) as any guidance in itself in assessing the quantum of damages to be awarded for non-economic loss. The MACA does not provide for assessment on the basis of a percentage of a most extreme case (see Hodgson). 22 It is conceivable that matters certified in accordance with s61(2)(b) (whether any treatment already provided to the injured person was reasonable and necessary in the circumstances) or (c) (whether an injury has stabilised) may afford (conclusive) evidence relevant to a particular aspect of damages assessment, including the assessment of economic loss. The terms of any certificate "as to any other matter" (cf s61(3)) or the medical assessor's reasons for his or her finding (cf s61)(9)) may also assist (non-conclusively) in resolving some issue referable to economic loss. But the court must never lose sight of the principle that "damages for both past and future [economic] loss are allowed to an injured plaintiff 'because the diminution of his earning capacity is or may be productive of financial loss'. … It is necessary to identify both what capacity has been lost and what economic consequences will probably flow from that loss. Only then will it be possible to assess what sum will put the plaintiff in the same position as he or she would have been in if injury had not been sustained" (Husher v Husher (1999) 197 CLR 138 at 143[7], per Gleeson CJ, Gummow, Kirby and Hayne JJ, citations omitted). Sections 124-130 of the MACA provide additional restrictions upon the award of damages for economic loss in respect of a motor accident. 23 Extreme caution is required before anything relevant or useful could be extrapolated from a certificate under s61(2) for the purpose of calculating economic loss. Section 61(2)(a) only deals with the threshold issue whether the degree of permanent impairment is greater than 10%. Section 133 points to information (MAA Medical Guidelines and the American Medical Association's Guides to the Evaluation of Permanent Impairment, Fourth Edition) that does not concern itself with the economic consequences of injury, and excludes information (derivative psychiatric or psychological injury, impairment or symptoms: see s133(2)) that may be critically important to assessing economic loss. In short, the statutory concept of (permanent) "impairment" is not to be equated to the notion of incapacity (permanent or temporary) that may be a stepping-stone in a case involving a claim of damages for economic loss. It is Part 5.2 of the Act (ss124-130) that contains the legislative qualifications upon the common law principles governing assessment of damages for economic loss. Those provisions do not engage the statutory concept of "permanent impairment". 24 It is conceivable that matters certified or reported in the reasons of the medical assessor may have a bearing on factual issues touching damages for economic loss. But everything would depend on the nature of the particular injury. Some injuries that would not produce a greater than 10 per cent degree of permanent impairment would have catastrophic economic impact on some plaintiffs (eg the violinist who lost the tip of a finger). Conversely, some injuries that produced a greater than 10 per cent degree of permanent impairment would have minimal economic impact on most plaintiffs. 25 I do not understand the recent decision of Murdoch v Davis [2005] NSWCA 466 to cut across these principles, despite a slight infelicity of language in the judgment at [8] where there is reference to an "implicit finding of a greater than ten per cent permanent incapacity" as at the date of the s61 certificate (my emphasis). 26 Murdoch involved a "fairly protracted whiplash-type injury" (at [6]) in which there was a dispute as to whether there were ongoing consequences sounding in economic loss. The Court made it plain that, while the s61 certificate (so long as it stood) was conclusive as to passing the non-economic loss threshold, the issue of damages for non-economic loss was at large in the new trial that was ordered (see at [23]).

The course of the trial 27 The clear thrust of the respondent's evidence in chief, his vocational assessment and his medical reports was that he was permanently unfit to return to his pre-injury occupation as a concreter. 28 Sidis DCJ summarised the respondent's evidence as to his symptoms and disabilities as follows: The plaintiff complained of significant pain, both before and after the jacket had been removed, which he dealt with by taking painkilling medication. He complained of a loss of strength in his left arm. The plaintiff said that although there had been some improvement in his condition over time, he continued at the current date to be troubled by pain in his neck, his shoulders and his back. He said that he had no days when he was completely free of pain and that he suffered pain on physical activity including lifting. He said his sleep was disturbed by reason of discomfort and pain. The range of movement of his neck was restricted and some movement caused him pain. He complained of continuing tingling pain in the left side of his neck, his left shoulder and his left arm to the three outer fingers of his left hand. He complained of restriction on the range of movement in his left shoulder and left arm demonstrating in court considerable restrictions in movement of his arm and shoulder at all angles.

Her Honour did not indicate the extent to which she accepted or rejected this evidence. 29 The respondent had been employed as a concreter before the accident. He had no other work experience. In his words (Black 136): I've concreted since before I left school, my uncle owns Concrete Pumps, so I've been doing that since I was like ever since I could walk pretty much going out to work with my uncle. I've always wanted to concrete because like the physical side of work of it, the money was - the money is good and that's what I've done all my life. Q. And you always wanted to progress to your own business? A. That's right, I've always wanted to be successful, I don't - I want to do things for myself.

Later, he said that he had not looked for any alternative type of work since the accident, although he both asserted a significant level of incapacity to do such work and conceded capacity to do some other types of work (Black 54-5). Judge Sidis expressed doubt, having regard to the respondent's obvious lack of education and academic capacity, whether the respondent would (uninjured) have progressed to the operation of his own business. 30 In chief, the respondent had said that the accident left him quite disabled for the work of a concreter. He admitted having done a full day's work at that job (Black 24), but no more than about 30 such days in the five years since the accident. (Later, in cross-examination he said that the earliest he worked after the accident was 2001. This part of his testimony is accepted by the appellant.) The respondent said that he had also done about 30 days part-time work, described as "just light work, just like washing up tools, packing up the truck, just light work" (Black 24). Even those duties caused sufficient pain that he was incapable of maintaining regular work, effectively because he could only work one or two hours at most. He was in a lot of pain after the two hours work. 31 He said that he had last worked about one month earlier. His duties were restricted to washing up tools and pushing a bull float over newly poured concrete. (A float is a piece of aluminium at the end of a long handle and is operated in a raking motion to smooth the surface of wet concrete.) He was unable to undertake such activities as digging, screeding, or using machines nominated as helicopters, vibrators, a big gurney and pressure guns. He said that he had particular difficulty leaning forward because of neck pain. He had relied heavily upon alcohol and cannabis to deal with his pain since the accident. 32 No clear evidence appears to have been given as to the amount of remuneration lost during the period after 2001. The respondent said that only some of the 60 days work was paid (Black 35). 33 The respondent gave much of his evidence in the early part of the trial in late August 2004. His cross-examination was incomplete when the matter was adjourned part-heard from 27 August to 11 October 2004. 34 The cross-examiner had a lot in his armoury or up his sleeve. 35 None of the experts who saw the respondent for vocational assessment or medico-legal purposes had been told of any capacity to work. 36 For example, the history given by the respondent on 29 July 2003 for the purpose of the Vocational Assessment Report is recorded as including: When Mr Lewis was asked whether he has worked since the accident, he replied that he has not resumed any full-time work. He reported that he attempted to work "one or two" days with some friends in the concreting industry performing light duties but he found his pain increased and he ceased working.

He told the same assessor (Mr Douglass) that he had been "bedridden" since his discharge from hospital, rating his neck and shoulder pain that day as 8/10. 37 The appellant's counsel was in a position to tender four hours of videoed surveillance evidence taken over seven days between July 2003 and August 2004. The first filming occurred the morning of the day he gave the above history to Mr Douglass. This showed the respondent working at various concreting tasks on different days. The learned trial judge described it as follows: Video taped evidence was shown of the plaintiff engaged in various activities as a concreter in July 2003, March 2004 and July and August 2004. The activities which the plaintiff undertook as shown on those video tapes were inconsistent with his evidence concerning the restrictions imposed upon him as a result of his injuries. The activities indicated that he was capable of full use of his left arm, unrestricted, in stark contrast to the restrictions which he demonstrated to the Court. They indicated that he had a capacity to work full days and on consecutive days. They showed him carrying ten kilogram bags of colour release powder and stacking bags of powder. They showed him carrying large items of timber on his, allegedly, uncomfortable left shoulder. They showed him carrying large items of wire meshing, holding the meshing with his left arm well above his head. They showed him driving without apparent neck restriction. The video taped material showed the plaintiff working over an extended period, leaning forward and bending with his head looking downwards. There was no evidence of discomfort demonstrated by the plaintiff during the course of any of these activities.

38 This Court was shown a substantial portion of this evidence. I agree with her Honour's summary. 39 The respondent could not dispute that he had worked as depicted on the video. But the thrust of his defensive response was to maintain that he was unable to do a number of the "heavy" jobs that formed part of a concreter's task; and that the jobs he was shown doing in the video produced clicking in the collarbone and pain that forced him not to persist in the particular task for any length of time. See eg Black 96-7, 104-106, 112-13, 117, 118, 127-8. The respondent said that the video corroborated his claim that he had been trying to get back to work after having broken his neck. He often worked after having a couple of beers or marijuana, substances used to help cope with the pain (Black 98). He maintained that his neck and left arm continued to be restricted and that he favoured the left arm by not putting much pressure on it. For example there was the following evidence (Black 117): Q. Do you still agree with that as being an accurate description of the problems that you have performing work as a concreter? A. Yes, I'm like bending down, cause where I'm fused here, the three vertebras are fused, so I don't have the full, like, mobility, so I've got, like, I bend down from the middle part of my back, that's why I have pain all down through there, cause I'm always bending through the middle half of my back, trying to support my neck. 40 The respondent said in effect that the people he worked for were mates who knew his injury and accommodated it to a degree (Black 63). For example, when asked if the boss at a particular job knew of his restrictions, he said (Black 120): A. Yeah that's right so they - I'm not allowed to pick up any steel up at all if the boys are there, or they always move the steel but if they're not there and that I'll like move it out of the road, that's why a lot of the blokes they don't employ me, like me mates, they said "I can't put you back on because you're just too much of a risk if you hurt yourself on the job site" or anything like that so that's why they don't want me there either and they can't put me back on the books or like and just makes it hard for them, makes it hard for me …. 41 Later, when cross-examined about whether he was paid in cash and whether there were proper records of his income, he said (Black 131): A. Yes just because a lot of the boys said they've got to be like they've got have me, for me to be working for them, on the books, all that, that's why and too they don't like want me working because like they've said before I'm just too much or a risk and danger, so that's why like if when I do go to work for them, it's a day here, day there, like it's never consistent, if I don't work and none of - what they all say is they won't have me work flat out because I'm just too much of a risk, if anything happens. The medical evidence 42 As indicated, Mr Douglass' Vocational Assessment was well-nigh valueless in light of the demonstrably false history on which it was based. 43 Dr Patrick's report of 18 October 2002 (Blue 10) arose out of an examination on 9 September 2002 that included a history that the respondent had not worked since the accident except for "a day here and there of work with old work mates". Dr Patrick was not later shown the video nor called to give evidence at the hearing, a matter noted by the judge in her reasons (Red 30). 44 The respondent placed particular reliance upon reports from Dr Pillemer provided in the period July-August 2003. The reports explained the certificates under the Act to the effect that there was greater than 10 per cent whole person impairment as at 22 July 2003. The reports also contained information going beyond explaining the percentage certification and, for the reasons explained above, were available as (non-conclusive) evidence to the extent that they proved anything relevant. But once again, their weight was severely undermined because they were based upon a work history (Blue 19-20) that was clearly falsified by the video evidence and the adverse findings as to the respondent's credibility. Dr Pillemer was himself sceptical about the respondent. In July 2003 he reported that: … there is no obvious objective neurological loss, no measurable muscle wasting, and the appearance of his hands in my opinion indicates that a significant amount of ongoing manual activity is being carried out at the present time. In my opinion his presentation is not consistent.

45 Dr Pillemer offered no opinion as to the respondent's capacity for work. I have already explained why his certificate under s61(2)(a) of the Act provides no assistance to the claim for economic loss. The most that can be derived from his report of 22 July 2003, referable to economic loss, is that he certified that four of the impairments were "stabilised" (cf s61(2)(c)). But this has never been doubted. The vital question is whether they impacted adversely upon the capacity to earn income. Dr Pillemer was not shown the video nor asked to comment on it. 46 Dr Fearnside is a neurological surgeon who saw the respondent in October 2000, at the request of the appellant's solicitors. He then reported that the respondent was permanently unfit to return to his pre-injury occupation as a concreter. He thought that the respondent had reached maximum medical improvement and that his impairment was permanent. Dr Fearnside suggested that some assistance with vocational retraining would be appropriate since the respondent would require a lighter and less physically arduous form of work (Blue 32). 47 Dr Fearnside saw the respondent again in August 2002 and August 2003. The respondent told him that he continued to experience daily neck pain and that he had not worked at all (Blue 33, 34). Dr Fearnside adhered to his opinion that the respondent was permanently unfit to return to his pre-injury occupation as a concreter, adding that it would be reasonable for the respondent to give some consideration to retraining (Blue 36). 48 The consultation on 25 August 2003 took place four weeks after the video taken on 29 July 2003 showing the respondent working as a concreter. 49 Subsequently Dr Fearnside was provided with the video taken in July 2003. He reported that it was "entirely inconsistent with" the respondent's statements to him regarding work (Blue 230). In light of the video, the doctor concluded that there would be no impairment in the activities of daily living and that the respondent was fit for work as a concreter with no restrictions (Blue 230, 231). A similar view was reported after he had been shown later videos taken in July and August 2004 (232-233). Dr Fearnside did not give any oral evidence. 50 Dr Cummine is an orthopaedic surgeon retained on behalf of the appellant who examined the respondent in November 2002 and August 2003. The respondent told him in August 2003 that he had not worked since the accident: this was quite false. Dr Cummine's report of 26 August 2003 (Blue 169) stated that the fusion created a permanent impairment and that there was residual radiculopathy in the left upper limb. But later reports from the same doctor, after he had been shown the video, gave no support for the proposition that the injury restricted the respondent's ability to work (see Blue 171-173). 51 I accept in the respondent's favour that Dr Fearnside and Dr Cummine assumed that the work they saw being performed on the video represented everything that a competent concreter needed to be able to do. This assumption was not fully justified, because there was evidence that concreting also involved certain "heavier" tasks that were not shown being performed by the respondent in the video. Also, the doctors have made contestable assumptions as to the representativeness of the video, as a reflection of what the respondent was capable of doing day in and day out. 52 These observations would qualify acceptance of Dr Cummine's and Dr Fearnside's 2004 reports in which they effectively concluded that the respondent was fit to work as a concreter. But this does not help the respondent to overcome the evidentiary gap in his case as to proof that income was actually lost after 2001.

Economic loss generally 53 The trial judge found that it was obvious that the respondent had greater capacity than he was prepared to concede. It was also clear that he had returned to concreting work and that he had no present interest in pursuing another career option. 54 These findings were not challenged and they form the backdrop to the issues relating to economic loss.

Damages for past economic loss 55 Judge Sidis explained the award of $55,000 for past economic loss as follows: I have been satisfied that he was not able to work at least for a period of two years after the accident for which I have been forced to arrive at an estimated income loss of $12,500 per annum, that is, until the 2 November 2001. The amount allowed is $25,000. For the three years from that date to the present I have allowed the plaintiff's income loss at $10,000 per annum on the basis that with greater maturity and experience his income earning capacity would have increased but that he was receiving some income, the amount of which is unknown. The amount allowed for the three year period is $30,000. 56 The appellant accepts the estimated income loss of $12,500 per annum until 2 November 2001. This represents approximately $250 per week. But the estimated loss of $10,000 per annum for the three succeeding years is disputed, in essence because of the capacity to do significant physical work revealed in the video and because the amount of income received during that period is unknown, as her Honour acknowledges. There is also no evidence as to whether a concreter of the respondent's age would have expected to earn more as he got older. 57 Determining income loss can be fraught with imponderables. Where there is unquestionable evidence of reduced earning capacity the trial judge is given considerable latitude to do the best he or she can with the information available (see generally State of New South Wales v Moss (2000) 54 NSWLR 536). In the present case, however, the evidence of reduced capacity after 2001 was equivocal in several respects. 58 The primary judge had a most difficult task, and the difficulties were in large part of the respondent's making. His evidence was that practically no remuneration was received at any time before trial because of virtually total incapacity. That claim of severe incapacity was destroyed with the video evidence. True, the video related to seven days over a 13 month period in 2003 and 2004 and issues had been raised as to editing and the representativeness of the sample. True also that the video did not show the respondent working at some of the heavier concreting tasks. But the video demonstrated that the respondent had lied to those who were called to give expert evidence as to incapacity. The respondent had also endeavoured to mislead the Court. Judge Sidis concluded that there had been blatant dishonesty. 59 The judge stated that: … the evidence presented by the video tapes must be considered in the light of the instructions issued to the investigator as to what was to be observed, and the limited periods of time when [the respondent] was under surveillance.

This is true. Unfortunately, there are no findings as to what emerged in light of such consideration. 60 It is significant that the video was produced at the earlier stage of the trial, in late August 2004. The early cross-examination left the respondent and his advisers in no doubt that there would be a serious contest as to the extent, if at all, that the respondent was incapacitated after 2001 and the extent of past economic loss. Yet nothing was done to repair the damage when the trial resumed on 11 October 2004, still in the plaintiff's case. All that happened was that, in the balance of his cross-examination, the respondent gave evidence that his pre-accident pattern of earnings was destroyed because of the sporadic nature of his post-injury employment and that what was disclosed on the video were atypical bursts of activity. I do not accept the appellant's submission that there was no evidence of actual loss, although there was no attempt to quantify it beyond the respondent effectively sticking to his guns that he had worked for no more than 60 intermittent days or half days. 61 Unfortunately for the respondent, the finding of past economic loss cannot stand because there was no satisfactory evidence of what was lost and because the judge's unchallenged finding that the respondent's testimony about working after 2001 was blatantly dishonest left an unplugged gap. There were practically no findings of inferred primary facts. The closest her Honour came was the reference to "the inevitable restrictions" imposed by a fusion of the cervical spine (Red 32). 62 The trial judge referred at some length to the evidence of Dr Fearnside (Red 28-33). Nothing was said about whether this evidence was accepted or rejected. In so observing, I am not suggesting that her Honour should have rejected the post-video evidence from this expert. But if it was accepted, it left nothing of assistance to the respondent in the reports of Dr Fearnside in light of the unchallenged findings as to the respondent's credibility. 63 Where a judgment is set aside because the court below has not found the necessary facts and/or exposed its reasons appropriately then the usual remedy is a new trial. Yet both parties urged the Court not to go down this path. The Court was invited to resolve the matter as best it could on the material before it. 64 In light of this, the just resolution is to set aside the $30,000 awarded for the period after November 2001, thereby reducing the past economic loss component to $25,000. A corresponding adjustment to the superannuation will need to be calculated by the parties. This is a just disposition in light of what the parties have sought in this Court. Indeed, it would be positively unjust to order a new trial where the evidentiary gap is the consequence of the plaintiff's dishonesty, the thinness of the evidence led by him on the particular topic, and where the amount at issue is a comparatively small sum.

Future economic loss 65 Her Honour's reasons for the award of $95,000 for future economic loss were: For the future, notwithstanding the material indicating that the plaintiff is, in fact, working as a concreter and that he, in fact, has no interest in any other career, I have some doubt as to whether he will, on a long term basis, be able to continue with the concreting work. Approaching the matter as required by s126 of the Motor Accidents Compensation Act, it appears to me that the plaintiff's most likely future circumstance, had he not been injured, was that he would have remained working in the concrete industry. I have some doubt, having regard to his obvious lack of education and academic capacity whether he would have progressed to the operation of his own business. I have based my assessment of his future income earning capacity upon the following considerations. The consideration already noted that I doubt that he would be able to continue on a long term basis in the concreting industry; that I doubt that the plaintiff has the capacity to operate a business on his own account; that he has considerably more capacity than he has claimed; and that other alternatives are available to him which require him to mitigate his loss; and finally, that he is very young with many income producing years ahead of him in which he will have to manage the constraints imposed by the restrictions in his cervical spine. On this basis, I have allowed the plaintiff a further two years at $10,000 per annum for retraining and re-establishment. In this respect, therefore, the amount allowed is $20,000. Thereafter, I have provided for a further buffer to take account of the plaintiff's diminished opportunities in the labour market. The buffer is allowed in the sum of $75,000.

66 The appellant submitted that there was no acceptable medical evidence to support the judge's "doubt" as to the respondent's future capacity for work. The allowance of a "buffer" award involved merely plucking a figure from the air without evidentiary support. Her Honour's reference to "constraints imposed by the restrictions in [the respondent's] cervical spine" were also said to repeat an earlier error when the judge spoke of her "doubt as to whether [the respondent] will, on a long term basis, be able to continue with the concreting work". 67 I do not agree. 68 The medical evidence in relation to the spinal injury stemmed from the x-rays and the medical procedures which the respondent underwent. The spinal fusion created a permanent restriction to some degree (a "stabilised" impairment, in the language of the certificate). 69 The judge's doubt as to the respondent's capacity to be able to continue with concreting work on a long term basis was well open, in my view. There was no video or other evidence showing the respondent involving himself in several of the heavier tasks involved in concreting. The assessment that the respondent lacked clear capacity to have progressed to the entrepreneurial side of the concreting business was also well open to her Honour. The respondent had left school at Year 10. There had been difficulties with heavy drinking and substance abuse. The judge would have observed the respondent during the lengthy period that he gave evidence. And the Vocational Assessment Report was guarded as to career options. 70 In any event, the way the trial was conducted precludes the appellant from mounting a successful challenge to the buffer award based as it is upon the uncontroverted medical evidence, the young age of the respondent and the undoubted need for significant labouring capacity in the concreting business. 71 During final addresses at trial it was the defendant's counsel who volunteered that "the plaintiff is a vulnerable person so far as his neck is concerned" (Black 227). Counsel accepted that a buffer award was open and as good as urged the judge to proceed down that path rather than assessing damages for future economic loss by more conventional means. The transcript records Mr Chipchase submitting that (Black 232-233): … we have a vulnerable man who is not as good, won't be as good on the tools as he would've been if he had've been uninjured. He's susceptible to aggravations, would have to be susceptible to some aggravations and injury, and perhaps limited in some of the heavier type of work that he was required to do…. … this plaintiff would be entitled to a cushion, having demonstrated the amount of work that he's capable of doing on the video.

72 A buffer award was justified in light of the evidence and the approach adopted by the appellant at trial. I am unpersuaded that the figure chosen involved appealable error. 73 I would however, set aside the allowance of $20,000 representing two years "for retraining and re-establishment". There was no evidence to support this costing. The Rehabilitation Assessment touched upon the possibility of a job in horticulture, but this was not embraced by the respondent then or at trial (cf Black 68, 97-98). I acknowledge that an injured person may ultimately be driven to "reinvent" himself or herself and to seek vocational retraining, especially at a maturer age. But this is really speculation in the present case and the costing evidence is entirely absent.

Non-economic loss 74 There is no dispute as to the respondent having a greater than ten per cent degree of permanent impairment. The radiology itself compels such a conclusion, because a two level spinal fusion produces "loss of motion segment integrity or multilevel neurologic compromise" which leads to a 25% impairment of the whole person according to the Guidelines (Table 73, Diagnosis Related Estimate (DRE), category IV). 75 The appellant accepts that $85,000 would be well within the range for a 25 year old man with a two-level spinal fusion. He submits nevertheless that the video demonstrated that the respondent suffered little or no ongoing physical disability and that the respondent was capable of unrestricted use of his neck and left shoulder and was capable of heavy physical work. It is proposed that the damages should be reduced to $50,000. 76 I have already drawn attention to the paucity of findings capable of grounding the particular award for non-economic loss and enabling appellate accountability in that regard. In the concluding part of her reasons, the trial judge made no more than generalised statements about the respondent being a young man who has suffered very serious injuries and who remains with a fusion in his cervical spine with the "inevitable restrictions" that are imposed by it. 77 The problem for this Court is that it has little means of knowing the extent to which the respondent's evidence as to ongoing pain and discomfort was accepted by the trial judge. I infer that it was rejected, at least in part, because it was caught up with the "blatantly dishonest" evidence about near-total incapacity to work as a concreter. 78 Nevertheless, unlike the situation with past economic loss, there was evidence supporting a substantial award of damages for non-economic loss. 79 There could be no dispute about significant pain and discomfort during the early months, including the period after the spinal fusion when the respondent was immobilised in a Minerva jacket for eight weeks in summer. It is also clear that there were ongoing difficulties and restrictions, albeit that their impact was exaggerated in the plaintiff's testimony and the histories he gave to his doctors. The respondent's inability to work during the two years following the accident is also some pointer to his discomfort during this period. Dr Cummine also noted persistent left upper limb radiculopathy that would limit the ability to continue participating in active sports (Blue 169, 172). 80 Since the parties have requested this Court to do the best it can with the material before it I have concluded that this aspect of the appeal should fail. The exposed reasons are unsatisfactory, but a new trial is not sought on this account. The appellant seeks only to pare the award back from $85,000 to $50,000. Since I am not persuaded that the assessment is unjustified on the evidence it should stand.

A concluding observation 81 The reasons of the trial judge usefully summarised the evidence of the respondent and the evidence of the experts in their various reports. 82 There is an undisputed finding of "blatant dishonesty" coupled with the necessarily correct observation that: This has unfortunate consequences because the plaintiff is a young man who has suffered very serious injuries. His dishonesty renders my task in assessing his rights to compensation extremely difficult.

Later in the reasons her Honour also observed that: The assessment of the plaintiff's loss of income earning capacity has proved a matter of great difficulty.

83 These difficulties are not uncommon. Yet they do not relieve a trial judge of that duty to find the primary facts grounding an award of damages. Unless they are found, then the losing party will have no way of knowing why he or she has lost, and will be left wondering whether any proper regard has been given to the case he or she was proupounding. If the plaintiff's case is left so full of holes that the necessary facts cannot be found or inferred then the relevant part of the claim must fail, because the plaintiff bears the ultimate onus of proof. In some matters there may be a shifting of the evidentiary onus (eg Watts v Rake (1960) 108 CLR 158) but the ultimate persuasive onus remains with the plaintiff. 84 It is not enough for a trial judge to reject as dishonest the credibility of the one witness called to establish a fact (see Hume v Walton [2005] NSWCA 148). If any part of an award is dependent on partial acceptance of that witness's testimony, then it is incumbent on the judge to indicate the degree to which the witness was accepted and/or the primary facts found or inferred in favour of that witness. An award of damages cannot, if challenged for want of reasons, be sustained merely by suggesting that something must have been found to support it if, in truth, nothing was stated except where the unchallenged evidence plugs the gap and saves the day in the Court of Appeal.

Disposition 85 The appeal is therefore allowed in part, with costs. The parties should recalculate the damages in accordance with the reasons of the Court and file orders within 14 days. 86 SANTOW JA: I agree with Mason P. 87 McCOLL JA: I agree with Mason P. **********

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