Case v Sydney Trains

The Medico-Legal Evidence

1. Dr Richard Powell, an orthopaedic surgeon qualified on behalf of the Plaintiff, examined her on 14 January 2021. In his report of 17 February 2021 (Ex. PX2) at pp. 4-5, Dr Powell opines that the Plaintiff has suffered the following ongoing accident-related injuries:

• Musculoligamentous injury of the cervical spine. She was managed conservatively. She remains mildly symptomatic though clinical examination was unremarkable.
• Soft tissue injury of the left shoulder, most likely reflecting some rotator cuff tendinopathy plus or minus subacromial bursitis. Management has been conservative. Examination today was characterised by mild tenderness and restricted range of motion.
• Soft tissue injury to the lateral aspect of the left hip with ongoing features of mild trochanteric bursitis.

1. The Defendant has qualified Dr Roger Pillemer, orthopaedic surgeon who examined the Plaintiff on 14 March 2022. In his report of that date (PX3 and DX1), Dr Pillemer provides the following diagnosis (at page 3): "I would suggest the main diagnosis is that Ms Case probably has some cervical spondylosis which was aggravated or caused by the fall in January 2018. As noted she has been left with slight residual restriction of cervical movement but a full range of shoulder movements, and no obvious neurological deficit in her upper or lower limbs. As noted she still gets intermittent discomfort in her left hip and left knee, but these symptoms only worry her a few times a week and so not last for very long, and as noted clinically there was no obvious abnormality to be found."
2. The defendant correctly submitted that in substance, the findings of the two doctors are, as Dr Pillemer describes them (at the final bullet point on page 4 of his report), "very similar." Dr Pillemer also notes that the reports were similar in that they both also note that the Plaintiff remains only "mildly symptomatic" as a result of the accident.

The Clinical Notes

1. The clinical notes of Dr Tran, the plaintiff's general practitioner corroborate the opinions expressed by the medico-legal experts. Those records demonstrate that the plaintiff's visits to her GP following the accident have been infrequent. The practice notes also show that the plaintiff made mention of the injuries in respect of which she seeks compensation in these proceedings.

The Plaintiff's Oral Evidence

1. Other than arguably one single aspect of her work as a fruit and vegetable picker which was briefly touched upon during her evidence-in-chief, the Plaintiff gave no evidence that addressed the issues relating to the extent and nature of any employment related restriction arising from her accident-related injuries.
2. Indeed, in cross-examination the Plaintiff: 1. Confirmed she continues to be able to perform all aspects of her domestic duties in her capacity as her husband's full-time carer without restriction (T13/45-50); and 2. Agreed she had not received any specialist treatment or physio therapy since the accident (T18/27-32) and that she has only been taking "occasional" Panadol (T19/25).
3. As such, in my view, the plaintiff's oral evidence further supports a conclusion that the effect of her accident-related injuries have been at all times mild.

Economic Loss

1. No doubt given the mild nature of the plaintiff's injuries, the medico-legal experts gave no evidence as to any loss of earning capacity caused by the plaintiff's accident-related injuries.
2. Indeed, the plaintiff herself did not give any such evidence, other than to say that two weeks after the accident she could no longer pick pumpkins. I should add that this evidence itself was hardly compelling The plaintiff's evidence in chief said (at T11/47 and T12/6): Q: Was there some of the work that you couldn't do? A: The - probably picking the pumpkins and that, because - … Q: Was there any other work that you couldn't do? A: Not really.
3. Crucially in my view, the plaintiff followed that evidence in chief with the following: Q. When was the last time you worked picking vegetables or fruit? A. Two weeks after I had the train crash, I started work again at - that was for a week, and they told me they would get in contact with me, and they never ever did.
4. Faced with the difficulty which this evidence presented, the plaintiff in her submissions submitted that I should infer that her employer did not call her back after the accident because she was unable to carry out her pre accident work duties satisfactorily as a result of her injuries.
5. I do not accept that it is appropriate to draw such an inference. In my view, there is no evidentiary basis for it. In this regard, I note that there was no evidence from any employer to the effect that the plaintiff's injury was the reason she was not called again.
6. Indeed, in my view, the inference which the plaintiff would have me make is contrary to what the Plaintiff herself said in her evidence, namely that the only produce she could not pick for two weeks after the accident was pumpkins.
7. The defendant submitted that when this evidence is placed alongside what the plaintiff had said earlier in her evidence-in-chief to the effect that she had in the past picked oranges, kale, cabbage, collies, beetroot, carrots, broccoli, broccolini, celery and pumpkin, the only inference available on this evidence is that she was in fact still able to do most of the work that her employer/s might offer her (at T4/45-50).
8. I agree with this submission.
9. The Plaintiff's husband also gave evidence-in-chief that the plaintiff stopped working around the time of the accident, but he was not asked to explain why that was the case. The defendant submitted that the failure to ask the plaintiff's husband about the reasons why his wife ceased work should lead to the inference that his answers would not have assisted his wife's case (See Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418 per Handley JA)
10. I agree with that submission.
11. Further and contrary to her case on economic loss, the plaintiff gave the following evidence about her employment prior to the accident: 1. she was only working "here and - couple of days a week, that's all it was" (T14/39); 2. "[she was not] at work every single day" (T16/43); 3. "[that she was] only [doing it] two to three hours a day anyway" (T16/46); and 4. that it was "cash in hand" (T14/43).
12. Importantly, the Plaintiff also conceded under cross-examination that her fruit and vegetable picking work was seasonal in nature, and only available for a couple of months a year(T15/13-18).
13. This evidence was given in the context of the Plaintiff's attempts to explain why she has not declared any of her pre accident earnings to the Commonwealth Government, from whom she had been receiving a full time carer's pension (since about a year before the accident).
14. I also note that the plaintiff has not tendered any tax returns or assessments from which to ascertain her earnings before or after the accident.
15. The Plaintiff argued in her schedule of damages for an economic loss award (both past and future) based on the assumption that she was working for the full year. As I have earlier indicated, this assumption is not supported by the evidence.
16. The defendant submitted that the Court should make the following two principal findings in determining what award should be made in respect of economic loss: 1. The only aspect of the Plaintiff's capacity for fruit and vegetable picking activities that has been effected by the accident is her capacity to pick pumpkins; and 2. The economic consequence of this loss of earning capacity should be measured in light of her evidence that: the fruit and vegetable picking was seasonal, lowly paid work that she would perform intermittently during a couple of months a year for 2-3 hours per day; and the Plaintiff has been the full-time carer for her husband on a pension in respect of same during the 5 years since the date of the accident, and will therefore be likely to continue to do so in the future.
17. I agree with that submission
18. It seems to me that, at best, the evidence shows that the Plaintiff's earnings prior to the accident were earnings of $180 net per week (this was the figure claimed in the Plaintiff's Schedule of Damages) and adopted in her submissions (at [23])). Such earnings would have amounted to $1600 per annum (i.e., 2 months or nearly 9 weeks x $180).
19. The Defendant submits that on the evidence, the only change to the Plaintiff's earning capacity was that she now cannot pick pick one of the ten types of fruit and vegetables that she was picking prior to the accident (i.e. pumpkins). The defendant accepted that this has resulted in a small reduction in the Plaintiff's ability to compete in the marketplace, and thereby obtain and perform the fruit and vegetable picking work that might otherwise be on offer to her.
20. I agree with that submission, and indeed believe that the submission was generous given the nature of the plaintiff's evidence as to pumpkin picking.
21. The Plaintiff's loss schedule also refers to a purported likely loss until the age of 77. In my view however, there has been no evidence, that would support such a finding. In these circumstances the defendant submitted that for the purposes of assessing future economic loss, the Court should find that she would only have worked until the normal retirement age of 67.
22. I also agree with this submission.

Economic Loss - Legal Principles

1. The assessment of the Plaintiff's damages for future economic loss is to be dealt with under section 126 of the Motor Accidents Compensation Act 1999 (NSW) (MACA). This is the position deemed by operation of section 121 of the Transport Administration Act 1988 (NSW), which states: "121 Application of common law damages for motor accidents to railway and other public transport accidents (cf ss 68, 69 (2) MAA) (1) Chapter 5 (Award of damages) of the Motor Accidents Compensation Act 1999 applies to and in respect of an award of damages which relates to the death of or bodily injury to a person caused by or arising out of a public transport accident, not being an award of damages to which that Chapter applies. That Chapter so applies even though the public transport accident occurred after the commencement of the Motor Accident Injuries Act 2017. (3) For the purposes of this section, a public transport accident is an accident caused by or arising out of the use of any form of public transport in New South Wales, including public transport in the form of a passenger railway or a water ferry or taxi, but not including: (a) public transport in the form of air transport, or (b) public transport that is operated primarily for tourists, the purposes of recreation or historical interest or that is an amusement device, or (c) an accident for which, or to the extent to which, a person is liable otherwise than in the capacity of the owner or driver of, or other person in charge of, the vehicle or vessel used for public transport. A public transport accident, however, includes an accident of a class declared by the regulations to be a public transport accident, but does not include an accident of a class declared by the regulations not to be a public transport accident." [my emphasis]
2. Chapter 5 of MACA includes section 126 is in the following terms: 126 Future economic loss - claimant's prospects and adjustments (cf s 70A MAA) (1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. (2) When a court determines the amount of any such award of damages it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events concerned might have occurred but for the injury. (3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.
3. In Williams v Twynam Agricultural Group Pty Ltd and Anor [2011] NSWSC 1098, Hoeben J (as his Honour then was) found: [216] Relevant to that calculation and also to the assessment of damages for future economic loss against Inland is the statement of principle in Husher v Husher (1999) HCA 47; (1999) 197 CLR 138 at [6]- [7] where the plurality said: 6 Before dealing with Seymour v Gough and some of the decisions in Queensland that preceded it, it is as well to recall some matters that are well settled. A person who is physically injured by the negligence of another may suffer damage in a number of ways. As has long been established, the damages to be awarded to the victim are: "that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation." If the victim's pursuit of gainful employment is interrupted or affected because of the negligent infliction of physical injury, the victim is to be compensated by an amount that reflects the financial consequences that follow from the impairment. 7 Since at least Graham v Baker it has been recognised that it is convenient to assess an injured plaintiff's economic loss "by reference to the actual loss of wages which occurs up to the time of trial and which can be more or less precisely ascertained and then, having regard to the plaintiff's proved condition at the time of trial, to attempt some assessment of his future loss". But damages for both past loss and future loss are allowed to an injured plaintiff "because the diminution of his earning capacity is or may be productive of financial loss." Both elements are important. 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." [my emphasis] [215] The meaning of s 126 MACA, which is in identical terms to s 13 CLA, was considered in Macarthur Districts Motor Cycle Sportsmen Inc v Ardizzone [2004] NSWCA 145; (2004) 41 MVR 235; Penrith City Council v Parks [2004] NSWCA 201; Nominal Defendant v Lane [2004] NSWCA 405. Section 13 CLA was considered in Burton v Brooks [2011] NSWCA 175. The effect of those decisions is as follows: (1) The court must assess the "most likely" of the possible future economic circumstances facing the plaintiff but for the accident (including type of employment, duration of employment and remuneration); (2) Assess the plaintiff's economic prospects as a consequence of the accident; (3) Compensate the claimant for the difference between (1) and (2) including, where appropriate, through the use of a buffer; (4) Adjust (3) by an appropriate percentage for vicissitudes, to reflect the possibility that the plaintiff may not have achieved one even had the accident not occurred; (5) Include a statement of the assumptions made as the plaintiff's most likely future circumstances for the appropriate percentage adjustment.
4. Thus, in undertaking the assessment of damages under section 126 of MACA the Court must assess "both what capacity has been lost and what economic consequences will probably flow from that loss."
5. As I have earlier indicated, there are difficulties in the Plaintiff's evidentiary case including relevantly a lack of evidence of as to what precisely were her pre-accident earnings. Similarly, there is a lack of evidence as to how the minor injuries she sustained in the accident has affected her capacity to earn.
6. In the circumstances it seems appropriate to award damages by way of a buffer. In Penrith City v Parks [2004] NSWCA 201 Giles JA said (at [5]): The occasion for a buffer is when the impact of the injury upon the economic benefit from exercising earning capacity after injury is difficult to determine. There is still a comparison between the economic benefits, although the difference cannot be determined otherwise than by the broad approach of a buffer. Section 13 (1) [which is identical to s126(1)] can be fulfilled, and the assumptions as to exercising earning capacity before injury can be stated.
7. Given the lack of a clear means by which to determine the difference in numerical terms between the plaintiff's prior and post-accident position in relation to her earning capacity, I believe that a buffer is the most appropriate means of awarding damages for economic loss in the instant matter.
8. Such a course I believe, is appropriate for both past and future economic loss (Allard v Jones Lang Lasalle (Vic) Pty Ltd [2014] NSWCA 325):

Assumptions

1. The defendant submitted that the Court should adopt the following assumptions for the purposes of determining its award of the Plaintiff's damages for economic loss: Date of accident: 22 January 2018 Years since the accident (approx.): 5 ½ Plaintiffs current age (d.o.b. 29 May 1961): 62 Years until retirement at age 67: 5 Remaining Life expectancy (to 87 years): 25 years 5% multiplier for 25 years: 753.6.

Calculation of Past Economic Loss

1. The Plaintiff has asked the Court to award a significant figure for the Plaintiff's purported past economic loss based on unwarranted inferences and a minimal evidentiary case. In those circumstances, the comparative exercise of determining any change of position between the before and after accident earning capacity position as a means of assessing the likely numerical consequence of the Plaintiff's loss of earning capacity has been made extremely difficult, if not impossible.
2. This was the position of the defendant, which went on to contend that given this situation, the most appropriate means of compensating the Plaintiff is to award a buffer of $5000.00 for past economic loss.
3. I accept this to be the appropriate approach.

Calculation of Future Economic Loss

1. For the purposes of formulating the assumptions relevant to the exercise under s126(1) for determining the Plaintiff's "most likely future circumstances but for the injury". The defendant submitted that I should find that: 1. At most, the Plaintiff was earning about $1600 (net of taxation) per annum prior to the accident; and 2. On the evidence, the only change to the Plaintiff's earning capacity caused by the accident is that she only cannot pick one of ten fruit and vegetables that she was picking prior to the accident; and 3. She will be likely to remain her husband's full time carer into the future given she has already been doing so for over 5 years; and 4. The Plaintiff's remaining working life is 5 years.
2. The defendant went on to contend that I should find that the Plaintiff has suffered only a very slight reduction in her ability to compete in the marketplace, and thereby obtain and perform the fruit and vegetable picking work that would be on offer to her.
3. The submission continued that for the approximately 5 remaining years of the Plaintiff's working life, given the minimal evidence adduced in support of her case, a buffer in the amount of $5000.00 would also be an appropriate allowance for her future loss of earning capacity.
4. I again agree with the defendant's approach

Past Out-of-Pocket Expenses

1. The Plaintiff has not tendered any documentary evidence in relation to this head of damages. She did, however, give evidence that she has been taking about 1 packet of Panadol per month and that the cost of each packet is $5 or $6 (T19/25-42). On this basis, allowing $6.00 for the period of 5.5 years since the accident (being 66 months), results in a total of $396.00, which is the amount for past out-of-pocket expenses which I will allow.

Future Treatment Expenses

1. On this issue, Dr Pillemer's view (as set out at page 4 of his report) is that: "[a]part from taking occasional Panadol I would not have felt anything more active would be indicated by way of treatment)". The Plaintiff's evidence as to what medication she has been taking since the subject accident was to the same effect (T18/20-25). She also she said she has received no other treatment for her injuries since the date of the accident (T18/20-32).
2. In the circumstances, the defendant urged upon me the following in relation to this head of damage; "From the actuarial tables set out in the latest version of the Furzer Crestani tables, the Plaintiff's life expectancy is 87 years, being a further 25 years, given she is currently 62 years old. The weekly 5% multiplier set out in those tables for 25 years is 753.6. The Plaintiff's monthly usage of Panadol up to the trial based on her evidence is about $6.00 which equates to about $1.50 per week."
3. The defendant's calculation results in an allowance calculated as follows: $1.50 x 753.6, totalling $1,130.40.
4. I accept the defendant's approach to this head of damage.

Conclusion

1. Based on the foregoing, I find the appropriate award of damages in these proceedings to be: Past out-of-pocket expenses $396.00 Future treatment expenses $1,130.40 Past economic loss $5,000.00 Future economic loss $5,000.00 Total $11,526.40

1. There should be judgment and verdict for the plaintiff in that amount.

Costs

1. Neither party has made submissions in relation to the issue of costs.
2. Given my findings as to the quantum of loss, in considering an appropriate costs order, regard must be had to of the Uniform Civil Procedure Rules 42.35.
3. My present inclination therefore is to make no order as to costs, though I will hear any party who wishes to be heard on the issue. In the absence of such submissions, I shall make the order which I have foreshadowed.

Orders 1. Judgment and verdict for the plaintiff against the defendant in the sum of $11,526.40 2. Interest thereon at the rates pertaining from time to time pursuant to the provisions of s 100 of the Civil Procedure Act 2005. 3. Any party wishing to be heard on the question of costs file and serve a written outline of submissions on or before 4:00pm on 14 September 2023. 4. Any party wishing to be heard in reply, file and serve a written outline of submissions in reply by 4:00pm on 20 September 2023. 5. Such written submissions are not to exceed 5 pages in length. 6. That any question of costs be decided on the papers. 7. That in the absence of submissions on costs, no order as to costs will be made.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 November 2023