Damages
41 The medical evidence was at one that as a result of his accident, the respondent had suffered muscular ligamentous strain and aggravation of pre-existing degenerative changes in his low back. The parties parted company, however, on the issue of whether the symptoms from which he was suffering at the time of trial were the effect of the injury or were referable to his pre-existing condition.
42 The primary judge rejected the opinions expressed by the appellant's medical experts that the sequelae of the accident had ceased. He did accept, however, the opinion of Dr Wilding, who was qualified by the appellant, that:
"Mr Pham is a slightly built man and he is unfit for his former duties at work as a labourer which involve considerable physical activity. His degenerative changes in his spine and heavy physical work would tend to aggravate the underlying degenerative conditions. In my opinion he is fit for light duties which do not involve prolonged stooping or bending or heavy lifting."
43 The primary judge also expressed the opinion that the respondent was "a basically honest individual who did not embellish his complaints in a dramatic fashion". His Honour accepted that the respondent's complaints "moderate as they are, represent the consequence of this injury". He found, however, that the respondent would be fit for "many tasks in the future" and he expected that he would gain employment "in the not too distant future".
44 Damages had to be assessed under the modified common law provisions of the Workers Compensation Act 1987 (the "Act") as they existed prior to the commencement on 27 November 2001 of the Workers Compensation Legislation Amendment Act 2001. The primary judge concluded that in terms of non-economic loss (s 151G(2)) the respondent's disability represented 30% of a most extreme case which translated into an award of $73,275.
45 He accepted that the respondent had been incapacitated for the whole of the period from the time of injury until trial and allowed him $118,000 (236 weeks x $500 per week) in this respect.
46 In terms of future economic loss his Honour expressed the view that the respondent would obtain some light work within the next two years but that his injuries would preclude him from engaging in heavy labouring work. He assessed his future loss of earning capacity at $150 a week. Taking into account other consequential sums (Fox v Wood, lost superannuation, out of pocket expenses) and after deducting amounts paid in respect of workers compensation, he entered a verdict and judgment in the respondent's favour of $233,931.
47 The appellant's principal submission on damages was that the primary judge's assessment that the respondent's injury represented 30% of a most extreme case was excessive. It also challenged the assessment of the respondent's economic loss, principally on the basis that his Honour had failed to take into account the fact that the respondent was also suffering from physical limitations due to an injury to his neck, shoulder and arm also suffered on 15 August 2000, but which was not the subject of his claim.
48 The first question which should be addressed is the appellant's challenge to the non-economic loss head of damages. The appellant submitted that the primary judge ought to have assessed the respondent's injuries as being between 15% and 20% of a most extreme case. If either of these submissions is successful then, as the appellant's schedule of damages (whose accuracy was accepted by the respondent) revealed, the respondent would either recover no damages, (if assessed at 15%) or $23,000 for non-economic loss (if assessed at 20%). On the 20% scenario he would not recover any amount for economic loss as the amount of $23,000 is less than $57,500, the indexed amount provided by s 151H(2A)(b) of the Act.
49 The exercise in which the primary judge was involved in determining non-economic loss is neither scientific nor normative. While it is not wholly at large, it involves an exercise of discretion with which the Court will rarely intervene: Southgate v Waterford (1990) 21 NSWLR 427 at 440. Having regard to the nature of the exercise, a finding that a particular case is or is not "a most extreme case" has been said to be not "readily … susceptible of appellate review" as "its resolution … involve[s] questions of fact and degree, and matters of opinion, impression, speculation and estimation calling for the exercise of common sense and judgment": Dell v Dalton (1991) 23 NSWLR 528 at 533 per Handley JA (with whom Kirby P and Priestley JA agreed); Rabay v Bristow [2005] NSWCA 199 at [62] - [67]. Unless it can be demonstrated that the trial judge has erred in the application of principle, in order to attract appellate review it will be necessary to show that the conclusion reached by the primary judge was manifestly erroneous: Ellis v Rantzos (t/as Rantzos Hairdressing) [2005] NSWCA 266 at [43] per Basten JA (with whom Handley and Santow JJA agreed).
50 The first step in his Honour's exercise of his discretion was to consider and make findings on those elements in the evidence relevant to non-economic loss: Southgate v Waterford (at 440). It is in this context that his Honour's finding that the respondent's moderate complaints represented the consequence of his injury is significant as, too, are his findings that the respondent would be fit for many tasks in the future and would gain employment in the not too distant future.
51 One of the difficulties with the primary judge's reasons is that his Honour did not identify the moderate complaints made by the respondent which he accepted were a sequelae of his injury. At best, it might be said that the moderate complaints to which he referred were those represented by Dr Wilding's findings which his Honour accepted.
52 Mr Ferrari submitted that it was necessary to bear in mind that the exercise in which the primary judge was engaged was of determining the percentage of "a most extreme case" not "the most extreme case" represented by the respondent's injuries: Southgate v Waterford (at 440). He drew attention, again, to the fact that the respondent's physical limitations resulting from the accident had to be understood in the context of a person who did not speak much English, who came from a restricted background and education, who had a speech impediment (stuttering) which the primary judge described as "marked" and who was going to find it difficult to do anything other than the physical work in which he had been engaged.
53 It must be acknowledged that the exercise in which a primary judge is engaged in determining non-economic loss is "insusceptible to entirely logical exposition [and] … rests upon the judge's finding and his or her reaction to those findings, drawing upon the judge's general experience" (Southgate v Waterford (at 442)). I accept that, too, that the meaning of "a most extreme case" as determined in Dell v Dalton is that that phrase refers to "a category of cases rather than to a case at the apex of the graduation of injuries": Marsland v Andjelic (1993) 31 NSWLR 162 at 183 per Mahoney JA; see also Henry Walker Eltin Contracting Pty Ltd v Hrstic [2005] NSWCA 253 at [37] per Basten JA (with whom Hodgson JA and Burchett AJA agreed).
54 I am unable, however, to reconcile his Honour's conclusion that the respondent's complaints were "moderate" with his assessment of the respondent as 30% of a most extreme case. If one accepts that a most extreme case would, as Mr Neil submitted, represent somebody with severe quadriplegia (Southgate v Waterford (at 440)) or, for example, total blindness combined with loss of limbs, it is difficult to discern a reasonable relationship between injuries of that nature and 30% thereof being accorded to a person with muscular ligamentous strain and aggravation of pre-existing degenerative low back changes with an ability to return to work, albeit light. It appears to me that his Honour's assessment of 30% is so unreasonable that it warrants appellate intervention: see House v R [1936] HCA 40; (1936) 55 CLR 449 at 505.
55 In my view, the appropriate percentage of a most extreme case represented by the respondent's injuries is 20%. On this basis the respondent is entitled to $23,000 for non-economic loss and to no other damages.
56 The appellant has been unsuccessful on the issue of liability, but has succeeded on the issue of damages. The costs order should reflect that outcome. There should be no interference with the District Court order that the appellant pay the respondent's costs of the trial.