The appellant was born in Croatia in November 1966 and came to Australia in 2001. At the date of the trial the appellant, then aged 47, was married and had two children aged 10 and 14 respectively.
When the appellant was about 25, he sustained injuries in a tractor accident and decided that he did not wish to drive again. The motor vehicle accident on 13 February 2007 occurred when the appellant was a passenger in a vehicle involved in a collision. At the time, he was being driven home from his place of employment at Castle Hill, where he worked as a formwork labourer.
The appellant began to feel pain in his neck, lower back and right shoulder shortly after the accident. He attempted to return to work the following day, but could not do so. He was unable to tolerate the heavy tool belt he was required to wear.
The appellant sought treatment from his general practitioner, Dr Tomasevic, on four occasions between 15 and 23 February 2007 and was given a certificate allowing him to be off work until 9 March 2007. Dr Tomasevic told the appellant at the 23 February 2007 consultation that on the next occasion he was likely to receive a certificate saying that he was fit to resume light duties at work.
For reasons that are not the subject of a finding, the appellant changed to another general practitioner, Dr Pukanic, whose surgery was some distance from the appellant's home. Dr Pukanic provided certificates for the appellant to remain off work until May 2007. In that month, the appellant returned to the building site at Castle Hill where he performed light duties. The job ended after about four to six weeks.
In August 2007, the appellant once again returned to light duties at the Castle Hill site and continued working there until December 2007. His employer then asked him to transfer to a building site in Brookvale. The appellant declined to take up the offer because he said he could not manage the two hours per day travelling time that would be involved. There was no evidence that the appellant undertook any paid employment after December 2007.
The appellant received a lump sum payment of $100,000 pursuant to disability provisions in his superannuation insurance policy. This payment was apparently made on the basis of a certificate provided on 9 February 2011 by Dr Giblin, an orthopaedic surgeon. Dr Giblin certified to the appellant's solicitors on the basis of a recent physical examination and history, that the appellant had become incapacitated to such an extent as to be rendered unlikely to ever engage in any trade or occupation for which he was qualified. Curiously enough, in an earlier report, dated 28 April 2008, Dr Giblin expressed his opinion to the same solicitors that the appellant:
"is physically fit to return to his pre-injury duties, but there does need to be restriction on the basis of common sense in relation to avoiding at risk clinical situations, producing further injury to the low back and neck."
[2]
The Conduct of the Trial
The appellant and several lay witnesses called on his behalf gave evidence at the trial. Despite the parties tendering a large number of medical and medico-legal reports, none of the medical witnesses gave oral evidence. This was a consequence of the parties' agreement that the primary Judge should be asked to deal with the claim on the basis of the written reports, without any of the doctors being required for cross-examination.
The approach taken by the parties imposed an extremely difficult task on the primary Judge. His Honour pointed out (at [95]) that he was faced with a "quandary" because of "the untested extremes of medical opinion between the two sides". His Honour had to assess the extent of the appellant's injuries and continuing disabilities, as well as the extent of impairment of his earning capacity, on the basis of differing opinions, some of which were very difficult to reconcile. He also observed (at [62]) that the case would have been an appropriate one:
"for the parties to have organised concurrent evidence between the experts to allow the court to have the benefit of discussion between the doctors."
This Court has repeatedly commented on the burden placed on a trial judge when the parties simply tender medical reports and decline to cross-examine the authors of the opposing party's medical reports. It has also commented on the risks that the party bearing the onus of proof takes in adopting this course.
In Manly Municipal Council v Skene [2002] NSWCA 385, Heydon JA acknowledged (at [22]) that there are numerous practical reasons why the "classic model" of the common law trial is often not adhered to in the District Court in personal injuries cases:
"In many cases the range of dispute is narrow. It is socially more desirable for doctors to spend much more time treating patients than giving, or waiting to give, evidence. The classical theory of trial may consume disproportionate amounts of time and money compared to the District Court system of written reports exchanged in advance and supplied by experts who are rarely cross-examined."
But his Honour also pointed out (at [21]) that where apparently well-qualified experts give conflicting opinions and these opinions are not tested in oral evidence, the process can be seriously deficient:
"To the extent that civil litigation - a law suit - attempts to arrive at a just resolution of the dispute by a rational approach to the underlying facts, it tends towards the irrational that the law suit should be decided on imperfect materials which could have been improved - expert reports having deficiencies, both in their manner of expression and in their being based on a fragmented set of factual assumptions."
In Majkic v Bonanno [2008] NSWCA 253, Bell JA identified (at [26]) the potential difficulty for the party bearing the onus of proof if the conflicting evidence of experts is not tested:
"It is common for cases in the District Court to proceed with the tender of conflicting medical reports, without the authors being required for cross-examination. This places an added burden on the judge, who must carefully analyse the assumptions upon which each report is based against the facts that have been established to determine which opinion is to be accepted. Where the expert evidence is in conflict and no rational basis emerges for preferring one opinion to another, the result is likely to be that the party with the onus fails: Larson v Commissioner of Police [2004] NSWCA 126 per Tobias JA at [48]."
See also Ainsworth v Ainsworth [2002] NSWCA 130 at [71] (Sheller JA); State Forests of New South Wales v Dinnerville [2004] NSWCA 127 at [42] (Mason P).
[3]
Primary Judgment
The primary Judge recognised the difficulty of the task confronting him and carefully analysed the various opinions expressed by the treating doctors and the authors of the medico-legal reports. He took into account his assessment of the appellant's evidence and of the other lay witnesses, particularly in relation to whether the appellant's evidence supported the histories given to the medical practitioners. This is not a case like Majkic v Bonanno where the trial judge was found not to have engaged in a reasoned analysis of the conflicting evidence. The primary Judge diligently considered the merits of the competing views stated in the medical reports and did not simply accept one side's medical evidence over that of the other side.
The primary Judge noted (at [43]) that with some exceptions, the doctors fell into two camps:
"Doctors on one side said there was a lot wrong with the plaintiff. Doctors on the other side said there was nothing wrong with him, although there may have been for about 12 weeks. Both sets of doctors had seen the same scan reports and conducted similar physical examinations of the plaintiff. The defendant's doctors said there were short-lived soft tissue injuries. The plaintiff's advisers found objective signs of continuing injury. The exceptions … are the doctors who advised for the Medical Assessment Service (MAS)."
His Honour referred to reports prepared by Dr Pukanic, who saw the appellant quite frequently up to 2011 and then on about a quarterly basis (at [89]). Dr Pukanic provided the appellant with 26 WorkCover Medical Certificates covering the period from 13 March 2007 to 13 June 2008. The last of the certificates stated that the appellant was fit to work four hours per day, three days per week. In a report dated 21 March 2013, Dr Pukanic suggested that the appellant required 10 hours per week assistance for a period of 10 years. His Honour considered (at [46]) this to be "entirely unjustified".
Dr Pukanic referred the appellant to Dr Giblin, the orthopaedic surgeon, who first saw the appellant in June 2007. Dr Giblin reported on the results of MRI scans to the appellant's neck, lower back and right shoulder. He recommended symptomatic treatment only and advised the appellant to co-operate with rehabilitation services (at [51]). His Honour found that the appellant did not co-operate in the manner recommended by Dr Giblin.
The primary Judge interpreted (at [52]) Dr Giblin's report in late 2007 to envisage that the appellant would gradually return to work. His Honour also understood (at [55]) a subsequent report prepared by Dr Giblin in January 2008 as indicating that, although there was "some organic component in the [appellant's] presentation, there [were] also substantial other factors at work". His Honour quoted (at [58]) an observation in Dr Giblin's report of 28 April 2008 (referred to at [13] above), which his Honour considered to be "significant". He thought (at [61]) that Dr Giblin's report suggested that there was a marked degree of exaggeration in the appellant's presentation, even though some organic basis was also present.
The primary Judge observed (at [56]) that Dr Giblin's reservations about the appellant's presentation were shared by Dr McGroder who prepared a report under the MAC Act for the purposes of assessing the appellant's degree of impairment. Dr McGroder's impression (at [57]) was that the appellant was self-limiting the range of movement in his spine and shoulder.
The primary Judge next considered the report of Dr Hitchen, also an orthopaedic surgeon, on whose opinion the respondent relied. Dr Hitchen's view in November 2007 was that the appellant had completely recovered from his injuries. However, the primary Judge had significant reservations about aspects of Dr Hitchen's report and found it difficult (at [70]) to accept his opinion.
The primary Judge noted (at [75]-[77]) that one occupational physician, Dr Pierides, thought that the appellant was deliberately exaggerating his symptoms and that he had fully recovered from his injuries after a relatively short time. Another occupational physician, Dr Matalani, did not think that the appellant was exaggerating, but considered that he had suffered only soft tissue injuries (at [78]). In a later report Dr Matalani said that an MRI scan of the right shoulder indicated a partial tear of the distal supraspinatus tendon and possible tendonitis (at [80]). Dr Matilani's view in 2012 was that the appellant could not return to his pre-injury work (at [81]).
The most consistent support for the appellant had come from a third orthopaedic surgeon, Dr Dixon (at [82]). Dr Dixon recorded no difficulty with the appellant's presentation and in reports prepared in September 2010 and November 2012 foresaw problems for the appellant in returning to work (at [85]-[87]). The primary Judge said (at [87]) that he had reservations about Dr Dixon's reports stemming from his Honour's conclusion that even accepting some organic basis for the appellant's problems, they were dominated by his exaggeration.
A vocational specialist, Dr Ting, opined that the appellant was able to perform sedentary work for three hours per day five days per week (at [91]). Dr Ting suggested that had the injuries not been sustained, the appellant would have been able to work at full capacity, including overtime, until retirement age. His Honour found (at [92]) this suggestion very difficult to accept:
"The [appellant] was working in a very labour intensive job requiring exceptionally heavy lifting, up to 60 kg on a daily basis. He already had degenerative changes in his spine and it seems most unlikely that he could have maintained such heavy employment through to age 65."
His Honour declined (at [94]) to accept Dr Ting's opinions because he did not accept the level of impairment described by the appellant to the doctor.
The primary Judge noted (at [97]) that it was difficult to form a reliable assessment of the appellant's demeanour because he gave evidence through an interpreter. His Honour continued as follows:
"[98] Fundamentally, however, I found it necessary to remind myself that the [appellant] must prove his case. Putting aside demeanour there were a number of features in his case that I found difficult to accept. Other than Dr Dixon all of the medical opinions suggest soft tissue injury with no need for surgery. There has been minimal treatment other than continued medication. The early optimism displayed by Dr Tomasevic and Dr Giblin has not translated, for any apparent reason, into reality. I do not accept that the only improvement in all of the [appellant's] areas of injury was about 5 to 10% in the first 6 months. It seems quite incredible that there has not been improvement in even one area of injury over 7 years.
[99] I think Exhibit 1 [a report from an exercise physiologist] shows that the [appellant] was not particularly interested in rehabilitation.
[100] I have significant doubts about the [appellant's] evidence concerning looking for employment. I was most unconvinced by his evidence that he did not start looking for work until June 2008 because this was when he found out his employment had been terminated. Even if he did not receive the letter (or understand it) … his workers compensation payments had ceased in December 2007 and one wonders how he could have continued through to June 2008 under the belief that he remained employed. He was not yet on Centrelink benefits and therefore was receiving no wage (either by way of pension or workers compensation). I simply do not accept that the [appellant] believed he remained employed during this period.
[101] I also think his attempts to find work have been inconsequential and indicative of a failure to mitigate his loss.
…
[103] The other side of the argument is that the [appellant] does have medical support which in many respects is preferable to that provided by the defendant, in particular from Dr Hitchen. Dr Pukanic has continued to see the [appellant] and write reports supporting him. There are also the objective signs identified by Dr Pukanic (eg. spasms) and Dr Giblin (eg. absence of left foot responses). Dr Giblin says his injuries are permanent.
[104] The conclusion I have reached is that I should take something of a middle road. I think the [appellant] has established that he suffered soft tissue injuries to his neck, back and right shoulder in the accident and that as a result of these injuries he has continued to have a diminished earning capacity to the present time. The extent of this diminution, however, has been reducing over time so that it is now relatively small, although likely to continue for some time." (Emphasis added.)
His Honour proceeded to assess damages. The appellant claimed $401,168 for past economic loss, based on the appellant's net weekly earnings in 2006 which were said to be $1,025. This figure was to be adjusted for inflation at 2 per cent per annum, and calculated for a period of 368 weeks (at [105]). The parties agreed that an allowance of $4,000 should be made for the appellant's actual post-accident earnings.
The primary Judge had two difficulties with the appellant's approach (at [106]). First, his actual net weekly earnings in 2006 were $885. However, the respondent was prepared to concede a weekly figure of $975 and his Honour adopted that figure. Secondly, the appellant's figures allowed for no residual earning capacity.
His Honour approached the assessment as follows:
"[107] In my view, the [appellant] has had a substantial retained working capacity that has gradually increased to the present time. To the extent that it may be said that the [appellant], even with a retained capacity, has been unable to find employment I refer to what I have said above in respect of my conclusion that he has failed to mitigate his loss.
[108] It is very difficult to calibrate the [appellant's] gradually reducing lack of capacity. There is no scientific, or even pseudo-scientific, formula I can apply. My intent is to achieve a reflection of my assessment of a gradually improving [appellant], reaching the present with a small level of incapacity. I think, doing the best I can, and noting that there have been 370 weeks since the accident, that I should approach past economic loss on the following basis:
(a) 13 February 2007 to 1 January 2008: 46 weeks x 975 = $44,850.
(b) 2 January 2008 to 1 January 2010: 104 weeks x 650 = $67,600.
(c) 2 January 2010 to 1 January 2012: 104 weeks x 450 = $46,800.
(d) 2 January 2012 to 1 January 2014: 104 weeks x 250 = $26,000.
(e) 2 January 2014 to 20 March 2014: 12 weeks x 150 = $1,800.
[109] The total of the above calculations is $187,050, which must be reduced by the wages received of $4,000, making past economic loss $183,050." (Emphasis added.)
After dealing with other heads of damage not now in dispute, the primary Judge assessed damages for future economic loss. The appellant claimed $807 per week for 20 years, less vicissitudes of 15 per cent, a total of $457,117. The respondent submitted that no allowance should be made as the appellant had sustained no loss of earning capacity after December 2009.
The primary Judge approached the assessment of damages for future loss of earning capacity as follows:
[113] I have already found that the [appellant] has, at the present, a continual [sic: continuing] incapacity equivalent to $150 per week. Accepting that the [appellant] still has some degree of incapacity and recognising the heavy employment which he performed prior to the accident and his limitations in securing new employment, I think this $150 should continue for a further, say, 15 years.
[114] For purposes of Section 126 of the MACA I am satisfied that but for the accident the [appellant] would have continued to work as a form worker or in some similar heavy labouring occupation, for the balance of his working life but that he would have been, as a result of the heavy nature of the work, exposed to more than the usual degree of vicissitudes, which I would assess at 20%.
[115] On the 5% tables, $150 per week for 15 years less 20% is $66,600."
[4]
Grounds of Appeal
The grounds of appeal on which the appellant relies are as follows:
"1 His Honour erred in his determination of quantum being a sum of $975.00 net but did not increase that sum to reflect consumer price index increases from the date of the accident up to and including the date of trial.
2 His Honour erred by determining past economic loss based on his Honour's assessment of the appellant being a "gradually improving plaintiff" at [108] and determining without factual basis that the appellant had a residual earning capacity increasing over time from 2 January 2008 up to and including 20 March 2014.
3 His Honour erred in determining at [113] that the appellant had a continuing incapacity of $150.00 per week as at the date of trial which would continue for a further 15 years which on his Honour's figures compared to the appellant's figure for full capacity of $975.00 constituted a finding of an ongoing incapacity of approximately 16% as compared to full capacity or an ongoing residual capacity to earn of 84% as compared to when the appellant was fully fit.
4 His Honour erred by failing to give adequate reasons for his Honour's determination of past and future economic loss and denied the appellant procedural fairness in so doing."
[5]
Reasoning
Mr Baran commenced his argument by recounting in some detail the views expressed by Dr Dixon whose reports, as the primary Judge acknowledged, favoured the appellant's case. Members of the Court pointed out to Mr Baran that the primary Judge's findings were inconsistent with Dr Dixon's views. Specifically, his Honour did not accept (at [98]) that the appellant's condition, after a small initial improvement, had not improved any further over seven years. Equally important, his Honour found (at [104]) that the appellant had sustained soft tissue injuries to his neck, back and right shoulder, but did not find that the appellant has sustained injuries requiring surgery, such as lumbo-sacral facet arthralgia on the right with disc protrusion at L5/S1 (as Dr Dixon suggested).
When asked whether the appellant was challenging any of the primary Judge's findings of fact, Mr Baran said that there was no such challenge. Nor did he dispute that there was evidence which both supported the primary Judge's rejection of Dr Dixon's opinion as to the extent of the appellant's injuries and justified his finding that the appellant suffered only soft tissue injuries. His principal complaint appeared to be that the primary Judge did not explain why he had not accepted that the appellant had suffered injuries of the kind identified by Dr Dixon. Mr Baran also submitted that the primary Judge did not adequately explain why he had decided to adopt a "middle ground" in a case where the parties' submissions were at opposite ends of a spectrum.
[6]
The Adequacy of Reasons
If a trial judge makes findings of fact on issues material to the outcome, he or she is obliged to give reasons that enable a proper understanding of the basis on which the decision has been reached: Pettitt v Dunkley [1971] 1 NSWLR 376 at 382 (Asprey JA); 384-385 (Manning JA); 387-388 (Moffitt JA). In my opinion, however, the primary Judge gave adequate reasons for his decision and neither of the complaints made by the appellant has any substance.
As the primary Judge pointed out, he was faced with conflicting medical reports which he had to assess without the benefit of cross-examination or a conclave of experts. His Honour's reasons for finding that the appellant sustained only soft tissue injuries included the following:
Dr Giblin's report of 7 August 2007 stated that MRI scans had revealed nothing "surgical or sinister" and recommended symptomatic treatment only (at [51]):
all the doctors, other than Dr Dixon, considered that the appellant had sustained soft tissue injuries with no need for surgery (at [98]);
Dr Giblin's reports indicated that, while there was some organic component to the appellant's presentation, there were other factors at work including a "marked element of exaggeration" (at [61]);
Dr Giblin stated in his report of 28 April 2008 that he agreed with Dr Hitchen (whose evidence the primary Judge did not generally accept) that the appellant was physically fit to return to his pre-injury duties provided care was taken to avoid "at risk clinical situations" (at [58]);
Dr Pierides thought that the appellant had sustained relatively mild injuries that should have resolved rapidly and formed the view that the appellant had been deliberately exaggerating (at [71]-[77]);
Dr McGroder's impression was that the appellant was self-limiting the range of movement in his spine and shoulder (at [57]);
Dr Dixon overstated the extent of the appellant's disabilities in part because the appellant exaggerated his symptoms;
the appellant, as Dr Dixon acknowledged, had pre-existing degenerative changes that would have affected him in any event and would have prevented him from maintaining heaving employment until the age of 65 (at [92]); and
the appellant exaggerated the level of his impairment to Dr Ting who, in any event, thought that the appellant was capable of part-time work (at [91]-[94]).
The primary Judge's analysis makes it clear why, even though he did not accept Dr Hitchen's views, he preferred the opinion of a number of doctors over that of Dr Dixon, to the effect that the appellant sustained only soft tissue injuries. There was ample evidence to support his finding and his reasoning went considerably beyond simply expressing a preference for one of two competing opinions. His Honour carefully considered the contents of the medical reports and took into account his finding (which is not contested) that the appellant exaggerated his symptoms to the doctors. Not only was the finding that the appellant suffered soft tissue injuries well open, but his Honour adequately exposed the reasoning that led him to make the finding.
On one view of the evidence, the primary Judge would have been justified in concluding that the soft tissue injuries sustained by the appellant had completely resolved themselves at some point prior to the trial. Several of the medical reports supported such a finding. The conclusion the primary Judge in fact reached (at [104]) was that the soft tissue injuries diminished his earning capacity to some extent, but the impact of the injuries had decreased over time as the appellant's condition improved.
The primary Judge rejected (at [98]) the appellant's evidence that although he had experienced a small improvement of 5 to 10 per cent in the first six months after he was injured, there had been no improvement at all after that time. His Honour took into account that some of the treating doctors, notably Dr Tomasevic and Dr Giblin, had expected a rapid recovery from the injuries (at [98]). On the other hand, he considered (at [103]) that these were "objective signs" that some organic consequences of the injuries persisted at the date of the trial, albeit to a modest extent (at [103]).
As Mr Baran acknowledged, the primary Judge was not bound to accept one or other of the two extremes put to him on behalf of the appellant and respondent respectively. In saying that he was taking "something of a middle road" his Honour was not merely adopting a compromise between the two extremes. As he explained, the evidence was consistent with the soft tissue injuries persisting longer than some of the doctors had expected, but not anywhere near the extent that the appellant claimed.
Having reached this conclusion the primary Judge had to undertake the difficult task of assessing the appellant's damages for past and future economic loss. He recognised (at [108]) that there was no "scientific or even pseudo-scientific" formula that he could apply to assess past economic loss. He took into account the reduction over time in the severity of the appellant's injuries, his lack of interest in rehabilitation (at [99]), his disinclination to seek employment (at [41]), his failure to mitigate his loss (at [101]) and the lack of any specialist treatment regime after 2008 (at [88]).
The primary Judge did not suggest that the formula he adopted to calculate past economic loss was anything other than an attempt to assess as best he could the appellant's loss having regard to the finding of a gradual reduction in his loss of capacity to earn income. The reasoning process is clear and, in the absence of any challenge to the findings of fact, discloses no error.
[7]
An Inflation Factor?
Ground 1 in the notice of appeal complains that the primary Judge, when calculating damages for past loss of earning capacity, did not include a factor of 2 per cent per annum to allow for inflation. There was evidence that the inflation rate between the date of the accident (February 2007) and the date of the trial (March 2014) was in the order of 2 per cent per annum. It is also correct, as Mr Baran submitted, that the primary Judge made no specific allowance for inflation.
Had the damages awarded for past economic loss ($183,050) expressly incorporated an element for inflation, the amount awarded would have been increased by about $3,000. The difficulty with the appellant's submission is that the primary Judge made it clear that the "formula" he applied was not intended to be a precise estimate of loss but an attempt to assess damages in a situation where precision was impossible and an approximation was the best that could be achieved. In my view, the formula adopted by the primary Judge was intended to take into account a range of factors, including the changing value of money. I do not consider that an appellable error is shown by the failure to expressly refer to the inflation rate.
[8]
Orders
The appellant's challenge to the primary Judge's assessment of damages must be rejected. The orders I propose are:
Appeal dismissed.
The appellant pay the respondent's costs of the appeal.
[9]
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: 06 May 2015
Solicitors:
NSW Compensation Lawyers (Appellant)
Moray & Agnew Lawyers (Respondent)
File Number(s): 2014/110676
Decision under appeal Court or tribunal: District Court of New South Wales
Jurisdiction: Civil
Citation: Cupac v Cannone [2014] NSWDC 16
Date of Decision: 21 March 2014
Before: Elkaim SC DCJ
File Number(s): 2011/00018240
Mr Baran criticised the primary Judge's finding that the appellant had a continuing loss of earning capacity, but limited to $150 per week. When it was pointed out that the criticism seemed to constitute a challenge to factual findings, Mr Baran eschewed any such intent and said that the appellant's only complaint was that the primary Judge had given insufficient reasons for choosing this figure as the basis for assessing damages for future economic loss.
The primary judge was faced with the difficult task of assessing damages for future loss of earning capacity on the basis of limited evidence: see State of New South Wales v Moss [2000] NSWCA 133; 54 NSWLR 536 at [70]-[73] (Heydon JA). This also was not a task capable of being discharged with mathematical precision. Within the framework, his Honour's reasoning process is exposed clearly in the Primary Judgment. Doing the best he could, for the reasons he gave in assessing damages for past loss of earning capacity, his Honour assessed the appellant's loss of earning capacity at the date of the trial at $150 per week. He then projected that loss, if anything rather generously to the appellant, 15 years into the future and calculated damages for future economic loss accordingly.
Mr Baran submitted that the primary Judge had not explained why he considered that the appellant retained something over 80 per cent of his pre-accident working capacity. But this conclusion followed from his Honour's earlier analysis. That analysis included findings about the appellant's disinclination to seek paid employment or to participate in the rehabilitation regime that had been recommended to him. There was no obligation on the primary Judge to consider the state of the labour market for someone with the appellant's level of training and skills, given that the appellant adduced no evidence on these matters.