Dal v Chol

Dal v Chol - [2018] NSWCA 219 - NSWCA 2018 case summary — Zoe

HEADNOTE [This headnote is not to be read as part of the judgment] The appellant, Mr Michael Dal, appealed as of right against a judgment of Cowdroy ADCJ of the District Court in favour of the respondent, Mr Chol Chol, in the sum of $165,283.40. The respondent had sued the appellant for personal injuries that the respondent had sustained in a motor vehicle accident ("the Accident") which occurred on 16 March 2013. In the proceedings below, the appellant admitted liability. The hearing in the District Court was therefore confined to an assessment of the respondent's damages. It was common ground that the respondent could not obtain an award for non-economic loss. On appeal, the principal issues were as follows:

Whether the primary judge misapprehended the circumstances of the Accident;
Whether that alleged misapprehension led to an erroneous finding that the respondent sustained a lumbar spine injury in the Accident and that the respondent's depressive illness could be attributed to the spinal injury; and
Whether, in respect of the primary judge's assessment of damages, his Honour overlooked important evidence relating to the respondent's post-Accident work history and failed to take into account a second motor vehicle accident which affected the respondent's capacity to work. The Court held, allowing the appeal in part: In relation to the first issue Per Sackville AJA, Macfarlan and White JJA agreeing (i) Despite the lack of clarity in the primary judgment, the appellant failed to establish that the primary judge misunderstood the circumstances in which the Accident occurred: [1], [102]. In relation to the second issue Per Sackville AJA, Macfarlan and White JJA agreeing (ii) It was open to the primary judge to prefer the respondent's medical evidence and to conclude that the collision did cause, or aggravate, an injury to the respondent's lumbar spine and that this caused the respondent psychological injury which, the primary judge found, prevented the respondent from continuing the same kind of work as he had done prior to his injury: [1], [3], [116]. In relation to the third issue Per White JA, Macfarlan JA agreeing (Sackville AJA dissenting in relation to past and future economic loss) (iii) In assessing damages, the primary judge did not err by failing to take into account the second motor vehicle accident and the extent to which it contributed to the respondent's incapacity to perform the kind of work that he did prior to the Accident: [1], [5]-[8], [124]-[125], [127]-[130]. Kessey v Golledge [1999] NSWCA 424; Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34; Watts v Rake (1960) 108 CLR 158; [1960] HCA 58, followed. (iv) In assessing damages, the primary judge did not err by failing to take into account the respondent's post-Accident work history: [1], [9]-[11], [122]-[123], [127]-[130]. (v) The primary judge did not err in awarding damages in the sum of $95,000 for future economic loss: [1], [28]-[29], [145]. Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302; [2012] NSWCA 13, considered. (vi) It appears that the schedule of damages, relied on by the primary judge in assessing damages, wrongly claimed loss of weekly earnings for 144 weeks instead of 121 weeks. It is only on this basis that the award of damages for past economic loss should be reduced: [1], [32]-[35].

[4]

Judgment

MACFARLAN JA: I agree with Sackville AJA, save in relation to the issues of past and future economic loss. In respect of those issues, I agree with White JA.
WHITE JA: The circumstances giving rise to this appeal from the primary judge's assessment of damages are set out in the reasons for judgment of Sackville AJA which I have had the advantage of reading in draft. The applicant's primary submission was that the primary judge erred in finding that the respondent suffered an injury to his lumbar spine as a result of the collision. The appellant also submitted that if the primary judge erred in accepting that the respondent suffered a back injury, then his Honour was not entitled to conclude that the respondent's psychological condition, that the primary judge considered to be the primary source of his incapacity for work, was caused by the collision.
I agree with Sackville AJA, for the reasons his Honour gives, that it was open to the primary judge to prefer the medical evidence called by the respondent and to conclude that the collision did cause or aggravate an injury to the respondent's lumbar spine and that this caused his psychological injury that the primary judge considered to be the principal reason that had prevented the respondent from working in the kind of work he had done before his injury.
The appellant also submitted that the primary judge's findings as to the respondent's incapacity for work were inconsistent with the respondent's evidence that from January to July 2015 he had employment with Evapco Australia Pty Ltd ("Evapco") in which he received more than his pre-accident earnings until he was injured in a second motor accident in July 2015. The respondent conceded that at the time of the trial he was capable of returning to work of the kind he performed at Evapco.
The appellant did not plead nor seek to prove that the second motor vehicle accident in July 2015 had contributed in any degree to the respondent's present incapacity to perform the kind of work that he performed as a motor vehicle mechanic prior to the 2013 collision. No submission to that effect was advanced on appeal or before the primary judge. This Court held in Kessey v Golledge [1999] NSWCA 424 at [46] that the defendant bore the onus of adducing evidence that the plaintiff's incapacity at trial was caused or contributed to by a second accident. This is consistent with Purkess v Crittenden (1965) 114 CLR 164 at 168; [1965] HCA 34 and Watts v Rake (1960) 108 CLR 158 at 163-164; [1960] HCA 58 where the High Court held that if the defendant alleged that the injured plaintiff's incapacity was wholly or partly due to a pre-existing condition, the onus of adducing evidence of that matter lay on the defendant. That must be so a fortiori if the defendant contends that a later injury has contributed to the plaintiff's incapacity. The only relevance of the second motor accident is that it brought to an end the respondent's employment with Evapco.
It is not in dispute that the respondent's back pain and psychological condition mean that he is unable to pursue his chosen career as a motor vehicle mechanic. The respondent ceased work with Cuzco Motors in April 2014 due to having too much pain and taking too many days off, notwithstanding that he was only doing lighter work. He was unable even to change spark plugs or repair his own car.
At the time of the injury the respondent was close to finishing his TAFE course to become a qualified motor vehicle mechanic, but he was unable to finish his course. He said he had lost motivation in the motor industry. Although that had been something he was really passionate about, it had ended up causing him nothing but pain. Between mid-2014 and January 2015 the respondent was on Centrelink benefits looking for work. It was through Centrelink he obtained casual employment at Evapco.
The respondent's work at Evapco was process work at bench level where he could sit and stand as it suited him. He remained capable of doing that kind of work.
The appellant had the evidentiary burden of adducing evidence not only of what kind of work the respondent is capable of performing, but what jobs are open to a person with such capacity (Rabay v Bristow [2005] NSWCA 199 at [73]-[74]; Linsell v Robson [1976] 1 NSWLR 249 at 254-255 per Glass JA; Yammine v Kalwy [1979] 2 NSWLR 151; Nominal Defendant v Livaja [2011] NSWCA 121 at [65] ("There must be a practical assessment of the likelihood of the individual obtaining employment in some such occupation."); Mead v Kerney [2012] NSWCA 215 at [25]-[27]; South Western Sydney Local Health District v Sorbello [2017] NSWCA 201 at [72]-[74]; Smith v Alone [2017] NSWCA 287 at [46]).
There was no evidence as to whether the respondent attempted to regain his position at Evapco once he recovered from the June 2015 injuries, or whether, had he done so, Evapco would have re-engaged him. The burden of adducing evidence that it was open to the respondent to resume his employment with Evapco lay with the appellant. It did not attempt to discharge that burden.
The appellant did not seek to demonstrate that there are jobs open to the respondent which he would be capable of performing and in which he could earn more than he is currently earning from his work as a children's carer under a Commonwealth Government scheme. The appellant accepted that the respondent had been seeking work.
The respondent gave evidence that after he lost work with Evapco he obtained some work driving a friend who was a subcontractor because his friend had lost his licence. Sometimes he did that for a whole week; sometimes it would be for two days or three days. He was paid "some money" to do that. The respondent did not give evidence as to how much money he was paid. He gave evidence that in more recent times he had been paid by the Federal Government to provide care for his nieces or nephews, being the children of his sister and a step-brother. He said he received payment from the government of $800 gross per week for that work. It was put to the respondent in cross-examination that he "earned" $800 per week and was "paid" $800 per week. The respondent's evidence that he was paid $800 per week gross was not challenged. That would equate to $702 per week after tax, and $688 per week after tax and Medicare levy, if the full Medicare levy were payable.
At trial the respondent's counsel provided the primary judge with a schedule of damages the respondent claimed. In relation to the claim for future economic loss the schedule provided as follows: "FUTURE ECONOMIC LOSS Likely earnings as a qualified mechanic $917 pw net. Accepting ability to generate income of $700 pw net. $217 loss per week x 938.2 x .85: $173,050.99 Superannuation loss $20,160.44 Total $193,211.43 In the alternative a buffer is claimed with due regard to the plaintiff's age and limited education $150,000.00"
There was no issue as to the respondent's figure of likely earnings as a qualified mechanic of $917 per week net. The figure of $700 per week net was the income the respondent was then earning. The respondent claimed net weekly loss of earnings of $217.
The primary judge said that "... it appears that the plaintiff is claiming approximately 10 years of loss of wages." That statement was wrong. Earlier, the primary judge had questioned counsel for the respondent in relation to the schedule of damages by asking: "HIS HONOUR: Is it really put that the plaintiff will have this loss for 10 years? MORGAN: It's put, your Honour, in terms of - and with due regard to s 126 and what the Court of Appeal has said with respect to that. It's career change."
At trial, counsel for the respondent explained the figure of 938.2 to the primary judge as being "That's the five per cent tables, your Honour. That takes the plaintiff through to the age of 70 years." It is incorrect to read that figure as a reference to a number of weeks. It is the multiplier, applying the 5 per cent discount rate, to be used to calculate the present value of $217 per week for a little over 46 years. The respondent was 23 at the time of trial.
The primary judge did not quantify damages for the respondent's diminution in earning capacity by including as a component therein a calculation of future economic loss based upon the difference between what he was earning up to the time of trial and what his earnings otherwise would probably have been but for his injury. Had his Honour done so there would have been no error if his Honour had accepted the respondent's calculation of damages, subject to his being satisfied of the respondent's likely working life. Instead, his Honour assessed future economic loss by way of a buffer of $95,000. It is accepted by the respondent that his Honour was entitled to proceed in this way.
The primary judge did not say why he adopted the figure of $95,000, rather than some different figure. But it is widely accepted that an assessment of the value of future economic loss where it involves matters of evaluation and judgment about matters of possibility and prediction usually cannot be explained in a way that will indicate why one figure rather than another is adopted. The same dilemma arises in other areas of the law, such as in sentencing or the making of family provision orders. (Saville v Health Care Complaints Commission [2006] NSWCA 298 at [52] per Basten JA; Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302; [2012] NSWCA 13 at [57]-[58] per Basten JA; State of New South Wales v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133 at [70]-[72], [77], [87] per Heydon JA.)
In Allianz Australia Insurance Ltd v Kerr this Court held that s 126 of the Motor Accidents Compensation Act 1999 did not preclude the award of a buffer for future economic loss where earning capacity has unquestionably been reduced, but its extent is difficult to assess (per McColl JA at [7]-[8]; per Basten JA at [30]; per Macfarlan JA at [67]-[69]).
The primary judge made no reference to s 126 of the Motor Accidents Compensation Act. Nor did his Honour attempt to set out the assumptions on which the award was based or the percentage possibility that the events concerned might have occurred but for the injury (s 126(2) and (3)).
The primary judge's failure to comply with s 126 was not a ground of appeal.
No mention of s 126 was made in the appellant's written submissions on appeal. All that was said about s 126 in the appellant's oral submissions in chief was the following in response to questions from the bench: "SACKVILLE AJA: In awarding compensation for future economic loss, was his Honour required to make findings as to the most probable situation, looking ahead under the terms of the legislation? REWELL: Yes, he was, and he was whether a buffer was claimed or not. SACKVILLE AJA: Which section is that? REWELL: Section 126. SACKVILLE AJA: Of the MAC Act? REWELL: Yes. SACKVILLE AJA: He didn't do that, did he? REWELL: I don't believe he did. Unless there's anything else that I can specifically help the Court with, those are our submissions."
Understandably, given that non-compliance with s 126 was not an issue in the appeal, counsel for the respondent did not address any issues that might arise as the result of non-compliance with s 126. The matter was addressed to an extent by counsel for the appellant in his submissions in reply, but counsel acknowledged that the ground was not raised in the notice of appeal. Counsel did not seek leave to amend the notice of appeal. In those circumstances, if the primary judge's finding as to the award for economic loss is to be overturned on appeal, it cannot be on the ground of his Honour's failure to comply with s 126.
In my view, his Honour's award of $95,000 as a buffer in respect of future economic loss was not excessive. Indeed, an award for future economic loss based on an assessment of the difference between the respondent's likely earnings as a qualified motor mechanic and his actual earnings at the time of trial ($217 per week) applied to his likely working life, discounted for vicissitudes and applying the five per cent discount rate to calculate the net present value of the loss over that period, would have been unexceptionable. It may be that the respondent might not have been entitled to such an award on the assumption of a working life up to the age of 70, but nonetheless, such a calculation would have resulted in a substantially greater award.
Before the trial the respondent was earning approximately 24 per cent less than he would have received but for his injury.
But for the injury it is likely that the respondent would have completed his apprenticeship and obtained his TAFE qualification. He would have had the skills and qualification to become a motor vehicle mechanic and the physical capacity to carry out that work. The respondent, with such a trade qualification, could expect to have substantially higher prospects of stable employment and much better opportunities for obtaining employment than he now has, being unskilled and without relevant qualifications. He only secured intermittent casual employment prior to obtaining his present employment as a carer for his nephews and nieces. That employment is unlikely to be long-term because the children will grow up and go to school.
The fact that for about six months the respondent obtained casual employment that paid approximately what he would have earned as a qualified motor mechanic does not indicate that his earning capacity was not materially diminished. The fact that he was earning more at Evapco than he had earned as an apprentice is irrelevant because he was almost qualified. In this case the income the respondent earned before the accident is not good evidence on which to assess his earning capacity but for the injury (cp Allianz Australia Insurance Ltd v Kerr at [24]). As I have said, there was no issue as to the use of the figure of $917 net per week as a measure of the respondent's earning capacity but for the injury.
Sackville AJA would allow $60,000 for future economic loss, but on the assumption that at the time of hearing the respondent was earning $800 per week net. I respectfully disagree. Once allowance is made for the respondent's lower earning capacity at the date of hearing of approximately $700 per week, the figure allowed by the primary judge may be considered conservative.
I would not disturb the award for future economic loss.
The primary judge's award for past economic loss is in a different position. The respondent did not give evidence of his earnings from his employment as a chauffeur. In oral submissions before the primary judge the respondent's counsel said that there was no record of the income received by the respondent from chauffeuring and that was the reason that the respondent had pitched the schedule in respect of past economic loss in the way in which he had. In the schedule for past economic loss the respondent had claimed a loss of $317 per week for the period (28 June 2015 to 26 October 2017) which, according to the schedule, was 144 weeks.
The respondent did not give any evidence as to how much he was paid for his chauffeuring work. That work continued for six to eight months. In what was said to be "more recent times" the respondent was paid by the federal government $800 gross per week, or approximately $700 net per week for childcare. The primary judge allowed past economic loss at $200 per week for the claimed period of 144 weeks, that is, $28,800, plus superannuation entitlements.
As Sackville AJA has pointed out, the schedule of damages wrongly claimed loss of weekly earnings for 144 weeks from 28 June 2015 to 26 October 2017. It is clear from the schedule that this period included, when it should not have, the period from 20 January 2015 to 28 June 2015 in which the respondent was employed by Evapco. The figure should have been 121 weeks.
The preparer of the schedule calculated that there were 241 weeks from the date of injury to the date of hearing. In the schedule, separate claims were made for periods of three weeks from 16 March to 7 April 2013, 51 weeks from 8 April 2013 to 1 April 2014, and 42 weeks from 2 April 2014 to 20 January 2015. The assessment that the final period claimed in the schedule for past economic loss, that is the period from 28 June 2015 to 26 October 2017 was 144 weeks appears to have been the result of deducting the earlier periods for which past economic loss was claimed from the calculation of the total period from the date of injury to the date of hearing, subject to rounding.
This part of the claim for damages was not the subject of a ground of appeal. Nor was any submission made about it. Nonetheless as it appears to be a simple arithmetical mistake I would reduce the award for past economic loss by $4,600 (23 weeks x $200) plus the award for loss of superannuation entitlements applicable to that period, being a total of $5,359. As no submissions were made on this question, I would give the respondent leave to apply to vary the judgment if the respondent contends that the calculation was not mistaken.
Otherwise I would not disturb the primary judge's assessment of damages for past economic loss. The reasons for that are explained above. The respondent was not earning amounts more or less equivalent to the net income he would have received as a motor mechanic. He was receiving $217 per week less than that. The fact that he would have continued to work with Evapco but for the second accident which was unrelated to the first, is not a reason for reducing the award of damages, as the appellant did not discharge the evidentiary burden that was on it to establish that he could have resumed that employment, or that he could have obtained other employment that would have been more remunerative than that which he obtained.
For these reasons I propose the following orders: 1. Appeal allowed in part. 2. Set aside the judgment for $165,283.40 entered on 30 October 2017. 3. In lieu thereof enter judgment for the respondent in the sum of $159,924.40. 4. Give liberty to the respondent to apply by notice of motion within 14 days to vary order (3) if he wishes to contend that the award for past economic loss referable to a period of 144 weeks, rather than 121 weeks, was appropriate.

[8]

The Accident

As the appellant contends that the primary Judge misunderstood the circumstances in which the Accident occurred, it is important to recount the relevant evidence. The primary Judge found that the respondent was "entirely frank and honest". Accordingly, the following account is largely taken from his evidence.
In March 2013, the respondent was in his third year as an apprentice mechanic. He worked full time under the direction of his "boss", Luis, the only other worker at the workshop. The respondent's normal working hours did not include Saturdays but from time to time he would work overtime. The Accident occurred at 2.00 pm on a Saturday.
At that time, the respondent was working on a Suzuki Grand Vitara, a "small SUV type vehicle". The Suzuki had been on a hoist but had been lowered to ground level. The respondent had just finished replacing the engine of the Suzuki and was replacing spark plugs in the engine. In order to carry out this task he was facing the Suzuki and was bent over the engine at an angle of about 90 degrees. Since the respondent was facing the engine he had his back turned to the area of the workshop in front of the Suzuki.
As the respondent was replacing the spark plugs he heard a tyre screech behind him. It is common ground that this noise came from a Mazda sedan, which had been parked more or less directly in front of the Suzuki and therefore directly behind the respondent. The appellant, who was a customer and the owner of the Mazda, wanted to test the handbrake but apparently did so by putting his foot on the accelerator. This caused the Mazda to lurch forward and strike the respondent.
The respondent was struck on the lower part of both legs but particularly on his right calf. As he turned around towards the Mazda he found himself pinned between the front of the Mazda and the front of the Suzuki. Immediately following the impact, the respondent fell backwards towards the Mazda's bonnet. Because his legs were pinned "in a straight position", the respondent did not fall backwards more than a few degrees and did not come to rest on the Mazda's bonnet. In the respondent's words, he "fell back almost onto the bonnet". The respondent remained pinned by the legs for about 30 to 40 seconds until the appellant was able to reverse the Mazda, thus freeing the respondent.
After the Mazda was reversed, the respondent fell to the ground. At that point he thought his leg was broken but he did not feel any pain in his back. Luis called an ambulance and the respondent was taken to Westmead Hospital. He was discharged later the same day.

[9]

Contemporaneous documentation

The police report of the incident stated that the respondent: "was standing directly in front of the [Mazda]. The [respondent] stated to the [appellant] to lift the handbrake up and rev the car to see if the handbrake was working. Seconds later, the [appellant] has revved the motor vehicle to test the handbrake, however the handbrake didn't hold resulting in the motor vehicle to [sic] drive forwards. As the motor vehicle moved forward it hit the [respondent] causing him to fall backwards into another motor vehicle which was parked within the shop".
There was no evidence to support the recorded observation in the police report that the respondent told the appellant to test the handbrake. The police report was also inaccurate insofar as it suggested that the respondent fell backwards not towards the Mazda but to a third vehicle.
The Ambulance Electronic Medical Record relating to the respondent contained the following notes: "PT [patient] STATES HE WAS WORKING ON A CAR. A CUSTOMERS CAR WAS IN THE DRIVEWAY AND THE CUSTOMER PUSHED THE ACCELERATOR INSTEAD OF THE BRAKE. THE CAR CRASHED INTO THE OTHER CAR THE PT WAS WORKING ON. APPROX 10 METERS AND 30 KMPH THE CARS PINNED THE PTS RIGHT LEG FOR APPROX 30 SECS. BEFORE THE CUSTOMER REVERSED. O/E PT ALERT, WELL PERFUSED AND ORIENTATED. PT C/O PAIN TO RIGHT LOWER LEG. O/E 2 PUNTURE [sic] MARKS ON THE CALF, MINOR SKIN TEAR ON SHIN, SWELLING AND BRUISING TO SHIN, SLIGHT DEFORMITY TO TIBIA. PT REFUSED PAIN RELIEF, HOWEVER ON ROUTE PT ASKED FOR PAIN RELIEF SAME GIVEN WITH GOOD EFFECT. NIL MOTOR SENSORY DEFICIT, PEDAL PULSE PRESENT. PT MONITORED AND 12 LEAD ECG DONE. PTS RIGHT LEG SPLINTED. TRANSFERRED TO WESTMEAD DUE TO CRUSH INJURY." The Ambulance Record stated that the respondent experienced pain in the right fibula, right lower leg and right tibia. There was no mention that he experienced pain in his back.
Westmead Hospital's Discharge Summary for the respondent stated that he had been diagnosed with an injury to the lower leg and abrasions. The Hospital Summary included the following: "[The respondent] presented to this facility with right lower limb pain post getting his right leg caught between 2 cars. He works as a mechanic and was bending over one car when another accidentally hit him from behind. The driver of the other car pressed accelerate when he was meant to brake. [The respondent] did no [sic] lose consciousness, sustained grazes to his right lower limb, but presented to ED with no active bleeding. He [sic] right lower limb was neurovascularly intact with 2x 5mm puncture wounds on the posterior aspect of the right upper leg. [The respondent] received a right lower limb x-ray with [sic] showed no fractures and as such [the respondent] was administered ADT, provided a prescription for Cephalexin and panadeine forte pm."

[10]

Medical history

Apart from the Ambulance Record and the Discharge Summary, there were relatively few medical records in evidence from the date of the Accident until 2014. The following account is derived largely but not entirely from the Primary Judgment.
On 18 March 2013, the respondent consulted a general practitioner, Dr Meegoda, who diagnosed a crush injury to the right leg and abrasions. On 20 March 2013, Dr Meegoda certified that the respondent: 1. was unfit to work from 16 March 2013 until 25 March 2013; 2. was unfit to work from 25 March 2013 to 1 April 2013; 3. was fit for suitable duties from 3 April 2013 to 10 April 2013, provided he did not lean over and had a 15 minute break after standing for one hour.
On 2 April 2013 Dr Meegoda recorded that the respondent was happy to work light duties four days per week. However he was complaining of pain which got worse if he bent over. On 17 April 2013, Dr Meegoda certified for WorkCover that the respondent was fit for his pre-Accident duties.
On 11 June 2013, Dr Rizvi, also a general practitioner, recorded that the respondent had experienced back pain "for the last few weeks", mainly in the thoracic area on the right side.
On 1 February 2014, the respondent was referred by Dr Cummins, another general practitioner, for a bone scan in order to evaluate his "chronic right tibial pain following his injury". The bone scan took place at Burwood Nuclear Medicine. A doctor at that practice, Dr Arulvethan, reported that: "In the delayed study there was moderate focal increase and uptake by the right tibial tuberosity. There was a mild focal abnormal uptake by the anterior cortex of the right proximal tibial shaft. Corresponding CT images showed periosteal irregularity and thickening. There was no evidence of a fracture."
Dr Hanna, a WorkCover approved rehabilitation consultant and chiropractor saw the respondent on numerous occasions on and after 6 April 2014. His notes for the initial consultation recorded that the respondent was injured when a vehicle collided with his right leg and he was compressed between two vehicles "causing injury to lower limb and hip". The respondent's lower back was "forcibly hyperextended causing injury to his lumbar spine".
On 25 April 2014, the respondent saw Dr Moussad, another general practitioner. Dr Moussad recorded that the respondent was still experiencing right leg pain, hip pain and lower back pain. On 17 May 2014, Dr Moussad certified that the leg pain continued and that the respondent was experiencing a "depressed mood". On 5 June 2014 Dr Moussad recorded that the respondent continued to experience leg pain radiating to his buttocks, and that he was unable to stand for more than 30 minutes.
On 15 July 2014, Dr Moussad recorded that the respondent complained of right lower leg pain and lower back pain radiating to the lower leg, and referred the patient for a CT scan. Dr Moussad recorded much the same information on 30 July 2014, but noted that the respondent was depressed because of the pain he was experiencing. By this time the respondent had ceased working at Cuzco Motorsport.
A scan of the respondent's lumbosacral spine taken on 10 September 2014 reported a mild generalised disc bulge at L3-L4 and at L4-L5, the latter causing a slight distortion of the anterior theca. The radiologist suggested that if the respondent was symptomatic he might be assisted by a CT guided injection.
In a report dated 12 November 2014, Dr Hanna noted that the respondent continued to complain of leg pain with restriction in both knee and left hip motion. Dr Hanna also stated that the respondent was: "experiencing lower back pain, left hip pain, bilateral knee pain and left foot pain when walking for longer than five minutes. [The respondent] also experiences a painful pulsation in the right anterior tibial region with evidence of continued swelling and tender on palpation in the right anterior tibial region."

[17]

Dr Assem

Dr Assem, a rehabilitation specialist, prepared a report dated 19 November 2014. Dr Assem's report included the following: "3. The results of any investigations reviewed by you. A bone scan taken approximately 12 months after the injury continues to demonstrate moderate abnormal uptake in the right tibial tuberosity and proximal tibial shaft that explain[s] his ongoing symptoms and limitations as a result of the injuries sustained in the subject motor vehicle accident. 4. Your diagnosis. [The respondent] sustained a soft tissue injury to his right lower leg with periosteal bruising and scarring. He developed secondary low back discomfort either as a direct or indirect result of the accident. There is radiological evidence of lumbar disc pathology consistent with the symptoms reported. 5. Your opinion as to any causal connection between the accident described to you, and the injuries sustained. There is a clear history of an injury that is causally related to the development of symptoms in his right lower leg and lumbar spine. 6. Nature of our client's injuries and disabilities. He continues to experience intermittent discomfort in his lower back and stiffness. There was tenderness on palpation with some muscle guarding present and some asymmetry of movement. He also reports pain in his right lower leg with tenderness over the tibial tuberosity. He has difficulty standing and walking for more than 10 to 20 minutes at a time. He is unable to sit or drive for long periods. 7. Your prognosis as to the injuries and disabilities generally. His prognosis is guarded. He has chronic low back pain and stiffness with concordance on radiological imaging of pathology that is consistent with the symptoms reported. He will most likely continue to experience intermittent symptoms that will prevent him from engaging in any heavy manual work. He continues to have persistent discomfort in his right lower leg that interferes with his ability to stand and walk for long periods." (Emphasis added.)
In his first report Dr Assem did not refer to the respondent experiencing back pain prior to the Accident. However in a later report dated 13 January 2017 he noted that the respondent had strained his back shortly before the Accident and had consulted his local doctor. Dr Assem also noted that the symptoms had subsided a couple of days later.
In the later report Dr Assem answered a series of questions as follows: "1. Taking into consideration the medical assessment of Dr Muratore, [4] Dr Shatwell, MAS Assessment of Dr Ian Cameron and Dr [Jager], are you of the medical opinion [the respondent] sustained injury to his lumbar spine and lower extremity as a consequence of the motor vehicle accident? [The respondent] was a fit 27 year old man who was performing heavy manual work as a motor vehicle mechanic. Although there was a previous minor strain to his back, it resolved rapidly within a couple of days without treatment. He sustained a direct injury to his lower leg in a motor vehicle accident. Although he did not experience back symptoms until two months later, the mechanism of injury (bending and twisting while his leg was crushed by a motor vehicle) causing him to fall forwards would have resulted in a injury [sic] to his lumbar spine. The delay in development of symptoms is not significant given that he is a healthy, fit young man with no other reason for developing low back pain. He has concordant evidence on radiological imaging of pathology that is unusual in a person of his age group unless there was significant trauma to his lumbar spine. … Given the nature of the injuries he sustained, it is unlikely that he would have developed chronic low back pain if it was not for the accident. 2. If so, why does your opinion differ from the opinion of Dr Muratore, Dr Shatwell and Dr Marsh? With all due respect to the opinions of other medical examiners, they have not carefully considered the mechanism of injury to his lumbar spine, the significance of the impact to his leg and the pathology on radiological imaging. They have therefore erroneously assumed that the spontaneous development of back pain in a healthy young man two or three months after the accident occurred without an injury." (Emphasis added.)
In the answer to Question 1 reproduced above Dr Assem assumed that the mechanism of the injury caused the respondent to fall forwards. In fact, as the evidence demonstrates, the respondent fell backwards towards the bonnet of the Mazda. There was no reference to the direction of the fall in Dr Assem's first report.

[19]

Dr Shatwell

Dr Shatwell, an orthopaedic surgeon, saw the respondent on 1 December 2016 and prepared a report dated 5 December 2016. Dr Shatwell stated as follows: "[The respondent] sustained a crush injury to the upper part of his right lower leg. There were two tiny puncture wounds on the back of the calf and a small abrasion over the anterior part of the shin. There was soft tissue injury to the right calf and periosteal bruising of the front of the shin. From the history, [the respondent] was able to get back to his normal duties approximately four weeks following the crush injury. There was no back injury apparent initially when [the respondent] was examined by the ambulance crew or at Westmead Hospital. He first complained of thoracic, right sided back pain on 11 June 2013 to his treating Doctor [Dr Rizvi]. He had previously complained of back pain on 12 March 2013, four days prior to the injury. … The CT scan of the lumbosacral spine performed on 10 September 2014 raised the possibility of bilateral S1 nerve root compression. There is no evidence of this, nor any history of such on careful examination of the notes and questioning of [the respondent] today. The findings of mild generalised disc bulging is not beyond the limit of normal. All discs bulge to a certain extent and disc bulges themselves are not associated with back pain."
Dr Shatwell considered that the respondent might have had some problems due to the development of non-specific back pain before the Accident which could have a bearing on his future employability. However in Dr Shatwell's opinion there was no exacerbation of symptoms or aggravation of the underlying condition (if any) caused by the Accident.
Dr Shatwell added these comments: "The mechanism of injury does not suggest that [the respondent] would have suffered any back injury as a result of an impact to the back of his right calf. He did not fall over and remained in the standing position, from his history, for 30 to 40 seconds before he was released by reversing of the car. He sat on the ground because of pain in his leg and not because he was thrown to the ground. He did not complain of any back pain until three months later on 11 June 2013 when he complained of right sided thoracic pain which he had had for 'the last few weeks', according to the Doctor's records. … It is also relevant that, after complaining of back pain on 11 June 2013 to his doctor, [the respondent] did not complain of further back pain when seen in October 2013, December 2013 and January 2014 by his medical attendants at Rooty Hill Medical and Dental Centre."

[20]

Primary Judgment

The primary Judge's account of the Accident was as follows: "[The respondent] was working overtime on a Saturday. At approximately 2pm on that day he was working in the engine bay of a motor vehicle. Another vehicle, which apparently had been repaired, was being tested by its owner to see whether the handbrake worked. The vehicle was revved but then accelerated forward. It collided with the rear vehicle upon which the [respondent] was working, causing the [respondent] to be pinned between that vehicle and another vehicle. According to the ambulance report the vehicle which moved and collided with the vehicle which was being worked upon by the [respondent] was travelling at 30 kilometres per hour. The [respondent] said that when the vehicle was struck from behind, his legs were pinned by another vehicle in the mid to lower part of both his legs. His upper body was thrown backwards in a violent fashion but he said he did not make contact with the bonnet of the vehicle coming from behind. He states major contact was with the front bumper bar on the passenger side of the vehicle behind him and, 'The collision with my leg made a significant dent in the bumper bar of the vehicle.' He states he managed to stay upright although his legs were still caught between the vehicles. He states he twisted quickly to see what had happened. He noticed the driver getting out of the other vehicle. That vehicle was released so that the [respondent] was able to either fall backwards to the ground or, alternatively, he moved quickly to the ground where he remained until an ambulance attended. He believes he was jammed between both cars for approximately 30 to 60 seconds until the other driver reversed his vehicle. He states the vehicle had two exposed screws in the bumper bar which pierced his right lower leg around the calf, causing blood to spurt from the wounds. He states he was unable to stand and he recalls collapsing to the ground as he was feeling pain in the back of both legs and felt a very unusual sensation through both legs, extending up through to his mid back."
The primary Judge found that the respondent was off work for three weeks, returning on 8 April 2013. He remained with Cuzco Motorsport until 1 April 2014 or possibly until 20 July 2014 (the evidence was not clear on the dates). However: "The [respondent] was not able to undertake the work he had previously undertaken because he found that lifting of heavy objects caused pain and discomfort to his right leg and, as will become apparent, he began to experience pain in his lower back. He stated that the activities of an apprentice mechanic, having to work in unusual positions and to bend and lift, caused him difficulty and for this reason he was effectively operating on light duties." The respondent gave up work because he was taking too much time off due to his injuries.
The primary Judge accepted that the physical injuries sustained by the respondent on the day of the Accident did not appear to be significant. No fracture was detected and the respondent was able to leave hospital on the same day. His Honour also noted that: "prior to the accident [the respondent] was experiencing at least potentially a pain in his back which could have been symptomatic of some cause". Nonetheless, prior to the Accident the respondent had no difficulty in carrying out his work, including working overtime when required.
The primary Judge inferred from the Ambulance Record that the second vehicle was travelling at 30 kph when the collision occurred and that the "impact was significant". His Honour found that although the respondent did not experience back pain immediately, pain developed over time. His Honour was satisfied that the respondent: "sustained a back pain which has either been caused by or exacerbated by the accident and that that pain has continued".
The primary Judge also made the following findings: "Irrespective of the physical injuries, the injury which seems to have overshadowed the impact of those physical injuries is [the respondent's] current psychological state. I have referred to that extensively because in the Court's mind that is the most significant thing which has prevented him from working. The feelings of depression and hopelessness and worthlessness have resulted from the fact that he has been prevented because of his pain initially from working in the industry which he says he enjoyed. The Court accepts that summary. The Court is satisfied that the [the respondent] prior to the accident was well motivated to follow a worthwhile career in the motor repair industry. He had progressed well at TAFE and after the accident he returned to TAFE. Accordingly the Court is satisfied that but for the accident, he would have completed his apprenticeship course and progressed thereafter in the motor industry."
The primary Judge accepted the evidence given by the medical experts whose reports were tendered by the respondent, to the effect that he was suffering from an "adjustment disorder" attributable to the exacerbation of his back condition caused by the Accident. In particular the primary Judge placed weight on the opinion of Dr Assem that the respondent had developed lower back discomfort and injuries to his spine as a consequence of the Accident. The primary Judge acknowledged that Dr Shatwell expressed the view that the injuries sustained by the respondent in the Accident were unrelated to any back injury. However, Dr Shatwell had made no reference to the severity of the impact or the speed at which the second vehicle was travelling.
The primary Judge dealt with the respondent's claim for past economic loss as follows: (i) The respondent was unfit for work from 16 March 2013 until 7 April 2013. The loss for this three week period was $550 net per week, a total of $1,650. (ii) From 8 April 2013 until about April 2014, the respondent was restricted in his capacity to work and lost the opportunity to work overtime. For this loss his Honour allowed 51 weeks at $90 net per week, a total of $4,590. (iii) The respondent was unfit from April 2014 until 20 January 2015 and would have earned $550 per week during this period. Since the respondent claimed only one third of the amount he would have earned, his Honour allowed 42 weeks at $182 per week, a total of $7,644. (iv) Between June 2015 and October 2017, the respondent worked part time as a chauffeur and "also received some payments for work as a carer". His Honour considered the respondent's claim to have lost $317 per week in earnings during this period to be "excessive", in part because the respondent had adduced no employment or tax records to support his claimed earnings. The primary Judge said that an amount of $28,800 should be allowed for this period, together with loss of superannuation assessed at $3,352. (v) The respondent's claim for future economic loss was based on ten years loss of wages at a rate of $217 net per week, a total of $193,211. [5] Alternatively the respondent claimed a "buffer … of $150,000". In his Honour's view: "precise calculations are not possible. However, as the [respondent] may not be able to earn and to be put back in monetary terms where he would have been for some years because of a need to restart his apprenticeship course as it is not possible to gain credit for past studies, there should be an allowance for an amount to recompense him for this period. The Court considers that an amount of $95,000 should be awarded as a buffer." The primary Judge also allowed $3,674 for past chiropractic expenses, $4,145.40 for other past out-of-pocket expenses and 50 per cent of claimed future out-of-pocket expenses, which he rounded off at $17,000.
Thus the award of damages totalled $165,855.40. His Honour entered judgment for this amount plus costs.

[21]

Appellant's submissions

The appellant submitted that the primary Judge misunderstood the circumstances of the accident. According to Mr Rewell SC, who appeared for the appellant, his Honour appeared to think that the Mazda struck the rear of the Suzuki and pinned the respondent between the Suzuki and a third vehicle, not identified by make. This error was significant because his Honour's understanding of how the Accident occurred informed his finding that the respondent suffered injuries not only to his legs but to his lumbar spine. (Grounds 1-3).
Mr Rewell submitted that the primary Judge had not explained the reasoning supporting the finding that the Accident caused or exacerbated an injury to the respondent's spine. The reports of the Medical Assessors and medical reports on which the appellant relied took into account that the respondent had not complained of back problems until three months after the Accident and that he had reported back pain shortly before the Accident. Nor had his Honour given adequate reasons for rejecting Dr Shatwell's opinion that the mechanism of the collision was inconsistent with the respondent's lower back condition. To the extent the primary Judge thought that Dr Shatwell failed to appreciate the force of the collision, his Honour's view was coloured by his own misunderstanding of the circumstances of the Accident. (Grounds 4-7).
The primary Judge had also overlooked important evidence when assessing the respondent's economic loss. His Honour made no mention of the Second Accident in June 2015. [6] In addition, the evidence established that the respondent secured through Centrelink a position as a process worker with Evapco Pty Ltd (Evapco) from January 2015 to July 2015. Although he was engaged on a casual basis, the respondent earned more than he had as a mechanic. He left Evapco because he was injured in the Second Accident, not because of any injuries attributable to the Accident. Moreover, the respondent conceded in his evidence that once he recovered from the injuries sustained in the Second Accident he was fit to perform the work he did at Evapco. (Ground 8).
Mr Rewell submitted that for those reasons there was no basis to award damages for future economic loss. In any event, the primary Judge had not made the findings required by s 126 of the MAC Act [7] and had given no reasons for selecting a "buffer" of $95,000 as appropriate.
Mr Rewell did not dispute that at the date of the trial the respondent was suffering from a psychological condition but disputed that there was a causal relationship between the Accident and the respondent's psychological disability. It followed that even if the respondent's psychological disability restricted his earning capacity, he was not entitled to damages by reason of the appellant's negligence. (Ground 9).
Mr Rewell submitted that damages should be limited to out-of-pocket expenses excluding chiropractor's fees ($4,145.40), past loss of earnings to July 2014 ($6,240) and past loss of superannuation ($727). If compensation was to be awarded for the period during which the respondent was unemployed (July 2014 until January 2015), the allowance for that period should be calculated at $165 per week (a total of $4,290). On this basis, the damages award should be reduced to approximately $15,400.

[22]

Respondent's submissions

Mr King SC, who appeared with Mr Morgan for the respondent, supported the findings made and conclusions reached by the primary Judge. Mr King submitted that although the primary Judge's ex tempore judgment contained infelicities and minor inaccuracies, his Honour correctly understood the circumstances of the accident. The critical point was not the precise speed at which the collision occurred, but his Honour's finding that the impact of the collision was "significant". According to Mr King, that finding was clearly justified.
Mr King emphasised that the primary Judge considered the respondent to be an entirely frank and honest witness. The respondent's evidence showed that he made complaints about his back sooner than the assessors and the appellant's medical witnesses assumed. For example, the respondent reported to his general practitioner, Dr Rizvi, on 11 June 2013 (about three months after the accident) that he had experienced back pain for the "last few weeks". The primary Judge had not ignored the reports of the assessors whose reports were tendered by the appellant, but had carefully set out the important conclusions. The assessors' opinion that the respondent's lumbar spine injury was unrelated to the accident was based on the erroneous assumption that the respondent's back symptoms did not appear until some months after the Accident. Dr Shatwell's opinion, on which the appellant relied, was based on an incomplete history. There was other evidence, including the absence of any pre-Accident symptoms, that supported his Honour's finding.
Mr King contended that the evidence demonstrated that as a consequence of the Accident the respondent was not physically capable of resuming his former employment as a motor mechanic. He was thus precluded by his injuries from pursuing his chosen career and the opportunities for advancement it offered. It was true that he had undertaken casual work for six months prior to the accident and more or less maintained his pre-Accident earnings during this period. But this was light work on a process line and there was no assurance that work of that kind would be available to him on a regular or continuing basis. Section 126 of the MAC Act permits an award of a "buffer" for future economic loss and this was a case where such an award was appropriate.

[23]

Circumstances of the Accident

It is perhaps unfortunate that the ex tempore judgment delivered by the primary Judge was not edited a little more carefully prior to publication. His Honour's account of the Accident, on one reading, implies that the respondent was not pinned between the Mazda and the Suzuki (as was in fact the case), but between the Suzuki and a third unidentified vehicle. The account also might be read as incorrectly suggesting that the Mazda collided with the rear of the Suzuki rather than with its front bumper bar. Mr Rewell suggested that the primary Judge's misconception may have had its source in the brief but inaccurate police report.
The better view is that the ambiguity in the primary Judge's account is due to loose expression often found in ex tempore judgments, coupled possibly with typographical errors. The reference to the "rear vehicle" was probably intended to describe the Suzuki, presumably because it was located further inside the workshop (although facing the Mazda). The statement that the respondent was pinned between the "rear vehicle" and "another vehicle" was apparently intended to mean that the respondent was pinned between the Suzuki and the Mazda. The position would have been beyond doubt if his Honour had referred to "the other vehicle" rather than "another vehicle", but it would be surprising if he had misunderstood something that had been explained very clearly more than once during the trial.
If it was crucial to determine the speed at which the Mazda was travelling when it struck the respondent, I would be inclined to doubt that there was sufficient evidence to justify a finding that the speed was 30 kph. The only reference to the speed is an unsourced note in the Ambulance Report. Even taking into account the observation in Dr Shatwell's report that the respondent was lucky that the Mazda's bumper bar was made of fibreglass rather than metal, it seems unlikely that the injuries to the respondent's legs would have been relatively minor had the Mazda been travelling at 30 kph at the moment of collision.
The primary Judge was mindful of the contents of the Ambulance Report, but made no specific finding about the speed of the Mazda at the moment of impact. His Honour's finding was only that the "impact was significant". There was no real dispute that this was a reasonably accurate description of the force of the collision. I therefore conclude that despite the lack of clarity in the Primary Judgment, the appellant has not established that the primary Judge misunderstood the circumstances in which the Accident occurred. This conclusion, however, does not resolve the critical factual issues as to the nature of the injuries sustained by the respondent as a result of the Accident.

[24]

The back injury

The appellant's submissions attacked the primary Judge's finding that the respondent suffered an injury to his lumbar spine in the Accident. The assumption on which this attack rested was that if the respondent did not injure his back in the Accident, his psychological state could not be attributed to the Accident.
The respondent's post-Accident medical history indicates that he complained of chronic pain and tenderness in his legs for a very considerable period following the Accident. While some of the medical reports suggested that the physical injuries to his legs (other than scarring) should have resolved after a period of months, the respondent was being treated for leg pain throughout 2014 by Dr Moussad. Assessor Marsh recorded in February 2016 that the respondent was continuing to complain of constant pain in the whole of his right shin.
The injuries to the respondent's legs were clearly responsible for some portion of his past economic loss, if only for the three weeks he was off work immediately after the Accident. It seems clear that his leg injuries also contributed to his inability to return to normal duties at Cuzco Motorsport and to his decision to give up his employment as a motor mechanic by reason of his inability to perform even reduced duties. If the leg injuries, independently of any lumbar spine problems, contributed to the respondent's inability to work as a motor mechanic and led to his psychological condition, it is arguable that he could claim for both past and future economic loss without relying on any back injury sustained in the Accident.
The primary Judge did not make findings as to whether the respondent's lost earning capacity could be attributed to the injuries to his legs, as distinct from any problem with his lumbar spine. His Honour appears to have proceeded on the basis that the respondent's claim, except perhaps for a small portion of his claim for past economic loss, depended on establishing that he sustained a back injury in the Accident. The respondent has not filed a notice of contention seeking to uphold the primary Judge's assessment on any other basis. The critical question is therefore whether the primary Judge erred in finding that the respondent sustained a back injury in the Accident.
As has been seen, the primary Judge reached this conclusion on the ground that he preferred the evidence of the respondent's medical advisers to that of Dr Shatwell. It is notoriously difficult for a court to assess conflicting opinions expressed in medical reports without the benefit of the opinions being tested by cross-examination or in a conclave of experts. [8] Apart from placing a burden on the trial judge, the tender of conflicting medical reports without the opinions being tested creates a risk for the party bearing the onus of proof. [9]
The primary Judge did not accept Dr Shatwell's opinion because he placed "much weight upon a very truncated version of the impact which the [respondent] sustained". That criticism appears to refer to the absence in Dr Shatwell's account of the Accident of any mention of the respondent being forced backwards towards the bonnet of the Mazda. His Honour may also have been referring to Dr Shatwell's statement that the respondent "sat on the ground because of the pain in his leg and not because he was thrown". The evidence indicates that after being freed from his entrapment the respondent fell to the ground.
Dr Assem, whose opinion the primary Judge preferred, emphasised the "mechanism of injury" which he described as: "bending and twisting while his leg was crushed by a motor vehicle … causing him to fall forwards". (Emphasis added.) Since Dr Assem did not give oral evidence, it is unclear whether the word "forwards" is simply a typographical error or, if not, whether the assumption that the respondent fell forwards was material to Dr Assem's opinion.
A key element in Dr Shatwell's reasoning was that the respondent did not complain of any back pain until the consultation of 11 June 2013, when he complained of right sided thoracic pain "for the last few weeks". Dr Shatwell also thought it significant that the respondent did not complain of his back pain during consultations in October 2013, December 2013 and January 2014.
The medical experts did not have the benefit of the respondent's evidence as to his experience of pain following the Accident. The respondent resumed work at Cuzco Motorsport three weeks after the Accident. There is no dispute that he was unfit for work during that period. When he returned, contrary to Dr Shatwell's understanding, he was put on light duties because he "couldn't physically" perform his usual duties. When asked to elaborate the following exchange took place: "Q. What was stopping you from doing much jobs, as you described it? A. I wasn't able to participate like I would before. Q. How did that demonstrate itself? What for example couldn't you do? A. I couldn't twist like I would, I wouldn't bend like I would, I couldn't kneel over. Q. What was stopping you, for example, from twisting? A. My lower back. Q. Sorry, just on that-- A. Yeah. Q. --you mentioned to his Honour earlier that you recall the pain in your leg, and you thought your leg was broken-- A. Yeah. Q. --in the car accident. Do you remember any problem or pain in your leg at the time of the motor vehicle accident? A. Yeah, I was still limping for quite a while. Q. What about your back at the time of the motor vehicle accident? A. At the time, not as much. Q. Not as much. A. Yeah. Q. When do you say you first noticed problems with your back? A. When, when we had big jobs and I couldn't do them. Q. With Louis [sic]? A. Yeah. Q. So once you had got back to work on the return to work program? A. Yeah. Q. You have described problems with twisting and bending. A. Yeah. Q. And presumably lifting? A. Yeah. Q. Let's say for example, using what you were doing at the time of the accident, bending in an engine bay and fiddling with something or fitting something, was that something that caused you a problem? A. Sorry? Q. Bending into an engine bay, for example, was that something that caused you a problem-- A. Yeah. Q. --when you got back to work? A. Yeah. Q. Before the car accident was that something that caused you a problem? A. No."
Later in his evidence, the respondent said that although he had been certified fit as from 18 April 2013 he had ongoing problems and never returned to full duties at Cuzco Motorsport. The ongoing problems included pain running down his right leg from his hip and pain in his middle lower back. The respondent said that he left his job at Cuzco Motorsport because he was experiencing too much pain and was taking too many days off work.
The respondent was not challenged on this evidence and it was not suggested to him that his difficulties in coping with work were exclusively associated with the injuries to his legs. The respondent's evidence, which the primary Judge accepted was given honestly, suggests that although he did not experience significant back pain in the immediate aftermath of the Accident, he did experience significant back pain within a shorter period than Dr Shatwell assumed was the case and, in any event, almost immediately after he resumed work.
The respondent's evidence also indicates that despite being certified as fully fit for work on 18 April 2013, he was not fully fit to perform the full range of duties required of a motor mechanic and indeed never regained that degree of fitness. In the light of the respondent's evidence, the complaint recorded on 11 June 2013 that the respondent had experienced back pain "for the last few weeks" can be understood as extending to the date he resumed light duties at Cuzco Motorsport (3 April 2013).
Dr Shatwell's view was that the right sided thoracic pain reported by the respondent was not related "to the injury described". It is not clear what this observation was intended to convey. Dr Shatwell may have meant simply that the respondent's leg injuries sustained were most unlikely to cause thoracic pain. If that was his intent, the observation does not address whether the circumstances of the Accident, including the fall backwards, injured the respondent's lumbar spine or exacerbated his pre-existing injury.
His Honour was entitled to take into account the respondent's evidence as to when he experienced back pain when preferring the opinion of Dr Assem on causation over that of Dr Shatwell and two of the Medical Assessors. It is true that Dr Assem appears to have assumed that the respondent fell forwards rather than backwards, but there is no evidence that that assumption had any material bearing on the cogency of Dr Assem's opinion. By contrast, the timing of the respondent's first post-Accident experience of back pain was critical to the opinion expressed by Dr Shatwell and the Medical Assessors. Dr Shatwell also appears to have been influenced by his erroneous assumption that the respondent returned to full duties at Cuzco Motorsport when he resumed work.

[27]

28 June 2015 - 26 October 2017

The respondent's schedule of damages handed up at the trial sought $45,648 in damages for past economic loss in respect of the period between 28 June 2015 and 26 October 2017 (the date of the trial), plus loss of superannuation entitlements of $6,548.52. The calculations to support the claim were as follows: The respondent's likely net earnings as a motor mechanic would have been $917 per week. His residual earning capacity was $600 net per week. The loss was therefore $317 per week for a period which, according to the schedule, was 144 weeks: $317 pw x 144 = $45,648. In fact there were 121 weeks between 28 June 2015 and 26 October 2017.
The primary Judge noted that the respondent's claim in respect of this period (which his Honour apparently assumed comprised 144 weeks) was not supported by any employment records or tax returns. His Honour also considered that the amount of the respondent's actual earnings during the period was uncertain. Nonetheless he thought some allowance should be made, which he assessed at $28,800 plus the loss of superannuation entitlements, which was assessed at $3,352. [11]
The principles governing the respondent's claim for partial loss of earning capacity were explained in South Western Sydney Local Health District v Sorbello as follows: [12] "It has been accepted by this Court that, once a plaintiff has established a loss of earning capacity, the onus of demonstrating a failure to exercise any residual earning capacity lies on the defendant: Mead v Kearney [2012] NSWCA 215 at [16] and [25]. In Harold Luntz: Assessment of Damages for Personal Injury and Death, (4th ed 2002, Butterworths) at 118, the following is stated: "Although a plaintiff who proves to the satisfaction of the court that the incapacity is genuine may take advantage of inferences of fact that may be drawn where there were no symptoms of the condition before the defendant's negligence caused some injury, the ultimate onus of proving that the incapacity is due to the defendant's negligence and not a pre-existing condition rests on the plaintiff. Once this onus is satisfied, it is not necessary for the plaintiff also to satisfy the court of the extent of the loss, in the sense of proving what employment the plaintiff is not incapacitated from performing; a defendant who contends that the plaintiff has a residual capacity has at least an evidentiary onus of adducing evidence of what the plaintiff is capable of performing and what jobs are open to a person with such a residual capacity. A fortiori, it is unrealistic to expect a plaintiff who contends that all work capacity has been lost to show by evidence what employment opportunities remain and what they would pay, in case the court accepts the defendant's contention the some residual capacity remains … (italics in original, bold added)"
Counsel for the appellant accepted at the trial that the respondent would have earned $917 per week nett as a motor mechanic once he completed his apprenticeship. On the primary Judge's findings the injuries the respondent sustained in the Accident prevented him pursuing his career as a motor mechanic. However the evidence adduced at trial affirmatively established that as from January 2015 the respondent was capable of gaining employment that paid as much as he would have earned as a motor mechanic but for the Accident. He secured employment through Centrelink with Evapco where he performed duties as a process worker drilling holes and putting stickers on fibreglass. The respondent was paid an hourly rate as a casual but his earnings at Evapco between January 2015 and June 2015 were no less than he would have earned in his preferred occupation. Therefore this is not a case where a defendant fails to adduce evidence that opportunities were available to the plaintiff in the labour market to exploit his or her post-accident earning capacity. [13] The respondent had those opportunities and exploited them by taking up employment with Evapco, albeit on a casual basis, and continuing in that employment until June 2015.
The respondent gave the following evidence in his cross-examination: "Q. That was the point when you ceased work with Evapco. A. Yeah. Q. You decided not to return because you wanted to get better. A. Yeah. Q. What you wanted to get better from was the 2015 injuries to your lungs and the like? A. At the time, yeah. Q. You have not returned back to Evapco. Is that right? A. No. Q. You're capable of doing that work now though, if you want to, aren't you? A. Yeah, yeah." The respondent also said in is evidence in chief that he was physically capable of doing the work at Evapco and that he enjoyed that sort of work.
This evidence establishes two matters. First, the respondent voluntarily gave up his employment at Evapco because of the significant injuries he sustained in the Second Accident and not because of any injuries sustained in the Accident for which the appellant was responsible. Secondly, had the Second Accident not occurred there would have been no physical or psychological impediment to the respondent continuing his employment at Evapco had he wished to do so. Nor did he find the work uncongenial.
Subject to the significance of the respondent being engaged at Evapco on a casual basis, the evidence as a whole supports an inference that had the Second Accident not occurred, the respondent would have continued in his employment with Evapco during the period heading up to the trial in October 2017. A casual employee is no doubt at greater risk of termination of employment than someone enjoying permanence. But if there was a particular reason why the respondent might have apprehended that his employment would be terminated, thereby throwing him onto the open labour market, he might have been expected to adduce evidence to that effect. Once a defendant adduces evidence that the plaintiff has secured continuing post-accident employment and there is no medical reason why he or she cannot continue in employment, the defendant is entitled to rely on any inferences that can fairly be drawn from that evidence in favour of continued employment. The inferences will be stronger if there is no evidence that the plaintiff's continuing employment was subject to any particular threat of termination.
The basis for the primary Judge's award of $28,800 for the respondent's past loss of earning capacity between June 2015 and October 2017 is unclear. The figure implies a loss of $238 per week net for the 121 weeks attributable to the injuries sustained in the Accident. The reasons do not explain why his Honour chose this figure as the appropriate award of damages for past loss of earning capacity.
The strong inference from the evidence is that if the Second Accident had not occurred the respondent would have exploited his residual earning capacity until October 2017 by continuing in casual employment with Evapco for as long as the position remained open to him. The injuries sustained in the Accident would therefore not have prevented him continuing to earn as much as he would have earned as a motor mechanic.
In my opinion, the only sustainable basis on which the respondent could be awarded damages for past loss of earning capacity by reason of injuries sustained in the Accident is by reference to the possibility that Evapco would have terminated his casual employment at some stage after June 2015 and before October 2017. Had that occurred and had the respondent been unable by reason of the injuries sustained in the Accident to obtain employment paying comparable wages, he would have sustained a loss caused by the Accident. Since the law of damages takes account of the possibility that past hypothetical events may have occurred, [14] it was open to the primary Judge and this Court to award damages by reference to the possibility I have identified.
The primary Judge's award of $28,800 for past economic loss was not made on this basis. In determining an appropriate award of damages for past economic loss it is necessary to take account of the absence of evidence suggesting that the respondent's casual employment at Evapco was at particular risk of termination within a foreseeable period. The evidence also shows that if the respondent had lost his job at Evapco at some time between June 2015 and October 2017 he was capable of finding other remunerative casual work that generated net income of at least $800 per week net, only about $100 per week less than the amount he would have earned as a motor mechanic. Moreover, the primary Judge was unable to make a finding as to the respondent's actual earnings when he resumed work after recovering from the injuries sustained in the Second Accident. This was an issue on which the onus rested on the respondent [15] but he failed to adduce evidence sufficient to enable a finding to be made as to his actual earnings during this period.
In my opinion, the primary Judge's award of $28,800 for past loss of earning capacity cannot stand. I think it appropriate to allow a modest sum as damages for the possibility that the respondent's employment with Evapco would have been terminated before October 2017 and he would have been unable by reason of the injuries sustained in the Accident to find alternative employment paying as much as he would have earned as a motor mechanic. I would assess damages in the sum as $10,000, to which should be added $1,165 for loss of superannuation entitlements.

[28]

Future economic loss

The primary Judge said that the respondent's claim for future economic loss ($193,211 inclusive of loss of superannuation) represented "approximately ten years … loss of wages". In fact the respondent's schedule of damages was based on a loss of $217 per week for 938 weeks, or approximately 18 years. The loss was calculated by reference to the respondent's likely earnings of $917 per week as a licensed mechanic, less a conceded earning capacity of $700 per week. Since the respondent was aged only 26 at the date of the trial, it is not clear why the claim was limited to a weekly loss over 18 years. The respondent's claim was adjusted to allow 15 per cent for the vicissitudes of life but it appears that no discount rate was applied to calculate the net present value of the loss over the 18 year period.
The respondent's alternative claim was for a buffer of $150,000. The primary Judge deemed $95,000 to be an "appropriate" buffer, but did not explain why he had selected that figure. Nor did his Honour refer to s 126 of the MAC Act.
The attention of the primary Judge was specifically drawn to the need to comply with s 126 of the MAC Act. The appellant's written submissions included the following: "The claim in relation to future economic loss is governed by s.126 of the Motor Accidents Compensation Act. It is necessary for the Court, if finding that there is any future economic loss, to set out the assumptions about the Plaintiff's future earning capacity based upon what the Court views as the Plaintiff's most likely future circumstances but for the injury."
The appellant's principal contention at the trial was that the respondent's most likely future circumstances, notwithstanding the Accident, were that he would continue working as a motor mechanic. This contention was based on the proposition that the respondent's back problems were unrelated to the Accident. However, the primary Judge found that the Accident prevented the respondent from continuing to work as a mechanic and that finding has been upheld. Nonetheless, the primary Judge had been alerted to the prohibition in s 126 of the MAC Act. This provision prevents the Court making an award of damages for future economic loss unless it is satisfied that the assumptions about future earning capacity or other events on which the award is based accorded with the claimant's most likely future circumstances but for the injury.
It is true that the notice of appeal does not contain a ground identifying the primary Judge's failure to comply with s 126 of the MAC Act as an error. However, the notice of appeal challenges the primary Judge's award of damages for future economic loss and contends that no such award should have been made. The notice of appeal also contends that the primary Judge erred in failing to have regard to the respondent's concession that once he recovered from his injuries in the Second Accident, he was and remained fit for his employment at Evapco.
In his oral submissions in chief on the appeal, Mr Rewell adverted to and apparently adopted the proposition that the primary Judge had failed to comply with s 126 of the MAC Act. However, Mr Rewell did not develop the contention further at this point in the argument.
Mr King opened his oral submissions on behalf of the respondent by addressing the primary Judge's award of a "buffer" of $95,000. Mr King did not submit that it was not open to the appellant to rely on s 126 of the MAC Act. Instead he replied to Mr Rewell's argument by submitting that it is not necessary for the Court "in an appropriate case to slavishly follow, in effect, s 126 and make the findings which would be, I accept, essential to an accurately calculated economic loss. You've got to have them judicially in the back of your mind when you are awarding a buffer but it's not necessary to apply them with the same rigour".
Mr Rewell returned to s 126 of the MAC Act in his reply submissions. He submitted that the primary Judge was required to comply with s 126 even when awarding a buffer for future economic loss. Mr Rewell cited two authorities in support of that submission. [16] Mr King did not object to the argument being put notwithstanding the absence of any specific reference to s 126 of the MAC Act in the notice of appeal. In these circumstances I consider that in the absence of the primary Judge's reasons giving at least some explanation for the choice of $95,000 as a buffer, it is open to the appellant to complain of his Honour's failure to refer to or apparently take account of s 126 of the MAC Act. The very point of s 126 of the MAC Act is to require the Court to direct its attention to matters that should be taken into account in assessing future economic loss and to provide a justification for the quantum of damages awarded by the Court.
As Mr King pointed out, it is well established that s 126 of the MAC Act does not prevent a court from awarding a "buffer" as damages for future economic loss. A buffer may be appropriate where it is difficult to determine the extent of the plaintiff's residual earning capacity. [17] However, as Mr Rewell submitted, the fact that the assessment of damages for economic loss is so uncertain as to justify the award of a buffer does not relieve the Court from compliance with the requirements of s 126 of the MAC Act. [18] The claimant must satisfy 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. [19] If the Court makes an award it must also state the assumptions on which the award is based. [20]
It can readily be inferred in the present case that the primary Judge assumed that the respondent's most likely future circumstances but for the injury were that he would have pursued a career as a motor mechanic. The parties proceeded at trial on the basis that a qualified motor mechanic would earn $917 net per week.
The principal uncertainty in the present case is the extent to which the respondent's residual earning capacity was diminished by reason of injuries (and the related psychological condition) sustained in the Accident. For the reasons already given, the respondent's economic loss in the two years preceding the trial was minimal. The respondent's concession at the trial that he was capable of earning $700 per week recognised that the injuries sustained in the Accident would not have prevented him obtaining regular employment in the future. The figure of $700 per week was not explained and the primary Judge did not suggest a rationale for the figure selected by the respondent.
The assessment of damages for future economic loss is a difficult and inherently imprecise undertaking. The assessment of damages by way of a buffer is an especially inexact undertaking. It is for this reason that a trial judge does not necessarily have to explain why he or she has selected a particular figure as the buffer. But in this case, the primary Judge made no findings as to the respondent's prospects of continuing in or obtaining employment at remuneration comparable to his likely earnings as a motor mechanic. The primary Judge found that the respondent's psychological condition was the "most significant thing which has prevented him working". Yet as I have explained, the evidence indicates that although the respondent suffers from depression he has not been prevented from working and the respondent conceded a post-Accident earning capacity of $700 net per week.
On the evidence, in my opinion the respondent's most likely circumstances at the date of the trial were that he would continue to find employment, whether on a permanent or casual basis, at a remuneration close to that which he would have learned as a motor mechanic. His circumstances gave rise to a risk that he may not have been able to earn as much as he would have in his preferred occupation, at least for a period, and that risk to an extent associated with the injuries sustained in the Accident. But I do not think that the evidence justifies a finding that the respondent, at the date of the trial, was at a significant risk of a substantial loss of future earnings by reason of the injuries sustained in the Accident.
The respondent gave evidence that he had been looking for work at various times as a car salesman or in a car dealership. While there was no evidence that he had been successful in that endeavour, it is necessary in assessing a buffer to take account of the possibility, albeit slight, that in the future the respondent might be able to obtain employment paying more than the relevantly modest remuneration payable to a motor mechanic.
While acknowledging the imprecision necessarily involved in awarding a buffer for future economic loss, I consider the primary Judge's award of $95,000 should not stand. I would assess damages for the respondent's future economic loss by way of a buffer at $60,000.

[31]

Endnotes

Chol v Dal, unreported, District Court, 27 October 2017.
The disparity is explained by the fact that the appellant apparently paid $572 to the respondent before a judgment was entered.
Assessor Marsh's determination is referred to at [65] above.
Dr Muratore was a sports physician whose report dated 22 April 2015 stated that the respondent's mechanical back pain was not caused by the Accident. His opinion seems to have been based on the absence of complaint about back pain immediately after the Accident and the discharge summary from Westmead Hospital.
As explained at [131] below, the loss was calculated by reference to the respondent's likely earnings of $917 per week as a licensed mechanic less a conceded earning capacity of $700 per week.
The respondent's evidence was that the Second Accident occurred in June 2015 but the appellant's submissions suggested that the Second Accident occurred in July 2015.
Section 126 of the MAC Act provides as follows: "Future economic loss - claimant's prospects and adjustments (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."
Manly Municipal Council v Skene [2002] NSWCA 385 at [21] (Heydon JA).
Majkic v Bonnano [2008] NSWCA 253 at [20] (Bell JA).
See at [88] above.
In fact, 11.65% of $28,800 is $3,355.20.
[2017] NSWCA 201 at [74] (Simpson JA, Macfarlan and Meagher JJA agreeing).
Linsell v Robson [1976] 1 NSWLR 249 at 251, 253 (Hutley JA), 255 (Glass JA); Baird v Roberts [1977] 2 NSWLR 389 at 398 (Mahoney JA, Glass JA agreeing).
Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; (2005) 3 DDCR 1 at [103] (Ipp JA, Mason P agreeing).
Linsell v Robson [1976] 1 NSWLR 249 at 251 (Hutley JA).
Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302; [2012] NSWCA 13 at [30]-[36] (Basten JA, Macfarlan JA agreeing); Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244 at [40] (Basten JA, McColl and Macfarlan JJA agreeing).
Penrith City Council v Parks [2004] NSWCA 201 at [5] (Giles JA, Cripps AJA agreeing); [58] (McClellan AJA); Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302; [2012] NSWCA 13 at [6]-[9] (McColl JA); [24] (Basten JA); [67] (Macfarlan JA).
Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244 at [41] (Basten JA, McColl and Macfarlan JJA agreeing).
MAC Act, s 126(1).
MAC Act, s 126(3). 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: 02 October 2018

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