Ferguson v McDonalds Australia Pty Ltd

Civil Liability Act 2002 LEGISLATION CITED: The Suitors' Fund Act 1951

Fox v Percy (2003) 214 CLR 118 CASES CITED: Davis v Council of the City of Wagga Wagga [2004] NSWCA 34

Barry Ferguson PARTIES: McDonalds Australia Pty Limited

A: S Norton SC / Ms I Welsh COUNSEL: R: A.M. Colefax SC / J B Turnbull

A: Maxwell Berghouse & Ives, Smithfield SOLICITORS: R: Hunt & Hunt, Sydney

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40571/04 DC 4587/02

TOBIAS JA GZELL J

Monday 21 November 2005 BARRY FERGUSON v McDONALDS AUSTRALIA PTY LIMITED Judgment 1 TOBIAS JA: On 28 November 2001 Mr Barry Ferguson (the appellant) slipped on some detergent on the floor of the men's toilet at premises owned by McDonalds Australia Pty Limited (the respondent) whereupon he fell injuring his back (the second accident). On 28 May 2002 the appellant instituted proceedings in the District Court against the respondent claiming damages in respect of its alleged negligence. The respondent admitted liability so that the only live issue, apart from an allegation of contributory negligence (which was but faintly pursued), was the assessment of damages. 2 The appellant had previously sustained injuries to his back, neck and shoulders on 19 August 1998 when he fell down some steps (the first accident) at the home of his mother-in-law. He had previously instituted proceedings in respect of that accident, which were ultimately settled for the amount of $20,000. The appellant contended before the primary judge that the injuries to his back sustained in the second accident constituted an aggravation of his pre-existing back condition sustained in the first accident. 3 The major issue in contention before Hughes DCJ, the primary judge, was whether after the second accident the appellant's back condition was worse than it was immediately before that accident either in terms of the pain he was suffering or with respect to his capacity to gain employment. His Honour found that, while the appellant may have suffered some aggravation to his existing back condition as a consequence of the second accident, it had subsided shortly thereafter and that it had not precluded him from pursuing appropriate forms of employment. He therefore found that the appellant had not suffered any past or future economic loss as a result thereof. However he considered that although the appellant would have suffered from some increased pain after the second accident and some minor restriction in his activities, his disabilities amounted to no more than 5% of a most extreme case. This was less than the 15% threshold under the Civil Liability Act 2002 (the Act) which he was required to achieve to be entitled to an award of damages for non-economic loss. 4 The primary judge also found that, as the appellant had not sustained any economic loss as a consequence of the second accident, the only damages to which he was entitled were his past out-of-pocket expenses which were agreed at $2,269. His Honour therefore entered a verdict and judgment for the appellant in that amount. It is against that judgment that the appellant appeals to this Court.

The relevant evidence of the appellant and the medical experts 5 In 1997 the appellant who was then 32 years of age commenced work as a self-employed truck driver. He owned his own semi-trailer and he hired himself out for the purpose of carrying general merchandise. This included containers as well as other types of freight such as machinery as well as pallets of goods that were loaded and unloaded onto his semi-trailer by machine. Apart from having to secure his load, he was rarely required to load or unload the vehicle himself. 6 On 19 August 1998, he sustained injuries to his back, neck and shoulder when he fell down some steps at his mother-in-law's home. In his evidence-in-chief he said that he was off work for six to eight weeks but it was common ground that he was in fact off work for three months. Thereafter, although he continued to suffer from a sore back, he returned to his work as a self-employed driver, taking painkillers when necessary. Accordingly, he maintained that he was not significantly restricted in his work and, as he said, "always managed to get by and do what I had to do" (Black 5(45-55)). 7 During this period, and up to the time of the second accident, the appellant was under the care of Dr Peter Giblin, orthopaedic surgeon, who first saw him on 27 October 1998. Dr Giblin referred the appellant for a CT scan on his lumbosacral spine which he had on 2 November 1998, and which revealed the following: "At the L4/5 level, a minor annular disc bulge is present with no significant encroachment on the adjacent neural structures. At the L5/S1 level, there appears to be a small to moderate right postero-lateral disc protrusion. There is encroachment and possible displacement of the right S1 nerve root distal to its exit from the thecal sac. In addition, there appears to be minor posterior osteophyte formation at the superior endplate of S1 possibly causing further encroachment in this region. No other significant structural encroachment on the central spinal canal or associated nerve roots is seen." 8 The appellant was also referred to Dr Peter Conrad, consultant orthopaedic surgeon, who in a report dated 8 December 1999 took a history which noted that his main injuries were pain in his neck and back. As it is relevant to the respondent's argument, part of that history as recorded by Dr Conrad was as follows: "At the time of the accident he was working as a truck driver. He had about 3 months off work completely, he then changed jobs and obtained a light duty job doing truck driving. In this new job he did not have to load, unload or tarp and all he did was drive the truck. He is still doing this now." 9 Dr Conrad stated that the appellant's then symptoms were pain in his lumbar spine which did not radiate into his legs. He opined that as a result of the accident he had sustained a back strain with a disc protrusion at L5/S1 level. He considered that he was fit for light work only, in a position where he was able to do light driving work or similar work and that he should not load, unload or tarp. Although he considered his prognosis uncertain, he nevertheless concluded that as a result of the accident the appellant had sustained a 25% permanent impairment of his back, a 15% impairment of his neck and a 10% permanent loss of efficient use of each arm at or above the elbows due to his bi-lateral shoulder strain. He recommended that an up-to-date MRI scan be obtained in order to ascertain the status of his disc protrusion. 10 Dr Giblin also recommended that the appellant should have an MRI scan of his lumbar spine. This was performed on 20 July 2000 (the 2000 MRI scan). It revealed the following: "There is decreased signal intensity in the L4/5 and L5/S1 discs indicating disc dehydration and degeneration. At the L4/5 level there is posterior bulging of the disc annulus but without rupture or herniation. This creates only minor encroachment on the anterior aspect of the thecal sac. At the L5/S1 level there is right postero-lateral rupture of the disc annulus with a small right postero-lateral disc protrusion. This encroaches on the original of the right S1 nerve root with minor posterior displacement of the nerve root. The nerve root is slightly thickened suggesting a degree of nerve root oedema." 11 Dr Giblin saw the appellant again on 3 November 1998. In a report dated 3 November 2000, he noted having earlier examined the appellant on 27 October 1998 and made reference to the CT scan dated 2 November 1998 which revealed early disc disease at L4/5 and L5/S1 not requiring surgical intervention. He further noted that he had seen the appellant again on 20 March 2000 when he still complained of persistent back pain and could manage restricted duties only. 12 Dr Giblin then referred to the 2000 MRI scan which he reviewed with the appellant on 5 September 2000. He then said this: "It [the MRI scan] revealed focal disc disease at L4/5 and L5/S1 with a small right-sided disc protrusion at L5/S1. There is no evidence of nerve root compression and sciatica was not a symptom of complaint … Based on his history and examination, this gentleman has the provisional diagnosis of a soft tissue injury to his back and neck as a result of his subject accident. His soft tissue injury at the back is consistent with the right-sided disc lesion at L5/S1. … While surgery is unlikely to be required it cannot be excluded on the basis that his back will be more susceptible to repeat soft tissue injure in the future as well as the effects of post-traumatic accelerated degenerative changes. I assess him as being fit to work in terms of a sedentary environment, but permanently unfit in terms of heavy repetitive bending, lifting and twisting. … It would be my view, that directly as a result of his subject injuries, this gentleman has 18% permanent impairment of his back and 10% impairment of his neck." 13 Dr Conrad further examined the appellant on 6 November 2000. In a report dated 8 November 2000 he noted that since the appellant had last seen him on 6 December 1999, his condition had basically remained unchanged. He had ongoing pain in his lumbar spine but this did not radiate to his legs. He also had pain in his neck and both shoulders and any attempt to bend, lift, stand, sit or drive for long periods of time made the pain worse. 14 Dr Conrad opined that as a result of the first accident the appellant had sustained a back strain with a disc protrusion that was clearly shown by the MRI and CT scans. He further considered that "[h]e is well motivated and does light truck driving and is able to do this providing he only does short distance driving, does not lift anything more than 5kg in weight or do heavy unloading, loading or tarping."

Dr Conrad assessed the permanent impairment of his back and neck at 25% and 15% respectively. 15 On 22 January 2001 the appellant saw Dr Lloyd Hughes, consultant orthopaedic surgeon, on behalf of the defendant whom he had sued with respect to the injuries sustained by him in the first accident. In a report dated 29 January 2001 Dr Hughes opined that any back pain which the appellant was experiencing was due to degenerative disc disease in his lumbar spine and that he no longer suffered from any injury or symptoms related to the first accident. It is fair to say that the primary judge did not rely on this report. 16 After he had sustained the second accident, the appellant finished work for that day and, even though he was in pain, continued to work as a sub-contractor for two contractors until he was "sacked" on 20 December 2001 by his main contractor after argument regarding a request to do night work. Given that he was an independent contractor, it would not be technically correct to describe his cessation of work for his main contractor as being "sacked": his services were simply no longer required. However, it is clear that, from the appellant's perception, he had been sacked. 17 In his evidence-in-chief the appellant said that from the time of the second accident to the end of December 2001 his back was very sore and was getting worse. However, as the Christmas break was approaching he was hoping that his back would settle down by the end of that break and he could then return to work. His back did not settle down. After Christmas he worked for approximately one week but the pain in his back was such that notwithstanding painkillers his back locked up as he was driving and it was then that he decided that he could no longer drive his truck. He has not worked since. 18 At the end of January/early February 2002 the appellant sought medical assistance from his GP, Dr Lee, who referred him again to Dr Giblin. He gave evidence that after the second accident his back felt worse on some days than on others, that it was always "one day really bad, another day not too bad". In comparison with the condition of his back prior to the second accident, he said that after the first accident he was always in pain but it was a pain that did not really restrict a lot of the things that he did and he just dealt with it, whereas after the second accident the pain was severe and became "a lot worse". This made him very emotional and caused him considerable stress. 19 When asked to describe his condition at the time of trial he said that his back was always painful, particularly down his backbone and across his lower back, and that at times, when he moved in certain ways, it was like the nerve was pinched on the bone and "it just locks up". On those occasions he was unable to move and had to stay still until he could ease himself out of the problem. He said that nowadays he is never absolutely free of pain. When walking and the pain starts getting worse, he has to sit down but he cannot sit for too long and is then required to stand up and move again. When the pain gets too bad he ingests a lot of painkillers (generally Panadeine Forte), which help although they do not completely eliminate the pain. When he does too much around the house he pays the price the next day (Black 13(5-30)). He feels particularly bad about the loss of his truck driving business. 20 An MRI scan was repeated on 13 February 2002 (the 2002 MRI scan). It revealed the following: "Disc desiccation is seen at L4/5 and L5/S1. At L4/5, there is a diffuse posterior annular bulge with a contained annular rent. There is minimal effacement of the anterior theca extending into the right lateral recess of the L5 nerve root without distinct nerve root compression at this level. At L5/S1, there is a diffuse bulge with a focal protrusion upon the right S1 nerve root within the lateral recess. Underlying the protrusion is a contained annular tear. No other significant abnormality has been defined. The predominant findings are those of disc bulging at L4/5 and protrusion at L5/S1 with encroachment upon the right lateral recess of S1 predominantly through changes are noted at the L4/5 level on an anatomical basis. Please correlate with clinical features." 21 It would appear that the 2002 MRI scan, or at least the radiologist's report, was sent to Dr Giblin who, in a report to the appellant's general practitioner dated 19 February 2002, stated that the scan "shows exactly the same findings as the MRI scan of 20 July 2000." 22 Dr Conrad saw the appellant again on 29 April 2002. In a report dated 30 April 2002, he noted that the appellant continued to have pain in his lumbar spine which tended to radiate down the back of both legs, the pain in his legs being variable and changing from side to side. It was made worse by standing or sitting and whilst bending or lifting. He then referred to the first accident and said that on trying to ascertain the level of pain of the appellant just prior to the second accident on a scale of 0 - 10, the appellant had stated that it would have been 1 - 2 whereas presently it was 6 - 7. He opined that the second accident aggravated his previous back strain associated with the previous disc protrusion as shown on the 2000 MRI scan. As a result of the second accident Dr Conrad was of the view that the appellant's back pain and sciatica had "substantially deteriorated". His opinion continued in these terms: "Mr Ferguson would not be able to do full-on driving, especially if it involves heavy loading, unloading or tarping. He might be able to do twelve to fifteen hours per week of light cleaning work. This should be in a position where he is able to stand or sit at will and he should not be required to lift anything more than 5kg in weight. Nor should he use heavy industrial vacuum cleaners or polishers. This should be part of a structured rehabilitation program. His prognosis is uncertain. He has sustained a: · 30% permanent impairment of his back, and a: · 15% permanent loss of efficient use of each leg at or above the knee due to his bilateral sciatica. As far as attributability is concerned on the level of present symptoms I believe that: · 75% of attributability rests with the accident of the 28th November 2001 and: · 25% of attributability is due to the accident of the 19th August 1998." 23 The respondent's solicitors then referred the appellant to Dr Max Ellis for a medico-legal report. He noted in the history provided to him by the appellant that he had been sacked by McDonalds Peters Transport on 20 December 2001 over a dispute over night work allocation; and that he had a second job with IPEC at the time which he had difficulty in maintaining because of his back injury. He recorded that after the Christmas holidays the appellant returned to work on 20 January 2002 but the pain and disability in his back increased and he took sickness benefits until 10 February 2002 when he returned to work for only one or two days after which he had to stop altogether. It was at that time he saw his general practitioner, Dr Lee. 24 Dr Ellis referred to the first accident noting that the appellant suffered a low back injury but that his legs were not affected. He was off work for three months and returned "to normal duty work driving trucks without further time loss. He was not required to load or unload."

Slight lower back pain persisted but he was able to work without difficulty. 25 Dr Ellis reported that there was continued aggravation of the appellant's lower back pain by bending, lifting, prolonged standing, sitting and walking for more than 30 minutes, and that the pain had spread to the back of both thighs equally. He considered that the appellant's back pain had been considerably aggravated by the second accident. He then noted the 2002 MRI scan but it is clear that he did not have access to the 2000 scan. He further noted that in the first accident the appellant's leg was not affected by the back injury he had then sustained and that, although he continued to have slight pain in his back and consequent disability, he was able to work effectively as a driver. 26 Dr Ellis said it was difficult at that time to assess permanent impairment but he thought it likely that the appellant would be able to return to truck driving provided it did not involve loading and unloading. However, he stated that the appellant was permanently unfit for physically demanding work that required repeated bending and heavy lifting. The 2002 MRI scan of the appellant's back indicated a substantial increase in the impairment thereof as a result of the second accident. 27 Dr Giblin saw the appellant in September 2002 and in a report dated 16 September 2002 noted that the 2002 MRI scan "revealed findings of a similar nature to the MRI scan of 20 July 2000." 28 On 27 May 2002 the appellant presented to Dr Giblin with persistent and unresolved symptoms in his lower back together with discomfort and pins and needles in both legs. He informed Dr Giblin that notwithstanding the first accident the symptoms in his back had never completely resolved. Dr Giblin's provisional diagnosis was of further soft tissue injury to his back substantially causally related to the second accident. He believed the appellant's condition was stable and that he remained fit for a work environment that excluded very heavy repetitive bending, lifting and twisting. He concluded that his "back will continue to be a source of liability, being more susceptible to repeat soft tissue injury in the future." 29 The appellant was referred (on behalf of the respondent) to Dr James Bodel, orthopaedic surgeon, who examined him on 9 August 2002. According to the history recorded by Dr Bodel, the appellant returned to his truck driving work in early 2002 which included some country trips and some unloading of vehicles. In late January/early February he saw his general practitioner when his back locked up whilst driving. He had not been able to return to work since that time. The appellant stated to Dr Bodel that his symptoms had improved a little since ceasing work but that he still had pain in the thoraco-lumbar junction and also in the lower part of his back and in the buttocks. Dr Bodel continued in these terms: "The patient states he has had a previous injury to the back and a fall down stairs in 1999. He was off work for two or three weeks at that time and then returned to work to his normal duties." (emphasis added) 30 Dr Bodel had access to the 2002 MRI scan but not to the 2000 scan. He opined that the appellant had suffered a disc rupture at the lumbar-sacral junction as a result of the first accident, and that he had back pain and mild nerve root irritability in his right leg. He concluded in these terms: "It is possible that he has also had some pre-existing pathology at the back based on the history that he gave of an injury in 1999 but clinically the major pathology arises as a result of the injury on 28.11.2001. The patient should be capable of part time light duty work but may have difficulty with his pre-injury truck driving work. He must take care to avoid prolonged sitting or bending and lifting to minimise symptoms." 31 Dr Bodel also opined that the appellant was clinically left with a 10% overall permanent impairment of function in his back, four fifths of which was due to the second accident and one fifth to the first accident. 32 The appellant was re-examined by Dr Ellis who, in a report dated 3 March 2003, noted that after the second accident the appellant had taken two weeks Christmas leave and returned to work on 20 January 2002 but had difficulty maintaining his employment as a truck driver. On the last day of his employment in February 2002 he was on his way back from Lithgow when he experienced such a sudden severe exacerbation of his low back pain that he had difficulty controlling the vehicle and endangered himself and others. He could not continue driving after that episode. The appellant informed him that his lower back pain was increasing and was aggravated by bending, lifting, prolonged standing, sitting and walking for more than 30 minutes. That pain spread down the back of his left leg to the ankle, and on the right side to the buttock only. 33 Dr Ellis referred to the 2002 MRI scan but, again, made no reference to having seen the 2000 scan. He noted that the appellant's legs were not affected by the first accident and that, although pain in his back continued, he was able to work effectively as a truck driver until the second accident. However, he was now unfit for any form of physically demanding work. Dr Ellis' current assessment was of a 35% permanent impairment of his back and a 10% permanent loss of the efficient use of his left lower limb at and above the knee. He considered that the first accident was responsible for 10% of this assessment and the second accident for 25%. 34 Without, it would appear, seeing the appellant but having received a number of the medical reports to which I have already referred, (including those which predated the second accident), Dr Bodel repeated to the respondent's solicitors on 3 July 2003 that the appellant had reported that at the time of the first accident he was off work for only two or three weeks and had then returned to his normal work. Dr Bodel had then looked at the documentation provided to him which, he said, implied that that was not correct and that the appellant was in fact off work for three months and did not return to the same type of truck driving, but to lighter duty truck driving work. (This is a little difficult to understand because at all material times the appellant has only owned one truck, that is, his semi-trailer.) 35 Dr Bodel then referred to the 2000 MRI scan which, he opined, indicated that the appellant had a well established disc pathology at L4/5 and L5/S1 at that time. He then referred to the 2002 MRI scan which also showed evidence of disc pathology at L4/5 and L5/S1. He then said this: "… Unfortunately it is difficult to be absolutely certain as to whether there was any change in the appearance by merely reading the report from the previous films and comparing it to my interpretation of the films on 13 February 2002. I have however mentioned a large right sided disc prolapse at L5/S1 and this is mentioned in the previous films. The only way of being absolutely certain is to compare the two sets of films." 36 Dr Bodel then noted that he had been instructed that the appellant had not sought treatment immediately after the second accident, and that the appellant had confirmed that that was correct and that he had not seen his doctor until late January/early February 2002 "when his back locked upon him". Dr Bodel then continued as follows: "If that is indeed the case and he did not require any formal treatment for about three months then it is likely that the incident on 28 November 2001 was relatively minor in comparison to the previous injury. The way in which the history was presented was the opposite. To be absolutely certain as to whether any additional structural damage has occurred or not one really needs to see both sets of MRI scans, before the fall on 28 November 2001 and after that date. The overall level of permanent impairment has remained unchanged. The apportionment of liability probably has changed. It is very difficult to be absolutely certain but it is probable that the apportionment has been reversed. That is to say that the overall 10% permanent impairment of function in the back is four fifths due to the injury in 1999 and one fifth due to the injury on 28 November 2001. If, when the MRI scans are compared, there is no substantial difference then it is possible that all of the pathology is due to the original fall and none due to the second injury. I cannot be absolutely certain of this at this time without seeing those films. In regard to the permanent loss of efficient use of the right leg at or above the knee, it appears likely that this also predates the fall on 28 November 2001. Again, empirically, I would estimate that two thirds of that 3% whole person impairment in the right leg at or above the knee is due to the original injury in 1999 and one third due to the injury on 28 November 2001."

It is to be noted that Dr Bodel was not provided with the two sets of films that he had in effect requested in order to be able to confirm his opinion. 37 The appellant was cross-examined upon the history given by him to the medical practitioners to which I have referred. He agreed (Black 35-40) that he had had quite a lot of trouble with his back at the time he saw Dr Conrad in November 2000 and that he had continued to have problems with his back up to the time of the second accident. He vigorously denied that his back was in the same condition immediately prior to the second accident as it was when he saw Dr Conrad 12 months previously. 38 However, in reply to a question asked by the primary judge, he agreed that after the first accident he had always had trouble with his back and had always been in pain but that he had worked through or around it. His Honour noted that his agreement with that proposition constituted "a pretty honest admission you might say" (Black 32(26)). He also agreed with the next question put by his Honour that his fall at McDonalds had made his back worse than what it had been immediately before that accident. 39 At Black 32(42)-35(57) the appellant was cross-examined as to whether, within the six months prior to the hearing, he had had trouble walking, getting in and out of cars, driving, standing in one position for any length of time, standing for up to half an hour, bending over at the waist to pick up things, squatting, going up and down stairs, carrying shopping bags and picking up his two year old daughter. His evidence can be summarised in respect to these matters along the lines that he did have trouble with respect to all of them and that each of them often caused him pain, although it varied from time to time and depended upon whether he had taken painkillers. Nevertheless, he was able to perform each of these activities albeit sometimes with difficulty. Thus, for example, with respect to bending over at the waist to pick up things, he said that his back ached when he bent too much but at other times when he was on painkillers and had to do something around the house, he could bend a little bit more even though it still hurt to do so. 40 When it was put to the appellant (at Black 34(5)) that that had always been the case since the second accident, he said that it had not been the case at all times. Again, he said it depended upon whether he took painkillers prior to carrying out any bending. When he was asked whether the pain was getting any better or worse when he bent at the waist over the last six months, he responded that some days it felt worse and other days it did not but that overall it was a lot worse now than it had been prior to the second accident. He also agreed that he had trouble squatting at times but nevertheless he squatted when he needed to. As to going up and down stairs, his response was that it caused him pain and would have been a problem if he had not had painkillers (Black 34(51-54)). 41 This line of questioning was for the purpose of setting the score with respect to a video of the appellant taken on 28 November 2003, some five months prior to the hearing. After the video had been played to him, the following exchange took place between the appellant and the cross-examiner: "Q. And I want to suggest to you sir that in that film you demonstrated no physical problems at all, would you agree with that? A. Not to the full extent no. Q. Well what don't you agree with? A. Well when I hopped in the car that morning that I went to Penrith, I woke up and I was in a lot of pain, I had four painkillers that morning and getting into the car the way I did is actually easier and less painful than going in getting into the car slowly. Q. Nevertheless sir you were able to bend at the waist without restriction weren't you, in that film? A. Well I did have a bit of restriction. Q. You could squat down and rise up without restriction? A. Yeah I rise up with a straight back because I couldn't bend me back, I normally don't get up like that. Q. You could walk without any difficulties? A. No I couldn't. Q. In that film that we saw, you say you have difficulties walking, do you? A. Well I had pain there but I was walking alright." 42 Finally, it was suggested to the appellant (at Black 43(13-16)) that, partly because he had compromised his claim with respect to the first accident, he had exaggerated his symptoms in the present claim, an assertion that he emphatically denied.

The decision of the primary judge 43 Having noted (at [10]) that the appellant first saw a doctor in or about February some three months after the second accident, and that he had been in receipt of some form of social security benefits ever since, the primary judge then referred to the video film in the following terms: "12. Film was shown which on any view showed a man going shopping with his family in a normal manner. There was no sign of any affectation to his normal physical movement that I could detect. Indeed, when he was running down escalators, that is to say that he was going down the escalators faster than the escalator was carrying him; he showed absolutely no sign of any discomfort or any other fault. 13. The film showed that he had previously been in a Tandy shop shopping for what looked like a walkie talkie and there he demonstrated an ability to squat down and point out to the salesman the various items he was interested in, standing up and squatting down again, walking over to the counter and dealing with the clerk who was putting batteries in the walkie talkie and spent some time there at the counter. 14. In my opinion, the film shows a man who was behaving in all respects in a normal manner and even though the plaintiff in re-examination said the usual thing, that that was a good day and his pain had been dulled by medication. The condition shown in the film demonstrated that there was virtually no incapacity for work." 44 As a result of these findings, his Honour (at [15]) concluded that he did not regard the appellant as a reliable witness as a consequence whereof he paid particular attention to the objective evidence of his complaints and gave "lesser weight" to his subjective complaints. 45 The primary judge then reviewed the medical evidence citing excerpts from the various reports, some of which I have set out above. His conclusions with respect to this evidence were stated as follows: "45. Having considered all of the medical reports and not just the excerpts I have mentioned, I am satisfied that the [appellant's] back is no worse than before the fall [of] 28 November 2001. I am satisfied that Dr Giblin's opinion is correct, that the pathology has not changed. I am further satisfied that the [appellant] did not give a correct history to either Dr Ellis or to Dr Bodel in the first attempt. I am satisfied particularly on seeing the film and the failure to give a proper history to the doctors that the plaintiff is not a person whose evidence can be relied upon. 46. I am satisfied however that the [appellant] did slip and fall at Macdonalds on 28 November 2001. The [respondent] has admitted liability. I am satisfied that because the [appellant] did not seek medical treatment until three months later that it was a minor, even trivial incident. I am further satisfied that he may have suffered some aggravation of his long standing back condition but it had well subsided shortly after the fall and indeed he went back to work and continued until he was sacked, not for any reasons relating to his back, but because of a dispute with the person who he was contracting with. 47. I don't find that he suffered any past wage loss at all or is there any wage loss in the future through this incident." 46 His Honour then turned to the various heads of damage claimed and, with respect to non-economic loss, accepted (at [49]) that there had been some increase in pain after the second accident and some minor restriction in activity "I suppose for some time". He found that to be 5% of a most extreme case which failed to get the appellant over the threshold for an award of damages for non-economic loss. He did not award the appellant any past or future economic loss as he had found (at [47]) that the appellant had not suffered any past wage loss at all nor would he in the future as a consequence of the accident. By this I understand his Honour to have found that there had been no diminution in his capacity to work as a consequence of that accident in any respect. It seems to me that the only finding upon which that conclusion was founded was his Honour's opinion (at [14]), having viewed the video, that the "condition [of the appellant] shown in the film demonstrated that there was virtually no incapacity for work." 47 This is a rather odd finding as the medical evidence was unanimous that his back condition (whether as a result of the first or second accident or both) had severely limited the appellant's ability to work whereas his Honour had found that there was no incapacity whatsoever as at the time of the video being taken. It is true that the primary judge found (at [45]) that the condition of the appellant's back was no worse after the second accident than it was before, but that is a different matter. To find that what he had seen in the video demonstrated that "there was virtually no incapacity for work" is simply inconsistent with the medical evidence to which I have referred above.

Did the findings of the primary judge demonstrate error? 48 The appellant relied upon a number of errors on the part of the primary judge. I shall deal with them seriatim. 49 First and foremost, the appellant submitted that his Honour erred in finding that he was an unreliable witness upon the basis of his viewing of the video. 50 Having observed (at [12]) that the video "on any view" showed a man going shopping with his family in a normal manner with no indication of any affectation to his normal physical movement including an ability to squat down and point out to a salesman the various items he was interested in, and then to stand up and squat down again and then stand at a counter, the primary judge concluded that the video revealed the appellant as "behaving in all respects in a normal manner". On this basis he found (at [15]) that the appellant was not a reliable witness. 51 Given the evidence of the appellant to which I have referred, it must be inferred that the primary judge, on the sole basis of his viewing of the video, has rejected that evidence as inconsistent with what he observed in the video. In this respect, it is noteworthy that his Honour's conclusion as to the reliability of the appellant as a witness was neither expressly nor, in my opinion, inferentially based upon the appellant's demeanour in the witness box. Subject to some submissions of the respondent to which I shall refer below, his Honour's conclusion as to the appellant's credit was squarely based upon his viewing of the video. 52 It follows from the foregoing that the principles adumbrated by the High Court in Fox v Percy (2003) 214 CLR 118 limiting appellate intervention with respect to findings of fact by a trial judge based on the credibility of a witness, have no application in this case as, having viewed the video ourselves, this Court is in just as good a position as the primary judge to draw conclusions from it. Thus having carefully viewed the video, the activities and conduct of the appellant as depicted in the video were, in my opinion, in no way inconsistent with the evidence that he gave both in examination-in-chief and in cross-examination. 53 It is true, as the primary judge concluded from his viewing of the film, that it showed the appellant going shopping with his family in a normal manner and that he did not appear to show any sign of discomfort. However, contrary to the suggestion of his Honour in [12] of his judgment, he was not "running down" the escalators, although it is true that he walked down the escalators for some distance before standing still and permitting the escalators to carry him down to floor level. Furthermore, it is true that he was depicted walking up the escalators but only for a very short part of the upward journey, it being apparent that the cameraman was unable to video the whole of the appellant's journey up that escalator. However, in my opinion, the fact that he walked up and down part of the escalator is in no way inconsistent with his oral evidence. 54 A further minor error by his Honour is the suggestion in [13] of his judgment that the appellant squatted down twice whilst in the Tandy shop. In my opinion, he squatted down once only momentarily and on the other occasion to which his Honour is apparently referring, he merely bent over. 55 The point, however, is that in his cross-examination generally and in the cross-examination directed to setting the scene for showing the appellant the video in particular, the appellant never suggested that he was unable to go shopping or walk in a normal manner, to walk up and down escalators, to stand at a counter for a period of time, or to bend over or squat. His evidence was that although he had problems with his back which caused him pain, he was able with the use of painkillers to function reasonably well in his domestic environment. In particular, he said that when he walked for too long at a time he experienced pain which required him to sit down for a period; that he was able to get in and out of the car and that he always drove; that he could stand in one position for periods which varied up to half an hour; that he could bend over at the waist although if he did that too often his back ached, but when he was on painkillers he could bend a little bit more; that in the six months prior to the trial it hurt when he bent over and he would not do so unless he had to; that although he had trouble squatting "a lot of times" he could still do so when he wanted to; and that he could walk up and down stairs particularly when he had had painkillers. 56 In summary, the appellant's evidence was that, although when the video was taken he was experiencing problems with his back in terms of pain, he could still perform normal functions such as level walking, shopping, walking up and down stairs, bending from the waist, squatting and lifting his two year old daughter. It was apparent from the video that he is a man of some strength so that picking up and carrying his two year old daughter was not particularly onerous. According to his evidence he would do so when he had to and that in any event the pain from his normal domestic activities receded when he was on painkillers. In my opinion there is nothing inconsistent between what I saw in the video and the appellant's evidence. At the very best the video was neutral. 57 More importantly, after he had been shown the video, the appellant was asked whether it demonstrated that he had no physical problems at all, a proposition with which he disagreed. His responses to subsequent questions are set out in the exchange referred to in [41] above. Relevantly, he said that on that morning when he was going to Penrith, he woke up in a lot of pain and had four painkillers before he left with his wife and children for the shopping centre. 58 His Honour, having mistakenly noted that the appellant had given the above evidence in re-examination, rather cynically referred to it as "the usual thing, that that was a good day and his pain had been dulled by medication". 59 A similar cynicism on the part of his Honour appears in [17] and [29] of his judgment which gave the impression that he considered that the appellant was "solicitor shopping". In [17] his Honour said: "Incidentally, Dr Hughes' report is addressed to McCabes Solicitors and Dr Lee's is addressed to Maxwell Bourkehouse & Ives". 60 What his Honour did not apparently appreciate was that McCabes were not the solicitors for the appellant in relation to his claim arising out of the first accident, but the solicitors for the defendant in those proceedings. Maxwell Bourkehouse & Ives were the appellant's solicitors in those proceedings. 61 In a similar vein in [29] his Honour observed "There are three reports of Dr Conrad both before and after the incident at McDonalds. They are addressed to yet another solicitor Christopher and Associates rather than McCabes or Maxwell Bourkehouse". (emphasis added) 62 It is true that Christopher and Associates were the appellant's solicitors in respect of his claim in relation to the second accident. It is difficult to understand why the appellant should be inferentially criticised for retaining a different firm of solicitors in respect of his claim with respect to the second accident rather than the firm that acted for him on the first accident. This, along with his Honour's remark in [14], that the appellant's evidence, after seeing the film, that this was a good day and his pain had been dulled by medication was "the usual thing" in the sense of the usual excuse, seem to me to be entirely unfair observations. In any event, the appellant's evidence was not that it was a "good day", although it is correct that he had taken four painkillers that morning. I only mention these matters because, although they would have been otherwise irrelevant, they were referred to by his Honour to add colour to his views with respect to the appellant's reliability as a witness. 63 However, I would not base my conclusion that it was not open to the primary judge to find that the appellant was not a reliable witness with respect to his subjective complaints on that element of cynicism or scepticism to which I have referred. Rather, in my view the video is, as I have observed, neutral and, in particular, is not inconsistent with the appellant's evidence. It should however be noted in this regard that when the appellant, after viewing the video, gave evidence that he had that morning taken four painkillers before embarking on the shopping trip, it was not suggested to him that that was not true. This is perhaps not surprising given that throughout his evidence he said in response to a number of questions that he regularly took painkillers including Panadeine Forte, which is a very strong drug. 64 The respondent submitted that the primary judge had in fact identified four matters that caused him to be concerned with respect to the reliability of the appellant's subjective evidence. The third matter was the content of the video with which I have dealt above. The first was the delay by the appellant in seeking medical assistance for a period of three months following the second accident. His Honour refers to that factor in [10] of his judgment noting that it was three months after the second accident occurred that the appellant first saw a doctor with respect to it. This was incorrect. The second accident occurred on 28 November 2001 and the appellant saw Dr Lee on 1 February 2002. The delay was therefore only two months. This "delay" was picked up by Dr Bodel in his report of 3 July 2003 where he opined that, as the appellant had not seen his doctor until late January/early February 2002, it was apparent that he did not require any formal treatment for about three months with the result that it was likely that the second accident was relatively minor in comparison to his previous injury. 65 The primary judge obviously accepted Dr Bodel's observation when (at [46]) he said that he was "satisfied that because the [appellant] did not seek medical treatment until three months later, that it was a minor, even trivial incident." 66 Apart from the fact that the relevant period was two months not three, the primary judge has overlooked two significant matters. The first is that Dr Bodel recognised that the manner in which the appellant presented his history to him was the opposite to his opinion that the second incident was relatively minor because the appellant had not required any formal medical treatment for about three months. The second and more critical factor was that the two month delay was not only explained by the appellant in his evidence (as Dr Bodel obviously acknowledged) but was corroborated by his wife whose evidence the primary judge not only declined to accept, but did not even see fit to mention. 67 As to the appellant's evidence, he said in examination-in-chief (at Black 8(38-52)) that, although his back was extremely bad on the day immediately after the second accident, he completed his run for that day with the assistance of a friend and, although he was in significant pain, he worked up until Christmas, taking a lot of painkillers and using a trolley jack. He then said (at Black 10(44-51)) that, having worked up until Christmas, he hoped that his back would settle down during the Christmas break - but it did not. He returned to work in January but his back locked up on a trip to the Blue Mountains. It was then he decided he could not work any longer and decided to see Dr Lee. 68 The appellant's wife also gave evidence as follows: "Q. Do you remember him coming home from work in about November 2001 and complaining he'd had a fall at -- A. I do, he actually rang me not long after he had fallen. Q. I think you're aware that he continued to work for some weeks after that until Christmas? A. Yes he did. Q. What was his physical state during that period that you could tell looking at him? A. He was in a lot of pain but he just - the way he is, he just kept working. Q. In that initial period was he seeing any doctors? A. No. Q. Did you do anything about that -- A. Yeah I nagged and whinged and complained to him and said you need to go and see a doctor. Q. And eventually he did? A. He did eventually. Q. In February? A. Yes. Q. By that stage of course he stopped his work? A. Yes. Q. From an emotional point of view how has he been since he's not been working? A. A nightmare to put it mildly." 69 It is fair to say that Mrs Ferguson was not challenged on this evidence. What it reveals is that the appellant was a person who was not given to ceasing work because he was in pain but continued to work notwithstanding that his wife was nagging him to see a doctor. It was only when his back locked up and he appreciated that he could no longer continue to work that he succumbed to what she referred to in her evidence as her "nagging, whinging and complaining" and sought medical assistance. It follows in my opinion that the delay of two months in the appellant seeking medical advice, relied upon by Dr Bodel and accepted by the primary judge as evidence that the second accident was "minor, even trivial", did not support such a finding. 70 The second matter relied upon by the respondent was what, in its written submissions, it described as "the [unsatisfactory] evidence given by the [appellant] concerning his future business plans." 71 In support of this submission the respondent relied upon the following finding of the primary judge (at [11]): "He says that he is hoping to finance the restoration of his truck (he has a truck, a BMW car and a 4WD) and get back into the business at some time in the future after the outcome of this particular case." 72 Reliance was also placed upon the appellant's evidence at Black 38(50)-39(34). The thrust of that evidence was that the appellant had not sold his semi-trailer after he ceased work due to the second accident because it was then early days and he hoped that he could return to work after all the effort he had gone through to get the vehicle in the first place. However, when his back got worse he decided that he would fix up a few things with respect to the vehicle, get it back on the road, employ a driver and run his own business. He thought that he could make that a profitable enterprise. When asked when he expected to start looking at such a proposition, he responded that he wanted to straighten his life out first and know what direction he was taking. He was then asked this: "Q. Can I just ask you this sir, if you get some money out of this case is that when you would think about starting to do it? A. Yes." 73 The evidence relied upon by the respondent, however, also needs to be read in light of the appellant's further cross-examination on this subject at Black 39(56)-40(55). In my opinion, that evidence fully supports the appellant's aspirations as to his future if his back does not improve. Further, in my view he cannot be criticised for wanting to await the outcome of this litigation in order to determine the direction his life is to take. But most critically, the simple fact is that the primary judge did not, either expressly or inferentially, find that the appellant's evidence on his future business plans was "unsatisfactory". It is true that the primary judge found the appellant not to be a reliable witness but that finding was to be directed to the appellant's subjective complaints with respect to his back. 74 However, if his Honour's finding that the appellant was an unreliable witness was intended to extend to his evidence with respect to his future business plans, then in my view there was nothing inherent in his answers in cross-examination that would justify a finding that such evidence was "unsatisfactory". 75 Finally, the respondent relied upon what it submitted were inaccurate histories given by the appellant to Drs Bodel and Ellis. In this respect the primary judge had stated (at [45]) that he was "further satisfied that the [appellant] did not give a correct history to either Dr Ellis or to Dr Bodel in the first attempt."

It is not clear what his Honour is referring to as " the first attempt ". The only possible reference in his judgment is to an incorrect history given to Dr Ellis is in [33] where he says this: "And then there is the opinion of another medico-legal orthopaedic surgeon, Dr Ellis. He gets a history on 8 May 2002 that he was sacked on 20.12.01 over night work allocation and he has a slightly different view of the accident 'In 1998 while employed by Bleighton Freight Management he was at work and sustained a fall on stairs and suffered a low back injury, from which pain and disability persisted, his legs were not affected. He was off work for three months, x-rays were taken.' " 76 What his Honour is referring to as "a slightly different view of the accident" is not clear unless it is a reference to the fact that he records that the first accident occurred when he was at work whereas it was common ground that it had occurred at the premises of his mother-in-law although, on either version, he sustained his injuries falling down stairs. In my opinion, his Honour has not identified any relevant incorrect history provided to Dr Ellis and the submission of the respondent to the contrary has no merit. 77 So far as Dr Bodel is concerned, his Honour's reference to an incorrect history given to him is probably reflected in [41] and [42] of his judgment where he said: "41. Dr James Bodel in his report of 3 July says that he saw the [appellant] on 24 October 2002. Dr Bodel was given an incorrect history or rather Dr Bodel recorded an incorrect history when he says 'The patient states that he has had a previous injury to the back in a fall downstairs in 1999. He reported that he was off work for two or three weeks at that time and then returned to work to his normal work.' 42. All other evidence of that incident is that he was off work for three months, sued for compensation, was paid $20,000 and returned to work doing light duties. He also states that he enjoyed cricket and touch football but he had stopped these activities before the first accident."

78 The primary judge seems to have relied heavily upon two aspects of this evidence as supportive of his conclusion (at [45]) that the appellant's back was in no worse condition after the second accident than it was immediately before. The first is the recording by Dr Bodel that the appellant was only off work for two or three weeks after the first accident when it was common ground and he informed every other medical practitioner he had seen, and they had recorded in their reports, that he was off work for three months. 79 When cross-examined on Dr Bodel's recording of these matters, the appellant said he could not recall telling Dr Bodel that he had only been off work for two or three weeks, although he agreed that he had told Dr Bodel that he returned to normal duties at work after the first accident. The second was that Dr Bodel reported that, when the appellant returned to work after the three months, he had returned to "his normal work", whereas according to the primary judge, other evidence indicated that he had returned to work but doing "lighter duties". 80 Dr Conrad records, in his report of 8 December 1999, that the appellant was off work for three months and then "changed jobs and obtained a light duty job doing truck driving. In this new job he did not have to load, unload or tarp and all he did was drive the truck."

Dr Ellis in his report of 8 May 2002 records that, after the first accident, the appellant "returned to normal duty work driving trucks without further time loss. He was not required to load or unload." 81 His Honour's finding that after the first accident he returned to work doing lighter duties and his further finding that the appellant had not given a correct history to either Dr Ellis or Dr Bodel "in the first attempt" (whatever that might mean) is, to say the least, a rather thin reed upon which to base a finding that the appellant's back was no worse after the second accident than it was before. Furthermore, the so-called incorrect history assumes that Dr Bodel recorded the history given to him by the appellant correctly in the first place. As Mason P, with whom Beazley JA and myself agreed, observed in Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35]: "Experience teaches that busy doctors sometimes misunderstand or misrecord history of accidents, particularly in circumstances where their concern is with the treatment or impact of an indisputable, frank injury."

The primary judge himself seems to acknowledge this possibility when he says: "Dr Bodel was given an incorrect history or rather Dr Bodel recorded an incorrect history …" (emphasis added) 82 Furthermore, the reference by Dr Bodel to the appellant's return to his "normal work" is itself ambiguous. His normal work was driving his semi-trailer. Although the primary judge found (at [42]) that "all the other evidence" established that after the three-month period when he was off work he "returned to work doing lighter duties", there is no doubt that the work to which he returned was driving his truck. That was his "normal" work. In my opinion, therefore, it was not open to the primary judge either to find that Drs Ellis and Bodel had been provided with a relevantly incorrect history by the appellant or to rely thereon in support of his ultimate conclusion (at [45]) that the appellant's back was no worse after the second accident than it was before that accident. 83 The respondent nevertheless submitted the following. Firstly, that as the primary judge did not have the benefit of the transcript when he delivered his judgment on 30 April 2004 (the transcript was apparently not available until 7 June 2004), it would be unfair to rely upon those parts of the transcript referred to by the appellant to criticise the primary judge's findings. Secondly, it was submitted that the primary judge had not wholly rejected the appellant's evidence but had only found that he was an unreliable witness. Thirdly, it was submitted that, as Dr Bodel was not cross-examined on his opinion that because the appellant did not require any formal treatment for approximately three months it was likely that the second accident was relatively minor, it must be the case that, as his Honour accepted Dr Bodel on this issue, he had implicitly rejected the evidence of the appellant's wife. 84 In my opinion, none of these matters have either substance or merit and they should be rejected. 85 It was finally submitted by the respondent that in truth the primary judge had not determined the issue as to the comparative condition of the appellant's back before and after the second accident otherwise than by reference to the medical evidence so that even if he was incorrect to reject the appellant's subjective evidence as unreliable, the result would have been the same. I cannot accept this submission. As was the case in Davis (at [32]) the present was a case in which the credibility or reliability of the appellant's subjective evidence, including his subjective complaints, was vital to the primary judge's assessment of the medical evidence. 86 In this regard, as the respondent submitted, the primary judge (at [15]) had said that, because he did not regard the appellant as a reliable witness, he had paid particular attention to the objective evidence of his complaints and had given "lesser weight" to his subjective complaints. It follows from those observations that if it was not open to his Honour, based on his viewing of the video film, to find that the appellant was not a reliable witness, he would have given greater weight to his subjective complaints in which event his assessment of the medical evidence may have been quite different. 87 After all, in [45] his Honour had found that he was satisfied "particularly on seeing the film and the failure to give a proper history to the doctors that the [appellant] is not a person whose evidence can be relied upon." 88 Subject to one matter, if it was not open to his Honour to make that finding then it was not open to him to find, as he did in the same paragraph of his reasons, that the appellant's back was no worse than before the second accident. 89 However, his Honour did find that Dr Giblin's opinion was correct that the appellant's pathology had not changed. In this respect, as I have already set out, Dr Giblin had in his report of 19 February 2002 expressed the opinion that the 2002 MRI scan showed "exactly the same findings" as the 2000 MRI scan. There was a slight change of emphasis in his later report of 16 September 2002 when he said that the 2002 MRI scan "revealed findings of a similar nature to the MRI scan of 20 July 2000." (emphasis added) 90 Dr Bodel had also seen both scans and expressed in his report of 3 July 2003 that both of them showed evidence of disc pathology at L4/5 and L5/S1. However, he went on to express the reservation that it was difficult to be absolutely certain as to whether there was any change in the appearance by merely reading the radiologist's report of the 2000 MRI films and comparing it to the interpretation by the radiologist of the 2002 films. The only way to be absolutely certain was actually to compare the two sets of films. He thus said: "If, when the MRI scans are compared, there is no substantial difference then it is possible that all of the pathology is due to the original fall and none due to the second injury. I cannot be absolutely certain of this at this time without seeing those films."

As I have already observed in [36] above, the films were never provided to him. 91 It is true that the primary judge appeared to rely wholly upon Dr Giblin's opinion rather than that of Dr Bodel in this regard. It is not clear whether Dr Giblin saw the films as distinct from the reports. Whether he did or not, the fact remains that because he found that the appellant was not a person "whose evidence could be relied upon" because of what he had observed in the video film, the general coincidence of the finding in the two MRI scans led his Honour to the conclusion that the appellant had suffered only a minor aggravation of his back in the second accident. 92 In this respect, like the position in Davis (at [44]), the credibility of the appellant with respect to his evidence generally and his subjective complaints in particular, and the weight to be attached to them, was vital to any finding by the primary judge as to whether or not the second accident had caused the appellant to be in a worse condition after that accident than he was before it. In this respect it is to be noted (although the primary judge made no reference to it) that even Dr Giblin opined that the appellant's back would continue to be a source of liability being more susceptible to repeat soft tissue injury in the future. 93 Finally, a further basis upon which the appellant's credibility was vital to his Honour's findings was with respect to his finding (at [47]) that the appellant had not suffered any past wage loss at all nor would there be any wage loss in the future as a consequence of the second accident. This finding was based upon his Honour's finding (at [14]) that "[t]he condition shown in the film demonstrated that there was virtually no incapacity for work." 94 As I have already observed, in my opinion it was not open to his Honour to make such a finding based upon his viewing of the video. It is therefore clear that his finding with respect to the appellant's incapacity for work may well have been entirely different had he correctly regarded the film as not being inconsistent with the appellant's evidence. 95 It follows that although the appellant's reliability as a witness may not have been the only reason why he failed before the primary judge, nevertheless it formed a substantial plank in his Honour's ultimate determination and it cannot be said that the appellant's case was doomed to fail regardless of the credibility issue.

Conclusion 96 It follows from the foregoing that, in my opinion, the appellant has demonstrated a number of significant errors on the part of the primary judge which clearly justifies appellate intervention. Those errors are sufficiently serious as to justify the conclusion that a substantial wrong or miscarriage has been occasioned to the appellant, thereby justifying a new trial. The parties were in agreement that this should be the outcome of the appeal in the event that error was established. 97 I would therefore propose the following orders: (a) Appeal allowed; (b) That the verdict, judgment and orders made by Hughes DCJ on 30 April 2004 be set aside; (c) That there be a new trial limited to damages; (d) That the costs of the first trial are to abide the result of the second trial; (e) That the respondent is to pay the appellant's costs of the appeal and to have a certificate under The Suitors' Fund Act 1951, if otherwise qualified. 98 GZELL J: I agree with Justice Tobias. **********

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