BETWEEN : INSURANCE COMMISSION OF WESTERN AUSTRALIA

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Citation : WEATHERALL -v- INSURANCE COMMISSION OF WESTERN AUSTRALIA [2005] WADC 135

Personal injury - Motor vehicle accident - Assessment of damages - Past loss of earning capacity - Future loss of earning capacity - Discount for contingencies - Non­pecuniary loss

Appeals - Inconsistent findings of fact by trial judge - Whether inconsistent findings are irreconcilable - Whether appeal court can substitute its own findings - Damages reassessed for past and future loss of earning capacity

Motor Vehicle (Third Party Insurance) Act 1943 (WA), s 3C

Damages for past and future loss of earning capacity reassessed

1 McLURE JA: This is an appeal from an assessment of damages for personal injuries suffered by the respondent in a motor vehicle accident on 7 January 1999. The relevant facts, evidence and grounds of appeal are set out in the judgment of Buss JA.

2 The appellant appeals from the award of general damages and the awards for past and future economic loss. The respondent cross-appeals from the awards for past and future economic loss. I would dismiss the appellant's challenge to the award of general damages for the reasons given by Buss JA. The appeal and cross-appeal in relation to economic loss are related.

3 The respondent's twins were born on 27 March 1997. In December 1997 the respondent returned to part-time work as a photo laboratory technician at Kmart. The accident happened on 7 January 1999. The accident caused injuries to the respondent's lumbar and cervical spine including a disc protrusion at the L5 - S1 level, annulus tears at the L5 - S1 and L4/5 levels and compression of the right S1 nerve root. Immediately prior to the accident, the respondent was working 12 hours per week at Kmart. The respondent did not return to work after the accident. The respondent's daughter has mild cerebral palsy and her son suffered an attack of meningitis in July 2003 resulting in speech and learning difficulties.

4 The trial judge awarded the sum of $52,240 for past loss of earning capacity which was divided into four periods. The first period was from the date of the accident to February 2002 when the twins commenced school. The trial judge awarded 100% of what the respondent would have received working part-time (8 hours per week) as a photo laboratory technician.

5 The second period was the balance of 2002. The trial judge awarded 90% of what the respondent would have received working half time (20 hours per week) as a photo laboratory technician.

6 The third period was in 2003. The trial judge found that as a result of her son's illness, the respondent would not have worked for two months. Otherwise she awarded 50% of what the respondent would have received working half time as a photo laboratory technician from September to December 2003 and 90% of what she would have received working half time in the balance of that year.

7 The fourth period was from 2004 to July 2005 (the date of judgment) for which the trial judge awarded 90% of what the respondent would have received working half time as a photo laboratory technician.

8 The trial judge also deducted a further 10% for contingencies from the total of the four periods comprising the past economic loss.

9 The appellant contended the respondent should not have received any award for past economic loss because the trial judge, accepting the evidence of Dr Rosenthal, had found at [48] that the respondent retained the capacity to undertake the duties of a photo laboratory technician at least on a half time basis and at [58] that 'it was [the full-time care of her children] that prevented her from returning to her duties as a photo lab technician'.

10 These findings in isolation are inconsistent with the trial judge's findings at [70] - [72] and with her assessment of the amount of the respondent's past economic loss.

I am satisfied based on the evidence of the extensive duties the [respondent] undertook as primary carer for her two children that even if she had not been injured, there was no chance of her working full time before the twins reach the age of 13 in 2010. If the [respondent] had not been injured in the motor vehicle accident I believe there is a 90 per cent chance she would have continued to work part time until the twins commenced school in 2002. But I must bear in mind that during 2003 Jack was severely ill. That is an historical fact that has been established. The [respondent] would not have been able to work at all for the two months she and her husband lived near PMH to be near Jack. And because of Jack's extra needs as he recovered from his illness I believe there was only a 50 per cent chance that the [respondent] would have returned to work at all that year.

From 2004 to 2010 when the twins will be 13 years of age if the [respondent] had not been injured I am satisfied there was a 90 per cent chance she would have worked half time.

These findings mean that even if the [respondent] had not been injured in the motor vehicle accident she was unlikely to have fully exercised her earning capacity because of her maternal duties. But the effect of the motor vehicle accident has been to stop her from working at all. In these circumstances I will assess damages for loss of earning capacity based on the loss of the exercisable earning capacity she retained after the birth of the twins [70] - [72]. (emphasis added)

12 In order to determine whether the findings are irreconcilable it is necessary to consider them in the context of the reasons as a whole and the live issues at trial.

13 The finding at [48] relates to the respondent's retained work capacity. There was a conflict of expert evidence about whether the respondent would ever again have the capacity to work as a photo laboratory technician. Professor Harper, a specialist in occupational medicine, gave evidence that the respondent would never be able to return to her duties as a photo laboratory technician. Dr Rosenthal, a specialist in rehabilitation medicine, had a contrary view. After referring to Dr Rosenthal's evidence that he believed the respondent had the capacity to work half time as a photo laboratory technician and that her capacity would increase as her fitness increased, the trial judge said:

Given Dr Rosenthal's direct experience with the work of a photo lab assistant I accept his opinion that the [respondent] retains the capacity to undertake these duties at least on a half time basis [48].

14 Although Dr Rosenthal stated in a report dated 5 September 2002 that the respondent had a present capacity to work half time as a photo laboratory technician, the trial judge does not in [48] or elsewhere in her reasons expressly direct her attention to whether the respondent had retained working capacity prior to trial or make an express finding on that subject. An affirmative finding would be directly inconsistent with the specific express finding at [72] that the effect of the motor vehicle accident had been to stop the respondent from working at all until the time of trial. Moreover, the trial judge proceeded on the basis that the 50% retained earning capacity related only to future loss of earning capacity. Thus, it is apparent that the judge accepted Dr Rosenthal's opinion only so far as it related to the respondent's future residual capacity.

15 Having regard to the trial judge's findings as to the nature and extent of the respondent's pain and suffering, that conclusion was reasonably open on the evidence. In particular, her Honour said:

The [respondent] has suffered an extremely painful injury. Coming as it did when her twins were not yet two years of age, the effects of her injury have had a severe impact on her ability to be the kind of wife and mother she had set out to be ... Her pain continues even now at trial, although she has had some relief since Dr Salmon began his treatments in 2002, some three years after the accident at around the time a coughing fit had led to extreme pain and a week's total disability [96].

16 The respondent's condition and symptoms (and thus her work capacity) at trial was not representative of her pre-trial condition and symptoms. Thus, [48] should be read as being confined to the respondent's retained work capacity as from the date of judgment. This is consistent with the weight of the expert evidence.

17 The finding at [58] relates to the hypothetical question of whether, and if so on what basis, the respondent would have continued working if the accident had not occurred. The respondent's evidence was that but for the accident she would have recommenced working full-time as a photo laboratory technician. The appellant contended that the respondent would not have worked at all because of the children's needs.

18 The finding at [58] is ambiguous. If it was intended to apply to all work (part time or full time), that finding is also directly inconsistent with the findings at [70] - [72] and the assessment of past economic loss. In the context of the reasons as a whole, the finding at [58] can only sensibly be read as a reference to the respondent being prevented from returning to full time duties as a photo laboratory technician. Moreover, notwithstanding Ms Pennefather's record of her conversation with the respondent in March 2000 (which was admitted as going to credit) the strong weight of the evidence was against a finding that the respondent would not have returned to work even if the accident had not occurred. Her prior work history and the family's financial circumstances pointed strongly to the contrary.

19 The findings of the trial judge can and should be reconciled in the ways indicated. I would dismiss ground of appeal 2.

20 Ground 1 of the cross-appeal challenges the trial judge's multiple adjustments for contingencies. The respondent claims there should have been no deduction for negative contingencies or alternatively, a discount of no more than 10%.

21 The approach taken by the trial judge was to make a specific discount for the possibility that the respondent would not return to part-time work. Save for the third period (where the discounts ranged from 10% to 100%) and the first period, the specific discount was 10%. The trial judge made a further 10% discount for all periods for general vicissitudes which I assume were intended to cover matters such as sickness, accident, unemployment or industrial disputes.

22 Earning capacity, both past and future, must be assessed by reference to what the respondent would have been able to earn but for the accident-caused injuries. Where, as here, the court is concerned with a hypothetical situation, it may and often will be appropriate to make a deduction for contingencies. In considering whether to make an allowance for contingencies and if so, the quantum thereof, the individual circumstances of each claimant must be considered. The primary adverse contingency in this case derives from the needs and demands of the respondent's children. The 100% and 50% reductions for parts of 2003 are based on actual events and should not be disturbed. Otherwise, a 10% deduction for the other relevant times is reasonable. However, having regard to the respondent's pre-accident work history particularly from December 1997 to the date of the accident, the additional 10% discount produces a total discount that is outside a sound range. On that basis, the past loss of earning capacity would be assessed at $58,044. I would uphold ground 1 of the cross-appeal.

23 The respondent also contended that the judge erred in using 8 hours per week as the starting point for the calculation of the respondent's past loss of earning capacity (ground 2). The trial judge used that rate only for the first period. The respondent's unchallenged evidence was that she was working 12 hours per week at the time of the accident. The trial judge ought to have used the rate of 12 hours per week for the first period. On that basis, the respondent would have earned an average of $180 per week for 160 weeks which equals $28,800. I would uphold ground 2.

24 Finally, the respondent contended (ground 6) that the trial judge erred in failing to find that, but for the accident, the respondent would have returned to full time work as a photo laboratory technician at Kmart in 2003. The trial judge found that the respondent would not have returned to full time work until 2010 when the children were aged 13.

25 The specific needs of each of the respondent's children are detailed in [62] - [63] of the reasons. They are consistent with the evidence. The respondent's husband worked very long hours. Although the respondent's mother, Mrs Betts, had provided considerable assistance to her daughter, she was not asked and did not give evidence as to her availability to look after the children and attend to their needs in the event the respondent returned to full time work from 2003. Although the trial judge did not make any adverse credibility findings against the respondent, she found the objective evidence outweighed the respondent's belief as to what she would have done in the hypothetical circumstances. I am satisfied that it was open on the evidence to find that the respondent would not have returned to full time work until 2010. I would dismiss ground 6.

26 As a result of the success of grounds 1 and 2 of the cross-appeal, the award for past loss of earning capacity should be increased to $67,644 ($28,800 + $12,168 + $8,424 + $18,252).

Based on a 50 per cent retained earning capacity, the [respondent's] loss of $260 net per week for 26 years (multiplier 698.6) = $181,636. That figure needs to be reduced by a further 25 per cent to take account of what I expect to be an increase in the [respondent's] earning capacity as her condition improves. That figure should then be discounted for the usual contingencies as the [respondent] suggest[s] of six per cent. Therefore I calculate future loss of earning capacity as $181,636 less 31 per cent = $125,329 [81].

28 Thus, the award for future economic loss reflected an 81% discount comprising 50% for retained earning capacity, 25% for the prospect of improvement in her condition and 6% for the usual contingencies.

29 The appellant contended in ground 3 that there should be no allowance for future loss of earning capacity in view of the trial judge's findings at [48] and [58]. For the reasons given in relation to ground 1, the findings provide no support for the appellant's contention. Even if (contrary to my conclusion) the findings are construed in the manner contended for by the appellant, they would not justify a complete denial of an award for future economic loss. I would dismiss ground 3.

30 Grounds 3, 4, 5, 7 and 8 relate primarily to future loss of earning capacity.

31 Grounds 3, 4 and 5 overlap. They target the trial judge's finding that the respondent had a 50% retained earning capacity as a photo laboratory technician. In essence, the respondent claims that (1) the trial judge erred in failing to reject Dr Rosenthal's evidence as to the duties of a photo laboratory technician; (2) the evidence of Professor Harper should have been preferred; and (3) the weight of the evidence supported a finding that the respondent had no retained capacity to work as a photo laboratory technician.

32 After all relevant experts had given evidence, the parties agreed on the actual weights of the paper rolls and chemicals used in the photographic departments at Kmart stores. It was agreed that the paper rolls each weighed 6.95 kg. The rolls came in boxes of two weighing 13.9 kg. The magazine weighed 8.9 kg and, when loaded with paper, weighed 15.2 kg. The loaded magazine had to be placed on top of the printer about waist height. There were two types of chemicals, P1 and P2. Each container of P1 chemicals weighed 3.75 kg and came in a box of two weighing 7.5 kg. Each container of P2 chemicals weighed 3.9 kg and came in a box of four weighing 15.6 kg. Containers of the chemicals were placed in a drawer at the bottom of the machine.

33 The duties of a photo laboratory technician at Kmart included loading paper into the magazine, putting the loaded magazine into the machine and replacing chemicals. The evidence was to the effect that on an average day paper would be loaded two or three times and chemicals replenished three or four times.

34 Dr Rosenthal's evidence as to the duties of a photo laboratory technician were based on his experience with suburban franchise operations. He said:

I'm familiar with those work duties because in the past I have been part of rehabilitating people with bad spinal injuries into that particular area. It has been suitable because it can be self-employed franchisee because there's these laboratories in most suburbs and they are fully automated. It was particularly suitable to rehabilitate people who would find it difficult - even though they had successfully completed work trials, there would be a problem placing them in the workforce because nobody would take a workers compensation risk assumption, so these people had a future as a self employed franchisee, and this was one of the areas that we have rehabilitated people into, so to answer your question I'm familiar with what's required. They are basically completely automated procedures. In a standard suburban processing laboratory the machine would be the width of this little desk that I'm sitting at. It would be fractionally higher. It would take a 150 metre paper roll and if it's a machine this size the roll of paper wouldn't be more than 4 kilograms for that particular size of machine. The chemicals for the machine come in five litre bottles for this type of automation. The physical requirements are quite minimal. It's certainly compatible with people with ongoing back and other types of muscular skeletal problems (ts 312).

35 There are material differences between the duties identified by Dr Rosenthal and the duties associated with the machines on which the respondent worked at Kmart. As is clear from the expert evidence set out in the reasons of Buss JA, the overwhelming weight of the expert evidence was that the respondent could not return to her employment as a photo laboratory technician at Kmart. However, Dr Rosenthal's evidence was not addressed to that issue but to the broader question of her capacity to work in a less demanding photographic environment. Dr Rosenthal's evidence on this subject was in effect uncontradicted and it was open to the trial judge to accept it. However, that opinion was qualified in a material respect. There was no prospect of the respondent being a self-employed franchisee of such a laboratory. She would have to find employment and Dr Rosenthal acknowledged there would be problems for the respondent in gaining employment as a result of her back injury. This is consistent with Professor Harper's evidence that the respondent's employability was reduced due to the negativity shown by employers to applicants with back injuries (ts 252). This factor must also be factored into the assessment of the extent of any contingency.

36 Even if the respondent succeeded in setting aside the trial judge's finding that the respondent had retained capacity to work as a photo laboratory technician that would not necessarily result in a material increase in the award of damages. Dr Rosenthal was of the opinion that the respondent had 50% retained capacity for work in a clerical position. Professor Harper was also of the opinion that the respondent had retained capacity to do clerical work albeit less than half time. The respondent had no relevant skills or experience in this area and an allowance would have to be made for retraining.

37 Grounds 7 and 8 challenge the discount for future economic loss. The respondent claims the discount should have been no greater than 10% or alternatively that the 31% discount for the possibility of improvement in her symptoms and general vicissitudes was outside a sound discretionary range.

38 I accept that a discount of 81% is manifestly excessive. The discount for retained working capacity of 50% has to be reduced because of the acknowledged difficulties that a person with known back problems has in obtaining employment. Further, although the weight of the expert evidence supported the possibility of improvement in the respondent's symptoms, that has to be considered against the backdrop of the significant period over which the respondent had experienced symptoms and her susceptibility to relapse. I would reduce the discount from 81% to 55% comprising 35% for retained work capacity, 15% for the possibility of improvement in her condition and 5% for general contingencies. The only challenge to the trial judge's calculation of future economic loss

relates to the extent of the discount. The reduction of the discount to 55% results in an award of $188,902 for future loss of earning capacity.

39 I would dismiss the appeal, uphold grounds 1, 2, 7 and 8 of the cross-appeal, set aside the awards made by the trial judge for past and future loss of earning capacity and in lieu thereof award the sum of $67,644 and $188,902 respectively. There will need to be consequential adjustments to the respondent's entitlement to interest and loss of future superannuation. The parties should confer and attempt to agree a minute of proposed orders giving effect to these reasons.

40 PULLIN JA: I have read the reasons of McLure JA and Buss JA. I agree with Buss JA that ground 1 of the appeal should be dismissed for the reasons he gives.

41 I agree that ground 2 of the appeal should be dismissed for the reasons given by McLure JA. It is true that the learned trial judge used language which, read alone, appears to be inconsistent with other parts of her judgment. The learned trial judge said at [58]:

In the circumstances that she faced as the full time carer for her children I am satisfied that it was that full time care that prevented her from returning to her duties as a photo lab technician.

Her Honour then awarded damages for past loss of earning capacity.

The learned trial judge erred in fact by allowing the respondent $67,246 damages for past loss of earning capacity as follows:

past loss of earning capacity $52,240

past loss of superannuation $4,033

interest on past loss of earning capacity $10,187

interest on past loss of superannuation $786

When:

2.1 although she found that the respondent's earning capacity had been diminished as a result of the accident (D16)

2.2 she also found that it was the full time care of her children (and not the accident) that prevented the respondent from returning to work as a photo lab technician (D17),

And the learned trial judge should have made no allowance for damages for past loss of earning capacity.

43 The reference in par 2.1 of the ground to D 16 was a reference to page 16 of the appeal book and is probably a reference to her Honour's finding at [48] which reads:

Given Dr Rosenthal's direct experience with the work of a photo lab assistant I accept his opinion that the plaintiff retains the capacity to undertake these duties at least on a half time basis.

However, at page 18 of the appeal book at [56] her Honour said:

This then is a case where the plaintiff's earning capacity has been diminished as a result of the accident.

44 The reference in par 2.2 of ground 2 is a reference to what her Honour said at [58] which reads:

In the circumstances that she faced as the full time carer for her children I am satisfied that it was that full time care that prevented her from returning to her duties as a photo lab technician.

45 However, like McLure JA and for the reasons given by her Honour, I have concluded that a reading of the learned trial judge's reasons as a whole allow the apparent inconsistency to be reconciled. Her Honour should be taken as meaning to say, at [58], that the child care duties prevented her returning to 'full time' duties. In other words, the respondent had until the trial lost her earning capacity due to the accident, but even if she had not suffered that loss, the care of her children would have kept her from working full time. The result was that her loss until trial had to be reduced accordingly. This reading of [58] is consistent with the trial judge's calculation of damages for past loss of earning capacity.

46 I agree with McLure JA's disposition of ground 3 of the appeal and the grounds of the cross-appeal for the reasons given by her Honour. I also agree that the parties should confer and attempt to agree a minute of proposed orders giving effect to the decision of this court.

47 BUSS JA: On 7 January 1999, the respondent was injured in a motor vehicle accident.

48 In 2003, the respondent commenced proceedings against the appellant in the District Court, claiming damages in respect of her injuries. The appellant admitted liability. Between 4 - 8 April 2005, there

was a trial before Yeats DCJ in relation to damages. Her Honour delivered judgment on 15 July 2005, and awarded the respondent $393,272, calculated as follows:

49 The appellant has appealed against the learned judge's award of damages for non-pecuniary loss, past loss of earning capacity (including past loss of superannuation and interest on the damages) and future loss of earning capacity (including future loss of superannuation).

50 The respondent has cross-appealed. In general, she attacks various findings of fact and the award of damages in relation to past and future loss of earning capacity.

The respondent's personal circumstances before the accident

51 The learned judge summarised the respondent's personal circumstances before the accident:

The plaintiff is 39 years of age. She was born in the United Kingdom on 27 September 1965 and emigrated to Australia after finishing school with an achievement certificate at age 16. She undertook two unskilled jobs for one year in Australia working as a kitchen hand at Graylands Hostel and as a teacher's aid at the Wanneroo Community School. Then she earned a certificate for caring for the elderly which involved practical work at St George's Nursing Home, at Balga Special School and at Sir David Brand Centre. After completing that certificate in 1984 she returned to the United Kingdom in 1985 on a one year working holiday when she worked in restaurants. Upon her return to Australia in 1986 the plaintiff worked as a despatch clerk at Aherns but did not enjoy that job because she was not in an environment with people.

In 1986 she joined Kmart where she started on the checkout counter but soon began working in the photo lab where she was trained on the job and obtained certificates of her qualifications as a photo lab technician beginning in 1992. Fourteen certificates (exhibit 1) were Kodak certificates. Two others recognised her five year and then in 1996, her 10 year service to Kmart. During her 10 years' employment the plaintiff gained the highest qualification as a specialist photo lab technician and was qualified as a trainer.

On 31 July 1996 the plaintiff resigned from Kmart (exhibit 10). She explained that she resigned in order to access her long service leave money, some $6,000, but, despite her resignation, she continued working part-time at Kmart in the same job as a photo lab technician. The plaintiff used her long service leave payment to pay for IVF treatment and she fell pregnant in July 1996. On 18 February 1997 the plaintiff signed a part-time contract for 20 hours work per week with Kmart (exhibit 11).

On 27 March 1997 the plaintiff gave birth to her twins, Jack and Libby. Libby was diagnosed with mild cerebral palsy. At the time the babies were born the plaintiff and her husband lived in Rockingham but they soon moved to Kingsley to be near the plaintiff's mother, Sylvia Betts. Mrs Betts was employed in two jobs but her hours were flexible and she was able to help her daughter with the twins. At the time the twins were born the plaintiff's husband's employment was in transition. By 1995 he had worked for Kmart for 20 years. He resigned from Kmart in 1996 and worked for one year as a store manager at Red Dot. In 1997 he bought a seafood franchise and worked at it for 12 months but that business did not produce enough income to support the family. During 1997 the family finances were very minimal and the plaintiff went back to work at Kmart on a part-time basis in December 1997. The plaintiff's husband changed jobs again in 1999. A week prior to the motor vehicle accident he started working for Perth Construction delivering building materials to sites. It was a very full-time job. He worked 12 hour days some times seven days a week.

The plaintiff worked part-time from December 1997 until the accident on 7 January 1999, a period of approximately 56 weeks [2] - [6].

The accident and the respondent's pain and symptoms at that time

52 The accident on 7 January 1999 involved a collision between a motor vehicle driven by the respondent and a vehicle driven by an unidentified person.

53 The respondent struck her right forehead on part of her motor vehicle. She was able to alight from the vehicle, however, without assistance. But about 30 minutes after the collision, the respondent experienced severe pain in her lower back (which she described as 'like a burning sensation'), and severe pain in the back of her neck and across her right shoulder. Also, she had a throbbing headache and was very nauseous.

The learned judge's findings in relation to the respondent's pain and symptoms as at the date of trial and the effect of the pain and symptoms on her life

54 The learned judge described the respondent's pain and symptoms as at the date of trial:

1. She suffers constant lower back pain 'like a toothache' a constant dull ache that radiates to different frequencies. At its worst she suffers spasm which causes numbness radiating from her right buttock to her right leg, numbing her right foot. The plaintiff takes Panadeine to cope with the pain and, when the pain is worse, she takes Tramal but the Tramal makes her feel quite nauseous and she tries to avoid taking it.
2. The plaintiff also suffers intermittent symptoms in her right leg and foot - about three times a week when she loses sensation and suffers numbness in her foot.
3. The plaintiff's neck and right arm pain are not as severe as her lower back pain but that pain is aggravated by a number of simple household chores [11].

55 The learned judge then described the effect of the respondent's pain and symptoms on her life:

The plaintiff's pain has had a devastating affect on every aspect of her life. When her lower back goes into spasm she is unable to get out of bed, unable to toilet or shower herself or dress herself. Her sexual relationship with her husband is greatly reduced. The pain tires her, makes her grumpy and not able to be the mother she tries to be with her children. Her right foot and leg problems interfere with her doing such a simple thing as going for a walk for fear of falling over or riding a push bike for fear of falling off. Even walking the dog is not possible for fear he will pull her the wrong way and aggravate her back pain. Chopping vegetables, sewing and sitting at the computer doing email all aggravate her shoulder and neck [12].

56 Numerous medical practitioners and other health professionals gave evidence at the trial. They comprised Dr Minsker (the respondent's general medical practitioner), Professor Mastaglia (a consultant neurologist), Dr Salmon (a specialist in pain medicine), Ms Martin (a physiotherapist), Professor Harper (an occupational physician), Mr Semmens (a clinical psychologist), Mr Anastas (an orthopaedic surgeon) and Dr Rosenthal (a practitioner in rehabilitation medicine). The non-expert witnesses were the respondent, Mr Mirco (the store manager of Kmart Joondalup), Ms Elbrow (an employee with the Cerebral Palsy Association), Mr Weatherall (the respondent's husband), Ms Betts (the respondent's mother) and Ms Pennefather (a claims officer employed by the appellant).

The learned judge's findings in relation to the medical evidence

57 The learned judge noted, at [47], that the opinions of Professor Harper and Dr Rosenthal 'directly conflict with each other'. Her Honour added:

Professor Harper's opinion was that the plaintiff would never be able to return to her duties as a photo lab assistant. To the contrary, Dr Rosenthal believed the plaintiff had the capacity to work at least half time as a photo laboratory technician. And he believed her capacity to work in this job would increase as her fitness increased. While Professor Harper's opinion was based on what he 'understood' were the plaintiff's duties, Dr Rosenthal was quite familiar with the duties of a photo lab technician and had rehabilitated people with serious spinal injuries into this employment. He considered the duties of a photo lab technician to be appropriate for this plaintiff's injuries [47].

58 The learned judge accepted, at [48], Dr Rosenthal's opinion that the respondent retained the capacity to undertake her duties as a photo laboratory assistant 'at least on a half-time basis'. Her Honour based her acceptance of Dr Rosenthal's opinion on his 'direct experience with the work of a photo lab assistant'. Her Honour rejected Professor Harper's opinion on the ground that he had 'no actual experience of the duties of a photo lab technician'. Her Honour referred to Professor Harper's evidence (at ts 252):

Firstly, it's a job standing and it's a job standing at a machine and it requires prolonged standing. It's a job which requires a certain amount of lifting and bending. The paper rolls have to be lifted and fitted into the machine, chemicals have to be carried, lifted and put into the machine so it is a static job generally but it does require significant lifting in terms of the heavy paper roll and also going to get those paper rolls and carrying them to the work station [48].

That description by Professor Harper of the duties of a photo lab technician is not supported by the evidence. The plaintiff's evidence showed that neither prolonged standing nor prolonged sitting was required. It is now established that the paper rolls were not heavy and weighed only 6.95 kilograms and not 16 kilograms. The chemicals weighed much less than the weights suggested to Professor Harper. This is a case where the failure of the plaintiff's solicitors to prove the facts about the duties of a photo lab technician renders Professor Harper's expert opinion inadmissible because it is not based on any proven facts (Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642 at 649) [49].

59 Counsel for the respondent submitted to the learned judge that she should not rely on Dr Rosenthal's opinion in that he is not a fellow of any specialist college in Australia. Her Honour accepted that Dr Rosenthal's qualifications were different from those of Professor Harper and that 'at one level' Professor Harper is better qualified than Dr Rosenthal. However, her Honour decided that, in the present case:

Dr Rosenthal has a qualification totally lacking by Professor Harper, ie., direct experience with the operation of a photo lab and the use of a position as a photo lab technology in the rehabilitation of patients with back injuries. In the circumstances of this case Dr Rosenthal is more highly qualified than is Professor Harper [54].

60 The learned judge said, at [55], that there was support for Dr Rosenthal's opinion in the evidence of Dr Salmon and Mr Anastas. Her Honour added, however, that she did not accept Mr Anastas' opinions about the respondent (in particular, that she merely suffered a simple soft tissue injury with no neurological impingement) and preferred Professor Mastaglia's opinion that the respondent had S1 nerve root compression.

61 The learned judge found, at [79], in reliance on Professor Mastaglia's evidence, that the respondent's low back injury 'caused a protrusion of the L5/S1 disc with evidence of S1 nerve root compression'.

62 Although the learned judge accepted Professor Mastaglia's evidence that the respondent suffered from S1 nerve root compression, her Honour did not refer to the Professor's evidence in relation to the respondent's capacity to resume her pre-accident employment. Similarly, although her Honour noted Dr Salmon's opinion that the respondent's condition would improve gradually, she did not refer to his evidence as to the respondent's capacity to return to work as a photo laboratory technician. Also, her Honour did not mention the evidence of Dr Minsker on this issue.

The learned judge's findings in relation to loss of earning capacity generally

63 The learned judge said, at [56], that the respondent's earning capacity had been 'diminished' as a result of the accident.

64 The learned judge mentioned, at [57], that the respondent had not adduced any evidence that, after the accident, she had actively sought any employment outside the home. Her Honour noted, also at [57], the respondent's admission in cross-examination that, after the accident, she had never attempted to return to work as a photo laboratory technician and had never enquired of Kmart what support (if any) they would give her, in relation to her injuries, if she endeavoured to resume employment.

65 The learned judge referred, at [58], to the respondent's role as 'the full-time carer for her children', and then said:

I am satisfied that it was that full-time care that prevented her from returning to her duties as a photo lab technician [58].

Her Honour added that the respondent 'admitted as much' in a conversation with Ms Pennefather before the District Court proceedings were commenced.

66 The learned judge referred, at [59], to Mr Mirco's evidence and found that although the respondent declined an offer by Mr Mirco, made in September 2003, of a full-time position as a photo laboratory technician at Kmart Joondalup, there was no evidence that she had ever applied to return to part-time work at Kmart.

67 The learned judge then noted, at [60], Professor Harper's evidence that the respondent's injuries had affected her 'employability'; that is, she would not be able to compete in the open workforce once prospective employers became aware of her injuries and the persistence of her symptoms. Her Honour found, however, that:

[I]t does not seem to me that that factor directly applies in a case where the plaintiff was highly skilled as a photo lab technician, had work experience part-time as a photo lab technician and yet never sought part-time employment with her former employer [60].

68 The learned judge set out the following findings:

Taking account of all of this evidence I am satisfied that the plaintiff did lose her pre-accident earning capacity. Her earning capacity was diminished by the accident. She has not shown that she has been unable to find alternative employment. Nor am I satisfied that her condition prevented her from working part time as a photo lab technician. For these reasons the evidential burden has not shifted to the defendant (Thomas v O'Shea [(1989) A Tort Rep 80-251]; Lucky Import & Export Co [TA v Lucky Import & Export Co Pty Ltd [2002] WASCA 65] case) [61].

69 The learned judge referred, at [64], to the respondent's 'retained earning capacity'. Her Honour then considered the appellant's contention that the respondent's duties as the primary carer for her twins left her with 'virtually no exercisable earning capacity'. After reviewing some evidence, her Honour made these observations and findings:

The twins commenced school in February 2002 and the plaintiff gave evidence she had always intended to work full time when the twins went to school. Her work would have been interrupted in any event by Jack's illness in 2003. From that time the care regime for the twins - Libby with mild cerebral palsy and Jack with learning disabilities - was extensive and would continue to be extensive at least until the twins were about 13 years old in 2010. Even if she had not been injured I am satisfied the plaintiff's earning capacity was not fully exercisable during the period from the birth of her twins until they reach 13 years of age because of the extensive care regime she had had to undertake [66].

70 The learned judge made further findings as to the extent to which the respondent would have exercised her earning capacity if she had not been injured in the accident, and as to the extent to which she had suffered a loss of earning capacity (which was productive of financial loss) as a result of her injuries:

I am satisfied based on the evidence of the extensive duties the plaintiff undertook as primary carer for her two children that even if she had not been injured, there was no chance of her working full time before the twins reach the age of 13 in 2010. If the plaintiff had not been injured in the motor vehicle accident I believe there is a 90 per cent chance she would have continued to work part time until the twins commenced school in 2002. But I must bear in mind that during 2003 Jack was severely ill. That is an historical fact that has been established. The plaintiff would not have been able to work at all for the two months she and her husband lived near PMH to be near Jack. And because of Jack's extra needs as he recovered from his illness I believe there was only a 50 per cent chance that the plaintiff would have returned to work at all that year.

From 2004 to 2010 when the twins will be 13 years of age if the plaintiff had not been injured I am satisfied there was a 90 per cent chance she would have worked half time.

These findings mean that even if the plaintiff had not been injured in the motor vehicle accident she was unlikely to have fully exercised her earning capacity because of her maternal duties. But the effect of the motor vehicle accident has been to stop her from working at all. In these circumstances I will assess damages for loss of earning capacity based on the loss of the exercisable earning capacity she retained after the birth of the twins. That is the loss of earning capacity she has suffered that has been productive of financial loss (Graham v Baker [(1961) [1961] HCA 48; 106 CLR 340]) [70] - [72].

The learned judge's calculation of past loss of earning capacity

71 The learned judge calculated the award for past loss of earning capacity as follows:

When the plaintiff worked part-time for Kmart after the birth of her twins she was earning $14.28 gross per hour. As she earned less than $3,000 during financial year 1998 and financial year 1999, gross and net figures are pretty irrelevant as she would have paid no tax. In assessing her loss of earning capacity from the date of the accident 7 January 1999 until the twins commenced school in February 2002, a figure of $15 per hour seems to me a fair assessment. That was a period of three years and four weeks equals 160 weeks. The plaintiff worked very few hours prior to the accident and I doubt if those hours would have substantially increased until the twins commenced school. I am prepared to allow for eight hours work per work during this period. That is more than she was working prior to the motor vehicle accident, but I accept that her hours would have gradually increased. She would therefore have earned an average of $120 per week for the 160 weeks equals $19,200 for that period.

During the first year the twins were at school (2002) I accept there was a 90 per cent chance she would have worked half time (20 per week) earning about $300 per week gross, or say $260 per week net. That would amount to $260 x 52 x .9 = $12,168 compensation for 2002.

During 2003 when Jack was so ill in July I am satisfied she would not have worked at all for two months, and there was only a 50 per cent chance that the plaintiff would have worked half time from September 2003 to December 2003. For the first six months of 2003 I award $260 x 26 x .9 = $6,084, and for the last four months I award $260 x 18 x .5 = $2,340. Total compensation for 2003 is $8,424.

From 2004 to July 2005, a period of 78 weeks, I award $260 x 78 x .9 = $18,252. Total past loss of earning capacity is assessed at $58,044. The plaintiff concedes this should be discounted for contingencies of 10 per cent = $52,240.

The plaintiff should also be compensated for loss of superannuation calculated as 9% of her gross past earnings = $5,762 less 30 per cent (Jongen v CSR Ltd (1992) A Tort Rep 81 - 192) = $4,033.

Interest of six per cent on past loss of earning capacity for 6.5 years = $52,240 x .03 x 6.5 = $10,187. Interest of past loss of superannuation = $4,033 x .03 x 6.5 = $786 [73] - [78].

The learned judge's calculation of future loss of earning capacity

72 The respondent's case was that she would never recover from her injuries.

73 The learned judge held, however, at [79], that the respondent's prognosis was not 'entirely negative'. Her Honour noted that Dr Salmon expected a gradual improvement over time, and that Dr Rosenthal expected her capacity to work as a photo laboratory technician would progressively increase as her fitness increased. Her Honour also said that Dr Salmon's treatments had provided the respondent with considerable periods of relief from her pain, and that she had experienced relief by using the relaxation techniques taught by Mr Semmens and by strengthening her muscles in accordance with the exercise programme formulated by Ms Martin.

The care she must provide for Libby until she is full grown in 2010 at age 13, and the special care she must continue to give to Jack satisfy me that even if she had not been injured she would not have worked more than half time during the period July 2005 until July 2010 when the twins would have turned 13 years of age. These factors leave considerable uncertainty in calculating future loss of earning capacity.

Based on a 50 per cent retained earning capacity, the plaintiff's loss of $260 net per week for 26 years (multiplier 698.6) = $181,636. That figure needs to be reduced by a further 25 per cent to take account of what I expect to be an increase in the plaintiff's earning capacity as her condition improves. That figure should then be discounted for the usual contingencies as the plaintiff's suggest [sic] of six per cent. Therefore I calculate future loss of earning capacity as $181,636 less 31 per cent = $125,329. In addition she is entitled to a loss of future superannuation calculated at $300 gross per week x 698.6 less 31 per cent x .09 = $13,015 less the Jongen discount of 30 per cent = $9,110 [80] - [81].

The learned judge's findings and award in relation to general damages

75 The learned judge made findings in the course of determining the award that should be made for the respondent's non-pecuniary loss:

The plaintiff has suffered an extremely painful injury. Coming as it did when her twins were not yet two years of age, the effects of her injury have had a severe impact on her ability to be the kind of wife and mother she had set out to be. She is clearly a very devoted and good mother who finds that her ongoing severe back pain has interfered with every aspect of her life during the time she was already under pressure as the primary carer for her twins. Her pain continues even now at trial, although she has had some relief since Dr Salmon began his treatments in 2002, some three years after the accident at around the time a coughing fit had led to extreme pain and a week's total disability.

The pain arising from her injuries interferes with and limits every aspect of her life. Her sex life is limited. Her ability to clean and to do laundry for her family is limited. She has had to depend on others to do the things she would have done herself.

There is no doubt in my mind that she suffered considerable pain looking after her twins. As the primary carer, I have no doubt things had to be done and she did them despite the pain. That would particularly apply to the rigorous regime she has to undertake for Libby's care during all of the years until Libby reaches full growth.

Everyone who gave evidence about the plaintiff on a personal basis described her as a bubbly and effervescence [sic] personality with lots of energy, who managed her twins, her household and some part-time employment prior to the accident. Much of that has now been taken from her by the motor vehicle accident and the ongoing pain she has suffered. She can no longer even go for a walk, ride a push bike or walk the dog because of her fear of aggravating her back and experiencing excruciating pain [96] - [99].

76 The learned judge then referred to s 3C of the Motor Vehicle (Third Party Insurance) Act 1943 (WA). Her Honour concluded, at [103], that 'because of the severe pain suffered by [the respondent] and the effect it has had on all aspects of her life ... this case is 35% of a most extreme case', for the purposes of s 3C. Her Honour therefore awarded the respondent $93,800 in general damages for non-pecuniary loss.

1. The learned trial judge erred in law by allowing the respondent $93,800 damages, being 35% of the maximum amount that may be awarded for non pecuniary loss, as this amount was excessive and outside the range of her discretion ...
2. The learned trial judge erred in fact by allowing the respondent $67,246 damages for past loss of earning capacity as follows:

past loss of earning capacity $52,240

past loss of superannuation $4,033

interest on past loss of earning capacity $10,187

interest on past loss of superannuation $786

when:

2.1 although she found that the respondent's earning capacity had been diminished as a result of the accident ...

2.2 she also found that it was the full time care of her children (and not the accident) that prevented the respondent from returning to work as a photo lab technician ... ,

and the learned trial judge should have made no allowance for damages for past loss of earning capacity.

1. The learned trial judge erred in fact by allowing the respondent $134,439 for future loss of earning capacity as follows:

future loss of earning capacity $125,329

future loss of superannuation $9,110

when she found that:

3.1 the respondent commenced working part time when she commenced having a family ... ;

3.2 the respondent did not lose her capacity to work part time ... ;

3.3 it was the full time care of her children (and not the accident) that prevented the respondent from returning to work as a photo lab technician ... ;

3.4 the respondent's prognosis was not entirely negative ... ,

and the learned trial judge should have made no allowance or alternatively a modest global allowance for damages for the risk that in the future the respondent's loss of earning capacity may continue and may be productive of financial loss.

78 The respondent's grounds of cross-appeal read, without supporting particulars:

1. The learned trial Judge erred in law in adjusting the Respondent's (Plaintiff's) award of damages for Past Economic Loss for contingencies more than once or at all and in any event adopted a wholly erroneous approach to the issue of contingencies.

1. The learned trial Judge erred in fact and law in using 8 hours per week as the starting point for the calculation of the Respondent's past economic loss from 7 January 1999 to February 2002.

1. The learned trial Judge erred in fact and in law in accepting the evidence of Dr John Rosenthal in relation to the duties or occupational requirements of a photo-lab technician as the basis of her Honour's finding that the Respondent was fit or able to return to work at her pre-accident employment.

1. The learned trial Judge erred in concluding (at Reasons [54] and [47]) that Dr Harper was totally lacking in direct experience with the operation of a photo lab as opposed to Dr Rosenthal and that Dr Harper's evidence was inadmissible on the basis of Pollock v Wellington (1996) 15 WAR 1.

1. The learned trial Judge erred in holding that an evidentiary burden was not cast upon the Defendant to show what alternative employment opportunities were open to the Respondent, including the state of the labour market and likely earnings.

1. The learned trial Judge erred in fact and in law in concluding that the care of the Respondent's children (at Reasons [58], [65], [66], [72] and [80]) prevented her from returning to employment as a photo-lab technician. Her Honour's finding in this regard was wholly erroneous or against the weight of evidence.

1. The learned trial Judge erred in law in finding that [the] Respondent had a retained earning capacity of 50% (at Reasons [81]).
2. The learned trial Judge erred in law in effectively discounting the Respondent's claim for Future Economic loss and future loss of superannuation by 31% for contingencies (at Reasons [81]).

1. The learned trial Judge erred in law and fact in finding that the Respondent retained the capacity to work as a photo-lab technician (at Reasons [47] - [48]).

The critical issues in the appeal and the cross-appeal

79 The issues in the appeal and the cross-appeal were refined, to some extent, in the course of oral submissions before this court. The critical issues are these:

(a) Did the learned judge calculate the respondent's past and future loss of earning capacity on a basis which was irreconcilably inconsistent with findings her Honour made elsewhere in her reasons as to the nature and extent of the earning capacity which the respondent had and would have exercised if she had not been injured in the accident?

(b) If there are irreconcilable inconsistencies in the learned judge's reasons which require the setting aside of findings or calculations made by her Honour, is this court able to make its own findings and calculations on the record or is it necessary to order a re-trial?

(c) If there are irreconcilable inconsistencies in the learned judge's reasons which require the setting aside of findings or calculations made by her Honour, and this court is able to make its own findings and calculations on the record, what findings and calculations should be made?

(d) In any event, is there any merit in any of the grounds of the appeal or the cross-appeal?

There is significant overlap between the issues I have identified at pars (a), (b) and (c) above on the one hand and the grounds of the appeal and the cross-appeal (as developed in oral submissions) on the other. I turn now to the first of the critical issues.

Did the learned judge calculate the respondent's past and future loss of earning capacity on a basis which was irreconcilably inconsistent with findings her Honour made elsewhere in her reasons as to the nature and extent of the earning capacity which the respondent had and would have exercised if she had not been injured in the accident?

80 The learned judge's findings in relation to the respondent's loss of earning capacity may be summarised, as follows:

(a) The respondent retained the capacity to work as a photo laboratory technician 'at least on a half-time basis'. See [48]. In his report dated 5 September 2002, Dr Rosenthal expressed the opinion that the respondent had 'a present capacity to work half-time as a photo laboratory technician'. It is apparent, from her Honour's acceptance, at [48], of Dr Rosenthal's opinion in relation to the respondent's retained earning capacity, that her Honour found, implicitly, at [48], that the respondent's capacity to work as a photo laboratory technician, at least on a half-time basis, had existed since 5 September 2002.

(b) The respondent's earning capacity was reduced as a result of the accident. See [56].

(c) The respondent's role as the full-time carer of her children prevented her from returning to 'her duties as a photo laboratory technician'. See [58].

(d) Even if she had not been injured in the accident:

(i) the respondent's earning capacity would not have been fully exercisable during the period from March 1997 (when the twins were born) to 2010 (when the twins would be aged 13) 'because of the extensive care regime she had had to undertake' with them. See [66].

(ii) the respondent did not have any prospect of working full-time before 2010. See [70].

(iii) there was only a 90% chance that the respondent would have continued to work on a part-time basis before February 2002 (when the twins commenced school). See [70].

(iv) there was only a 50% chance that the respondent would have returned to work at all during 2003 because of the severe illness suffered by her son, Jack. See [70].

(v) there was only a 90% chance that the respondent would have worked half-time during the period from 2004 to 2010. See [71].

(e) (i) Even if she had not been injured in the accident, the respondent was unlikely to have fully exercised her earning capacity because of her maternal duties. See [72].

(ii) The effect of the injuries which the respondent suffered in the accident was to preclude her from working at all. See [72].

(iii) In the circumstances, damages for loss of earning capacity should be assessed based on the loss of the exercisable earning capacity which the respondent retained after the birth of the twins. That loss of exercisable earning capacity was productive of financial loss. See [72].

81 The learned judge's approach to the assessment of past loss of earning capacity was as follows:

(a) During the period from 7 January 1999 (the date of the accident) to February 2002 (when the twins commenced school), the respondent would have worked eight hours per week, if she had not been injured in the accident. See [73].

(b) In 2002, there was a 90% chance that the respondent would have worked half-time (that is, 20 hours per week), if she had not been injured in the accident. See [74].

(c) During 2003, there was a 90% chance that the respondent would have worked part-time between January and June (inclusive), in July and August she would not have worked at all (as a result of Jack's illness), and there was a 50% chance that she would have worked half-time between September and December (inclusive), if she had not been injured in the accident. See [75].

(d) During the period from January 2004 to July 2005 (the date of judgment), there was a 90% chance that the respondent would have worked half-time, if she had not been injured in the accident. See [76].

Her Honour then discounted (and the respondent conceded that she should discount) the total award for past loss of earning capacity by 10% for contingencies. See [76].

82 The learned judge's approach to the assessment of future loss of earning capacity was as follows:

(a) During the period from July 2005 (the date of judgment) to July 2010 (when the twins would be aged 13), the respondent would not have worked more than half-time, even if she had not been injured in the accident. See [80].

(b) Her Honour calculated the respondent's future loss of earning capacity in respect of the 26 year period from July 2005 (the date of judgment) to July 2031 (when the respondent would be aged 65). Her Honour made an initial calculation of the respondent's loss in respect of that period based on her having a 50% retained earning capacity, and having lost 50% of her full earning capacity as a result of her injuries in the accident. Her Honour then reduced the amount of the initial calculation by a total of 31%: 25% to take account of her expectation that the respondent's earning capacity would increase (from a 50% retained earning capacity) as her condition improved and 6% for 'the usual contingencies'.

(c) In the result, her Honour calculated that the respondent's future loss of earning capacity over the 26 year period was an amount representing 50% of the full earning capacity she had before the accident, less 31% of that amount.

83 In my opinion, there are, with respect, several inconsistencies in the learned judge's reasoning and conclusions, as follows:

(i) (based on Dr Rosenthal's evidence) the respondent retained the capacity to work as a photo laboratory technician, at least on a half-time basis (see [48]); and

(i) the respondent's earning capacity had been reduced as a result of the accident (see [56]),

her Honour also found that the effect of the injuries which the respondent suffered in the accident was to preclude her from working at all (see [72]).

(b) Although the learned judge found (based on Dr Rosenthal's evidence) that the respondent retained the capacity to work as a photo laboratory technician, at least on a half-time basis, between 5 September 2002 and July 2005 (the date of judgment) (see [48] of her Honour's reasons and [58] and [80(a)] above), but that her role as the full-time carer of her children prevented her from returning to work (see [58]), her Honour then proceeded to assess and award the respondent damages for past loss of earning capacity on the basis of other findings (at [73] - [76]) that she would have worked part-time or half-time as a photo laboratory technician if she had not been injured in the accident.

(c) Although the learned judge found (based on Dr Rosenthal's evidence) that the respondent retained the capacity to work as a photo laboratory technician, at least on a half-time basis, between 5 September 2002 and July 2005, and that the respondent did not in fact work outside the home and did not give any evidence of actively seeking any such work during, relevantly, that period (see [57]), her Honour nevertheless assessed and awarded the respondent damages for past loss of earning capacity between, relevantly, 5 September 2002 and July 2005 calculated by reference to her loss of the capacity to work on a half-time basis (see [74] - [76]).

(d) Although the learned judge found (based on Dr Rosenthal's evidence) that the respondent retained the capacity to work as a photo laboratory technician, at least on a half-time basis, and that during the period from July 2005 to July 2010 (when the twins would be aged 13) the respondent would not have worked more than half-time, even if she had not been injured in the accident (see [80]), her Honour then proceeded to assess and award the respondent damages for future loss of earning capacity between, relevantly, July 2005 and July 2010 on the basis of the respondent having a 50% retained earning capacity and having lost 50% of her full earning capacity as a result of her injuries in the accident (see [81]), before discounting the initial calculation to take account of her Honour's expectation that the respondent's earning capacity would increase as her condition improved, and for the usual contingencies.

84 Plainly, a judge is not entitled to award a plaintiff compensation for loss of earning capacity in respect of a period in which the judge has found that the plaintiff had the capacity to work, but did not exercise that capacity. Similarly, a judge is not entitled to award a plaintiff compensation for loss of earning capacity in respect of a period in which the judge has found that the plaintiff would not have exercised the capacity if he or she had not been injured.

85 I am satisfied that the inconsistencies which I have described are irreconcilable and that, as a result, the learned judge's award of damages for past and future loss of earning capacity, and her Honour's findings of fact in relation to the respondent's physical capacity for work after the accident and the effect of her family commitments on her exercisable earning capacity, should be set aside.

86 Unfortunately, the character of the challenges to the learned judge's findings of fact, reasoning and conclusions makes it necessary to examine, at some length, the evidence at the trial, before turning to the other critical issues I have identified at [79] above.

Respondent's evidence as to her work duties and capacity

87 The respondent described the training and certificates she received to be a Kmart photo laboratory technician. By 1996, the respondent was the most qualified person in the photo laboratory. (ts 79 - 82)

88 The respondent described her daily duties as starting the machines in the morning to get the chemicals to the correct temperature, and loading rolls of paper, if necessary. Loading rolls of paper involved lifting a metal magazine, putting in on a bench, and placing it into a black bag. A roll of paper is also put into the black bag, and placed onto a shaft in the magazine. She would then install the magazine into the machine, which was sometimes at waist height and sometimes at head height, depending on the type of machine. The respondent worked on three types of machines, each of which had to be loaded differently. After the chemicals were at the correct temperature, the respondent would carry out checks on the machine, and commence processing customers' films, which involved 'a lot of bending and standing and like repetitive work'. She would process the negatives then go to the printing machine to print the photographs, check their quality after printing, then pack up and file the order. The respondent said her duties also involved replenishing chemicals when they ran out, and taking delivery of stock which had to be put away relatively quickly in the back storeroom, storing the chemicals on a lower shelf and the paper on a higher shelf. The respondent said these duties started first thing in the morning and continued to the end of the day, and that it was a 'repetitive process'. (ts 18 - 20, 85)

89 The respondent said that, on an average day in the store, she would load about two to three rolls of paper, depending on how busy it was, and replenish the chemicals about three to four times a day. The paper and the chemicals would require replenishment at different times. She estimated the heaviest container of chemicals to be about 10 to 15 kg, explained that the chemicals are in two different containers, and said that the weight depended on which chemical was being mixed. As the chemicals and paper rolls were in the back storeroom, the respondent (and other employees) would use a pallet lifter or a trolley to bring them to the photo laboratory. She said the stores she worked in were quite busy, especially at Christmas time, when the workload of changing the paper rolls and chemicals would increase. (ts 20, 85)

90 Other aspects of the respondent's job were attending to customers, resolving staff problems and, if it was not busy in the photo laboratory, helping on the shop floor. She would not ask another employee to load rolls of paper or chemicals for her. (ts 20 - 21, 82) Towards the end of 1996, there would usually be two other people, in addition to the respondent, working at the same time in the photo laboratory. The respondent agreed that the task of changing the paper rolls would be shared between her and the other two employees in the photo laboratory, but later qualified that statement by saying that there were not always three people in the photo laboratory at any given time. (ts 86, 121) Despite her qualifications, the respondent said that she did not delegate work, for example, if the paper roll had finished in the machine she was working on, she would replace the paper roll herself. The respondent said that her job did not involve merely sitting in one spot, and agreed that there was a lot of movement, including walking and lifting. (ts 83 - 84)

91 As to her working hours, the respondent said that she worked full-time at Kmart as a photo laboratory technician until 31 July 1996, when she resigned in order to obtain her long service entitlement money to pay for IVF treatment, and started working part-time at Kmart. The respondent worked about five hours a day, five days a week, amounting to about 25 rostered hours a week, and would work longer if necessary. (ts 23, 60 - 62) She signed a part-time employment contract with Kmart dated 23 September 1996, which stated that her average contracted hours would be 32 hours per week. The respondent signed a further part-time contract on 18 February 1997, which stipulated that her average contracted hours would be 20 hours per week. Counsel for the appellant at trial disputed the validity of the earlier contract, pointing out that there was a red line striking through it. (ts 66 - 67, 111 - 112) She continued working part-time until 26 February 1997, about a month before the birth of the twins. The respondent returned to work in December 1997, initially one night (four hours) a week, then two days (eight hours) a week, then three days (12 hours) a week. She continued to work three days a week until the accident in January 1999. (ts 24, 60 - 62)

92 Before the accident, the respondent had intended to work full-time. She acknowledged that she had family commitments, but said that that was not a problem because her mother and husband could help her. Her mother was living in a granny flat at the rear of their property in Wanneroo. The respondent said that she returned to work after the birth for financial reasons and 'for my own sanity'. She had not resumed work since the accident and felt very frustrated, angry and depressed that she could not work full-time. In 2003, the respondent had a conversation with Mr Mirco, the store manager of Kmart Joondalup with whom she had worked in Rockingham, in which he offered her a full-time position, but the respondent said she was 'so sad' that she could not take it because of her injuries. The respondent said her children started school in 2002, which, but for the accident, would have enabled her to work full-time, and also to work flexible hours, if necessary, because her mother was willing to give up one of her part-time jobs to help the respondent. In 2003, the respondent lived in Ridgewood and her mother lived in a house behind the respondent's house. (ts 24 - 26)

93 The respondent did not recall any doctors asking her in detail about her duties in the photo laboratory, except for Dr Anastas, who asked her once. She did not recall telling any of the doctors about the weights of the paper rolls or chemicals. (ts 86, 121)

94 The respondent said that she would have returned to work if it was not for her injuries. She said the bending and stretching would result in 'really bad pain' for her. (ts 122)

95 As to Dr Salmon's report of 21 July 2003, which recorded the respondent's prognosis as relatively good and a likelihood of a gradual reduction in her symptoms and increasing activity capacity over time, the respondent said Dr Salmon told her that he did not have a crystal ball and could not tell her what her long term future would be. The respondent would not say she was not improving, but asserted that her pain was constant, like a dull ache that would not go away, and that certain activities she did made the pain increase in severity. (ts 94, 125)

Respondent's evidence as to the care of her children

96 As to the twin with cerebral palsy (Libby), the respondent would carry out physiotherapy on her for 5 to 10 minutes a day, occupational therapy on her for half an hour to an hour a day, and make frequent visits to the hospital. Libby had botox injections every six months in her calf and thigh, and the respondent fitted a splint on Libby's left foot every morning. (ts 39 - 41, 73 - 75) The respondent would take Libby to the physiotherapist (or sometimes the physiotherapist would come to the house) and the occupational therapist about once a week in the early stages. After Libby was 5 years old, they would go to the physiotherapist about once every two to three weeks, and see the occupational therapist about once a month. The respondent would take the other twin, Jack (before he suffered from meningitis in July 2003), who had been diagnosed as hyperactive, to a medical practitioner about once every two to three months and, for a period of time, to a social worker about once a week. When Jack was about 4 or 5 years old, he stopped seeing the social worker. In July 2003, Jack contracted viral meningitis, was in a coma for a week, and, as a result, suffered from a learning deficit. The respondent took him to a speech therapist about once a week. (ts 76 - 79) She also went to Jack's school one day a week, for a couple of weeks, for about half an hour to an hour, to help him. (ts 94) At the time of the trial, Libby was seeing a paediatrician about every six months and an orthopaedic surgeon about once a year. (ts 120)

97 After the accident, which occurred when the twins were almost two years old, the respondent was unable to carry out Libby's physiotherapy, occupational therapy and general care, to the same extent. The respondent was also often unable to care for Jack, as she 'couldn't even care for myself sometimes'. She obtained help in July 2003 from the Cerebral Palsy Association, which involved a carer attending her home once a week for a couple of hours to help with general duties relating to Libby, perform household chores and sometimes cook a meal. (ts 41, 119 - 120) The respondent denied that she had some physiotherapy sessions at home because of her child care responsibilities. She agreed that she was the primary carer of the children, but said her mother and husband shared that duty. She disagreed that caring for the twins since her accident was a 'far heavier job' or at least equivalent to working as a photo laboratory technician, because she had assistance from her mother and husband. (ts 88 - 90) She further denied that her family commitments made it difficult for her to obtain or invest time in the necessary medical treatment. (ts 92) The respondent disagreed that she generally had trouble keeping up with her exercises and self-help regime because of the demands of her family commitments. (ts 95) She strongly refuted the proposition that, despite the injury, because of her commitments with the children, she would not, in any event, have been able to work full-time or even part-time. She asserted that she would have been able to return to work with the assistance of her family. (ts 98)

98 The respondent agreed that she could attend a particular gymnasium because of the childcare facilities for her children, but later qualified that statement by saying that the fact that the gymnasium had such facilities was 'a plus', but was not the reason she went there. The respondent had other means for looking after the children, for example, through her friends. She went to that gymnasium because it was quieter than others. (ts 122)

Respondent's evidence as to the effect of the accident on her daily life

99 After the accident, the respondent experienced constant lower back pain and, to a lesser extent, neck pain. She took pain killers regularly. The respondent said that when her back pain was severe, she was unable to get out of bed on her own, unable to use the toilet or shower herself properly, needed assistance putting on her clothes, and home chores did not get done. The pain affected her mood with her husband and children, her sexual activity, her sporting activities, and her social activities with friends and at her children's school. She no longer rode her bicycle or took the dog for walks. Chopping vegetables, sewing or writing emails would aggravate her shoulder and neck. She could not sit at the computer for longer than an hour. (ts 28 - 31)

100 The respondent had trouble sleeping through the night due to her back pain. As to household chores, she did some vacuuming (her husband or mother did the other chores about once a week), she would hang the washing on the line (her husband or mother would sometimes have to take it down), her husband cleaned the shower and the toilet, and her mother changed the bed sheets. Before the accident she helped her husband in the garden, but was no longer able to do so. The respondent cooked, although her husband sometimes had to do this work. The respondent did all these chores before the accident.

101 As a result of her back pain, the respondent was slightly restricted as to the type of clothing and shoes she could wear, and also had to adapt to certain methods of washing and showering herself. The respondent still did the food shopping about twice a week, but her children helped her by pushing the trolley and retrieving items. Her mother, husband or a friend would accompany her on large shopping trips, every two or three weeks. The respondent said that her friends also often helped her with domestic duties. (ts 43 - 50)

102 At the time of the trial, Mr Mirco was the store manager of Kmart Joondalup. The respondent had worked for Mr Mirco at Kmart Rockingham in about 1996 or 1997. (ts 185)

103 Mr Mirco wrote a letter to the respondent's solicitors on 31 December 2003, in response to a letter from them requesting information on the respondent and her future employment prospects at Kmart Joondalup. In the letter, Mr Mirco noted, relevantly, his offer to the respondent of full-time work in a photo laboratory at the Joondalup store in September 2003, and said that based on the respondent's previous experience in the role, and providing there was not a more suitable applicant, the respondent would probably have been successful in her application. (ts 186)

104 Mr Mirco said that at the time of the trial, at his store, there was only one operator of the photo laboratory machine, and one customer service employee. Processing the film involved the operator feeding the negatives into the machine, loading the machine with paper, and checking and changing the chemicals in the machine. The customer service employee would serve customers. As to loading the paper and chemicals, Mr Mirco said that they would possibly use two rolls of paper in a day, and sometimes four rolls if it was, for example, after a long weekend. Mr Mirco estimated the distance between the room where the paper and chemicals were stored, and the photo laboratory, to be about 100 m. He said that a roll of paper weighs 6.64 kg and came in boxes of three rolls about three years ago, but now came in single rolls. He described the P1 chemical container as weighing 10 kg and the P2 chemical container as weighing 13 kg (but he could not remember if the chemicals came in boxes of multiples (ts 194)). Mr Mirco said the chemical containers were replenished once a day, every day, in the morning. The paper and chemicals were stored on a high shelf and one needed to use a 'safety stepper' and reach up to retrieve and put them on a trolley to bring to the photo laboratory. (ts 186 - 189)

105 Loading the paper involved taking off the cover of the magazine, feeding the roll in at about chest height, closing the magazine and clipping it down. Loading the chemicals involved pulling out a tray on the bottom right-hand side of the machine, about four inches above the floor, taking out the smaller and larger box and slipping in the new P1 and P2 chemicals. One would have to squat or bend to reach the chemicals tray. (ts 189 - 190)

106 If the store was 'a bit quiet', the staff would clean their department, help in the surrounding department, or restock. The type of stock involved in restocking could range from photo frames to sound and vision, or lighting equipment (which was located next to the photo laboratory). (ts 190)

107 Mr Mirco said that 'replenishment staff', who were people working in the store, would place paper and chemicals in the storage room, and the photo laboratory operators would use a trolley to transport paper and chemicals to the laboratory. (ts 194) He agreed that this was the procedure in his store, and that he did not know of the procedure in the other Kmart stores. (ts 196) As to the chemical containers weighing 10 kg and 13 kg, Mr Mirco said that it was store policy that employees were permitted to lift up to 15 kg. (ts 195) He also described the breaks that workers were allowed to take. If they worked four hours, a 15 minute tea break was taken. If they worked five hours, a 15 minute tea break and a half hour lunch break were taken. If they worked more than five hours, an hour lunch break and two 15 minute tea breaks were allowed. (ts 195)

108 Ms Elbrow met the respondent in about October 2002 through her work with the Cerebral Palsy Association. She was allocated by the Association to the respondent's family for two hours a week. A lot of the work Ms Elbrow did in the respondent's home was housework: hanging out and bringing in washing, bathing the children, vacuuming and mopping the house, emptying the dishwasher, ironing, and anything the family needed. As a family support worker, Ms Elbrow supported the whole family, and did not merely perform duties in relation to Libby. (ts 197 - 199)

109 Ms Elbrow said that compared to the other families she worked with, the respondent needed more physical help around the house because she was unable to do the work in consequence of back pain or soreness. She worked with the respondent for about two years, ending in December 2004. Ms Elbrow agreed that the respondent was very busy with all the duties that she had relating to the care of her children, and that both children had significant demands. (ts 200 - 202)

110 Mr Weatherall is the respondent's husband. They had been married for 15 years. He said that before the accident, the respondent was a very active person in that she was house-proud, did exercise and engaged in outdoor activities. However, after the accident, the respondent became a completely different person, was very irritable with him and the children, and was unable to do virtually any of things she used to do. She could no longer run or kick a ball with the children, do any gardening, or finish painting the house. The respondent watched television, but could not sit for very long, and also could not sit in the car for more than an hour without discomfort. They rarely had any sexual relations. (ts 202 - 204)

111 Mr Weatherall said that in the mornings, when the respondent's back pain was not too bad, after she had had an injection for example, he would merely get himself ready for work. However, before the injection, or after it wore off (after about seven months), the respondent would be in pain and require some help in the mornings. For example, Mr Weatherall might have to help her get out of bed and use the toilet, and make the children's lunch before going to work. (ts 207 - 208)

112 If the route of his working day, as a subcontractor truck driver, permitted it, Mr Weatherall would stop by home to check on the respondent, and would help her with chores. He was able to stop by home about once a week for about half an hour each time. He also said that if the respondent could not collect the children from school for any reason, they had friends who would assist. Mr Weatherall said the respondent's mother helped the respondent a lot, including with cooking and cleaning. Some weeknights, the respondent would help with the vacuuming or other chores, but not every night. Before the accident, he did not do any home chores. On the weekend, he would do the gardening and any maintenance of the house (which the respondent used to help him with). He would also do some washing, cleaning up after the children, make his lunch for the week, vacuum, and clean the toilets and bathrooms (all chores which the respondent used to do). (ts 209 - 211, 215 - 216)

113 Mr Weatherall said that after the children were born, and the respondent resumed work, she would look after the children during the day while he worked, and he would look after them at night, when she would go to work. The respondent's mother also helped during the day, as she had two flexible part-time jobs and was willing to give up one of the jobs to help the respondent. (ts 213)

114 Mr Weatherall clarified that the respondent went back to work, after the birth of the children, because the mobile seafood business he had then operated was not very successful, and they needed additional income. However, he said the respondent had planned to go back to work at some stage after the birth of the children, as they needed two incomes. (ts 215)

115 Ms Betts is the respondent's mother. At the time of the accident, she had two part-time jobs, and was living in a granny flat at the back of the respondent's property in Wanneroo. Immediately after the accident, she in effect took over the respondent's role in the household. Ms Betts would bathe the children, assist the respondent with her personal cleanliness and hygiene, take the children to doctor's appointments, prepare food, do the shopping, and generally care for the children. Ms Betts assisted the respondent to that extent for about 40 days. After the initial 40-day period, Ms Betts would assist the respondent for about two hours in the mornings, before going to work. She would give the children breakfast, change their nappies, and lift them onto the respondent's lap, which were activities the respondent was unable to do. When Ms Betts did not work, she would do the respondent's washing, ironing, and shopping, clean the house, and prepare meals. Ms Betts did not perform these duties before the respondent's accident. (ts 217 - 220)

116 At the time of the trial, Ms Betts was living in a duplex, adjoining the respondent's home, in Ridgewood. In the month before the trial, she usually visited the respondent every day, after work, to check on her. She would take the children to school a couple of times a week. The respondent's children would sometimes assist the respondent to get dressed. Ms Betts had helped the respondent, a few times in the last month, with chores such as hanging up and taking down washing, and doing some ironing and shopping. (ts 217 - 222)

117 Ms Betts said that the working hours of her part-time jobs were sufficiently flexible to enable her to look after the children. (ts 223 - 234)

118 At the time of the trial, Ms Pennefather was employed as a claims officer by the appellant. Ms Pennefather wrote a contemporaneous memorandum of a telephone conversation she had with the respondent, on 9 March 2000. (ts 337 - 339) The file note recorded, in relation to the respondent's working capacity:

She was working at one point earning $80.00, and would have liked to go back to work, but is unable to. I asked her who looks after the kids when she did work and she said well this is the point I can't anyway because one of her kids has Cerebral Palsy and needs to go to appointments etc...I thought this should be borne in mind, if a claim came up for loss of earnings at any point. This may seem a little heartless, but I do not think we should bear the full brunt of her problems, at the same time I sympathise with her position and it must be hard on her with her kids wanting [sic] particularly one that has Cerebral Palsy who demands so much of her attention. Her husband works long hours and she has a friend who looks after the kids every now and then, to give her some relief and this is happening today whilst she is going to the doctors.

The respondent had not commenced legal proceedings at the time of this conversation. (ts 340)

119 The respondent has been treated or reviewed by numerous medical practitioners and other health professionals.

120 The medical evidence at trial was, relevantly, as follows:

121 Dr Minsker was the respondent's general medical practitioner. Her reports were tendered and there was no further examination-in-chief. (ts 102 - 103)

Report dated 13 February 1999 (to the appellant)

122 After examining the respondent on 8 January 1999, Dr Minsker noted that she had sustained soft tissue injuries to her neck, back and abdominal muscles as a result of the accident, and continued to have headaches and back pain. Dr Minsker did not believe that the injuries were an aggravation of any previous injury. Dr Minsker noted that the respondent had been totally incapacitated for about two weeks and continued to be partially incapacitated, but was unlikely to have any permanent disability. She had been referred for physiotherapy.

Reports dated 17 July 1999 and 16 October 1999 (to the appellant)

123 These reports recorded that Dr Minsker had continued to see the respondent who still had lower back pain related to the accident and had been undertaking an exercise programme. Her symptoms were gradually improving, but she continued to have occasional 'flare-ups' of pain. Dr Minsker referred her again for physiotherapy.

Reports dated 19 February 2000 and 21 March 2000 (to the appellant)

124 Dr Minsker recommended that the respondent exercise at a gymnasium to alleviate the back and neck problems resulting from the accident. She agreed with Dr Croser (an orthopaedic surgeon to whom the respondent was referred by the appellant (ts 2, 3)) that a 3-month membership at a gymnasium which provided facilities for hydrotherapy, exercise and childcare would be an excellent form of therapy to treat the respondent's soft tissue injuries.

Report dated 28 June 2000 (to the respondent's solicitors)

125 This report recorded that the respondent continued to have back pain, had been on an exercise programme, and her symptoms were improving. However, Dr Minsker was unable to say whether the respondent would have any permanent disabilities, and believed she would require further treatment and medication for an uncertain period of time. As to her work capacity, the report stated:

[The respondent] is not fit for full-time work in her pre-accident employment but she could possibly do some part-time work with restricted duties - lifting to be avoided etc.

[The respondent] has been totally unfit for at least 12 months since her accident. She may not be fit for full time work for some time yet.

Report dated 17 March 2005 (to the respondent's solicitors)

126 Dr Minsker said that since her last report on 28 June 2000, she had had little to do with the respondent, as she had mainly been under the care of Dr Salmon, a pain management specialist, and Ms Stephanie Martin, a physiotherapist. Dr Minsker had supplied the respondent with medication and referred her to various specialists. In Dr Minsker's opinion, all of the respondent's symptoms related to the accident and were likely to persist for the foreseeable future. The respondent had been prescribed, amongst other things, an anti-depressant, and would require medication for the foreseeable future. Dr Minsker was unable to give a prognosis as to the severity or duration of her symptoms, but again stated that the respondent was unable to return to her pre-accident employment as a photo laboratory technician.

127 In cross-examination, Dr Minsker said that she had been the respondent's general practitioner from 1984 until the late 1980s, and since 1998. According to Dr Minsker's notes, she had discussed post natal depression with the respondent on 17 March 1998, but did not make that diagnosis. The respondent had just had twins, one of whom had been diagnosed with cerebral palsy, and she was tired and under stress. There was no follow-up and the respondent was not referred for any counselling. Dr Minsker did not think there was any major problem with post natal depression. (ts 104 - 106)

128 After the accident in January 1999, however, Dr Minsker, who has a special interest in depression, found that the respondent was depressed, as she was unable to look after the children, was in constant pain, had a low mood and was very tearful. There were no further entries in her notes regarding depression. (ts 106 - 107) Dr Minsker had, at that time, prescribed the respondent with an anti-depressant. (ts 109)

129 Dr Minsker's report of 13 February 1999 noted that the respondent was having trouble getting to the physiotherapist because she had to take care of her two children, and wanted physiotherapy at home, which she received. Dr Minsker understood, from what the respondent had told her, that she was in constant pain and everything was difficult for her. (ts 107 - 109)

130 Professor Mastaglia, a consultant neurologist, examined the respondent on 15 February 2001, 14 March 2002 and 21 March 2005. He wrote four reports. (ts 129)

Report dated 12 March 2001 (to the respondent's solicitors) and his related evidence

131 Professor Mastaglia first saw the respondent on 15 February 2001. He recorded that, since the accident, the respondent had been suffering from constant back pain (which varied in severity and was aggravated by activities such as housework, lifting her children and other physical activity), pain and numbness in the right buttock and leg, intermittent tingling sensations radiating down the outer right leg to the level of the knee as well as occasional tingling in the right foot, right-sided neck and shoulder pain, an abnormal sensation in the right hand at times, and intermittent headaches especially when her back pain was severe.

132 Professor Mastaglia examined the respondent and concluded that she had suffered injuries to both the lumbosacral and cervical areas, the former being the major injury. An MRI scan confirmed the existence of a posterolateral protrusion of the L5/S1 intervertebral disc with displacement of the spinal nerve root at this level.

133 Professor Mastaglia said that the respondent's symptoms and injuries were attributable to the accident. Ongoing treatment would be required, including pain relieving medications, spinal massage and exercise. It was also possible that at some stage the respondent may require a root sleeve block at the L5/S1 level or, if her symptoms of nerve root compression progressed, even spinal surgery. In evidence, Professor Mastaglia explained that these procedures would alleviate pain, but were not curative, and that he had made recommendations for further treatment because the respondent was still having significant levels of pain, which he did not anticipate would resolve, with the result that she would almost certainly require 'additional modalities of treatment'. (ts 131)

134 In light of the persistence of the respondent's symptoms and the fact that it had been over two years since the original injuries, Professor Mastaglia thought it very unlikely that the respondent would make a complete recovery, and that she would be left with a permanent disability in the lumbosacral area of her spine, neck and right lower limb. He believed the prognosis for a full recovery was very poor. In evidence, he said that if spontaneous recovery was going to occur, it would almost certainly have occurred within two years after the accident. (ts 132)

135 As to work capacity, Professor Mastaglia stated:

I believe that your client will be fit only for part-time employment in her previous occupation as a photo lab technician as a result of her neck and back symptoms. The duration of this incapacity is uncertain but may well be permanent.

136 Professor Mastaglia had been informed by the respondent's solicitors as to the nature of her work. They informed him that:

Prior to the accident [the respondent] was employed as a Photo Lab Technician at K-Mart on a part-time basis. She had intended to return to full-time employment when her twins attained the age of two years old. Her job involves sitting for extended periods of time at a computer terminal and at the printer, ordering stock, lifting paper and chemicals, and also sitting at a computer terminal for extended periods of time. Her job also involved changing and mixing the various developers and other chemicals used in the developing process. This involved extended periods of standing.

137 Professor Mastaglia explained in evidence that the particular activities that the respondent would not be fit for, or would not be appropriate for her to continue to do, would be lifting activities, given the type of back and disc injuries she had. He said he would recommend that anyone with this type of disc injury should not do any substantial heavy lifting (nothing more than 5 kg). The respondent might be able to cope with some of the less physically demanding activities of the job. (ts 132 - 134, 148)

138 In cross-examination, Professor Mastaglia agreed that employment which required the employee to sit and stand variously in carrying out his or her duties, the variation being as good as having a break, would be ideal employment for a person with the respondent's condition. (ts 148 - 149)

Report dated 15 March 2002 (to the respondent's solicitors) and his related evidence

139 Professor Mastaglia next saw the respondent on 14 March 2002. Since he last saw her, her back pain had persisted and, if anything, had worsened. The respondent had a marked deterioration a few weeks earlier when she had a coughing fit, which caused a referral of pain into her right leg and left buttock, as well as increased numbness in the right calf. The pain was particularly severe for one week, incapacitating her. The respondent's mother attended to her. In evidence, Professor Mastaglia explained that coughing or any other straining of that nature could increase pressure inside the spine, but that in this case it had led to further extrusion of the ruptured disc, which was an aggravation of the pre-existing disc injury. (ts 134, 152)

140 Also, since her last examination, the respondent had increasing numbness and weakness of the right foot and ankle, which occurred particularly when she walked, and as a result she had fallen on a number of occasions. The respondent still had significant pain and limitation of movement, at times needed help with dressing, and had been prescribed medication for pain relief. She also had persistent neck pain, at times radiating into the right upper arm, and a reduction in the grip strength of the right hand.

141 Professor Mastaglia examined the respondent and concluded that her back and right lower limb symptoms had progressed since the last examination, and he suspected a further extension of the disc protrusion at the L5/S1 level. An MRI of the lumbosacral area and of the cervical area (in view of the respondent's persistent neck and right upper limb symptoms), to check for any evidence of cervical nerve root compression, was to be undertaken. It was noted that the respondent was continuing with hydrotherapy as well as pain relieving medications and, depending on the outcome of the MRI, may need further treatment, possibly including disc surgery.

142 Finally, Professor Mastaglia said, in relation to work capacity:

In view of the aggravation of her symptoms and disability I believe that your client is currently totally unfit for her previous employment.

Report dated 5 April 2002 (to the respondent's solicitors) and his related evidence

143 This report enclosed a copy of the respondent's recent MRI scan of her cervical and lumbar spine. The MRI showed that the disc protrusion at the L5/S1 level was still present with evidence of S1 nerve root compression, but there appeared to have been some resolution in the extent of the disc protrusion. However, the posterolateral annulus tear at the L4/5 level had enlarged, and presumably accounted for the increased level of symptoms recently experienced by the respondent. The report also said, in relation to the cervical spine, that there was evidence of degenerative change at the C5/6 level which was not causing any spinal cord or nerve root compression. Professor Mastaglia agreed in evidence that the radiological findings were consistent with his clinical examination. (ts 130 - 131)

Report dated 22 March 2005 (to the respondent's solicitors) and his related evidence

144 Professor Mastaglia last reviewed the respondent on 21 March 2005. The respondent indicated that, since March 2002, there had not been any significant improvement in her situation, and she continued to suffer from central and right of centre low back pain every day, which varied in severity. The respondent had had a number of very bad attacks of pain lasting for two or three days over the previous two years, last occurring in September 2004. At these times, she also experienced pain radiating into the right buttock and lateral thigh, and sensations of numbness and pins and needles in the right buttock and outer half of the right foot. The respondent had also continued to experience intermittent neck and right sided shoulder pain, particularly when her back condition was severe. Over the last two years, the respondent had noted a reduction in grip strength in her right hand, and had experienced intermittent sensations of numbness and pins and needles in that hand.

145 Since Professor Mastaglia last saw the respondent, she had had further treatment from Dr Salmon comprising three injections in the lower lumbar area of her back, which apparently produced a reduction in pain level for a period of several months on each occasion, but did not eradicate the pain completely. The respondent was still having physiotherapy and had recently commenced a gymnasium programme. She was taking painkillers to control the pain and required the medications two or three days per week.

146 Compared to the last examination on 14 March 2002, there appeared to be a slight improvement in the range of movement of the lumbar spine, but no improvement in the range of neck movement. The neurological findings in the right lower limb appeared to be essentially unchanged, and pointed to some mild persisting compression of the L5/S1 spinal nerve roots in the lumbar region. The symptoms in the right upper limb were more prominent than on the last examination.

147 In terms of future treatment, Professor Mastaglia believed the respondent should continue with her current analgesic medications, physiotherapy and gymnasium programme, and remain under the care of Dr Salmon, who would be performing a further injection procedure in the near future. In evidence, Professor Mastaglia said that it was his view that the respondent should remain under the care of Dr Salmon because she remained symptomatically impaired and still had considerable residual pain, and that the therapeutic modalities most likely to help would be further procedures of the type that Dr Salmon performs, such as epidural blocks or radiofrequency ganglionotomies. He said it was worth trying at least one more of those procedures because if they were to fail, surgery was a serious possibility. (ts 143 - 144)

148 The respondent indicated that she continued to be restricted in her ability to perform a variety of domestic and recreational duties, and Professor Mastaglia believed that the allowance of 6 to 10 hours per week for gratuitous assistance would be reasonable. He said that the respondent's prognosis for recovery was extremely poor, because it was more than six years since the accident.

In my opinion, she remains unfit for her pre-accident employment as a photo lab technician, mainly because of the fact that the job apparently involves quite a lot of lifting (eg heavy paper rolls and photographic magazines) and also being on her feet for long periods. She is likely to remain unfit for such duties for the foreseeable future.

150 Professor Mastaglia gave evidence that even though he concluded, on the basis of his last examination, that there had been some slight improvement, there was substantial evidence that the respondent had a problem at the lumbosacral level, that there was still disc protrusion, and that there was still nerve root compression. Despite this slight improvement, Professor Mastaglia's agreed with his opinion in the report that the respondent was likely to remain unfit for pre-accident employment for the foreseeable future. (ts 143, 152)

151 In cross-examination, Professor Mastaglia agreed that, in general terms, at least some attempt to return to the workforce and undertake some form of employment would be beneficial for the respondent. (ts 152) He admitted that he did not know what the weight of the paper rolls (which he described as 'heavy') were, and he did not know the frequency with which the respondent would have to do any lifting (which he described as 'a lot of lifting'). (ts 153)

152 In re-examination, he clarified that he was not implying, in his report of 12 March 2001, that 5 kg was an 'absolute cut-off' limit that is safe for someone with a lumbar disc protrusion. He did not think there was any reliable 'cut-off' figure, and even 5 kg for someone with a protruding disc may be enough to aggravate the condition. Professor Mastaglia thought that a weight of 16 kg (a weight suggested to him by counsel) would certainly be very excessive for someone with a prolapsed lumbar disc. Further, in relation to frequency of lifting, he said that, obviously, the more lifting activity that is engaged in, the greater the likelihood that such activity could lead to an aggravation, but that even engaging in such activity once might be enough to cause an aggravation. (ts 153)

153 Dr Salmon is a specialist in pain medicine, who treated the respondent. (ts 157)

Report dated 5 June 2002 (to Dr Minsker) and his related evidence

154 Dr Salmon noted that the respondent had had right sided back, leg, neck, head and shoulder region pain for about 4 1/2 years. Since the accident, she has had persistent pain, which was most troublesome in the right low back region extending down the posterolateral aspect of the right leg to the ankle with variable numbness and tingling extending into the dorsum of the right foot and first toe region. Further, the right leg was variably weak and gave way from time to time. The respondent also had persistent pain in the right neck region extending to the suprascapular and shoulder tip regions associated with intermittent head pain. The respondent said her headaches seemed to come on in concert with aggravations of her back pain. In evidence, Dr Salmon said it was quite a common occurrence in chronic pain states for pain in different areas to wax and wane together. He explained that a current model of chronic pain is very much emphasised as a central nervous system sensitisation issue. (ts 158) The respondent also had variable numbness and weakness diffusely affecting the right hand.

155 Dr Salmon recorded that pain in the back and neck for the respondent was present as a fairly continuous aching, shooting or burning sensation that disturbed her sleep at night. Her pain was aggravated by activity and movement and she had a walking tolerance of about 30 minutes and a sitting tolerance of about 45 minutes. The respondent felt that her symptoms were not improving or perhaps becoming worse over time.

156 Dr Salmon said that the respondent started the 'Cambridge Pain Management Programme' but did not finish it because funding ceased halfway through the programme. Dr Geoffrey Gee performed some lumbar facet joint injections, which did not reduce her pain. The respondent found that massage treatment and physiotherapy had aggravated her pain.

157 Dr Salmon examined the respondent and concluded that her persistent right sided back and leg pain was likely to be discogenic and that there was evident dural and neural sensitisation, predominantly in the L5 and L4 distributions. A recent lumbar MRI scan showed a right sided L5/S1 disc protrusion and annular tear, possibly impinging on the right S1 nerve root, and there was also disc degeneration at L4/5 with a left sided annular tear. He said it was likely that this disc pathology was producing sensitisation of the adjacent right L4, L5 and S1 nerve roots. Dr Salmon also said that the respondent's right sided neck and suprascapular region pain was likely to be predominantly neurogenic (see ts 161) and that she had associated right cervicogenic head pain.

158 Dr Salmon recorded that he performed an epidural injection at L5/S1 and a right L5 sleeve injection and intra-epidural space catheter placement of injectate around the right L4 nerve root on 19 June 2002. The respondent reported that since those procedures (about 5 weeks earlier) she had had a marked reduction in her back and leg pain, and was continuing with her exercise and self management programme.

Report dated 13 May 2003 (to Dr Minsker) and his related evidence

159 Dr Salmon noted that he last saw the respondent in September 2002, when she reported significant reduction in her back and leg pain after epidural and sleeve injection procedures coupled with an ongoing exercise based physiotherapy treatment programme.

160 However, the respondent suffered a setback about a week earlier when, after a coughing fit, she developed sustained exacerbation of predominantly left sided back and buttock region pain. Previously, her back and leg pain had predominantly been on the right side. The respondent's pain was present as a continuous aching or shooting sensation, exacerbated by movement, particularly bending, although walking was relatively unrestricted if she walked slowly. The respondent started wearing a lumbar brace and continued to avoid taking routine analgesics. Dr Salmon commented in evidence that coughing will raise the infraspinal pressure, and that people with disc pain often describe coughing or straining as very pain provoking (ts 166).

161 Dr Salmon examined the respondent and concluded that she had developed a recurrence of her lower lumbar discogenic pain with bilateral L5/S1 neural sensitisation. The respondent agreed to proceed with a repeat of the L5/S1 epidural and left L5 sleeve injection.

Report dated 10 June 2003 (to Dr Minsker) and his related evidence

162 On 21 May 2003, the injections were performed, after which the respondent reported that her pain ceased for the duration of the anaesthetic action, except for some pain in the right low back region. At her review on 10 June 2003, the respondent reported that she had had good sustained reduction in her left sided back and leg pain, but there were residual pain symptoms, principally in the right low back region. Her walking tolerance increased to up to 30 minutes at a time, and her sitting tolerance was over an hour at a time. The respondent would continue with her exercise based treatment programme. Dr Salmon noted that the injection procedures could be repeated, as necessary.

163 On 21 July 2003, Dr Salmon sent a report to the appellant's solicitors, noting that he believed the appellant's pain symptoms caused by the coughing fit would settle down quite well in the longer term, with strengthening and stabilisation of her lumbar spine. He also noted that the respondent's positive psychological state and attitude was a good prognostic sign. In evidence, Dr Salmon agreed that he had based his optimism on the respondent's positive psychological state, and added that he had also based it on the fact that the respondent had quite a good response to a single epidural sleeve injection, was engaging in exercise, and had done reasonably well for a number of months. (ts 169, 180 - 181)

Report dated 6 April 2004 (to Dr Minsker) and his related evidence

164 This report noted that the respondent was doing quite well following the second series of injections in May 2003. However, during July 2003, the respondent's six-year old son became very ill with viral meningitis and required months of hospital and rehabilitation treatment. He returned to school but with some learning deficits, and the respondent was attending school to assist him. Dr Salmon recorded that this stress and activity had resulted in some exacerbation of the respondent's chronic back and leg pain symptoms. In addition to taking analgesic medication, the respondent continued to perform her exercises and walked 30 minutes per day. Her sitting tolerance remained at an hour at a time.

165 The respondent had agreed to a further set of injections, this time combined with pulsed radiofrequency ganglionotomy (ts 171 - 172). She had also decided to attend a physiotherapist for a review of her exercise and self-management programme. Dr Salmon noted that if the respondent continued to have set backs with her chronic pain problem, she may require an intensive 'CBT' pain management programme. In evidence, Dr Salmon said that if the injections were not producing a permanent curative effect, the respondent should be considered for an intensive pain management programme. (ts 165, 172) He explained the nature of such a programme, and said he thought that it would accelerate recovery in the respondent, and that she would eventually achieve a work capacity of some kind, but it would be very difficult to specify a timeframe for such recovery, particularly as the respondent had significant home demands. (ts 172 - 174, 182) In cross-examination, Dr Salmon said it was his opinion that the respondent would have a 25% chance of benefiting from a pain management programme, given that she was going back to 'square one' or thereabouts a year or so after the injections. (ts 182 - 183)

166 In evidence, Dr Salmon said that the respondent had a good response to those treatments and he did not see her again until March following year. (ts 171)

167 In response to a question from the learned judge as to the possible number of further injections that might be administered, Dr Salmon said two further sets was a reasonable estimate. Dr Salmon added that if a patient was going back to 'square one' within a year of an injection, it was reasonable to at least try a different approach, namely, a pain management programme, or spinal surgery.

168 Dr Salmon wrote a report dated 6 April 2004, to the respondent's solicitors, in substantially the same terms as his report to Dr Minsker of 5 June 2002, but updated to include details of the respondent's treatments and progress since that date, and likely further treatment. He noted, in relation to working capacity, that:

[The respondent's] current pain symptoms significantly restrict her activity capacity and she requires a significant amount of assistance from her husband and family and friends to deal with her domestic tasks. She has not been able to return to her pre-injury work as a photographic lab technician because of her chronic pain symptoms. However it is likely that her condition will gradually improve with the passage of time and some further treatment.

It is likely that she will be unable to return to work within the next one to two years or so also.

Report dated 10 March 2005 (to Dr Minsker) and his related evidence

169 Dr Salmon reviewed the respondent on 10 March 2005, who reported that she had reacted well to her last injections, the radiofrequency procedure and her continuing exercise programme under Stephanie Martin (physiotherapist). However, recently, there had been some increase in the respondent's pain symptoms which may, in part, be related to some regression with her exercise programme. The respondent said it was difficult at times to maintain her exercises because of the high demands of her two disabled children, then aged 8 years. She agreed to proceed with further epidural and L5 sleeve injections and pulsed radiofrequency ganglionotomy. She would also progress to a water-based exercise programme with a gymnasium component. Dr Salmon concluded that if the respondent did not make adequate progress with her current treatment programme then the 'CBT' pain management programme remained an option for her.

170 Dr Salmon also reported on this review of the respondent to the respondent's solicitors in essentially the same terms. Additionally, he said:

Her symptoms are aggravated by movement and activity and her sleep tends to be disturbed. She continues to be challenged with the care of her two disabled children now aged eight years and understandably finds it difficult to devote as much attention as she should to her own welfare including her exercise based treatment programme.

Given the ongoing demands of her disabled children and her continuing symptomatology I think it is unlikely that the respondent will gain sufficient physical capacity to return to her pre-injury occupation as a photographic technician within the foreseeable future.

I consider that [the respondent] will continue to require 6 to 10 hours per week domestic assistance for the next two to three years at least.

[The respondent's] prognosis is for gradual improvement over time if she is able to maintain appropriate self management strategies.

171 Dr Salmon said in evidence that he did not document the number of hours per week the respondent would have to devote to her disabled children, but he estimated it would be 'pretty high', and also did not document any history in relation to the assistance the respondent received in caring for her children. (ts 176, 178 - 179)

172 In cross-examination, Dr Salmon agreed that when he made conclusions about the respondent's capacity for employment, he took into account the demands of her children. He said that if she was a single woman without a family, it was possible to imagine that she would be capable of some part-time work. He did not have any information about the physical demands of the respondent's occupation as a photographic technician, but assumed it was a light, sedentary-type job that would involve mostly standing, and maybe some lifting of heavy chemicals from time to time. Dr Salmon said that if the respondent was a single person with no children, it would not be unreasonable for her to try some part-time work, as long as it did not involve any significant lifting (more than 10 kg), and if she would be able to alternate between sitting and standing and move about a little. He also agreed that an occupation where the employee could change his or her posture, by sitting and standing, would be ideal. (ts 179 - 180)

Stephanie Jean Martin (ts 236-241) and her related evidence

173 Ms Martin is a physiotherapist who treated the respondent. (ts 236)

174 Ms Martin gave evidence that the respondent was referred to her by Dr Salmon, six years after the accident, to undertake a stabilisation exercise programme. She described the treatment as 'hands-off therapy', and that she was giving the respondent exercise instructions, including lower back stabilisation muscle retraining. (ts 236) Ms Martin said she saw the respondent for 11 months, her initial involvement was giving her the exercise programme, and each consultation progressed her programme. She then explained the type of exercises she gave the respondent, being floor and land-based exercises, some cardiovascular exercise, a hydrotherapy programme and, in the last two months, some resistance training. (ts 239 - 240)

175 Ms Martin has some ongoing involvement with the respondent, based on progressing her exercise programme. She said she would probably see the respondent once every few months to check on her progress. (ts 240 - 241)

176 Professor Harper is an occupational physician who saw the respondent on 24 August 2004. (ts 245)

Report dated 24 August 2004 (to the respondent's solicitors) and his related evidence

177 Professor Harper noted the respondent's history and recorded her symptoms at that time as low back pain, right leg numbness, neck and right upper back pain, headaches, and mood changes. He commented that the physical symptoms had remained relatively unchanged for the last 3 years, although there had been some improvement in low back pain over the last 6 months with her strengthening exercises, and that mood changes continued to fluctuate.

178 Professor Harper documented the respondent's work history, and noted that she was working up to 12 hours a week before the accident but had not worked since the accident, except for some occasional voluntary work at her children's school. He noted the impact of the injuries on her daily life, and set out his findings upon examination.

179 Professor Harper recorded that the respondent had sustained strain injuries to the cervical and lumbosacral spines, which had resulted in constant and chronic low back pain. She had an annulus tear at the L4/5 level and L5/S1 in the lumbar spine with disc protrusion at L5/S1 resulting in S1 nerve root compromise on the right. Her injury had resulted in symptoms of depression and frustration. Professor Harper attributed her symptoms and injury to the accident. He recommended the maintenance of regular exercise and periodic review by a pain specialist, and said that the question of surgery would need to be addressed by a spinal surgeon. (see ts 248)

180 The report listed the activities that the respondent had difficulty doing:

Her specific restrictions are to avoid lifting, bending, twisting, static positions, prolonged sitting and prolonged standing. She has difficulty with routine activities such as dressing, showering, sitting, standing, walking, driving, housework, shopping, cooking and sexual activity. She [has] limited carrying [capacity]. Her injury has precluded her from sporting and recreational activities.

In evidence, Professor Harper explained the words 'avoid lifting' as meaning 'do your very best' to avoid lifting at home, but, in relation to work, she should avoid a job which entails lifting as a routine component. As to 'prolonged sitting' and 'prolonged standing', Professor Harper said that people with such back pain, and the respondent specifically, experienced aggravation when in one position for any period of time, which meant that she needed to be able to change position without having to be fixed in a sitting or standing position for more than a short time. Professor Harper said it was difficult to say how long a person should change position for before resuming their original position, as it depended on the case. He also said that he was not able to quantify the respondent's carrying capacity. (ts 249 - 250)

181 Professor Harper felt that it was reasonable to make an allowance for assistance with domestic tasks for 1 - 2 hours per day, depending on the severity of the symptoms.

182 The report commented on the respondent's work capacity:

Work capacity has been adversely affected from the time of the accident. She has been incapacitated to return to her pre-accident work from the date of the accident. Current work capacity continues to be compromised. She remains incapacitated for work as a photo laboratory technician. She is incapacitated to work as a carer. I would not anticipate her being capable of returning to her pre-accident work in the foreseeable future. She retains limited work capacity but would only be able to work for 2 - 3 hours a day within restrictions, including avoidance of lifting, bending, twisting, carrying and prolonged static postures. She would be able to do some work as a receptionist or clerk provided she was able to change her position as required. However her employability has been markedly reduced as a result of her injury. She is left with disability of the lumbosacral spine of moderate severity.

Her prognosis is for continuation of her current level of disability.

183 In summary, Professor Harper said, relevantly, that after the accident, the respondent was left with moderately severe residual disability of the lumbosacral spine. Further, her capacity for employment, and with regard to domestic and home duties, has been affected to a moderately severe degree.

184 In evidence, Professor Harper said he understood the respondent's pre-accident work involved prolonged standing at a machine, and a certain amount of lifting and bending with paper rolls and chemicals. Professor Harper said that the respondent's competitiveness in the workforce would be reduced because of her significant injury, the symptoms of which had persisted for years, and that employers were particularly concerned about employing people with back pain. (ts 251 - 254)

185 Professor Harper said in cross-examination that he was familiar with photo laboratories, and although he did not know the precise weight of the paper rolls, he understood that they were in excess of 10 kg. He also said he understood that lifting and carrying the paper rolls to load them into the machine occurred once or twice a day, and that that process, in combination with any bending and prolonged standing, was sufficient to rule out any attempt to work as a photo laboratory technician. Professor Harper understood that the respondent would have to stand to operate the machine. As to any chemicals that needed to be installed in the machines, Professor Harper estimated (based on his general industry knowledge about printing machines) that those containers were between 10 and 20 litres (being about 10 to 20 kg). Professor Harper confirmed that at the time of making the report, he was aware that the respondent's pre-accident working hours at the photo laboratory were 12 hours a week. He said that given the extent of the respondent's limitation, and her susceptibility to aggravation of symptoms, it would be inadvisable for her to return to that type of work, irrespective of the shortness of the hours. (ts 256 - 259)

186 The Professor was further asked in cross-examination to reconcile the respondent's significant domestic demands with his conclusion as to her incapacity for her previous employment. He responded by acknowledging that the respondent's domestic demands were significant, and that she would probably do more in the course of her day than she would in the workplace in terms of aggravation of her problem, but that she had no choice in relation to her domestic responsibilities. He said that the respondent should not re-commence her previous employment because it would be an additional aggravation, and he certainly did not see the fact of her doing domestic work as justification for her ability to work as a photo laboratory technician. (ts 267 - 268)

187 Professor Harper agreed in cross-examination that some form of work could be a respite for the respondent from her home duties, but he would not advise or support her performing a job which involved basic activities which would aggravate her underlying problem. Further, he described the photo laboratory technician job as being a position of 'static posture', which was undesirable because she would either be standing or sitting for long periods of time, and not actually moving around. Professor Harper said that a position such as a receptionist or clerk would allow a person to move around, as opposed to a machine operator, who was tied to one spot. (ts 268 - 270)

188 In re-examination, Professor Harper was asked whether he would change his opinion as to the respondent's capacity for work if she were to load rolls of paper up to four times a day, and each roll weighing 6 1/2 kg, and she would have to replenish containers of chemicals daily, each weighing 10 kg and 13 kg, and bend to ground level, or close to the ground, to load the chemicals. He said that his opinion would still be as he expressed it, which is that he would not medically recommend this job for the respondent. The Professor was then asked about the statement in his report that the respondent retained limited work capacity but would only be able to work two to three hours a day, and his suggestion about work as a receptionist or clerk. He explained that he was being cautious about the hours of work because some receptionist or clerical work could involve prolonged periods of standing or sitting, and, ideally, the respondent should be in a job that did not involve being in a 'static position' and would enable her to move around. (ts 272 - 273)

Christopher Gerard Semmens (ts 273 - 278)

189 Mr Semmens is a clinical psychologist who saw the respondent on eight occasions. (ts 273)

Report dated 6 July 2001 (to Dr Geoffrey Gee) and his related evidence

190 Mr Semmens said that the respondent presented as 'somewhat dysphoric' (he explained 'dysphoria' in evidence as meaning a depressed mood (ts 274)), because she was frustrated at having tried a number of different treatments but nothing seemed to be helping. Mr Semmens noted that while the respondent found her situation depressing, she did not see herself as being depressed, a sentiment with which he agreed.

191 Mr Semmens documented that the respondent was taught autogenic relaxation, a progressive muscular relaxation technique to which she had an excellent response. The respondent continued to practise these techniques diligently, and she was able to generalise these arousal control strategies. The respondent was also taught a number of effective strategies in relation to pain attention and awareness, and was also shown self-hypnosis exercises to which she responded very well. Mr Semmens gave evidence that the respondent completed the programme of treatment he set out for her in their eight sessions. (ts 276)

Nicholas Constantine Anastas (ts 290-303)

192 Mr Anastas is an orthopaedic surgeon who saw the respondent on three occasions. (ts 290)

Report dated 6 November 2000 (to the appellant)

193 Mr Anastas examined the respondent on 6 November 2000.

194 Mr Anastas examined the respondent and diagnosed her as having sustained a soft tissue injury to her lumbar spine in the accident. He said that her radiology did not demonstrate a pre-existing condition and that the symptoms in her lower back were directly related to the accident. However, he could not see any direct relationship between her neck symptoms and the symptoms at the back of her body on the right side, because of the delay in the onset of symptoms. He said the symptoms started in about December 1999 and her accident was in January 1999.

195 The prognosis, in Mr Anastas' opinion, was for the respondent to continue to improve with time and eventually to make a complete recovery, without any permanent impairment as a result of the accident.

Report dated 19 November 2001 (to the appellant)

196 Mr Anastas saw the respondent again on 19 November 2001.

197 After examination, Mr Anastas again diagnosed the respondent as having sustained a soft tissue musculo-ligamentous type injury to her lumbar spine in the accident. He was still of the opinion that there was not any direct relationship with the symptoms in her neck, which started in December 1999, because of the delay in onset of those symptoms. He was also still of the opinion that the low back symptoms were directly related to the accident. As regards her capacity for work, Mr Anastas said:

She is fit to engage in home duties, but should take care with bending and lifting. If she wished, she is on my assessment today fit to return to work full-time in her pre-crash occupation as a photo laboratory technician. She does help out at kindergarten.

...

The prognosis is for her to continue to improve with further time and eventually make a complete recovery and not be left with any permanent impairment...

As indicated above, if she wished, she is fit to return to her pre-crash occupation as a photo laboratory technician. The only restriction I would place upon her is that she should lift and bend the correct way.

198 Mr Anastas noted that the respondent did not demonstrate any discrepancies on examination.

Report dated 21 February 2005 (to the appellant's solicitors)

199 Mr Anastas reviewed the respondent on 21 February 2005.

200 Mr Anastas noted again that the respondent presented as having features consistent with a soft tissue musculo-ligamentous type injury to her lumbar spine. He found that, from a clinical aspect, the respondent did not have any evidence of irritation of the first sacral nerve root or left fourth or fifth lumbar nerve root, and that after this period of time, all of her soft tissue symptoms would have resolved. He was still of the opinion that there would not be any direct relationship with the symptoms in the respondent's neck which started in December 1999, because of the eleven month delay in their onset. He recorded that the respondent's inconsistencies, such as pain on simulated rotation of her spine, the range of flexion in her spine and the distribution of sensory loss, suggested her incapacity was not as great as she perceived. Mr Anastas remained of the view that the respondent would improve with time and eventually make a complete recovery, without any permanent disability.

201 The assessment of the respondent's work capacity was relatively unchanged from the last report:

When I previously saw this lady on 19 November 2001, I did on that date feel that she was fit to return to her pre-crash occupation as a photo laboratory technician and the only restriction I would place upon her would be that she should lift and bend the correct way.

She states that since previously seeing me she has remained much the same and accordingly my assessment of her classification for work remains as stated on 19 November 2001.

On the history she would have difficulty with bending and lifting.

I would pass her as being fit to work as a clerk.

In general I would pass her as being fit to engage in work which did not involve repetitive heavy lifting or prolonged bending.

She would be fit to enter a rehabilitation programme if it was so desired.

She is able to care for herself and her children.

I would not have expected a soft tissue musculo-ligamentous type injury to her lumbar spine to have interfered with her ability to presently work as a photo laboratory technician, night-filler or a clerk.

I further would not have expected the soft tissue lumbar spine injury...to have presently interfered with her earning capacity, or compromised her ability to compete in the open work force. The soft tissue injury sustained to her lumbar spine would not have been a factor in shortening her working life.

202 In cross-examination, Mr Anastas was shown the report of Dr Minsker dated 13 February 1999, less than a month after the accident, which noted that the respondent sustained soft tissue injuries to her neck. Mr Anastas agreed that his views on causation would change in light of this:

Would your views on causation change if the history you are now provided with - that she complained of neck symptoms reasonably soon after the motor vehicle accident?---Most definitely. (ts 295)

203 Mr Anastas agreed that the respondent seemed a 'genuine person', who did not exaggerate, and there was no reason to doubt her or believe her to be a 'malingerer'. (ts 299)

204 Mr Anastas also said that, from a clinical aspect, the respondent did not have any evidence of irritation of the left fourth or fifth lumbar nerve root or the right first sacral nerve root. He explained in evidence, relying on objective, not subjective, signs, that this was because her ankle jerk was present (in relation to the first sacral nerve root) and because she had 'good proud dorsiflexion of her great toes' (in relation to the fourth or fifth lumbar nerve roots). Mr Anastas confirmed that his conclusion in this report on the respondent's capacity to work again was inextricably bound up with his diagnosis of a simple soft tissue injury. (ts 300 - 303)

205 Dr Rosenthal, a practitioner in rehabilitation medicine, saw the respondent on three occasions. (ts 309)

Report dated 10 August 2001 (to the appellant)

206 Dr Rosenthal recorded in detail the respondent's history, noting that the respondent said she had to do everything irrespective of how she feels, including lifting one of her children, shopping and housework. Her lower back was the main symptomatic focus. She experienced a numb feeling down the right leg with tingling in the foot involving the toes. Her back ache was aggravated by lifting and bending, she could sit comfortably for an hour, and sometimes experienced back pain with intimate activity. Her neck was also symptomatic, giving her right sided headaches, jaw discomfort, tingling in the right fingers and subjective weakness of grip.

207 Dr Rosenthal examined the respondent and found that the accident caused some anatomical disruption to her L5/S1 disc, which continued to produce mechanical pain and dysfunction. There were some lower limb sensory symptoms but no suggestion of significant nerve root compression or motor neuropathy. Her cervical symptoms were consistent with a soft tissue strain injury. He considered the respondent had a 10% permanent disability in the lumbar spine. Dr Rosenthal believed that her neck symptoms would eventually resolve without any long term permanent disability.

208 As to the respondent's work capacity, Dr Rosenthal said:

I would regard her as being capable of working as a photo laboratory technician. I do acknowledge that night filling duties would be a problem at present. This is not necessarily a long term situation as I consider she will continue to improve.

In evidence, Dr Rosenthal explained that night filling duties would be a problem as they often require at or above shoulder level upper limb activity which is not ideal for a person with a neck symptom. He agreed that such duties would involve bending and said that repetitive bending and lifting in the acute stages of a back injury would not be wise. Dr Rosenthal said that he had the same concern about the respondent returning to the workforce today, and that, basically, the respondent had a retained capacity, but needed to be careful.

209 Dr Rosenthal found there was no discrepancy between the respondent's subjective complaints and the objective clinical findings.

Report dated 5 September 2002 (to the appellant's solicitors) and his related evidence

210 Dr Rosenthal documented the respondent's history. He noted that the respondent reported that her symptoms were aggravated by housework, and that she did occasionally have some respite help with the care of her children.

211 After examination, Dr Rosenthal reported that the accident damaged the L5/S1 disc, causing it to protrude and irritate the right S1 nerve root. He said that the protrusion occurred in a disc that was already degenerate, and that the MR scan showed evidence of pre-existing degenerative change at both L4/5 and L5/S1. The recurrence of nerve root irritation causing leg pain was consistent with her initial injury and symptomatology. Dr Rosenthal noted, in cross-examination, that he was not necessarily making a causative connection with the coughing, but just noting that the nerve root irritation causing leg pain was consistent with earlier problems. (ts 318) He also said there was no evidence the respondent was carrying a cervical disability of any significance. Dr Rosenthal quantified her permanent residual disability as 15% loss of the full and efficient use of her back (due to the injury, not taking into account any pre-existing degenerative change).

I would not regard her as physically capable of undertaking night filling work. She has a present capacity to work half-time as a photo laboratory technician. With appropriate physical reconditioning after a further six months I would envisage her being able to work full-time as a photo laboratory technician.

With reference to other spheres of employment these would need to be in the lighter category specifically avoiding heavy lifting and repetitive bending. A sales position, clerical job and customer services role would seem appropriate.

It would be reasonable to give her some assistance with vocational redirection. I note in her earlier years she had worked with disabled children. I think this sphere of employment would cause problems with her back pain. I questioned her about the extent to which she has to physically assist her child with the cerebral palsy. This is in fact quite minimal as the child only has a very mild hemiparesis.

Dr Rosenthal explained 'physical reconditioning' as developing some 'work fitness' and some 'work hardness'. (ts 312)

213 Dr Rosenthal gave evidence that he was still of this opinion as to the respondent's work capacity. (ts 312) He said he was familiar with the work duties of a photo laboratory technician:

I'm familiar with those work duties because in the past I have been part of rehabilitating people with bad spinal injuries into that particular area. It has been suitable because it can be self-employed franchisee because there's these laboratories in most suburbs and they are fully automated. It was particularly suitable to rehabilitate people who would find it difficult - even though they had successfully completed work trials, there would be a problem placing them in the workforce because nobody would take a workers compensation risk assumption, so these people had a future as a self employed franchisee, and this was one of the areas that we have rehabilitated people into, so to answer your question I'm familiar with what's required. They are basically completely automated procedures. In a standard suburban processing laboratory the machine would be the width of this little desk that I'm sitting at. It would be fractionally higher. It would take a 150 metre paper roll and if it's a machine this size the roll of paper wouldn't be more than 4 kgs for that particular size of machine. The chemicals for the machine come in five litre bottles for this type of automation. The physical requirements are quite minimal. It's certainly compatible with people with ongoing back and other types of muscular skeletal problems. (ts 312)

214 In cross-examination, Dr Rosenthal said he went to a Kodak processing laboratory outlet in North Perth to refresh his memory of the machine and its processes. He had previous working knowledge of the machine, and although he did not record the model of the machine he looked at in North Perth, he imagined that there was some standardisation across such laboratories. In relation to the 5 litre chemical bottles, Dr Rosenthal said that sometimes one would be required to squat to put them into the machine, unless the machine had a port in the top. One would have to squat to load the chemicals into the particular machine at the North Perth outlet. He also said that there were barrels of chemicals on the floor which were about 80 litres in capacity, and that one would have to squat and siphon the chemical into a 5 litre bottle and then put the contents of that bottle into the machine. (ts 313 - 314)

Report dated 24 February 2005 (to the appellant's solicitors)

215 Dr Rosenthal recorded the respondent's history since he last saw her and noted that the respondent had not worked in any capacity since that time. He recorded her present condition, in particular, in relation to her daily life, that she drove, walked daily for 30 minutes, did her housework slowly (but could not scrub showers or toilets), hung out washing, but no longer used the vacuum cleaner. When her back was bad, she would defer housework or receive help from her husband. She had the use of a back brace.

216 The respondent continued to have lower back pain referring into the right buttock with sensory symptoms into the right leg. She had a tendency to lean on her left leg, which at times had given way. Her sitting capacity was reduced, and she had difficulties with standing.

217 Dr Rosenthal found that the accident caused an L5/S1 disc protrusion and very likely aggravated a pre-existing degenerative change at L4/5. He said there was a comparatively mild soft tissue cervical strain injury and that her complaints related to some adverse neck muscle tension which was common in patients with chronic lower back pain.

218 He still assessed the respondent's permanent residual disability at 15% impairment of the lumbar spine. He expressed the following conclusions as to the respondent's work capacity at the times he had seen her:

(a) she was not fit to work as a night filler, but could work '0.5' as a photo laboratory technician;

(c) she had '0.5' capacity to work in a sales or customer services role;

(d) she was able to care for herself and her children.

He also expressed the following conclusions about the respondent's future working capacity:

(a) He could not see her returning to work as a night filler, but her capacity to work as a photo laboratory technician would progressively increase as her fitness improved. There were encouraging signs regarding a reduced requirement for medication and an increased physical output.

(b) She had future employment capacity relating to sales or customer service roles.

(c) She had adequate capacity to care for herself and her children.

219 The respondent was also reviewed by Mr John Croser (orthopaedic surgeon), Dr Stephen Proud (consultant psychiatrist), Dr Robert Delcanho (pain specialist), Dr Michael Ponchard (clinical exercise physiologist), and Mr Eamonn McCloskey (orthopaedic and spinal surgeon). These practitioners were not called to give evidence, but their reports were tendered in evidence (Croser (ts 243), Proud (ts 283-285), Delcanho (ts 285), Ponchard (ts 285-286) and McCloskey (ts 286)). The learned judge did not refer to their reports in her reasons.

Agreed weights of objects in the photo laboratory

220 After all the witnesses were called, the parties visited the Kmart site at Joondalup and took some videos and photographs of the equipment in the photo laboratory, and agreed on the weights of the objects involved.

221 The paper rolls come in a box of two weighing 13.9 kg. Each paper roll weighs 6.95 kg. The paper is loaded onto a spindle and placed in a box called a magazine. A magazine with an almost empty paper roll weighs 8.9 kg and a magazine with a full paper roll weighs 15.2 kg. Further, there are two types of chemicals, P1 and P2. The P1 chemical comes in a box of two weighing 7.5 kg, and each P1 container weighs 3.75 kg. The P2 chemical comes in a box of four weighing 15.6 kg, and each P2 container weighs 3.9 kg. (ts 349-352)

222 None of the agreed weights of the objects in question was put to any of the expert witnesses.

If there are irreconcilable inconsistencies in the learned judge's reasons which require the setting aside of findings or calculations made by her Honour, is this court able to make its own findings and calculations on the record or is it necessary to order a retrial?

223 As I have mentioned, at [83] and [85] above, there are irreconcilable inconsistencies in the learned judge's reasons which require that her Honour's award in relation to past and future loss of earning capacity, and her findings of fact in relation to the respondent's physical capacity for work after the accident and the effect of her family commitments on her exercisable earning capacity, be set aside.

224 Section 79(1) of the District Court of Western Australia Act 1969 (WA) provides, relevantly, that a party to an action or matter who is dissatisfied with a final judgment may appeal from that judgment to the Court of Appeal. By s 79(3), the Court of Appeal has jurisdiction to hear and determine the appeal accordingly.

225 The nature of the rehearing before this court is as described by the High Court in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118:

The 'rehearing' does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits [22].

226 The requirements and limitations of a rehearing of the kind which occurs before this court were described by Kirby J in CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458. His Honour said:

The form of rehearing so provided 'shapes the requirements, and limitations, of such an appeal'. The relevant 'requirements' are that the appellate court is obliged to conduct a thorough examination of the record and a real rehearing. It is not confined to reconsideration of the record in order to correct errors of law, although that will certainly be encompassed in such an appeal. It is required to consider suggested errors of fact-finding. Experience teaches that many errors of this kind arise at first instance, more perhaps than errors of law. Having conducted a rehearing as so described, the appellate court is obliged to 'give the judgment which in its opinion ought to have been given in the first instance'. This involves, where, as here, there is no jury, conducting a thorough review of the primary judge's reasons and engaging in the tasks of 'weighing conflicting evidence and drawing ... inferences and conclusions'.

The 'limitations' introduced into the rehearing based on the record of the trial are those necessarily involved in that form of appellate procedure. Such limitations include those occasioned by the resolution of any conflicts at trial about witness credibility based on factors such as the demeanour or impression of witnesses; any disadvantages that may derive from considerations not adequately reflected in the recorded transcript of the trial; and matters arising from the advantages that a primary judge may enjoy in the opportunity to consider, and reflect upon, the entirety of the evidence as it is received at trial and to draw conclusions from that evidence, viewed as a whole [16] - [17].

227 It is necessary to distinguish between the reasoning of a trial judge which is based on a credibility determination on the one hand, and the reasoning of a trial judge which is based on inferences drawn from facts that were undisputed or found by the trial judge on the other. See Fox v Percy [88]. As Kirby J observed in CSR:

Even in the case of expressed credibility findings, the statutory duty to conduct a real 'rehearing' remains. It may sometimes justify reversal of a decision by a primary judge who has 'failed to use or has palpably misused his advantage' or where 'incontrovertible facts or uncontested testimony' demonstrates the findings to be erroneous; or where they are 'glaringly improbable' and 'contrary to compelling inferences'.

However, where the conclusion of the primary judge depends on inferences drawn from undisputed facts or facts that have been found but can equally be redetermined by the appellate court, without relevant disadvantage, the duty of the appellate court is clear. It derives from the parliamentary enactment. It 'will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it' [21] - [22].

228 In the present case, the learned judge did not make any adverse findings as to the credibility of the respondent, the expert witnesses or any other witnesses. In particular, her Honour accepted that the respondent gave truthful evidence. Her Honour did not resolve any conflicts between the expert witnesses on the basis of factors such as demeanour or impression. In the circumstances, this court is able to make its own findings of fact, on the record, in relation to the respondent's physical capacity for work after the accident and the effect of her family commitments on her exercisable earning capacity, even without a trial judge's natural advantage of considering, and reflecting upon, the entirety of the evidence as it emerges at trial. Also, this court is able to make its own calculations based on its own findings of fact and those findings of fact of the learned judge which have not been set aside.

If there are irreconcilable inconsistencies in the learned judge's reasons which require the setting aside of findings or calculations made by her Honour, and this court is able to make its own findings and calculations on the record, what findings and calculations should be made?

229 It is apparent, from the learned judge's findings at [55] and [79] and the preponderance of the expert medical evidence, that the respondent suffered a soft tissue injury and also a protrusion of the L5/S1 disc with S1 nerve root compression. The injury to the lumbosacral area was more significant than the injury to her cervical area.

230 The learned judge made an implied finding that the respondent had intended (but for her injuries) to resume full-time employment because of her commitment to work and her family's need for money. That finding was reasonably open, and I accept it.

231 The respondent's commitment to work after the accident must be evaluated, however, with regard to her statement to Ms Pennefather, on 9 March 2000, to the effect that:

I can't go back anyway because my kids - the one with cerebral palsy needs a lot of medical appointments.

The respondent gave evidence that she spoke to a representative of the appellant, but she could not recall the content of the conversation. (ts 95 - 98)

232 Between December 1997 and 7 January 1999 (the date of the accident), the respondent worked initially one night (four hours) a week, then two days (eight hours) a week, and then three days (12 hours) a week.

233 Ms Betts (the respondent's mother) gave evidence that before the trial she had two part-time jobs with flexible working hours which enabled her to look after the respondent's children. Ms Betts added that at the time of the trial she had one job, but was available five days each week to look after the children. Before the accident there was a discussion between the respondent, Mr Weatherall (her husband) and Ms Betts, to the effect that they would live in close proximity, that the respondent would return to the workforce and that Ms Betts would assist that course of action by caring, as necessary, for the children. At the time of the accident, Ms Betts lived in a granny flat at the back of the respondent's property in Wanneroo. At the time of the trial, Ms Betts was living in a duplex, adjoining the respondent's home, in Ridgewood.

234 The respondent and Mr Mirco gave broadly consistent evidence as to the nature of the duties which the respondent performed as a photo laboratory technician.

235 The respondent's case on appeal was, relevantly, that she was totally unfit to resume her pre-accident employment. By contrast, the appellant's case was, relevantly, that no award should have been made for past loss of earning capacity (in that any loss of earning capacity before trial would not have been exercised because of the respondent's role as the full-time carer of her children) and no award should have been made for future loss of earning capacity (in that the respondent should recover from her injuries and, in the meantime, it was the respondent's role as the full-time carer for her children which prevented her from returning to work), alternatively, a modest global allowance for damages should be made for the risk that in the future any existing loss of earning capacity may continue and be productive of financial loss.

236 The respondent bore the burden of proving the nature and extent of her physical incapacity as a result of the accident. In Thomas v O'Shea (1989) A Tort Rep 80-251, Malcolm CJ and Wallace J (with whom Kennedy J agreed) said:

The question remaining is what was the appellant's residual earning capacity, if any. This was clearly a case where, as the learned trial Judge found, the appellant had lost the earning capacity he had before the accident. The legal onus of proof of loss of earning capacity rests, of course, on the plaintiff, but once the plaintiff has proved that he has lost his pre-accident earning capacity and has been unable to find alternative employment, or that his condition has prevented him finding alternative employment, an evidentiary burden is cast on the defendant to show what alternative employment opportunities were open, including the state of the labour market and the likely earnings: Arthur Robinson (Grafton) Pty Ltd v Carter [1968] HCA 9; (1968) 122 CLR 649 at 657 per Barwick CJ; Van Velzen v Wagener (1975) 10 SASR 549 at 550 per Bray CJ; and Linsell v Robson [1976] 1 NSWLR 249 at 253 - 254 per Hutley JA; and at 254 - 255 per Glass JA. In Baird v Roberts [1977] 2 NSWLR 389 it was held that a defendant who seeks to show that the plaintiff can still do 'light work' or follow a 'sedentary' occupation must adduce evidence that the plaintiff is able to do such work and to obtain it and what the earnings from it would be. The Full Court in Victoria has taken the same approach: Vandeloo v Waltons Ltd [1976] VicRp 6; [1976] VR 77. In that case, however, it was recognised that where the defendant was alleging that the plaintiff had unreasonably refused to undertake work of which he was capable, this was an allegation of failure to mitigate in respect of which the legal burden rested on the defendant: see also Adams v Ascot Iron Foundry Pty Ltd (1968) 72 SR (NSW) 120 at 139 per Jacobs J.

In the present case, while there was some evidence that the appellant may have been physically capable of some form of extremely light work, subject to the qualifications we have mentioned, there was no evidence of the availability of suitable work or of the likely earnings from any such work. This was a case where the appellant's case was such that there was an evidential burden cast on the respondent which was not discharged. It was not shown that the appellant was a malingerer or had unreasonably refused to take any suitable work which was available. The latter was a point upon which the respondent had the legal burden of proof (68,701 - 68,702).

Those observations by Malcolm CJ and Wallace J in Thomas were explained, subsequently, by Malcolm CJ (with whom Wallace J agreed) in Bowen v Tutte (1990) A Tort Rep 81-043:

It has been suggested that it was for the appellant in the discharge of the onus of proof of loss to lead evidence of the type of work still open to her, the availability of such work and the likely earnings from it. It was further suggested that in the absence of such evidence the appellant would have failed to prove her loss of future earning capacity. I am unable to accept these suggestions. They are inconsistent with the authorities referred to in Thomas v O'Shea. In this respect it is important to remember that nothing said in Thomas v O'Shea departed from the basic proposition that the legal burden of proof of loss rests on the plaintiff and that this includes 'the quantification in money that should be adopted in the sum awarded': Watts v Rake (1960)108 CLR 158 at 159 per Dixon CJ. Thomas v O'Shea was concerned with the circumstances under which the evidentiary burden may shift having regard to the state of the evidence in that case. Some authority for these suggestions may be found in Allan v Loadsman (1975) 2 NSWLR 789. In Theiss Properties Ltd v Page [1980] FCA 101; (1980) 31 ALR 430 the Full Court of the Federal Court also rejected the suggestions to which I have referred. Sheppard J (with whom Forster J agreed) said at 441 - 442:

'To some Allan v Loadsman appeared to lay down a principle that where, in the case of a partially incapacitated plaintiff, there was no evidence of what he was able to earn in employment within his capacity, there could be no recovery because the extent of the plaintiff's loss could not be quantified. If that were the ratio of the decision, I would myself have substantial hesitation in following it, if only for the reason that I would not have thought such a matter could be the subject of any principle of law. The question in all cases must be whether a plaintiff has established those matters upon which his entitlement to recover depends. I do not need to develop the matter further, however, because the view I have just expressed is plainly the prevailing view of the Court of Appeal. In Yammine v Kalwy (1979) 2 NSWLR 151, Reynolds JA dealt with a submission similar to the one here made that there was no evidence of what the respondent plaintiff might be able to earn in his injured state so that there was no material upon which the judge could quantify any loss of capacity. Nominal damages only were said to be recoverable. His Honour said (at 155):

"This submission has its origin in some statements in this court made in a case of Allan v Loadsman. This is not the first occasion that observations of particular relevance in that decision have been relied upon in support of a very wide principle of the kind now pressed. They have consistently been rejected and Allan v Loadsman should not be regarded as authority for such an all-embracing principle.

Of course, in seeking to quantify his damages, a plaintiff could be well advised to offer such evidence in many cases, and likewise a defendant, in seeking to cut down the damage, might similarly be well advised to tender such evidence; neither, in the absence of such evidence, could complain, to the same effect, at any quantification arrived at. This, however, is far from asserting that in the absence of such evidence only nominal damages is appropriate. In Kealley v Jones (1979) 1 NSWLR 723 at 732 et seq, the President dealt with this matter in terms with which I express respectfully agreement. In my opinion, where a plaintiff has suffered a significantly disabling injury which obviously affects the range and nature of the work he can, therefore, perform, a tribunal of fact can, without specific evidence as to what other persons with that kind of disability can earn, make a judgment and assessment on a percentage basis or otherwise, of the value of the lost capacity. Allan v Loadsman should not be understood as deciding otherwise."

Hope JA agreed with what Reynolds JA had said ((1979) 2 NSWLR at 156). I would add my respectfully agreement with it also. I would also indicate respectful agreement with what was said by Mahoney JA (at 156 - 8). It is to be observed that Mahoney JA wrote the principal judgment in Allan v Loadsman.

It follows from what I have said that Allan v Loadsman does not have in New South Wales the significance contended for by counsel for the appellant. For the reasons given by Reynolds JA in Yammine v Kalwy it ought not to have that significance anywhere else. The submission based upon Allan v Loadsman is one which I would therefore reject.'

McGregor J said at 433:

'Appellant relied on Allan v Loadsman (1975) 2 NSWLR 789 for the submission that if a party seeks to claim an economic loss by reference to a differential, ie a contrast of pre-injury earnings with post-accident residual earning ability, the party was bound to prove the differential; failing which he could recover only a nominal sum for that aspect of his claim, Appellant argued that respondent, though still with a residual capacity, did not produce evidence as to what he could earn before the trial (but after the injury). He submitted that even though there was evidence of pre-injury earnings, there was no evidence of a figure which quantified or enabled the trial judge to quantify earnings which may have been earned after the injury, ie on which the trial judge could come to a finding on a differential. Inasmuch as Allan v Loadsman did give support, or was thought to have given support to such a proposition, the proposition or misunderstanding has been negated or corrected or not followed in such cases as Baird v Roberts (1977) 2 NSWLR 389 at 397 et seq; Kealley v Jones (1979) 1 NSWLR 723 at 733-4 and Yammine v Kalwy (1979) 2 NSWLR 151 at 155.' (68,085 - 68,086)

Where it is clear that the plaintiff has suffered a loss of earning capacity, as where there has been a total loss of capacity to earn in the occupational [sic] profession for which the plaintiff has previously been employed, the Court will do its best to place a value on that loss, notwithstanding the absence of evidence of the availability of employment within the plaintiff's residual capacity and evidence of the amount which could be earned in such employment: see for example Ashford v Ashford (1970) 44 ALJR 195; Chelini v Northern Territory Port Authority (1976) 12 ALR 519; and Dessent v The Commonwealth (1977) 13 ALR 437 at 447 per Mason and Aickin JJ. Consequently, the basic approach adopted by the learned trial Judge in the present case to take account of the existence of a residual earning capacity by the deduction of a percentage amount from the figure he calculated for total loss of earning capacity was correct. In my opinion, however, for the reasons which I have mentioned, I consider that the learned trial Judge took a somewhat optimistic view of the appellant's residual capacity. As a result, the amount of $121,956.00 which the learned trial Judge assessed was, in my opinion, disproportionately low (68,086 - 68,087).

Also see Eltin Ltd v Dowsett [2001] WASCA 101 [20] - [24] (Grove AJ, Wallwork & Anderson JJ agreeing).

238 In the present case, the appellant did not plead that the respondent had failed to mitigate her loss or damage.

239 Also, in the present case, neither the respondent nor the appellant adduced any evidence as to what suitable alternative occupations (apart from a photo laboratory technician) might be available for the respondent, even though she is plainly not wholly incapacitated. The expert medical witnesses gave some general evidence as to the type of occupation which the respondent should be able to perform, at least on a part-time basis. Dr Salmon mentioned an occupation where the respondent could change her posture, by sitting and standing. Professor Harper suggested a job that was not a 'static position' and would enable the respondent to move around. He mentioned work as a receptionist or clerk. Dr Rosenthal thought the respondent was fit to work half-time as a photo laboratory technician, a clerk or in a sales or customer services role. There was no evidence as to the availability of these alternative forms of employment on a full-time or part-time basis, or of the earnings likely to be derived from them.

240 The parties conducted the trial on the basis that the critical point in issue concerning the respondent's claim for past and future loss of earning capacity was whether and, if so, to what extent she was or would be capable of returning to her pre-accident employment.

241 As Deane and Dawson JJ observed in Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327 at 343, the assessment of damages for personal injuries in an action for negligence is not an exact science. The process of assessment must be governed by considerations of practical common sense in the context of the facts of the particular case.

242 In the present case, the critical difference between the expert medical witnesses concerned, relevantly, whether and, if so, to what extent the respondent was able to resume employment as a photo laboratory technician. An analysis of the expert evidence is complicated by the failure to put to the witnesses the agreed weights of the objects which the respondent would be required to lift in the course of that employment. In summary:

(a) Dr Minsker was of the opinion that the respondent's symptoms were likely to persist for the foreseeable future. She was unable to give a prognosis as to the severity or duration of those symptoms but, in her view, the respondent was unable to return to her pre-accident employment.

(b) According to Professor Mastaglia, although there had been some improvement in the respondent's condition, there was substantial evidence that she had a continuing problem at the lumbosacral level, with disc protrusion and nerve root compression, and was likely to remain unfit for her pre-accident employment for the foreseeable future. The Professor accepted, however, that it would be beneficial for the respondent to undertake some form of employment and that she should make an attempt to return to the workforce. In his report of 12 March 2001 he had asserted that anyone with the respondent's injuries should not undertake any substantial heavy lifting, and suggested nothing heavier than 5 kg. At the trial, Professor Mastaglia clarified that he was not stating that 5 kg was an 'absolute cut-off' limit. He did not think there was any reliable 'cut-off' figure, and that even lifting weights of 5 kg for someone in the respondent's condition may be sufficient to aggravate her injuries. He added that the more lifting activity engaged in by the respondent, the greater the likelihood of an aggravation, but even engaging once in lifting activity could be detrimental.

(c) Dr Salmon was of the opinion that the ongoing demands of the respondent's disabled children, combined with her continuing symptoms, made it unlikely that the respondent would be able to return to her pre-occupation employment in the foreseeable future. He said that if the respondent had been a single person with no children, it would not be unreasonable for her to attempt some part-time work, provided it did not involve any significant lifting (more than 10 kg) and provided she was able to alternate between sitting and standing, and move about to some extent. Dr Salmon was also of the opinion that the respondent's condition should improve gradually over time.

(d) According to Professor Harper, the respondent had a moderately severe residual disability of the lumbosacral spine, and her capacity for employment had been affected to a moderately severe degree. He understood that her pre-accident employment involved 'prolonged standing at a machine', 'a certain amount of lifting and bending in relation to paper rolls and chemicals' and, although he was unfamiliar with photo laboratories, he understood that the paper rolls weighed in excess of 10 kg. The Professor thought that the extent of the respondent's residual disability, and her susceptibility to aggravation of symptoms, made it inadvisable for her to return to her work as a photo laboratory technician, even on a limited part-time basis. Professor Harper accepted, however, that it would be desirable for the respondent to undertake some form of employment out of the home, and suggested a position that would enable her to 'move around' as distinct from being 'tied to one spot'. The respondent retained limited work capacity, but would only be able to work two or three hours a day, possibly as a receptionist or clerk. The Professor asserted that the respondent should not return to her pre-accident employment even if the weight of each paper roll was 6 1/2 kg, and she had to load the paper rolls up to four times a day, replenish the chemical containers daily with each container weighing 10 kg (in one instance) and 13 kg (in the other instance), and bend at or close to ground level to load the chemicals.

(e) Mr Anastas said that the respondent was fit to return to her pre-accident occupation, but she should lift and bend in 'the correct way'. In general, she was fit to engage in any work which did not involve 'repetitive heavy lifting or prolonged bending'. Subject to those limitations, the respondent's injury had not compromised her ability to compete in the open workforce. Mr Anastas accepted that his views as to the respondent's capacity to work were inextricably bound up with his diagnosis of a simple soft tissue injury.

(f) According to Dr Rosenthal, since 5 September 2002, the respondent has had the physical capacity to work 'half-time' as a photo laboratory technician. She also had the capacity to work half-time as a clerk or in a 'sales or customer services role'. Dr Rosenthal said that in a standard suburban processing laboratory (he had been to the Kodak processing laboratory in North Perth to refresh his memory), a paper roll would not weigh more than 4 kg. He added that the requisite chemicals would be supplied in 5 litre bottles, and it would be necessary to squat to load the chemicals unless the machine was a 'top loader'. Also, there were 80 litre barrels of chemicals on the floor, and it would be necessary to squat to siphon the chemicals into a 5 litre bottle for use in the machine.

243 A review of the expert medical evidence reveals that Mr Anastas adopted an extreme position in relation to the respondent's diagnosis and prognosis, compared with the other medical experts and, in consequence, I would not rely upon his evidence.

244 Dr Minsker, Professor Mastaglia and Professor Harper were the most pessimistic of the medical experts in relation to the respondent's prognosis and her capacity to resume her pre-accident employment. Dr Rosenthal was the most optimistic. Dr Salmon's opinions were slightly more optimistic than those of Dr Minsker, Professor Mastaglia and Professor Harper, but they were in general agreement. Dr Salmon managed the treatment of the respondent's pain, and the nature and extent of her pain was the principal impediment to her return to work as a photo laboratory technician. The essence of Dr Salmon's evidence at trial was, relevantly, that the respondent should not be involved in lifting more than 10 kg, she was unfit to return to her pre-accident occupation and that unfitness would continue for the foreseeable future, but her prognosis was for gradual improvement over time if she maintained appropriate self-management strategies. The agreed weights of the objects in the photo laboratory indicates that the weight of a magazine with a full paper roll is 15.2 kg. The respondent gave evidence that it would be necessary, in the course of her duties, to lift a magazine with a full paper roll and install it in the machine, sometimes at waist height and sometimes at head height, depending on the type of machine. Although, in general, I prefer Dr Salmon's evidence (which is supported substantially by the evidence of Dr Minsker, Professor Mastaglia and Professor Harper), his opinions as to the respondent's physical capacity and prognosis were affected, to some degree, by the impact of her family responsibilities with respect to her disabled children. I consider that the respondent's physical capacity to work (that is, not taking into account her family commitments) and prognosis are more favourable than Dr Salmon indicated, but less favourable than Dr Rosenthal suggested. I find that the respondent had some very limited capacity to work after May 2003, which capacity was likely to increase over time.

245 In my opinion, when Dr Salmon's evidence is evaluated, subject to my finding at [244] above as to the respondent's physical capacity to work and her prognosis, and in the context of the respondent's account of her symptoms and disabilities, the respondent's and Mr Mirco's account of the duties of a photo laboratory technician, the agreed weights of the objects which a photo laboratory technician is required to lift, and Professor Harper's evidence that the respondent retained some limited work capacity (possibly as a clerk), findings should be made, on the balance of probabilities, that:

(a) Between 7 January 1999 (the date of the accident) and May 2003 (when she received the second set of injections from Dr Salmon) the respondent was physically incapable of undertaking any employment.

(b) Between May 2003 and April 2005 (the date of the trial), the respondent had the physical capacity to work, on average, 8 hours per week as a clerk or in an occupation with similar demands.

(c) Between April 2005 and July 2010 (when the twins would be aged 13), the respondent will have the physical capacity to work, on average, 12 hours per week as a clerk or in an occupation with similar demands.

(d) Between July 2010 and July 2031 (when the respondent would be aged 65), the respondent will have the physical capacity to work, on average, 18 hours per week as a photo laboratory technician or a clerk.

By 'physical capacity', I refer to the respondent's medical fitness to perform the occupational duties in question.

246 It is important to note, in relation to the period between May 2003 and April 2005, that the respondent did not work and did not make any effort to obtain any form of employment, on a part-time or any other basis.

247 In my opinion, when all of the expert evidence (except Mr Anastas' evidence, which I have rejected) is considered in the context of the respondent's evidence, the weight of that evidence requires a finding, on the balance of probabilities, that, if she had not been injured in the accident, the respondent would have had the physical capacity to work (that is, not taking into account her family commitments) on average, 35 hours per week as a photo laboratory technician, between 7 January 1999 and July 2031.

248 In my opinion, upon considering the evidence from the respondent, her husband (Mr Weatherall), her mother (Ms Betts) and Ms Pennefather, the weight of that evidence requires findings, on the balance of probabilities, that:

(a) Between 7 January 1999 and May 2003, the respondent would have worked, on average, 12 hours per week as a photo laboratory technician, if she had not been injured in the accident and after taking into account her family commitments.

(b) Between May 2003 and April 2005, the respondent would have worked, on average, 16 hours per week as a photo laboratory technician, if she had not been injured in the accident and after taking into account her family commitments.

(c) Between April 2005 and July 2010, the respondent would have worked, on average, 20 hours per week as a photo laboratory technician, if she had not been injured in the accident and after taking into account her family commitments.

(d) Between July 2010 and July 2031, the respondent would have worked, on average, 35 hours per week as a photo laboratory technician, if she had not been injured in the accident and after taking into account her family commitments.

249 Upon analysis of the findings of fact set out at [244] - [245] and [247] - [248] above, it should be concluded, on the balance of probabilities, that the respondent's past loss of earning capacity was as follows:

(a) Between 7 January 1999 and May 2003, the respondent suffered a loss of earning capacity, which was productive of financial loss, based on the earnings she would have derived from working 12 hours per week.

(b) Between May 2003 and April 2005, the respondent suffered a loss of earning capacity, which was productive of financial loss, based on the earnings she would have derived from working 8 hours per week (that is, the difference between the 16 hours referred to at [248(b)] above, and the 8 hours referred to at [245(b)] above which, as I have mentioned at [246] above, related to an earning capacity that she had but did not exercise).

250 The award for past loss of earning capacity should be calculated as follows:

(a) Loss of earning capacity between 7 January 1999 and May 2003:

$13 (per hour) x 12 (hours per week) x 226 (weeks) = $35,256

(b) Loss of earning capacity between May 2003 and April 2005:

$13 (per hour) x 8 (hours per week) x 99 (weeks) = $10,296

(d) Interest at 3% per annum on past loss of earning capacity for 6.5 years:

(e) Interest at 3% per annum on past loss of superannuation for 6.5 years:

I have adopted the net earnings per hour ($13) which the learned judge accepted and used in her calculations of past loss of earning capacity, except that her Honour used $15 per hour in relation to the period from 7 January 1999 to February 2002 on the basis that the respondent's gross earnings would have been approximately within the tax free range. I have also adopted the gross earnings per hour ($15) which her Honour accepted and used in calculating compensation for past loss of superannuation benefits. I have assumed that remuneration as a clerk would not be materially different from remuneration as a photo laboratory technician. See Bowen at 68,086-7.

251 Upon analysis of the findings of fact at [244] - [245] and [247] - [248] above, it should be concluded, on the balance of probabilities, that the respondent's future loss of earning capacity was as follows:

(a) Between April 2005 and July 2010, the respondent will suffer a loss of earning capacity, which will be productive of financial loss, based upon the earnings she would have derived from working 8 hours per week.

(b) Between July 2010 and July 2031, the respondent will suffer a loss of earning capacity, which will be productive of financial loss, based on the earnings she would have derived from working 17 hours per week.

252 Subject to a discount for contingencies, which I deal with at [253] below, the award for future loss of earning capacity should be calculated as follows:

(a) Loss of earning capacity between April 2005 and July 2010:

$13 (per hour) x 8 (hours per week) for 5.25 years (multiplier: 236)

(b) Loss of earning capacity between July 2010 and July 2031:

$13 (per hour) x 17 (hours per week) for 21 years (multiplier: 632)

Again, I have adopted the net earnings per hour ($13) the learned judge accepted and used in her calculation of future loss of earning capacity. I have also adopted the gross earnings per hour ($15) which her Honour accepted and used in calculating future loss of superannuation benefits. Again, I have assumed that remuneration as a clerk would not be materially different from remuneration as a photo laboratory technician. See Bowen at 68,086-7.

253 The calculation of damages for future loss of earning capacity should be discounted by 6% for usual, adverse, contingencies. I would not make a further discount for the prospect that her physical condition may well improve in that I have already taken that prospect into account in drawing the conclusions, set out at [245], [248] and [251] above, in relation to the extent of her future loss of earning capacity. When all of the expert evidence (except Mr Anastas' evidence, which I have rejected) is taken into account, it is apparent that the respondent's future physical condition cannot be predicted with reliability and there is a prospect (which I have taken into consideration) that her condition may not improve significantly.

(c) $8,883 interest on past loss of earning capacity;

(e) $154,363 for future loss of earning capacity (being $164,216 less 6% of that amount);

(f) $16,030 for future loss of superannuation (being $17,053 less 6% of that amount).

In any event, is there any merit in any of the grounds of appeal?

255 I turn now to consider the appellant's grounds of appeal.

256 The appellant contends that the learned judge erred in law by allowing the respondent general damages of $93,800, being 35% of the maximum amount that may be awarded for non-pecuniary loss, in that the amount awarded was excessive and outside the range of her discretion.

257 Section 3C(2) of the Motor Vehicle (Third Party Insurance) Act provides:

The amount of damages to be awarded for non-pecuniary loss is to be a proportion, determined according to the severity of the non-pecuniary loss, of the maximum amount that may be awarded.

The maximum amount of damages that may be awarded for non-pecuniary loss is Amount A, but the maximum amount may be awarded only in a most extreme case. (my emphasis)

258 Section 3C(4) provides that if the amount of non-pecuniary loss is assessed to be 'Amount B or less', no damages are to be awarded for non-pecuniary loss.

259 The expression 'non-pecuniary loss' is defined in s 3C(1) to mean pain and suffering, loss of amenities of life, loss of enjoyment of life, curtailment of expectation of life, and bodily or mental harm. At the relevant time, 'Amount A' was $268,000 and 'Amount B' was $13,500.

260 In Southgate v Waterford (1990) 21 NSWLR 427, the Court of Appeal of New South Wales considered the provisions of s 79 of the Motor Accidents Act 1988 (NSW) which are in similar terms to the provisions of s 3C of the Western Australian Act. Gleeson CJ, Kirby P and Meagher JA said:

There are a number of ways by which trial judges could approach the task of apportionment required by s 79(2) and s 79(3). It is inappropriate in this case for this Court to mandate any particular way of arriving at the 'proportion' required by s 79(2). But clearly, because the task in hand is that of awarding damages for 'non-economic loss', it is appropriate for the trial judge to consider and make findings on those elements in the evidence which are relevant to such loss. This will require the judge to consider and make findings on the evidence relevant to those heads of damage formerly considered in the award of general damages. Then it is necessary for the judge to conceive 'a most extreme case'. Only for such a case may the maximum amount provided by s 79(3) be awarded. The use of the indefinite article 'a' has already been noted. Opinions of what constitute 'a most extreme case' will doubtless vary. But clearly quadriplegia would fall into that class. The amount to be awarded must then be apportioned somewhere between nil and $180,000; but in a ratio which the judge fixes keeping in mind the fact that the cap of a statutory maximum is retained for 'a most extreme case'.

If the resulting amount on the scale so conceived is $15,000 or less, no damages are to be awarded by reason of s 79(4). ... The only criterion for the apportionment prescribed is the comparison of the severity of the non-economic loss, as disclosed by the evidence, suffered by the injured person in the case before the judge and that suffered in 'a most extreme case'. The statutory maximum may only be awarded in the latter case. The judge must then assign the case as found somewhere along the resulting scale.

...

It is likely that, over time, experience will develop in assigning cases on the scale, just as earlier it did in the apportionment required for contributory negligence. But each case will necessarily depend upon its own facts. At least in the first instance, the determination of the 'proportion' is committed by law to the trial judge. He or she has the outside parameters which are fixed by the legislation. The task of determining the 'proportion' which follows may not be scientific or normative; but it is not wholly at large. A wide measure of discretion has always existed in fixing damages for non-economic loss. All that this legislation does is to require that the damages under this head be fixed in harmony with the fact that Parliament has determined that a maximum will be laid down, varied from time to time and reserved for 'a most extreme case' (440 - 441).

Those observations were cited with approval by the Full Court of the Supreme Court of Western Australia in Thomas v Bass [2006] WASCA 59 [30] - [31].

261 The expression 'a most extreme case' in s 3C(3) refers to a class of cases rather than to a case 'at the apex of the gradation of injuries': Marsland v Andjelic (1993) 31 NSWLR 162, 183. Also see Crystal Wall Pty Ltd v Pham [2005] NSWCA 449 [53]. A judge's assessment of whether a case is 'a most extreme case' within s 3C involves 'questions of fact and degree, and matters of opinion, impression, speculation, and estimation, calling for the exercise of common sense and judgment': Dell v Dalton (1991) 23 NSWLR 528, 533 - 534. An appeal court should not interfere with a trial judge's finding unless satisfied that he or she applied a wrong principle of law, misapprehended the facts or made a wholly erroneous characterisation of the plaintiff's case. See Den Hoedt v Barwick [2006] WASCA 196; (2006) 46 MVR 30 at [96].

262 In the present case, the learned judge recorded:

I am satisfied that because of the severe pain suffered by this plaintiff and the effect it has had on all aspect of her life that this case is 35 per cent of a most extreme case, and therefore I award $93,800 for general damages for non-pecuniary loss [103].

263 In my opinion, the learned judge's award of $93,800 was within the range of a sound exercise of the discretion conferred by s 3C of the Motor Vehicle (Third Party Insurance) Act. The respondent gave extensive evidence concerning her injuries and symptoms, and their impact on her life. Her Honour found, at [12], that the respondent's pain had had a 'devastating' effect on 'every aspect' of her life. Her Honour also made the findings of fact, at [96] - [99], which I have reproduced at [75] above. In my opinion, the appellant has not established that her Honour made an error of law, as alleged.

265 The appellant contends that the learned judge erred in fact by allowing the respondent $67,246 damages for past loss of earning capacity (including past loss of superannuation and interest on damages) when:

(a) although she found that the respondent's earning capacity had been diminished as a result of the accident;

(b) she also found that it was the full-time care of her children (and not the accident) that prevented the respondent from returning to work as a photo laboratory technician,

and her Honour should have made no allowance for damages for past loss of earning capacity.

266 I have dealt with various issues raised in the appeal (and the cross-appeal), in relation to past loss of earning capacity, at [80] - [81] and [83] - [84] above. I have concluded, at [85] above, that her Honour's award for past loss of earning capacity should be set aside. I have also concluded (see [249] - [250] above) that her Honour's award should be replaced by an award of damages in the amount of $60,087 for past loss of earning capacity (including past loss of superannuation and interest on the damages). Ground 2 succeeds to the extent that her Honour's award should be replaced with a reduced award of damages, as I have mentioned.

267 The appellant contends that the learned judge erred in fact by allowing the respondent $134,439 for future loss of earning capacity (including future loss of superannuation) when she found that:

(a) the respondent commenced working part-time when she commenced having a family;

(b) the respondent did not lose her capacity to work part-time;

(c) it was the full-time care of her children (and not the accident) that prevented the respondent from returning to work as a photo laboratory technician; and

(d) the respondent's prognosis was not entirely negative,

when her Honour should have made no allowance or, alternatively, a modest global allowance for damages for the risk that in the future the respondent's loss of earning capacity may continue and be productive of financial loss.

268 I have dealt with various issues raised in the appeal (and the cross-appeal), in relation to future loss of earning capacity, at [80] and [82] - [84] above. I have concluded, at [85] above, that her Honour's award for future loss of earning capacity should be set aside. I have also concluded (see [251] - [253] above) that her Honour's award should be replaced by an award of damages in the amount of $170,393 for future loss of earning capacity (including future loss of superannuation). Ground 3 fails, in essence, for the reasons I have given at [242] - [245], [247] - [248] and [252] - [253] above.

269 Most of the contentions in the respondent's grounds of cross-appeal have been subsumed within my discussion of the learned judge's reasons, at [80] - [84] above, and in my findings and conclusions, at [85] and [242] - [254] above, that her Honour's awards in relation to past and future loss of earning capacity should be set aside and replaced with awards on the basis I have mentioned and in the amounts I have calculated. There are, however, some other contentions which the respondent has raised and which I have not accepted. I set out below and deal with the grounds of the cross-appeal.

270 The respondent contends that the learned judge erred in law in adjusting the respondent's award of damages for past loss of earning capacity for contingencies more than once or at all and, in any event, adopted a wholly erroneous approach to the issue of contingencies.

271 This ground falls away in consequence of my decision to set aside the learned judge's award in relation to past loss of earning capacity and to replace that award on the basis I have mentioned and in the amount I have calculated.

272 I have not adopted the learned judge's approach to the issue of contingencies.

273 The respondent contends that the learned judge erred in fact and law in using 8 hours per week as the starting point for the calculation of the respondent's past loss of earning capacity between 7 January 1999 and February 2002.

274 This ground falls away in consequence of my decision to set aside the learned judge's award for past loss of earning capacity and to replace it with an award on the basis I have mentioned and in the amounts I have calculated.

275 I have used 12 hours, rather than 8 hours, per week, as the starting point for the calculation of the respondent's past loss of earning capacity.

276 The respondent contends that the learned judge erred in fact and in law in accepting Dr Rosenthal's evidence in relation to the duties or occupational requirements of a photo laboratory technician as the basis of her Honour's findings that the respondent was fit or able to return to work at her pre-accident employment.

277 This ground falls away in consequence of my decision to set aside the learned judge's awards in relation to past and future loss of earning capacity and replace them with awards on the basis I have mentioned and in the amounts I have calculated.

278 My findings of fact in relation to the respondent's physical capacity and prognosis are set out at [244] - [245] above.

279 The respondent contends that the learned judge erred in concluding, at [47] and [54], that Dr Harper was totally lacking in direct experience with the operation of a photo laboratory as opposed to Dr Rosenthal, and that Dr Harper's evidence was inadmissible on the basis of Pollock v Wellington (1996) 15 WAR 1.

280 This ground falls away in consequence of my decision to set aside the learned judge's awards in relation to past and future loss of earning capacity and replace them with awards on the basis I have mentioned and in the amounts I have calculated.

281 In examining and determining the respondent's physical capacity to undertake the work of a photo laboratory technician, I have not excluded Dr Harper's evidence from consideration on the basis that his evidence was inadmissible.

282 The respondent contends that the learned judge erred in holding that an evidentiary burden was not cast upon the appellant to show what alternative employment opportunities were open to the respondent, including the state of the labour market and likely earnings.

283 This ground falls away in consequence of my decision to set aside the learned judge's awards in relation to past and future loss of earning capacity and replace them with awards on the basis I have mentioned and in the amounts I have calculated.

284 I have not made findings of fact based wholly or in part on the failure of the appellant or the respondent to discharge a legal or evidentiary burden.

285 The respondent contends that the learned judge erred in fact and in law in concluding that the care of the respondent's children prevented her from returning to employment as a photo laboratory technician.

286 This ground falls away in consequence of my decision to set aside the learned judge's awards in relation to past and future loss of earning capacity and replace them with awards on the basis I have mentioned and in the amounts I have calculated.

287 My findings of fact in relation to the extent to which the respondent's family commitments precluded or would preclude the respondent from working as a photo laboratory technician are set out at [247] - [248] above and are based on a consideration of the evidence from the respondent, her husband, her mother and Ms Pennefather.

288 The respondent contends that the learned judge erred in law in finding that the respondent had a retained earning capacity of 50%.

289 This ground falls away in consequence of my decision to set aside the learned judge's awards in relation to past and future loss of earning capacity and replace them with awards on the basis I have mentioned and in the amounts I have calculated.

290 I have found that the respondent will have the physical capacity to work, on average, 18 hours per week as a photo laboratory technician between July 2010 and July 2031.

291 The respondent contends that the learned judge erred in law in effectively discounting the respondent's claim for future loss of earning capacity (including future loss of superannuation) by 31% for contingencies.

292 This ground falls away in consequence of my decision to set aside the learned judge's awards in relation to past and future loss of earning capacity and replace them with awards on the basis I have mentioned and in the amounts I have calculated.

293 I have discounted the respondent's claim for future loss of earning capacity (including future loss of superannuation) by 6% (not 31%) for contingencies.

294 The respondent contends that the learned judge erred in law and fact in finding that the respondent retained the capacity to work as a photo laboratory technician.

295 I have dealt with this contention in the course of making findings of fact in relation to the respondent's past and future loss of earning capacity.

296 I would allow the appeal to the extent of setting aside the learned judge's award of damages for past loss of earning capacity (including past loss of superannuation, interest on past loss of earning capacity and interest on past loss of superannuation) and, instead, award damages in the amounts set out at [254] above. Otherwise, I would dismiss the appeal.

297 I would allow the cross-appeal to the extent of setting aside the learned judge's award of damages for future loss of earning capacity (including future loss of superannuation) and, instead, award damages in the amounts set out at [254] above. Otherwise, I would dismiss the cross-appeal.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : INSURANCE COMMISSION OF WESTERN AUSTRALIA -v- WEATHERALL [2007] WASCA 264 (S)

BETWEEN : INSURANCE COMMISSION OF WESTERN AUSTRALIA

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Citation : WEATHERALL -v- INSURANCE COMMISSION OF WESTERN AUSTRALIA [2005] WADC 135

Costs - Whether O 24A offer made in District Court proceedings applies to costs of appeal - Whether appeal judgment operates retrospectively

1 JUDGMENT OF THE COURT: On 4 December 2007 this court dismissed the appeal and allowed the cross-appeal against an assessment of damages for personal injuries (Insurance Commission of Western Australia v Weatherall [2007] WASCA 264). The court varied the judgment below to increase the total sum awarded to the respondent from $393,272 to $515,142. These reasons relate to the costs of the appeal and cross-appeal.

2 The respondent seeks an order for costs on an indemnity basis, relying on two offers of compromise made to the appellant. The first was made on 22 September 2004 which was prior to the District Court trial and the second was made on 4 October 2005 being after trial and before the hearing of the appeal. The judgment obtained by the respondent on appeal is more favourable than both offers of compromise which were rejected by the appellant.

3 Order 24 r 10(4) of the Rules of the Supreme Court 1971 (WA) (the Rules) currently provides:

Where an offer is made by a plaintiff and not accepted by the defendant, and the plaintiff obtains judgment on the claim to which the offer relates no less favourable to him than the terms of the offer, then, unless the court otherwise orders, the plaintiff shall be entitled to an order against the defendant for his costs in respect of the claim from the date on which the offer was made, in addition to his costs incurred before that date, all such costs to be taxed on a party and party basis.

4 Rule 10(4) was amended with effect from 1 March 2007. Prior to that date the former rule materially provided:

... the plaintiff shall be entitled to an order against the defendant for his costs in respect of the claim from the date on which the offer was made, taxed on an indemnity basis in addition to his costs incurred before that date, taxed on a party and party basis.

5 Order 24A r 10(4a) provides that r 10(4) as it was before 1 March 2007 does not apply to an offer made by a plaintiff before 1 March 2007 unless the plaintiff obtains judgment on the claim to which the offer relates before 1 March 2007.

6 Judgment at first instance was entered on 15 July 2005. The respondent contends former r 10(4) applies on the basis that:

(1) the claim to which the appeal judgment relates is the same claim to which the trial judgment relates, the judgment on appeal merely varying the judgment at first instance in which event the second offer was to compromise a claim for which judgment had been given before 1 March 2007;

(2) alternatively, the effect of the first offer made pending the trial carries forward to the appeal, given that the claim to which the offer relates is the same in each case.

7 We would reject both contentions. Order 42 r 2(1) of the Rules provides that a judgment of the court takes effect from the day of its date. The court has a discretion to date its judgment as of an earlier or later day if it determines the judgment should have retrospective or prospective effect (O 42 r 2(2)). Order 42 r 2 applies to the Court of Appeal by virtue of r 5 of the Supreme Court (Court of Appeal) Rules 2005 (WA) (Appeal Rules). The court in Kschammer v R W Piper & Sons Pty Ltd [2003] WASCA 298 (S), when considering O 42, said:

The judgment of an appellate court by which the judgment below is varied takes effect from the date on which the judgment is pronounced, unless the Court exercises its discretion under rule 42(2). The judgment on an appeal is not for all purposes the judgment of the Court below and takes effect on its own pronouncement unless the Court exercises its discretion to ante date it [23].

8 The court's orders made on 4 December 2007 take effect from that date. There was no application to back date the orders or any justification for that course.

9 The respondent's submission that the 'claim' referred to in r 10(4) and r 10(4a) is the same claim at trial and on appeal is inconsistent with r 49 of the Appeal Rules. Rule 49(1) provides that O 24A applies to appeals as if a reference to 'plaintiff' were a reference to 'appellant' and a reference to 'defendant' were a reference to 'respondent'. Rule 49(3) provides that where a respondent institutes a cross-appeal 'plaintiff' refers to that respondent. Thus, r 49 expressly provides that the appellant (or the respondent on a cross-appeal) is the party with the 'claim' for the purposes of O 24A r 10(4) regardless of whether they were the plaintiff or defendant at trial. Thus, the claim in the appeal is separate and distinct from the claim at trial. The claim in the appeal is the contention of error on the part of the trial judge. Moreover this court has previously held that r 10(4) of the Rules only applies to the costs of the proceedings in which the O 24A offer is made: Elvidge Pty Ltd v BGC Construction Pty Ltd [2006] WASCA 264 (S) [6].

10 Accordingly, O 24A r 10(4) in its current form applies in which event the respondent is entitled to party/party costs unless the court otherwise provides. In the absence of an express rule to the contrary, indemnity costs are ordinarily ordered where there has been some unreasonable or delinquent conduct on the part of the party against whom the order is made: Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, 89. There has been no such conduct on the part of the appellant in this case and no justification for awarding indemnity costs. Accordingly, we order that the appellant pay the respondent's costs of the appeal and cross-appeal to be taxed.