Joukhador v Donnelly

Joukhador v Donnelly - [1999] NSWCA 468 - NSWCA 1999 case summary — Zoe

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Medical Evidence 10 The whole of the medical evidence was given by way of the tender of reports. In all thirty nine medical reports from twenty documents were tendered. There were also hospital notes, a vocational assessment report containing two separate reports and medical literature. The medical reports were often conflicting and were given by doctors in different specialties. Sometimes, a doctor changed his opinion from one report to another. It is unproductive to review all of this evidence. however, reference needs to be made to some of it. 11 The appellant had been under the care of his general practitioner Dr Malek after the 1991 accident. He saw him the day after the 1993 accident. In August 1993 an x-ray of the spine showed minimal disc narrowing at L4/5 (the site of the 1991 injury). In October 1993 the CT scan confirmed a lateral disc herniation at L5/S1 (which had been normal after the 1991 accident). There was a right side thecal sac compression, perithecal fat displacement and apparent compression of the L5 nerve root within the latent recess and exit foramen, as well as some S1 nerve root compression. There was marked L5/S1 disc injury with lateral disc herniation and definite nerve root compression of both the L5 and S1 nerves, although the L3/4 and L4/5 disc spaces were normally defined. 12 The injury at the L5/S1 level was confirmed by a further CT scan in 1994 conducted by Dr Besser, neurosurgeon. Dr Besser reported that the scan showed a psoterolateral disc herniation at L5/S1 impinging on the right S1 nerve root. Dr Besser considered this explained the appellant's right side symptoms but not his left. 13 The appellant underwent other diagnostic testing and there were differences in interpretation by various doctors consulted or retained by the appellant and respondent. Significantly, however, Dr Somerville, retained by the respondent, who was initially dismissive of the appellant's complaints, conceded in 1995 that the appellant: "does have an L5-S1 disc protrusion, and it is difficult to deny that this could be due to the accident of 1993, and I would assume that this is the consequence of it. having said that however, I am unable to explain his bilateral impairment of straight leg raising in the face of normal ankle reflexes, and the possibility that there may be heavy functional overlay cannot easily be dismissed. I assume that the reason for his slowness in replying to my questions was continuing depression, so with this superadded psychiatric element, it is perhaps difficult to give an accurate assessment of his present disabilities and future prognosis, bound up as these questions are with his emotional health. From the physical point of view however, I consider that this protrusion is such that he would not be suitable to perform heavy duties but should be capable of working in less demanding and sedentary positions . I do not think it likely that he will be left with any longterm sequel to the motor vehicle accident of 1993 except for his inability to perform heavy lifting, and as stated, I feel that his psychiatric health has a marked bearing upon his prognosis. He appears presently, from the neurological point of view, to be fit for any type of work which does not involve heavy lifting." 14 Dr Somerville later significantly resiled from this position after MR scans were performed in 1996. 15 Likewise, Dr Champion (who was retained by the appellant) stated that his earlier assessment of a L5/S1 disc protrusion was not reasonable after viewing the MR scan, but that: "the C5-6 and C6-7 intervertebral disc protrusions may have been aggravated by the accident and significant interverebral disc lesion are not required to explain chronic post injury pain disorder. However, he concluded that: 'The lumbar spine disorder is a post injury chronic pain syndrome as otherwise described and we have to rely on the clinical interpretation as presented. The apparent absence of significant pathology does not substantially reduce the significance and severity of his disorder.'"

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25 Her Honour stated that this view was similar to that of the respondent's doctors. 26 It appears that her Honour accepted these views as she was: "..not satisfied that Mr Joukhador's capacity to work is impaired. He is not disposed to seek work. I find that the reasons for this are not related to the 1993 accident." 27 She added: "I am not satisfied that Mr Joukhador is likely to seek work of any type, or that he had shown any interest in seeking work of any type for some years before the 1993 accident." 28 Leaving aside the second part of her Honour's finding - that she was not satisfied that the appellant was likely to seek work - her Honour's finding that she was not satisfied that the appellant's work capacity was not impaired raises a number of problems. Firstly, I am of the opinion that prima facie, it is inconsistent with a finding of twenty-eight per cent of a most serious case. The argument put against this was that the appellant's case on economic loss related to sedentary work and that on the evidence accepted by her Honour, he was not incapacitated for such work. I consider that to be a too simplistic approach, both to the medical evidence and her Honour's overall findings. In particular, as her Honour found, the appellant still suffers from pain which is sometimes incapacitating. She made that finding in a context where the appellant was not doing any work at all. Incapacitating pain can impair economic capacity, howsoever a person might be likely to exercise the capacity. 29 In addition, her Honour's presumed acceptance of the vocational assessment also overlooked the appellant's medical evidence, such as that of Dr Clayton, to which I have referred earlier. Her Honour needed, in my opinion, to explain how she came to accept the vocational assessment report, without having regard to other material in the case, which she had not rejected, and perhaps had implicitly accepted. 30 The finding that the appellant was not entitled to an award of economic loss also fails to pay regard to her finding that the appellant's "physical injuries have compounded his mental and emotional condition, and that in turn has complicated his rehabilitation". Having made that finding early in her judgment, her Honour was required to consider what effect the appellant's pre-existing psychological condition had on his earning capacity. She did not do so. 31 For these reasons alone, I consider that her Honour erred in finding that the appellant was not entitled to an award of damages for non-economic loss.

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and "I am not satisfied that the appellant is likely to seek work of any type, or that he had shown any interest in seeking work of any type for some years before the 1993 accident." (emphasis added) 33 In Malec, Deane, Gaudron and McHugh JJ stated at 643: "If the law is to take account of future hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high - 99.9 per cent - or very low - 0.1 per cent. But unless the chance is so low as to be regarded as speculative - say less than 1 per cent - or so high as to be practically certain - say over 99 per cent - the court will take that chance into account in assessing the damages … Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded." 34 In Medlin Deane, Dawson, Toohey and Gaudron JJ stated at 6: "For the purposes of the law of negligence, the question of whether the requisite causal connexion exists between a particular breach of duty and particular loss or damage is essentially one of fact to be resolved, on the probabilities, as a matter of commonsense and experience. And that remains so in a case such as the present where the question of the existence of the requisite causal connexion is complicated by the intervention of some act or decision of the plaintiff or a third party which constitutes a more immediate cause of loss or damage … The ultimate question must, however, always be whether, notwithstanding the intervention of subsequent decision, the defendant's wrongful act or omission is, as between the plaintiff and the defendant and as a matter of common sense and experience, properly to be seen as having caused the relevant loss or damage." 35 McHugh J stated at 18: "Damages can be awarded for loss of earning capacity, however, only to the extent that that loss produces or might produce financial loss. … In Mann v Ellburn the Full Court of South Australia preferred an approach that compensates the plaintiff to the extent that the loss of earning capacity has resulted in a loss of probable earnings and the loss of a chance to exploit any residual capacity that would probably not have been exploited even if the accident had not occurred. I see nothing wrong with that approach in most cases. It gives effect to the fundamental principle underlying the assessment of damages that a person is only compensated for what he or she has actually lost. But, as the judgments of the Supreme Court in this case show, it is an approach that can mislead a court in a case where the plaintiff continues in employment. It is always necessary to bear in mind as Bright J said in Mann that 'one first of all determines that there has been a loss of capacity, and then having regard to the establishment facts of the past and the probabilities of the future one determines that flow from the loss of capacity'." 36 I consider that the trial judge did not properly apply the test enunciated in Medlin and Malec relating to economic loss. Admittedly, the appellant had a poor work record. Indeed, it was almost non-existent. However, her Honour failed to assess the possibility that at some time in the next thirty five years or so his incapacitating pain would have lessened and his psychiatric condition would be sufficiently controlled to permit him to work and that he would have been sufficiently motivated to seek work. I also consider that her Honour's opinion as to the appellant's motivation was influenced by her focus on the vocational testing of the appellant's physical capacity, the results of which were not consistent with her Honour's findings in relation to non-economic loss, and, which I have already said, failed to take into account the impact of the appellant's psychological state on his physical rehabilitation. 37 I shall consider below what result should flow from her Honour's errors in relation to non-economic loss.

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