Kanja v Dynamic Engineering Construction Co Pty Ltd [2007] VSCA 307

3 The grounds of appeal upon which the appellant relies are that the jury verdict in respect of each head of damage was;

The appellant seeks an order that the proceeding be retried on the issue of assessment of damages.

4 Unless the case is one in which there is no evidence capable of supporting the

verdict, the principle which applies when an appellate court is asked to set aside an

assessment of damages by a verdict is not in doubt. The appellant has the burden of establishing that on the view most favourable to the respondent, no reasonable jury, properly instructed and giving due attention to the evidence, could arrive at such a verdict.[1] An appellate court has no power to review the evidence except for the purpose of establishing what view of the evidence was reasonably open to the jury.[2]

**5 The appellant was born in Croatia on 25 September 1962. His family emigrated to Australia when he was eight years of age. He was an average student who left school at 15 years of age and subsequently obtained employment at a McDonalds Restaurant in Flemington before working in a milk bar and a factory. At the age of 18 he obtained labouring and concrete finishing work and thereafter worked in that capacity with a variable work history. For a period of time prior to January 1996 the appellant worked as a sub-contractor to the respondent. However on 8 January 1996 he commenced employment with the respondent as an employee. At that time the respondent was undertaking the construction of a factory in Keon Park. The appellant's work involved him in pouring and finishing off large concrete slabs manually. The finishing off required him to walk up and down the slabs 'burning' them off using a heavy trowel machine. The appellant gave evidence before the jury that the weight of the machine was more than 100 kilograms although it may have been 'about 75 kilograms' if it was one of the lighter machines. The respondent's construction manager estimated the weight of the machine to be approximately 70 kilograms. The appellant gave evidence that on Friday 12 January 1996 he and a fellow worker were instructed to stay back after normal work hours and to finish the work on the concrete slabs which had been undertaken that day. The appellant and his co-worker picked up the trowel machine in order to move it to a slab of concrete which required finishing. As they did so the appellant felt pain in his neck. He described the pain as being like 'a hot poker into the side of my neck'. He said that the pain went down from the back of his neck into his shoulder.

6 The appellant gave evidence that he completed the day's tasks. During the weekend he was unable to move his neck. He attended upon his general practitioner on 17 January 1996. The general practitioner, Dr Kuay, gave evidence before the jury. He said that the appellant presented on 17 January 1996 with sharp pains in his neck radiating to his left shoulder. The appellant was unable to rotate his head laterally to the left. Dr Kuay ordered an x-ray of the appellant's neck. The appellant presented next to Dr Kuay on 20 January 1996 when the x-ray was reviewed. Dr Kuay said that the x-ray report showed that there was 'a loss of curvature of the neck with development of minor kyphosis'. The report noted that the kyphosis was likely to be due to muscle spasm. The respondent's employment records record the appellant as having returned to work on 26 January 1996. The appellant gave evidence that upon his return to work he continued to suffer pain in his neck region and between his shoulder blades. He said that he could not lift heavy weights any more. He said that after suffering the injury whilst lifting the machine he was never free of pain. He said that prior to the injury his health was 'pretty good'. Except for a mild reflux problem, and the 'odd migraine' there was 'nothing that bothered' him or stopped him from working.

7 The appellant gave evidence of a further incident which he said had occurred in 'April or March' when he was shovelling sand and he suffered a 'similar pain' in his neck which 'ended up getting ... in my lower back and right buttock and in the back of the leg'. Later on the same day he picked up a trowel machine, as he had on 12 January 1996, and suffered 'another severe stabbing pain' in his left shoulder. These latter matters were not the subject of any separate pleading although the particulars of injury pleaded as having been suffered as a result of 'the accident' of 12 January 1996 were as follows:**

Injury to the neck, including injury to the cervical discs;

Injury to the back, including injury to the thoracic and lumbar discs;

**8 The respondent's records reveal that subsequently the appellant returned to work on 29 and 30 March 1996 but that his employment was terminated thereafter. The appellant did not return to any employment after leaving the employment of the respondent on, as it would appear, 30 March 1996. He did not inform the respondent formally that he had suffered any injury, although he gave evidence that he had told his brother-in-law, who also worked for the respondent, to tell the project manager that he had a 'sore back' and that he would come in to work as soon as he could. He said the consequence of that was that an envelope containing a cheque for his holiday pay was soon after delivered to his home.

9 Notwithstanding the fact that the appellant gave evidence before the jury that he was never free from pain after suffering the injury in January 1996, the appellant did not seek any further medical treatment until he again attended upon Dr Kuay on 21 September 1996. Thereafter the appellant remained under Dr Kuay's care with regular attendances for persisting pain in his neck and back, sleep disturbances, recurring migraine headaches and the later development of gastric problems and depression and anxiety. I will return shortly to consider the nature of the medical evidence in this regard. Before doing so it is appropriate to consider the manner in which the case proceeded before the jury in relation to the denial by the respondent that the appellant had suffered any injury at all.**

**10 The respondent put the appellant's credit in issue before the jury. In support of its principal argument that the appellant did not suffer any injury of significance at all, the respondent relied upon the fact that the appellant did not attend upon his general practitioner until five days after the incident of 12 January 1996 and then attended upon him on only three occasions in total in 1996. It relied upon the fact that the appellant did not submit a claim form for WorkCover payments until January 1997 and then only after having consulted with a solicitor. It relied upon evidence that the appellant had worked between 26 January 1996 and 22 February 1996 and that he had made no request for light duties. Furthermore the respondent relied upon the fact that the appellant did not give Dr Kuay a description of how he suffered injury as evidence that the appellant's description of the way in which he had suffered the injury was not credible. In addition and in relation to the issue of whether or not the appellant was injured on 12 January 1996 the respondent relied upon the evidence of a general surgeon, Mr Robert Marshall, who at the request of the respondent had examined the appellant on four occasions and who gave evidence before the jury that the appellant could not have suffered a cervical injury in the manner described by him.

11 Mr Marshall first saw the appellant on or shortly before 25 June 1998. The appellant provided a history, consistent with that given by him in evidence before the jury. That is, he told Mr Marshall that he was lifting a heavy trowel machine with another man in the course of his work. As he bent down he developed a sudden sharp pain in his neck. The pain persisted and did not trouble him unduly, but next morning his neck was 'completely stiff' and it was 'stuck with his head turned to the left'.

12 Mr Marshall stated that the appellant told him that since the incident in January 1996 his pain had progressed and that at the time of the examination he had a 'permanently stiff neck'. The appellant said that he could not sleep on his side nor could he exercise because of neck pain. He complained that he could not flex his head to the left and could not raise his arms above his head. Mr Marshall said that on further questioning it transpired that attempting to lift his arms above his head caused the appellant to have chest pain and he said that his muscles were 'tense and pulling down'. The appellant told Mr Marshall that he became hot and sweaty, his eyes watered and he vomited. He complained to Mr Marshall of pain in his face, sometimes on the left side and sometimes on the right side. Mr Marshall conducted a physical examination. He said that the appellant presented with limitation of various movements. He was able to abduct both shoulders only to the horizontal and then stopped, complaining of pain. Mr Marshall said that movements of the appellant's neck also seemed limited. Mr Marshall could find no neurological, muscular or joint deficit to be detected in the appellant's shoulders, neck or back apart from what Mr Marshall called 'subjective losses in range of movement'. On this occasion the appellant demonstrated a normal range of movement in terms of left and right rotation of his neck. However, he was unable to flex his neck forward beyond 15 degrees.

13 Mr Marshall gave evidence that in his opinion, a lifting motion of the type described by the appellant caused no stress to be placed on his cervical spine. Thus, he opined, the origin of the appellant's symptoms should not be regarded as the result of any physical injury caused by the lifting of the trowel machine. At the time of his report Mr Marshall considered that from a physical viewpoint the appellant was fit for his 'normal work'.

14 Mr Marshall saw the appellant next on 30 June 2000. Once again he expressed the opinion that the appellant was suffering no physical injury, nor had his employment been a significant contributing factor to the onset of the claimed injury.

15 Mr Marshall examined the appellant again on or shortly before 20 September 2002 and repeated his earlier expressed opinions.

16 Mr Marshall reviewed the appellant again in June 2003. In his report of the examination he noted that in his opinion it was 'completely impossible to injure the cervical vertebral column in the manner which is supposed to have happened'. However, as distinct from his earlier reports, Mr Marshall said that the appellant 'did have a perfectly genuine physical problem' but he said that this was 'not as a result, nor could it be as a result, of any incident such as the one described in January 1996 when he lifted' the trowelling machine with another man.

17 Accordingly, on the basis of the above matters, the respondent through its counsel submitted to the jury that the appellant had suffered no injury as alleged by him.

18 The jury were asked the following question: 'On or about 12 January 1996, did the appellant suffer injury whilst lifting a concrete finishing machine with a fellow worker in the employment of the defendant?' The jury answered that question in the affirmative. It follows that they accepted the evidence of the appellant that he did suffer injury and that he did so in the circumstances described by him. It also follows that the jury did not accept the evidence of Mr Marshall that not only could the appellant not suffer an injury in the circumstances described, but that he did not do so.

19 I have summarised briefly the evidence of Mr Marshall as to the issue of causation as his evidence forms the main plank of the argument relied upon by the appellant in support of the contention that the jury verdict is not sustainable.

20 It is submitted by the appellant that in all likelihood the jury rejected the evidence given by Mr Marshall that the applicant's injuries were trivial. This argument is based on the contention that the assessment of damages of $20,000 for pain and suffering was disproportionate to the evidence of Mr Marshall. Had the jury accepted his evidence as to the extent of disability of the appellant, so it is said, the jury could not have awarded more than 'a very low or nominal sum'. It is argued further that apart from Mr Marshall, the medical evidence as a whole identified the work incident of 12 January 1996 as contributing materially to a chronic or permanent injury to the appellant's cervical spine and that the medical evidence other than that of Mr Marshall put before the jury led to the inevitable conclusion that the jury verdict was against the weight of the evidence and not open to them.**

**21 I turn to consider the other medical evidence before the jury. Three witnesses, Mr Marshall, the appellant's general practitioner Dr Kuay and Dr Walton, a consultant psychiatrist who examined the appellant on behalf of the respondent gave evidence before the jury. All other medical evidence was put before the jury by consent, by counsel reading out the reports.

22 As stated above, the appellant's general practitioner, Dr Kuay, gave evidence that the appellant consulted him first on 17 January 1996 complaining of sharp pain in his neck radiating down into his left shoulder. The appellant told Dr Kuay that he had been unable to rotate his neck laterally to the left for about 'four days prior' thereto. Dr Kuay prescribed Feldene, manipulated the appellant's neck and ordered x-rays which confirmed that there was a loss of curvature to the neck which was likely to be due to muscle spasm. The appellant told Dr Kuay that he was a concreter and that he did a lot of lifting and bending but he did not give any history of a specific incident which had caused his pain. The appellant attended upon him next on 20 January 1996 to review the x-rays.

23 Dr Kuay did not see the appellant again until 21 September 1996 when he presented with recurrent left pain in his neck and pain between his shoulder blades. The appellant attended then on 26 and 28 September 1996 for acupuncture treatment. He attended next upon Dr Kuay on 10 January 1997. On this occasion he 're-presented with this persistent neck pain'. By reason thereof Dr Kuay referred the appellant forthwith to Mr Cullen, an orthopaedic specialist.

24 Dr Kuay continued to treat the appellant until the time of trial. Throughout the time he treated the appellant he had prescribed Panadeine Forte and other medications for anxiety, insomnia, recurrent migraine and oesophagitis which he believed was caused by prolonged ingestion of Panadeine Forte. He said that he did not consider the appellant's condition had altered over the period of his treatment.

25 In the course of cross-examination Dr Kuay stated that his opinion was that the appellant suffered 'muscle injury, chronic tissue injury rather than disc injury'. He said that when he first examined the appellant he considered that he had suffered a muscle injury, which resolved completely. He considered that the appellant had suffered a minor muscular pain in the neck.

26 As stated above, Dr Kuay referred the appellant to Mr Cullen in January 1997. A report addressed to the appellant's solicitors and dated 11 August 1997 was, by consent between the parties, read to the jury by counsel for the appellant. The appellant told Mr Cullen that 12 months earlier he had sustained a neck injury which was associated with pain and restricted movement in his neck, interscapular area and left shoulder region. At first the symptoms had settled after a short period of rest but had recurred when he returned to his usual position as a concrete finisher. Mr Cullen observed 'marked restriction of all movements in the cervical spine' but no evidence of peripheral neurological abnormality. Mr Cullen arranged an MRI scan of the appellant's spine which reported evidence of degenerative changes in his cervical spine. Mr Cullen considered those changes were more likely to be the result of the aging process rather than specific injury, but he concluded that aggravation had occurred as a consequence of the lifting incident which had taken place in the course of the employment of the appellant 12 months previously. He said:**

Based on the history obtained, there was a reasonable probability that an acute aggravation occurred as a result of lifting a concrete finishing machine during the course of his employment in approximately February of 1996 with only a short period of incapacity following this incident. There was a recurrence of symptoms approximately two months later as he continued his normal duties as a concrete finisher, as a consequence of which his employment was terminated. Based on my physical examination, one year after these events occurred, there was certainly restricted movement in the cervical spine and difficulties could be anticipated with return to work as a concrete finisher or performing any heavy, physical labouring duties. Nevertheless, I would expect a response to physical treatment in the form of spinal exercises and rehabilitation and certainly would not have regarded the worker as totally incapacitated.

27 It should be observed that there was evidence before the jury that in addition to the report of 11 August 1997, Mr Cullen had provided reports to the appellant's general practitioner on 23 January 1997, 6 March 1987, 14 October 1998 and 18 November 1998. Those reports were not read out to the jury as part of the appellant's case, but were referred to in some detail in the cross-examination of Dr Kuay. In the report of 14 October 1998 and addressed to Dr Kuay, Mr Cullen, stated that the appellant had attended upon him that day. He said:

He is complaining of a wide variety of symptoms in the neck, thoracic and lumbar region, extending into the chest wall. Frequent headaches, which he describes as migraine, but also related to posture are experienced ... He was literally demanding an MRI scan of the whole spine, this being anticipated to find out what was wrong and result in his symptoms being treated and cured. I tried to discourage him from this course, and obviously it is dangerous ground to refuse investigation. I rather suspect it will show some minor degenerative changes with diminished signal, as in the cervical spine, but no definitive pathology leading to more appropriate treatment. I rather feel he needs to concentrate on his exercise, and perhaps continue attending a physiotherapist with concentration on posture, but also psychological counselling may be of considerable value.

28 By report dated 18 November 1998 Mr Cullen reported further to Dr Kuay as follows:

The MRI scan of the remainder of his spine returned with no evidence of local disc prolapse or intrinsic pathology of significance. There is diminished signal at the T 7-8,T 8-9, and L 5-S1 discs indicative of early degenerative change secondary to desiccation. I regard this as being within the normal variance for a 36 year old. Certainly, there is no major structural problem that would give cause for concern.

29 Dr Kuay referred the appellant to a psychiatrist in late 1999. The psychiatrist, Dr Conron reported to Dr Kuay by a report dated 18 October 1999, which report was, by consent, read to the jury. Dr Conron obtained the following history from the appellant.

He said that in 1996, while picking up a machine, he felt a very bad pain through his right shoulder and neck. The next day his neck was turned to the left and he could not move it and after manipulation he returned to work after one day off. Two months later, whilst shovelling sand, he felt low back pain which extended into his right buttock, and at the end of this day, while picking up a machine, he noted pain in his left shoulder, which continued so that he could no longer work. He continues to complain of pain in his left shoulder, going to the neck, back of his head, eyes and face. This pain may last for half an hour or one hour and return several times a day if he moved ... His pain is worse on some days than others, but does remain constant in his neck. He also notes some internal pain in his stomach and chest, and he says that he can't raise his left arm fully above his head. ... [he] says that he has no past history of depression prior to his injury and did say that around the time he had his injury in 1996 he, along with other family members, had become involved in a house loan, which in some way, that [he] wasn't able to explain, left him a very large debt. [He] said that this was very upsetting for him but the debt is now paid off. .... He said that he would perhaps be interested in work, if it was well paid. His alcohol intake is minimal, but he does use cannabis on most days and also on an evening and that this helps him relax.

**30 Dr Conron expressed no opinion about any diagnosis but said 'I haven't prescribed any medication, despite his current depression, and will consider this later when I've had further discussions about possible goals or life changes, that he might aspire to.'

31 By the consent of the parties a report prepared by a neurologist, Dr Kempster, dated 23 October 1997, was read to the jury. Dr Kempster had seen the appellant at the request of his general practitioner. He obtained a history of injury which was consistent with that given by the appellant to other doctors and in his evidence before the jury. Dr Kempster examined x-rays and MRI scans which had been taken at the request of Mr Cullen and expressed the view that there was mild degenerative change in the upper cervical discs of the appellant but no significant disc prolapse and no sign of nerve root or spinal cord pathology. He expressed the opinion that the appellant's condition appeared to be 'a chronic post-traumatic regional pain syndrome triggered by minor musculoskeletal injury and associated with depression'. He considered that the headaches of which the appellant was complaining were probably caused by associated migraine and muscle tension. He suggested a trial of treatment with Amitriptyline which he said could have useful 'pain modifying effects' as well as anti migraine and muscle relaxant properties.

32 Reports dated 28 January 1998 and 28 February 2001 prepared by neurosurgeon Mr Calvert were read to the jury by the appellant's counsel. Mr Calvert was deceased at the time of the trial. In his first report which related to his examination of the appellant on 27 January 1998 he obtained a history that the appellant was assisting another worker to shift a large and heavy trowelling machine which normally would be lifted by four men. As he strained and lifted the appellant had abrupt onset of a hot pain in his right neck/shoulder region. The next day he was worse, his head being fixed in a position turned to the left and he attended upon his general practitioner who performed some manipulation and prescribed Feldene. The appellant gave a history that his injury appeared to settle and he returned to work on normal duties and worked with difficulty until late March 1996. The appellant had provided a history that on a day when he was shovelling sand he felt pain in his lower back, right buttock and right thigh. He worked on but in the afternoon developed exacerbation of his right neck/shoulder pain which spread to both scapular regions. He rested at home expecting that he would have improved sufficiently to resume work in a few days and he was then sacked.

33 The appellant told Mr Calvert that he had to avoid sudden neck movements and that sometimes he was unable to lift his left arm because of shoulder pain. He said that if he lifted his arms above his shoulders he suffered numbness of his little finger and the ulnar aspect of his lower forearm on both the left and right sides. Upon examination, Mr Calvert found that the appellant's neck movements were restricted, with flexion limited to 30 degrees and extension to 30 degrees. Lateral flexion was restricted to 30 degrees on the right side and 15 degrees on the left side. Rotation was limited to 20 degrees on each side. Mr Calvert expressed the opinion that the appellant had suffered a musculoligamentous strain of the neck and although his symptoms were consistent with this having caused a cervical disc injury, the MRI scan did not support such an injury. He also concluded that the appellant had suffered a musculoligamentous pain to the lower back. Mr Calvert said that it was 'possible that the injury included damage to a left-sided facet joint'. He said:**

[T]he prognosis for his neck injury appears unfavourable and it appears likely to be a considerable disability for at least several years. It appears to have triggered a migraine type headache, possibly by a traction effect on the left great occipital nerve by spasm of cervical muscles. He is presently totally incapacitated for his pre-injury work and for any other physical work. He might manage some part-time light sedentary work involving predominantly the right hand, but it is likely that his neck symptoms could still be aggravated ... I consider these injuries are consistent with the nature of his work and the accident he has described.

**34 In his second medical report, Mr Calvert reported that he had examined the appellant on 27 February 2001. On examination he observed that there was no limitation of neck flexion, but extension was limited to 30 degrees. Lateral flexion was limited to 30 degrees on each side, rotation was limited to 40 degrees on the right and 60 degrees on the left. Mr Calvert considered that the appellant had suffered chronic muscular ligamentous strain to the neck and the radiation of pain from his neck was consistent with some nerve root disturbance which 'may occur at facet joint level as investigations have not confirmed any cervical disc injury which might be responsible.' Mr Calvert stated that the injury was consistent with the accident in January 1996 and that the appellant was incapacitated for his pre-injury work as a concreter or for any other heavy physical work. He observed that possibly the appellant could perform some light sedentary work, requiring mostly the use of one hand only, but his neck would probably still be subject to aggravation.

35 By consent, reports which had been prepared by orthopaedic surgeon Mr King were read to the jury in the course of the appellant's case. Mr King's first report of 2 April 2001 contained a history of a description of the accident which was consistent with that given by the appellant to other doctors and in his evidence before the jury. Mr King's opinion was as follows:**

Accepting the accuracy of his history and my overall impression that he is a very genuine, even if a slow and halting historian, it would appear that this 38 year old strongly built man has done very heavy manual work throughout his adult life as a concreter and also a steel fixer and builder's labourer on construction sites. He did this work for many years without trouble. Then on one particular day in January 1996, helping to lift a heavy machine across the concrete floor, he developed acute neck pain radiating toward the top of his right shoulder and what appears to have been an acute spasmodic torticollis. I think it is reasonable to assume from this history that he did sustain acute injuries to one or more of his cervical discs and associated ligamentous structures at that time and such acute soft tissue injuries would adequately explain the abrupt onset of neck and right shoulder pain at that time and the persistence of chronic neck pain and some intermittent headaches since then. I assume the headaches are referred pain to the neck region. This diagnosis is consistent not only with the history and clinical findings today, but also the MRI findings of mild scattered changes in the cervical discs. This injury would adequately explain why he has had persistent problems with the neck ache and ever since.

**36 Mr King expressed the opinion that the appellant had a long term significant impairment of function in his neck and that he was permanently unfit for any heavy manual work of the type that he had undertaken throughout his life.

37 Mr King provided a further report dated 18 July 2003. Upon examination he observed that there was 'quite marked limitation of all neck movements by pain and spasm, approximately one third of normal range of all movements at present'. He said he could detect no 'functional element'.

38 In his third and final report of 9 December 2004 Mr King observed that the range of movement in the appellant's neck was 'a little better than it was' when last examined but he said that this was consistent with the appellant's statement to him that his symptoms were variable.

39 By consent of the parties a report from an occupational physician, Dr Robyn Horsley, who had examined the appellant on 7 February 2001, was read to the jury. The history given of the circumstances of the accident was consistent with that given to other doctors and given by the appellant in evidence to the jury. Her examination of the appellant's cervical spine revealed no specific area of muscle tenderness. She observed no muscle spasm. There was a normal range of forward flexion. Extension of the neck was reduced in the last 15 degrees, left lateral flexion was reduced by 30 degrees, left lateral rotation was reduced by 40 degrees, right lateral flexion was normal and right rotation was reduced by 20 degrees. Dr Horsley expressed the opinion that the appellant had exacerbated the underlying degenerative process occurring in his cervical spine and thoracolumbar spine. She considered that he was unfit to return to his previous work as a concreter and labourer and that he required assistance to look at other vocational options. She said that he should be referred to a psychiatrist as the injury had had 'a significant psychological impact' upon him.

40 Dr Horsley re-examined the appellant in October 2004. As a result of the further examination her opinion was unchanged.

41 Finally, the appellant's counsel put evidence before the jury by reading reports of a psychiatrist, Dr Epstein, who had examined the appellant on 12 August 2003 and 26 October 2004. Dr Epstein formed the opinion that as a consequence of chronic pain, discomfort and disability the appellant had developed a mild adjustment disorder with depressed mood. He considered that he might benefit from psychiatric treatment.

42 Apart from calling Mr Marshall, the respondent called a psychiatrist, Dr Walton to give evidence before the jury. In addition, counsel for the respondent read reports prepared by an orthopaedic surgeon, Mr Moran to the jury.

43 Dr Walton, who saw the appellant first on 14 May 1997 was provided with a history of his injury, which was generally consistent with that provided to other doctors and to the jury by the appellant in the course of giving his evidence. The appellant told Dr Walton that as at May 1997 he suffered a 'reduced range of neck movement associated with what he called jabbing pains'. In addition he stated that bending produced pain in his lower back. He gave a history of financial problems in August 1996 which had caused him depression of a 'suicidal proportion'. The appellant told Dr Walton that he had been involved in litigation that had had an 'unfortunate outcome' and that as a result, he was 'in very substantial debt'. Dr Walton expressed the opinion that the 'depressed condition had been caused, primarily because of the financial difficulties .... encountered in relation to the family business'. He said that 'the depression was fundamentally a reaction to these financial problems, but that the back pain likely had aggravated the condition'.

44 Dr Walton examined the appellant again on 23 March 2005. On this occasion, the appellant stated that he suffered from 'occasional lower back pain, but more regular jabbing pain in his thoracic spine. Neck pain was constant. He said his migraines had resolved'. Dr Walton considered there was no incapacity for work 'specifically attributable to psychiatric problems'. Dr Walton gave evidence about the use of marijuana by the appellant. He said that the use of 10 bongs per day was 'fairly substantial use'. He said that it was 'well recognized that regular marijuana smokers may tend to become self absorbed in their own drug addicted world ... and [it] may actually reduce a person's keenness to work'.

45 Mr Moran saw the appellant on 15 June 2001 for the purposes of providing a report for the appellant's solicitors. The appellant had provided the history of lifting a concrete finishing machine in January 1996 and incurring a sharp pain in the right side of his neck and the next day finding that his neck was stuck in one position with pain on the left hand side which radiated down his thoracic spine. On the occasion of Mr Moran's examination of the appellant on 15 June 2001 the appellant complained of constant neck pain which radiated down between his shoulder blades with pain in both shoulders. He stated that his neck movements were restricted and that he experienced migraines. Examination of the cervical spine revealed that flexion was to 30 degrees, extension to 45 degrees, right and left lateral flexion reached to 45 degrees, rotation to the right was 60 degrees with rotation to the left being 80 degrees. Mr Moran expressed the opinion that the appellant had aggravated disc degeneration in his cervical lumbar spine. He said that provided the appellant engaged in only light duty employment work not involving repeated lifting and heavy lifting, and work in which he did not have to constantly flex or rotate his neck then his prognosis 'should be good'. He stated that the appellant's 'employment was a significant contributing factor to the development of the claimed injuries'. He stated that the past treatment regime provided to the appellant had been 'reasonable' and that his 'employment is still a contributing factor to the claimed injuries'. By a further report dated 30 September 2002 dealing with an examination of the appellant that day, Mr Moran said that the appellant had 'aggravated disc degeneration in his cervical and lumbar spine'. He was fit for only light duty employment. Mr Moran saw the appellant again on 2 June 2003. Once again Mr Moran expressed the opinion that the appellant had 'aggravated disc degeneration in his cervical and lumbar spine'. However on this occasion he reported that it was not 'possible to say whether [the appellant's] pre-existing asymptomatic degenerative disease would or would not become symptomatic.' He said his 'partial incapacity for employment may be related to his employment with [the respondent]'. He provided no explanation for his change of position from the earlier two occasions of his examination of the appellant.

46 As is submitted by counsel for the appellant, there was a body of evidence which related the condition claimed by the plaintiff to his injury at work on 12 January 1996. As stated above, Mr Marshall, one of the three doctors who gave evidence before the jury did not consider that the appellant could have suffered a cervical injury by reason of the lifting incident described by the appellant. Furthermore, he considered that any injury suffered by the appellant was trivial in nature. It is apparent that the jury did not accept the evidence of Mr Marshall that the incident of 12 January 1996 did not cause the appellant's injury. In my view, the argument advanced on behalf of the appellant that the two separate awards of damages are such that the jury must be seen to have rejected Mr Marshall's evidence that any injury suffered by the appellant was trivial is not without merit.**

47 The appellant argues that if the evidence of Mr Marshall is put to one side, the remaining medical evidence as a whole identified the work incident of 12 January 1996 as contributing materially to a chronic injury to the appellant's neck and upper spine, which injury induced variable pain disability and restriction. It is submitted that on the evidence this resulted in a prolonged regime of conservative treatment including drugs which in turn was associated with the development of reflux oesophagitis, which required treatment. The injury was associated with a secondary psychiatric condition, recurrent migraines and has resulted in a loss of capacity to work in the vocation of concrete finisher and labourer. In particular reliance is placed upon the evidence of Mr Cullen, Dr Horsley and Mr Moran who all formed the opinion that the incident of 12 January 1996 caused an aggravation of early disc degeneration. It is argued that the appellant's ongoing pain, disability and restrictions had greatly affected his life over the period of the last decade and thus the verdicts of the jury were unreasonably low. In particular, it is submitted on his behalf that the sum of $20,000 for pain and suffering is unreasonably low by a factor of three. Likewise, it is submitted that although the parties agreed that the appellant was fit for light work and capable of earning the sum of $400 gross per week from such work at the time of the trial, he was earning $1,000 gross per week at the time of the accident and the verdict of the jury relating to pecuniary loss was also unreasonably low.

**48 The respondent submits that on a view of the evidence most favourable to it, it could not be said that the evidence was such that the jury was bound to award greater sums than were actually awarded. It is submitted that the jury were not bound to accept the plaintiff's evidence either as to the extent, or duration, of his disability. Furthermore, the opinions of medical witnesses called on behalf of the appellant were predicated upon an acceptance of histories and descriptions of restrictions and pain given by the plaintiff. It is submitted that the jury were not compelled to accept the plaintiff's evidence and nor were the jury compelled to accept the histories relied upon by the medical practitioners who provided reports; which were before the jury. In particular, it is submitted that the case raised matters of credit relating to the appellant's injuries.

49 The credit of the appellant was put in issue in cross-examination in a number of ways in addition to the attack which I have noted at [10] above. First, the tax returns for the plaintiff for the financial years ending 30 June 1993 through to 30 June 1997 were tendered by counsel for the respondent. The tax returns for the year ending 1993 revealed a gross income of $7,889 of which unemployment benefits totalled $6,489. The tax returns for the year ending 30 June 1994 revealed a gross income of $8,404 of which $1,876 was derived from earnings as an employee and $1,030 by way of unemployment benefits. For the year ending 30 June 1995 the gross income of the appellant was $5,991 of which $3,121 was by way of unemployment benefits. For the year ending 30 June 1996 his gross income was $7,552 of which unemployment benefits comprised $1,266.

50 The appellant was cross-examined as to the reason why he did not seek any medical attention during the period from 21 April 1996 until 21 September 1996. He stated that during the six months following his cessation of work with the respondent he had 'ongoing court cases ... and ... (was) just finishing a court case, the litigation that (I) had with the bank'. The appellant agreed that he had told a psychiatrist Dr Conron in 1999 that he would 'be interested in work if it was well paid'. He agreed that he had not applied for any jobs since sustaining the injury. He said that he smoked about '10 bongs' of marijuana a day. His explanation for this was that he 'had no appetite' and that he used marijuana 'for sleeping, to relax me'. The appellant was asked about his capacity to move his neck. He stated that his neck movement to the right was 'pretty normal' but that he had only about a quarter of the range of movements to the left.**

**51 The appellant was then shown a series of surveillance video tapes by counsel for the respondent. The video tapes of the appellant were taken on the following dates: 25 June 1998, 3 July 1998, 21 July 2000, 6 and 9 April 2001, 15 and 17 August 2001, 16 and 20 September 2002 and 20 August and 19 September 2003. Counsel for the respondent submits that the video tapes and in particular those taken on 25 June 1998, 6 and 9 April 2001, 8 and 15 June 2001 and 20 August 2003 are 'very relevant to the credit issue'. Those video tapes have been produced before us upon the appeal and have been viewed by us.

52 The first video tape upon which the respondent relies was taken on 25 June 1998. That is the same day that Mr Marshall provided his first report. On that day the appellant told Mr Marshall that he could not 'flex his head to the left'. Upon examination Mr Marshall found that lateral flexion of the appellant's neck to the left was only half the normal range and forward flexion was also found to be only half the normal range (somewhat similar to the findings of Mr Calvert on 27 January 1998). Mr Marshall said that he could find no neurological muscular or joint deficit in the shoulders, neck or back of the appellant. He stated that in his opinion the 'chronic neck pain is considerably exaggerated and that his neck immobility is also voluntary'. Although I am satisfied that the jury verdict reflects its rejection of Mr Marshall's evidence as to causation, it was nevertheless open to them to accept his opinion as to the exaggeration of symptoms by the appellant.

53 The following paragraphs provide a summary of what the jury would have been entitled to conclude the surveillance videotapes revealed.

54 The film taken 25 June 1998 revealed the appellant walking down a street carrying what appeared to be a bag of x-rays and entering a building, presumably the surgery of Mr McDonald. Film was taken of the appellant leaving the building and walking to a car in the upstairs level of a car park where he was shown to look quickly to the left and right on several occasions. The film showed him looking forward and downwards over a balcony. The bonnet of the car was then opened. He looked into the engine bay before reaching up above shoulder height with his left hand and closing the bonnet. He then went to the car and was filmed looking sharply to the right into the rear seat of the car from the front passenger seat. It would have been open to the jury to conclude that the video film showed the appellant to have unrestricted use of his neck and to conclude that he was able to lift his left arm well above shoulder height. It would have been open to the jury to conclude that the video film was inconsistent with the statement made to Mr Marshall on apparently the same day that he had a permanently stiff neck. The film taken that day is supportive of the finding of Mr Marshall that the symptoms described by the appellant were exaggerated and that the restriction of movement of the neck, observed by Dr Marshall was voluntary.

55 Film was taken again of the appellant on 20 June 2000, which was the second occasion upon which Mr Marshall examined him. The film showed him travelling to the same building as he had on 25 June 1998. The appellant was seen standing outside the building for approximately 12 minutes, looking left and right up and down the street. He flexed his head forward to look at his mobile phone on several occasions. There were two occasions when he appeared to rub the left side of his neck with his right hand, which matter was brought to the attention of the jury by counsel for the respondent. The appellant then departed in the company of a woman and was filmed looking sharply to his right. It commenced to rain and the appellant appeared to have no trouble in holding what appeared to be a packet of x-rays over his head with both arms. He was filmed looking sharply to the left and to the right before entering the driver's seat of a Ford car. He was observed to drive the car to his home and alight and to carry a bag and his coat in his left arm. He was then filmed driving a four wheel drive vehicle to a service station, filling it with fuel, entering the shop and making payment. In an easy motion, he was seen to run to his car, enter it and drive to a shopping centre. He alighted and entered the shopping centre. As he did so he looked sharply to his right. He was then filmed in the shopping centre bending forward and flexing his neck forward to look at items on lower shelves. He was filmed returning to his car and entering it. As he reversed out of the car park, the jury would be entitled to have concluded that the film showed him to quickly and fully rotate his head to both the left and the right. He was later filmed squatting down in a gutter with his head in the floor well of the passenger seat of his four wheel drive vehicle. This activity continued for some minutes. Subsequently the appellant attended at a poker machine venue where he sat and played on a poker machine for a considerable period of time, approaching one hour. It was open to the jury to conclude that no restriction of his neck was observed at any time in the film taken this day. Film was taken of the appellant the next day, apparently outside his home after which he was attending at a shopping centre. He was seen to run at a fast pace across the road before entering his car, again without any apparent restriction. The jury were entitled, in my view, to consider that the film taken on 20 June 2000 was inconsistent with the statements made that day to Dr Marshall that the appellant was unable to raise his left arm, and that 'Everything is stiff'.

56 Film was taken of the appellant on 6 April 2001 when he appeared to be assisting another person who was engaged in changing the wheels of a motor car. The other person was engaged in the physical activity of jacking up the car and removing the wheels, but the appellant was observed to be bending and looking into the bonnet and the wheel arch of the motor car.

57 Film taken on 20 August 2003 showed the appellant working on a car. He lifted up the bonnet of the car with his left arm and held it up for a period of time. He had his head held at a sharp angle inside the bonnet of the car for a considerable period of time. He bent down and looked at the front wheel with no evidence of restriction. As stated above, a number of films were taken of the appellant on a number of dates between 25 June 1998 and 17 September 2003. It was open to the jury to conclude that in none of these films was there any evidence of restriction or any support for the complaints made by the appellant of his neck, shoulder and back disability.**

**58 In his final address to the jury counsel for the respondent made three alternative submissions to the jury. The first of those submissions was that nothing of any consequence occurred on 12 January 1997. In support of this submission counsel for the respondent relied upon the evidence that Dr Kuay was not told of the incident, there was no contemporaneous report made to the respondent, the appellant worked on for some weeks and did not tell his parents of his injury. Furthermore reliance was placed on the fact that the appellant did not go back to see his doctor on more than one occasion in the following months. However, as stated above, it is clear that the jury rejected this scenario.

59 The second alternative submission made on behalf of the respondent was that the appellant had suffered an injury in the incident in question but that it was 'relatively trivial'. It was submitted that a sum of '$10,000, even $20,000' for pain and suffering would be appropriate in those circumstances. It was argued that the pecuniary loss of the appellant in those circumstances should be relatively limited. It was submitted to the jury that what overcame the appellant's life were emotional problems 'of long standing and not related' to the work incident. The jury verdict would appear to be generally consistent with acceptance of this submission.

60 The third scenario put by counsel for the respondent was said to be 'a fall back position' which was that a long standing degenerative problem had become symptomatic, but that the applicant was fit for work by 2002 at the latest. In such circumstances counsel submitted that pecuniary loss should be estimated in the sum of 'something like $50,000' and pain and suffering should be in a range of '$25,000 to $40,000'.**

61 The appellant's counsel put the case to the jury on the basis that the evidence established that after early 1996 the appellant had lost his capacity to engage in work as a concreter permanently and that he should be compensated for both past and future loss of earnings as well as for pain and suffering. Clearly the jury rejected this submission.

62 I return to the issue before the Court. I turn first to the complaint made by the appellant that the verdict of the jury was contrary to and not open on the evidence. The above summary of the evidence makes it clear in my view that such a complaint can be easily dismissed. This is not a case in which there is no evidence to support the verdict. The real issue before us is whether the assessment of damages by the jury was inadequate, and against the weight of the evidence.[3] As Starke J observed in Hocking v Bell there is a clear distinction between 'a case in which there is no evidence to support a verdict and a case in which the verdict is against the weight of the evidence. In the latter case, the verdict is not disturbed unless the jury, viewing the whole evidence, reasonably, could not properly find it.'[4] As stated above the relevant principles to be applied are not in doubt. Insofar as the appellant argues that the jury verdict was against the weight of the evidence the relevant principle to be applied was stated authoritatively in Calin v Greater Union Organisation Pty Ltd[5]:

[Did the jury reach a conclusion] which is against the evidence in the sense that the evidence in its totality preponderates so strongly against the conclusion favoured by the jury that it can be said that the verdict is such that reasonable jurors could not reach.

63 Consequently, the appellant carries a heavy burden of persuading this Court that the verdict was such that no reasonable jury could have reached it when considering the evidence in totality. And it must be borne in mind that it is not for this Court to say whether the jury's verdict was wrong because the Court itself would have arrived at a different verdict. In consideration of this issue, an appellate court must take into account the fact that the jury had the benefit of observing the demeanour of the witnesses who gave evidence before them in estimating the weight of the evidence.[6] This is particularly relevant with regard to the evidence given by the appellant. By way of example, the appellant said in his evidence in chief that he had been involved in litigation with the banks in the 'late 80s, early 90s'. In the course of cross-examination the appellant was asked what he had done in the months between ceasing employment with the respondent and his attendance upon Dr Kuay in September 1996. He said, 'Nothing, I just stayed home and I was taking the medication he gave me which I had two boxes of'.

Later, counsel for the respondent referred to that and evidence and asked, 'I think you said you just stayed at home. Is that right?'

The answer given by the appellant was, 'No, I had ongoing court cases in those days .... or just finishing a court case, the litigation that I'd had with the bank'.

The appellant agreed that those court cases required his attendance. This evidence was consistent with what the appellant told Dr Walton and Dr Conlon, but was totally inconsistent with the appellant's evidence in chief.

**64 In this case, the credit of the appellant, at least as to the extent of his disability, was in issue. The evidence before the jury was that he had had a poor work history in the years leading up to the lifting incident of 12 January 1996. His explanation for this was that the 'Keating recession' was responsible for his poor work history. However the jury had evidence before them that the brother-in-law of the appellant, who was also a concreter, in the financial year ending 30 June 1995 earned a gross income of $55,091 and for the year ending 30 June 1996 earned a gross income of $65,664. The jury may well have not accepted that the appellant's explanation for his minimal earnings in the years leading up to the accident was explained entirely by the recession. Furthermore there was evidence before the jury that litigation in which the appellant was involved with a bank caused him considerable depression, to a point which the appellant described to Dr Walton as reaching suicidal proportions by August of 1996. As at 14 May 1997 Dr Walton said 'on the basis of the history I obtained from him it was my view that he would have qualified for a diagnosis of a depressive disorder which was caused primarily by the financial difficulties he had encountered by reason of and in relation to the family business.' The jury were entitled to take the view that the primary cause of the appellant's depression at that time related to that matter rather than being the consequence of the work incident.

65 Moreover, the extent to which the appellant was disabled by the incident in question over the months following January 1996 was far from clear. The evidence, which clearly was accepted by the jury, was that the appellant sustained an injury to his neck on Friday 12 January 1996. He saw Dr Kuay on the following Wednesday 17 January and again on 20 January 1996. He returned to work on Monday 22 January 1996 and with the exception of a public holiday and two rostered days off worked a minimum of eight hours and up to 12 hours continuously until 21 February 1996. Without giving any notice of injury he then ceased work until either 29 or 30 March 1996 when he returned to work for nine hours before being terminated. There was evidence before the jury that his work was terminated because there was no further work available at that time. For a period of nearly six months between that time and 21 September 1996 the appellant sought no medical assistance. The appellant's explanation for this was that he 'just stayed home' between ceasing work and upon attending upon Dr Kuay again in September. He said 'I was taking the medication that he gave me, which I had two boxes of. I'm not sure how many tablets in each packet, but there was enough there to last me quite a few months'. It will be recalled that Dr Kuay gave evidence that on 20 January 1996 he prescribed an anti-inflammatory medication, Feldene. It was open to the jury to reject the explanation given by the respondent and to infer that the disability suffered by the appellant during the period between his ceasing work and seeing Dr Kuay in late September 1996 was not of sufficient severity for him to seek medical attention.

66 There was little objective clinical evidence before the jury of spinal injury suffered by the appellant. MRI scans of the appellant's cervical and lumbar spine had revealed no disc injury. Each of the medical practitioners who examined the appellant had to rely upon the statements of the appellant as to his pain and incapacity and restricted movement. Mr Cullen and Mr King expressed their opinions to be 'based on' and 'accepting the accuracy' of the history given by the appellant. It will be recalled that when Mr Cullen first saw the appellant, approximately one year after the work injury, he expressed the opinion that changes seen in the MRI scans of the appellant's spine were more likely a result of the ageing process. Whilst Dr Cullen accepted ' based on the history obtained' that there was a reasonable probability that an acute aggravation occurred as a result of lifting a concrete finishing machine, he nevertheless expected a 'response to physical treatment in the form of spinal exercises and rehabilitation'. The jury were entitled to accept this evidence. The appellant did not again attend upon Dr Cullen after November 1998.

67 In my view, looking at the whole of the evidence, the jury verdict is consistent with a view that as a result of the injury sustained on 12 January 1996, the appellant suffered an acute soft tissue injury, which for a period of time caused him some disability and incapacity to engage in work as concreter. The jury were entitled to accept Mr Marshall's evidence that the appellant's complaints of pain and restriction of movements were diffuse and exaggerated. They were entitled to accept the evidence of Mr Marshall that as at June 1998 the appellant suffered from no neurological, muscular or joint deficit in the shoulder neck or back, and that the only losses in range of movement of the appellant were subjective in nature. This evidence was similar to that of the neurologist, Dr Kempster, to whom the appellant had been referred in October 1997. Dr Kempster could find no neurological abnormality. He concluded that the appellant had a 'minor musculoskeletal injury', which had triggered a 'post-traumatic regional pain syndrome associated with depression'. It was open to the jury to conclude that any physical injury suffered by the appellant was relatively minor and musculoskeletal only. In my view, the jury were entitled to conclude that the failure of the appellant to seek any medical treatment during the period between 20 January and 21 September 1996 supported such a conclusion. As to the psychiatric response to such an injury, the evidence before the jury was that Dr Epstein, who had examined the appellant on two occasions, considered the appellant to have suffered a 'mild adjustment disorder with depressed mood'. Dr Epstein, unlike Dr Conron and Dr Walton, was not given any history of the unhappy litigation in which the appellant had been involved during 1996. In my view, the jury were entitled to accept the evidence of Dr Walton that as at May 1997, the primary cause of the depression suffered by the appellant was his financial circumstances, which related to the 'unfortunate outcome' of the litigation in which the appellant was involved during 1996.

68 Furthermore, the jury were entitled to consider that the appellant had little motivation to engage in employment. His work history prior to his injury was not good. He admitted to having previously had a major drug habit involving use of amphetamines and cannabis. Subsequent to the date of suffering injury his use of cannabis increased to '10 bongs per day'. He had never sought any employment. He told the jury that he lived with his parents and did as much as he could for them. He said. 'I do a bit of cooking and cleaning ... That's all I can do so most of the days.' He said that his parents supported him financially and by doing the washing and**

cleaning. He said that was 'because I cannot do all of that for myself. I cannot get up and make myself breakfast and clean the house, if I lived on my own, do the housework, my washing. Those things would be too much as daily routine for me'. In my view, it was open to the jury to find that the appellant had grossly exaggerated the consequences of the injury upon him. In effect, his evidence was that he was virtually an invalid and had been so for nearly a decade. This was inconsistent with any of the medical evidence. Even accepting his complaints, all medical practitioners considered that the appellant was fit for suitable light work. Indeed, as much was conceded by his counsel in submissions made to the jury. It was open to the jury to find that the appellant's complaints of the extent of his incapacity were not credible. Furthermore, it was open to the jury to conclude that any psychiatric response to his injury was minimal and that such depressive symptoms as he suffered from, were principally related to his failed court proceedings and the financial consequences thereof.

69 Standing back and looking at the totality of the evidence which was put before the jury, I conclude that the verdict of the jury viewed in the light most favourable to the respondent, cannot be said to have been not open to them. The appellant has not discharged the burden upon him to demonstrate that the verdict of the jury was against the weight of the evidence. I would accordingly dismiss the appeal.

**70 I have had the advantage of reading in draft the reasons prepared by Kellam JA. I agree that the appeal should be dismissed for the reasons stated by his Honour.

[1] Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497 at 511-13; Victorian Stevedoring Pty Ltd v Farlow [1963] VicRp 80; [1963] VR 594 at 596; Pujick v Savic [1971] VicRp 76; [1971] VR 632 at 632-3 and 634; Electrolux v Siniakis [1998] 1 VR 29 at 38.

[2] Progress and Properties v Craft [1976] HCA 59; (1976) 135 CLR 651 at 672.

[3] A complaint that an assessment of damages is inadequate is 'only a particular form of the general objection that a verdict was against the weight of the evidence.' Australian Iron and Steel Ltd v Greenwood (1962)107 CLR 308 at 317 per Windeyer J.

[4] [1945] HCA 16; (1945) 71 CLR 430 at 487.

[5] [1991] HCA 23; (1991) 173 CLR 33 at 41.

[6] Middleton v Melbourne Tramway and Omnibus Co Ltd [1913] HCA 45; (1913) 16 CLR 572 at 579 and Hocking v Bell (1942) 42 SR (NSW) 130 at 139-40, 150-1.