McAdam v Chuan [2001] WASCA 6 (24 January 2001)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : McADAM -v- CHUAN [2001] WASCA 6

Damages - Measure of damages for personal injuries - Turns on own facts

Gamser v Nominal Defendant [1977] HCA 7; (1977) 136 CLR 145

Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164

State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3; (1999) 73 ALJR 306

Watts v Rake [1960] HCA 58; (1960) 108 CLR 158

Western Australia v Watson [1990] WAR 248

Wilson v Peisley (1975) 50 ALJR 207

1 KENNEDY ACJ: I have had the advantage of reading in draft the reasons to be published by Anderson J. I am entirely in agreement with those reasons and I would accordingly dismiss both the appeal and the cross-appeal.

2 WALLWORK J : I agree with the reasons for judgment of Anderson J and with the orders proposed by his Honour.

3 ANDERSON J: This is an appeal and a cross-appeal from a judgment of French DCJ handed down in the District Court in October 1998 in which the appellant was awarded damages for personal injuries in the sum of $127,946.59.

4 The award was comprised of the following components:

5 The appellant sustained his injuries in a traffic accident on 4 March 1991. He has no memory of the accident and a rather incomplete memory of the early part of his hospitalisation. There is no dispute that he was seriously injured on being thrown from a motor cycle when it collided with a car negligently driven across his path by the respondent. He was admitted to the intensive care unit at Royal Perth Hospital in which unit he remained for 24 days. He was moved from intensive care on 28 March and discharged home on 26 April.

6 Unquestionably, the appellant had a bad time in the first weeks of hospitalisation. In a letter written by the surgical registrar to the appellant's general practitioner, Dr Surendran, which is undated but was probably written at about the time of the appellant's discharge, there appears the following account:

"Motorbike accident.

Injuries:

1 Bilateral haemo-pneumothoraces, bilateral pulmonary contusions, ruptured spleen, probable right brachial p1exus injury.

1 Laparotorny and splenectomy.

2 Laparotomy, evacuation of haemo-peritoneum and left adrenalectomy.

HISTORY AND EXAMINATION:

Mr McAdam aged 43, was initially admitted under the care of Mr Mark Edwards and thoracic surgery for a severe chest injury having been involved in a motorbike accident on 4 March. He sustained a severe chest injury with bilateral haemo-pneumothoraces necessitating intercostal drainage, pulmonary contusions bilateraly [sic] and a small splenic tear on an initial ultrasound. His initial hospital admission was to the intensive care unit for intubation and ventilation. Four days after his admission to the intensive care unit he had been extubated and was breathing spontaneously and maintaining good blood gases. His renal function had deteriorated slightly and following discharge from the ICU his creatinine was 89. He remained stable, when on 11 March he was noted to be unwell, sweaty and pale with left upper quadrant tenderness and guarding. In addition, there was decreased air entry at the left base with left pleuritic chest pain. The clinical deterioration occurred approximately three hours after the insertion of a low left-sided intercostal drain and the concern was that this had penetrated the diaphragm and further injured the spleen. He underwent an emergency CT scan which confirmed that the intercostal tube had in fact not penetrated the diaphragm. He underwent an ultra-sound which did not show any sign of splenic damage. His haemoglobin by this stage had dropped from 120 to 93, his white cell count was 14,000, platelet count 520 000. By the 13 March is [sic] haemoglobin was down to 76, he was now febrile with a temperature of 38deg.C and a Staph.

septicae had been diagnosed. On 15 March he developed abdominal distension with increasing upper abdominal tenderness, guarding and rebound. In view of this development and his persistently falling haemoglobin, a repeat CT scan was arranged which showed a very large subcapsular and perisplenic collection. Consequently on 16 March he underwent splenectomy. The procedure was uneventful and on the first postoperative day he had marked abdominal distension with tenderness, was pale and shutdown with a haemoglobin of 78 after 3 units of blood. His urea at this stage was elevated at 19 and his creatinine was 401. In view of his progressive abdominal distension, his worsening renal failure and clinical suspicion of coagulopathy, he was taken back to theatre. A large haemoperitoneum was drained with no obvious bleeding source found. Mr Thompson at that stage thought he may have been haemorrhaging from his peri-adrenal tissues and subsequently a left adrenalectomy was performed. On closing the abdominal wall there was no further bleeding. He was returned back to the intensive care unit for ongoing management of his coagulopathy and renal failure.

7 He attended the outpatients' clinic for a time after his discharge when he was given physiotherapy (at the Shenton Park Annexe, I think) for left shoulder weakness and stiffness and his renal condition was monitored. In August 1991, he was noted to be still experiencing pain in the left side of his chest which was thought to be "muscular skeletal". He was seen in the orthopaedic clinic from time to time until December 1992, at which time he was recorded as having "a full range of movement in the left shoulder". By September 1991, his kidney function had almost returned to normal. He was seen in the renal clinic in October 1993 for tests and his blood pressure and renal function were found to be normal. At that time, he was described as "reasonably well" (AB 156) and as having "managed to gain some weight", but he complained of intermittent headaches and of what was described by the renal physician as "a firmness in the right side of the neck". That complaint was investigated by x-ray and CT scan, but not physiological cause for the symptoms were found. The appellant continued to attend his general practitioners complaining of difficulty with concentration, severe fatigue and headaches. Neurological examination at Royal Perth Hospital in May 1994 was normal and the diagnosis made by the examining neurologist, Mr Stewart-Wynne, was of post-traumatic anxiety state.

8 On 23 April 1996, the appellant was seen by the neurologist, Dr Stell (AB 163), to whom he complained that since the accident he had suffered symptoms of chronic back pain, pain and weakness of the left shoulder, paraesthesia of the right index finger, impaired short-term memory and impaired concentration, as well as moderately intense pain over the vertex which was sensitive to touch. Dr Stell found the appellant to be depressed, with a feeling of having been abandoned by the medical profession and of having lost his previous skills, and of having a belief that he had no capacity for retraining due to impaired mental function. However, Dr Stell could find "no focal neurological abnormality in this man". Dr Stell's diagnosis was post-traumatic stress syndrome and he recommended referral to a clinical psychologist and/or psychiatrist.

9 In July 1996, the appellant was seen by a clinical psychologist specialising in pain management, Mr Semmens, who found the appellant (AB 166) to be "very clearly depressed" and who strongly suspected "post-traumatic stress disorder". He thought that the appellant had suffered "a significant head injury which has left him with severe difficulties with regard to his memory and that this severely disables him in almost all areas of functioning, across the board, in his life". He recommended that the appellant be referred to a clinical psychologist specialising in neuropsychology and memory rehabilitation. It should be observed here that no weight can be given to Mr Semmens diagnosis of "significant head injury". The expression is too general to be medically informative. If it was intended as a diagnosis of organic brain injury, Mr Semmens was not qualified to give that opinion.

10 The appellant was seen by a clinical psychologist specialising in neuropsychology on 23 September 1996, a Ms Claudia Hoeltje (AB 168). Her assessment was rather inconclusive. She thought the appellant was "gravely affected by his accident both in physical and psychological terms", but because he had "unresolved anger" at the medical profession, depression and possible post-traumatic stress disorder she suggested that "psychological factors have affected the current neuropsychological test profile".

11 It is clear from the medical reports that the orthopaedic specialists were of the opinion that the appellant's orthopaedic disabilities, although significant initially, had almost resolved by mid-1992. In May 1993, Mr Sneddon reported him as being "no longer unfit for work" and as having "no further partial incapacity", but with "a small degree of disability in relation to the left shoulder". This was assessed by Mr Sneddon as "being a 5 per cent disability of the whole of his left upper limb" and as "permanent".

12 The appellant was referred to the orthopaedic surgeon, Mr Desmond Williams, in February 1996 and Mr Williams found "some degenerative change [that is, arthritis] in the mid-cervical area but no major instability". He did not think the appellant's orthopaedic condition relating to the accident caused "interference with work capacities".

13 In early 1997, the appellant was seen on several occasions by the psychiatrist, Dr Paul Skerritt, who wrote a report on 30 April 1997 in which he reported that his assessment of the appellant had been "extraordinarily difficult". Dr Skerritt had great difficulty getting a history from the appellant. For example, he reported that the appellant would engage in "circular philosophising" when asked simple questions and when all that was required of him was "a simple description of how he felt". Dr Skerritt was certain the appellant did not satisfy the criteria of post-traumatic stress disorder. The nature of his memory deficit did not suggest organic physical damage to the brain (AB 207). He thought the main problem might be depression and anxiety which he considered would explain what he described as "the extreme degree of vagueness and loss of memory" which he was sure was "of psychological origin". Dr Skerritt also noted a contradiction in the appellant's inability on the one hand to recall details of his treatment at Royal Perth Hospital and on the other hand the appellant's "disgruntlement" with that treatment. He described the appellant's thought processes as "tortuous, pedantic and often irrelevant". Concerning his employability, Dr Skerritt expressed the opinion that it would be "impossible for any employer to deal with him".

14 Dr Skerritt reviewed the appellant again in July 1998, just before the trial. He found no change. He reported that the "assessment was just as difficult and the thought processes just as obscure as my previous contacts". His ultimate conclusion was expressed in the following terms:

"Nevertheless I think that the best fit is that Mr McAdam has always been a somewhat aloof, odd and emotionally flat person, conducting relations with other people in a way that is unusual but that this did not seem to cause him any great personal distress in the past. I think it likely that the accident, mostly by the generation of psychological phenomena, such as depression but possibly because of some damage to his brain even [if] it was transient, upset a very fragile level of coping which was the interaction between the nature of his personality and environmental stressors so that he was coping well enough before the accident, albeit in a limited way, but was not able to cope with work or social relations of any extent at all afterwards. If one had to classify the type of his personality it would be in the group known as cluster A of the Diagnostic and Statistical Manual of the American Psychiatric Association, possibly in the particular category of schitzotypal personality disorder."

15 The orthopaedic surgeon, Mr Williams, and Dr Skerritt were called to give evidence on behalf of the appellant at trial. Both were cross-examined at some length. Their evidence was essentially to the same effect as the opinions expressed in their written reports.

16 Her Honour undertook a comprehensive and thorough review of all of the medical evidence and the following is a summary of her findings:

1. Spleen, kidneys and adrenalin gland

The appellant has made a significant recovery. The loss of his spleen will render him vulnerable to infection but will not otherwise affect him. Concerning injury to his kidneys, renal function has completely recovered. Loss of the left adrenalin gland does not incapacitate him or affect general health and wellbeing.

2. Orthopaedic injuries

The appellant has made a significant recovery. The residual incapacity is of little significance. The small degree of disability in the left arm is unlikely to affect his lifestyle or working capacity.

3. Neurological condition

There was no organic brain damage. The cerebral contusion noted on the CT scan cannot explain any of the appellant's present symptoms of mental impairment such as disordered thought processes, inability to concentrate, memory loss and the like.

4. Psychological condition

Prior to the accident, the appellant had an unusual eccentric personality but was able to cope to the extent that he could work part-time as a cleaner handyman and engage in other part-time activities such as the study of engineering or architectural drafting - although in a somewhat aimless fashion. The trauma and aftermath of the accident have reduced his capacities somewhat. He can no longer engage successfully in the study of engineering drafting but there is no reason why he cannot function effectively as a cleaner handyman utilising his carpentry skills.

17 With the exception of the psychiatric evidence, these findings are in accordance with the evidence presented on behalf of the appellant at trial. They are, with respect, an accurate distillation of the range of medical opinion presented on behalf of the appellant in the form of medical reports of physicians and surgeons, and the oral evidence of Mr Williams. I will refer to the psychiatric evidence later.

18 First, I will deal in a little more detail with the evidence relating to the appellant's working capacity.

19 The evidence was that the appellant had been born in November 1947 in Scotland, but had lived his early life in England where he received all of his education. He completed five years of high school. In 1964, the appellant came to Australia where he took a five-year apprenticeship in carpentry and joining. After completing his apprenticeship, he moved about a bit between England, New Zealand and Australia working in his trade and also in sheet metal fabrication, wood machining and coach building. He eventually arrived in Perth in 1978 and worked as a carpenter joiner until 1980 when he started full-time studies at Leederville Technical College in architectural drafting. Over the next six years, and with some difficulty, he managed to complete the course and obtained his diploma in April 1986. For the first three years, he studied full-time, during which he did not have any gainful employment. His evidence was that he "missed" a few units or subjects (by which I understand him to mean that he failed them) and over the next two or three years he studied part-time to gain passes in those subjects. At this time, he had some part-time or casual work, although the evidence as to his work history in this period is not very clear. When he finally obtained his diploma, he did not seek employment as an architectural draftsman, but started a full-time job making staircases. He gave that up for part-time cleaning work. His evidence was that he did this in order to study for a diploma of structural engineering. He enrolled in a civil engineering course at a technical institution in 1987. His evidence was that he only studied a few units at a time which involved about two hours of lectures at night. He had not completed the course by the end of 1990 and he did to re-enrol in 1991. As I understand his evidence (AB 43 - 44) the particular unit or units which he wished to study in that year were over-enrolled and he was not given entry. It was his intention, he said, to re-enrol if the opportunity arose in the next semester and he said he would have done so but for the accident. He was by now, it must be noted, in his early 40s. The part-time cleaning work which he took up in about 1987 was as a cleaner at the King's Park Tennis Club. There is a dispute in the evidence as to his hours of work. It was the appellant's evidence that his official hours were from 7 am to 11 am each weekday and five hours on Sunday morning. His evidence was that although his day would begin officially at 7 am, he always tried to get there by 6 am. He says he always worked more than four hours on weekdays. There is no dispute that his duties were to clean the toilets, showers and change rooms, sweep the squash courts, vacuum the carpets, clean the restaurant and wash windows. According to the appellant, his job also included painting, repairs and maintenance.

20 The general manager of the King's Park Tennis Club, Mr Bradley, was called to give evidence on behalf of the respondent and it was his evidence that the appellant was employed from 6 am to 11 am on weekdays only and that his employment was as a cleaner only. It was Mr Bradley's evidence that weekend work was done by other casual cleaning staff. Mr Bradley did say, however, that the appellant enjoyed doing repairs and maintenance work and did, in fact, do that kind of work from time to time.

21 This job was kept open for the appellant after his accident and he returned to it in July 1991. His evidence was that his duties remained the same (AB 49). He continued in the job until 29 March 1995 - that is, another three and a half years. He left in 1995 in circumstances about which there is dispute and he has not worked since.

22 As to the circumstances under which he came to leave the job, the appellant gave evidence that the job changed. In particular, his evidence was that there were, in fact, two part-time cleaners, of which he was one, and one of the changes was to make the job a job for one full-time cleaner. His evidence was that this job was offered to him, but it was beyond his capacity due to his accident-caused condition and he could not accept it.

23 Mr Bradley denied that any changes were made to the job prior to the appellant's decision to leave. He said that the appellant was the only part-time cleaner employed during the week and there was no change from part-time to full-time. He said that the appellant had carried out his duties quite satisfactorily between the accident and leaving. He had never had occasion to complain to the appellant about the manner in which he performed his duties and he received no complaints from anyone else as to the manner in which the appellant performed his duties.

24 Her Honour found that the appellant left the job "voluntarily" by which I understand her Honour to mean that it was simply a decision which the appellant took, unrelated to his traffic accident. As her Honour observed, the appellant's orthopaedic injuries had all but resolved and were no longer incapacitating him. That conclusion was based on the uncontradicted evidence of medical experts adduced as part of the appellant's own case. Her Honour was not persuaded that the appellant's psychological problems, either alone or together with such slight physical disabilities as remained, prevented him from carrying on with part-time work as a cleaner and handyman.

25 As the appellant's case was presented at trial, the main question for her Honour to resolve was the extent to which the appellant's psychological or psychiatric condition had been affected by the accident. This was because the physicians and orthopaedic specialists whose evidence was tendered at trial were all of the opinion that although the appellant's physical injuries initially were severe, they had all resolved to the extent that he was left with little or no significant permanent disabilities. There were some minor shoulder and spinal conditions of a permanent nature which were insufficient to prevent him from doing the work which he had been doing at the time of the accident.

26 Concerning the appellant's psychological or psychiatric condition and the extent to which it had been damaged by the trauma and aftermath of the accident, the appellant's principal witness was Dr Skerritt. It was his evidence that there was no organic brain damage. However (and as has already been observed), he had initially formed the view which he expressed in his report of 27 November 1997 that the appellant was unemployable because "no employer would deal with him" (AB 213). Her Honour did not accept that evidence. In my opinion, she was not obliged to do so.

27 It seems reasonably clear that when he wrote that report, Dr Skerritt was misinformed about the appellant's work history. He thought the appellant had not held a job since the accident. He did not know that the appellant had returned to his pre-accident employment and carried out that work to the satisfaction of his employer for three and a half years. This was brought to Dr Skerritt's attention and in his later report of 27 July 1998 Dr Skerritt does refer to the appellant's post-accident employment at the tennis club, but the history he obtained from the appellant as to this was of dubious accuracy. He said that the appellant had told him that he regarded himself as unable to do the job properly and, in particular, he could not do the maintenance work that was required of him because of "physical injury". Dr Skerritt said that the appellant told him that he "had a great deal of difficulty doing the cleaning". The appellant's explanation for being able to continue in the work "for a few years" was because there was a "charitable arrangement" and because of "the goodness of the manager". (As has been noted, none of this was confirmed by the general manager of the tennis club, Mr Bradley.) Dr Skerritt went on to say that the appellant told him that the job "ended" when it became necessary for it to "be expanded to full-time". Dr Skerritt's report says:

"He thinks that this was offered to him but said that he had no memory of the details but thinks he would have said that he could not do it. He quoted the symptom of fatigue (after a great deal of enquiry) as probably the symptoms which prevented him from taking the full time job."

28 In his evidence, Dr Skerritt made it clear that he reconciled his opinion that the appellant was unemployable with the appellant's actual history of post-accident work by simply accepting the appellant's own explanation that "he was managing to hang on in a familiar environment in an atmosphere of goodwill" (AB 81) but could not continue when the job was changed. Dr Skerritt repeatedly made the point that he had found it extremely difficult to get a precise history from the appellant.

29 It is well settled that expert opinions are of little or no value unless the facts on which they are based are proved or accepted to be true: Pollock v Wellington (1996) 15 WAR 1 . In this case, Dr Skerritt's initial opinion that the appellant was unemployable because no employer would be able to deal with him was based, at least in part, on the erroneous belief that the appellant, in fact, had been unemployed since the accident. That opinion evidence simply cannot stand in the face of clear evidence that the appellant was employed in his pre-accident job for three and a half years after the accident and in the face of the evidence that his employer had no difficulty dealing with him.

30 Her Honour had the opportunity to see and hear the appellant give his evidence over an extended period. She was able to watch him under cross-examination. She was able to make her own assessment of his mental acuity and capacity to communicate by seeing and hearing the manner in which the appellant coped with the forensic process to which he was subjected. It would be fair to say that the transcript contains little sign of the "extreme degree of vagueness and loss of memory" reported on by Dr Skerritt. Her Honour also heard evidence of the appellant's manner of living and daily activities. She heard evidence that the appellant went for a six-kilometre walk every day, made two or three visits to the library each week where he selected books to read, regularly cleaned and maintained the house in which he was living, including the swimming pool at that house and performed regular volunteer work for several hours per week for a political party. From the evidence which the appellant himself gave as to his lifestyle, it appears that he is living an orderly life in which he follows routines. This hardly fits the picture of the confused, forgetful, disordered person who was described by Dr Skerritt. It was for her Honour to weigh all of this up.

31 As has been mentioned, the appellant appeared in person. The grounds of appeal had been drafted by his former solicitors and essentially they were to the effect that the learned trial Judge ought to have found that the appellant is totally and permanently disabled by reason of psychiatric illness as a result of the motor vehicle accident. They are the terms of the sixth ground of appeal. The other grounds of appeal are to much the same effect. Thus, for example, ground of appeal 4(a) pleads that the trial Judge ought to have found that the appellant left his employment as a cleaner as a result of "some deterioration in the Appellant's mood or his thought processes so that in a cumulative way the Appellant's coping capacity was gradually diminished".

32 When the appeal came on for hearing, the appellant made it quite plain that he disavowed reliance on the grounds of appeal that had been lodged by his solicitors who, apparently, he had dismissed. The approach which the appellant wished to take was fundamentally different from the notice of appeal. The notice of appeal did not challenge any of the trial Judge's findings and conclusions as to the appellant's physical condition, nor the finding that the appellant sustained no organic brain damage. As I have said, the thrust of the grounds of appeal was that there should have been a finding, based on Dr Skerritt's evidence, that the appellant is totally and permanently incapacitated by reason of his psychiatric condition. In contradiction of the notice of appeal, the submissions which the appellant made were to the effect that his mental condition is not due to any psychiatric illness or personality disorder, but is due to organic brain damage and that he continues to be seriously incapacitated by his physical injuries, including his shoulder and neck injuries. The extent to which the appellant's own submissions run counter to the case for appeal as pleaded in the grounds of appeal is illustrated by the following passage from the very lengthy written submissions which the appellant handed to the Court. At par 30, the appellant states:

"My, the Appellant's (Plaintiff's) Counsel, Mr Philip Patterson chose to diminish and dismiss my physical disabilities and promoted the false belief that I was disabled and unemployable because of psychiatric illness and in collusion with his nominated Psychiatrist. Dr Paul Skerritt promoted the false belief that my alleged psychiatric disability was the consequence of an alleged and unsubstantiated pre-existing condition."

33 It is quite plain from the appellant's written submissions that the appellant believes that he has been the victim of gross incompetence at every level of his medical treatment and of his legal representation. This was the main theme in all that he had to say on his appeal. On more than one occasion, he had to be reminded that the Court had no authority in these proceedings to inquire into complaints of professional negligence against the hospital, the nursing staff or the doctors who were responsible for his treatment. The appellant seemed unable to appreciate that his claim was not against them. They are, of course, not parties to this action, were not represented at the trial, or in the appeal, and had no opportunity to answer the very serious allegations which the appellant persisted in making during the presentation of his appeal. No purpose is to be served by going fully into the appellant's complaints against these people. The following are a few examples which are typical and will suffice to illustrate the nature of the appellant's submissions.

34 At page 9 of the transcript, the appellant alleged that "the District Court hearing was corrupted and misled by false evidence and the false testimony of witnesses". At page 10, he made allegations of "insurance fraud promoted by a state government bureaucracy". On that page also, he made allegations against the doctors who gave evidence for him at his trial. Of them, he said "These medical professionals or professional witnesses, as they have acted, have yet another motivation for supplying dubious evidence to discredit myself and my legitimate claim, and that is to protect Royal Perth Hospital from legitimate allegations of negligence in my treatment". At page 11, he directly accused the hospital and Dr Sneddon of negligence. At page 17, he accused his solicitors of not making "proper representation" of his claim at trial.

35 One of the themes running through the appellant's submissions was that although he had sustained a broken shoulder in the accident and was suffering from that condition during his stay at Royal Perth Hospital, no-one told him of the fact and the injury was not treated. The legal consequence of these complaints is a little unclear and was not well developed in argument. There is no doubt that the shoulder injury was diagnosed. It did not escape the attention of those who were treating him. In a report of 21 September 1995 to the appellant's solicitors, the medical administrator reported that on examination on arrival at hospital, the appellant was found to have sustained a "fractured left clavicle and scapular" and it was reported that the "clavicle and scapular fractures had been treated conservatively". As to what treatment should have been administered, it was Mr Williams' evidence at trial that it was indeed appropriate to treat the injury "conservatively", that is, as it had been treated - by bed rest and without surgical intervention.

36 In his written submissions at par 47 to par 49 and at page 56 of the transcript, the appellant described Mr Williams' evidence as false. At page 11 of the transcript, he described the contents of one of Dr Sneddon's reports as lies.

37 The trouble is that all of this evidence about which the appellant complains in such strong terms was tendered at trial as part of the appellant's own case.

38 It seems to me that the appellant really wishes to say that the case which was put forward on his behalf at trial was not the case that ought to have been put forward. The case which he wished to have presented to the Court below was that he remains seriously physically incapacitated and has sustained severe brain damage and is suffering from no psychological or psychiatric disability unrelated to that brain damage. As I understand the main thrust of his appeal argument, it was that this Court should start the case over again.

39 That is, of course, impossible. This Court has no authority to interfere with an award of damages unless the Court is satisfied that the Judge has acted on a wrong principle of law or has misapprehended the facts, or for these or other reasons made a wholly erroneous estimate of the damage suffered: Miller v Jennings [1954] HCA 65; (1954) 92 CLR 190 per Dixon CJ and Kitto J at 196. The Court cannot rehear the case from the beginning. The appellant must demonstrate that on the evidence which was presented on his behalf at trial, the Judge should have come to a different conclusion as to the appropriate amount of the damages to be awarded. In this case, the appellant seems to me to be contending that the Judge should have heard different evidence.

40 On the evidence which was presented to the learned trial Judge, I cannot, for myself, see that she made any error. The conclusions which her Honour reached as to the consequences of the injury to the appellant's spleen and kidneys, and as to the removal of his adrenalin gland were entirely in accordance with the evidence presented to her. There is no evidence of any organic brain damage. The possibility that some brain damage had been sustained was raised in the notes accompanying the results of early CT scans, but was never subsequently confirmed and it was Dr Skerritt's firm opinion that such mental or intellectual difficulties as were noted by him, that is, "disordered thought processes, inability to concentrate, memory loss and the like", were not explained by injury to that part of the brain. The orthopaedic evidence is clear enough. It is to the effect that the residual incapacity in the appellant's shoulder and spine which can be attributed to the accident is of little significance.

41 As to the extent of the damage to the appellant's intellectual capacity, her Honour accepted the evidence of Dr Skerritt that the appellant probably always had a rather odd, eccentric and fragile personality and she found that this had been "exacerbated" by the trauma of the accident and its aftermath. Her Honour was not persuaded that the appellant had really been denied a career as an architectural draftsman or as an engineer by this exacerbation of his personality disorder. She did not think that the appellant had been the kind of person who could have made a career for himself in those callings or professions even if this accident had not happened. In my opinion, she was fully justified in coming to that conclusion. The appellant had difficulty completing his diploma in architectural drafting and had never sought work in that field, either while he was a student or after completing his diploma. His history and the assessments that have been made as to the kind of person he has always been suggest that he would never have been suited to the disciplines of professional callings and would not have pursued a career in either field. The basis of her Honour's assessment of economic loss is explained in the following passage in her judgment at AB 26 - 27:

"The assessment of economic loss will have to be significantly discounted to allow for the fact that the plaintiff may not have returned to full-time work but may have simply chosen to work in a part-time capacity with his additional time devoted to part-time study or other activities. Although the plaintiff had stated that he intended to return to full time work either obtaining employment as a draftsman or as a carpenter/joiner when he completed his part-time studies in 1995 I consider that this may not have eventuated. By 1996 the plaintiff would have been out of the building industry for almost 10 years. Given his age and all of the other circumstances he may have chosen to continue in the lifestyle that he had selected prior to the accident. He had not married and had no other dependants and had left continuous full time employment since 1980 to pursue a combination of studies and ether part-time or temporary work.

In addition a significant discount will have to be made for the fact that there is a likelihood that at some stage after the accident in 1991 some other stress in the plaintiff's life may have precipitated a similar reaction and produced the same psychological disturbance. Although it would not be usual to discount for that factor in the period from the accident until the time of the trial in these somewhat unusual circumstances I think it is appropriate to do so. After considering all of the evidence including the evidence of Dr Skerritt I consider that changes in his employment, difficulties in completing his studies, or any other life stresses, could have affected his fragile personality to produce his present psychological condition and affect his functioning in his employment capacity. Doing the best I can I consider it appropriate that his assessment of economic loss be discounted by 50 per cent to allow for the two abovementioned factors as well as the usual vicissitudes of life."

42 In my opinion, her Honour's observations are fully supported by the evidence and it was entirely proper to proceed to assess damages in the way that she did. I am not able to see any error in the approach that she took.

43 The respondent complains that there should not have been an award for past loss of earnings because of the finding that the appellant left his job voluntarily. Whilst I would accept that it would not have been appropriate to compensate the plaintiff on the basis that there was a total inability to earn from the time he became unemployed, the fact is that her Honour did not calculate the damages in that way. She gave the respondent credit to the extent of the wages the appellant would have earned had he stayed on at the tennis club, or found similar work at the same rate of pay. The award was not based on the premise that the appellant would certainly have gone back to working full-time as a carpenter/joiner had this accident not happened. The learned trial Judge approached the assessment on the basis that had the appellant not been injured, there was a chance that by 1 January 1996 he would have completed his studies and returned to full-time work as a carpenter/joiner. She calculated the difference between a part-time cleaner's wage and a full-time carpenter's wage, and multiplied it by the number of weeks between 1 January 1996 and the date of trial. But she then discounted that figure by 50 per cent to allow for the chance that the appellant never would have gone back to his trade full-time.

44 I am not persuaded there was anything wrong with that approach.

45 I would dismiss the appeal and the cross-appeal.