Patrick Stevedores No 1 Pty Ltd v Kilkelly

Court of Appeal (NSW)|2004-05-25|Before: Giles JA, McColl JA, Coll JA

CITATION : Patrick Stevedores No 1 Pty Ltd v Kilkelly [2004] NSWCA 237 HEARING DATE(S) : 25 May 2004 JUDGMENT DATE : 16 July 2004

CATCHWORDS : PERSONAL INJURY - employee injured by negigence in operation of portainer - crane-like equipment running on rails used for unloading containers - whether damages assessed under Motor Accidents Act or Workers Compensation Act - whether portainer a motor vehicle within meaning of former Act - whether portainer "used on a railway or tramway" - held no because not on rails of a transport system on which trains or trams run. DAMAGES - whether error in assessment of damages for non-economic and economic loss - no question of principle. COSTS - 1992 motor vehicle accident - 1995 workplace accident - proceedings heard together - plaintiff successful in both - recovered less than offer of compromise made by defendant in motor vehicle accident proceedings - ordered to pay some of that defendant's costs - Bullock order that defendant in workplace accident proceedings pay those costs - order made in workplace accident proceedings - judge later purported to vary orders to make it in motor vehicle accident proceedings - whether grounds to vary orders - whether Bullock order properly made at all - held no and no. D Booker v State Rail Authority of New South Wales (No 1) (1992) 31 NSWLR 393; Booker v State Rail Authority of New South Wales (No 2) (1993) 31 NSWLR 402; DNM Mining Pty Ltd v Barwick [2004] NSWCA 137; CASES CITED : NSW Insurance Ministerial Corporation v Edkins (1998) 45 NSWLR 8; Purkess v Crittenden (1965) 114 CLR 164; Sved v Council of the Municipality of Woollahra (1998) NSW Con R 55-842; Watts v Rake (1960) 108 CLR 158. PARTIES : Patrick Stevedores No 1 Pty Ltd - Appellant Bryan Joseph Kilkelly - Respondent FILE NUMBER(S) : CA 40444/00; 40552/03 COUNSEL : K W Andrews - Appellant A Lakeman - Respondent SOLICITORS : Gillis Delaney Brown - Appellant G H Healey & Co - Respondent

LOWER COURT District Court JURISDICTION : LOWER COURT DC 9194/97 FILE NUMBER(S) : LOWER COURT Taylor DCJ JUDICIAL OFFICER :

`IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40444/00 CA 40552/03 DC 9194/97 DC 9175/97

GILES JA McCOLL JA CRIPPS AJA

Friday 16 July 2004 PATRICK STEVEDORES No. 1 PTY LTD v KILKELLY Judgment 1 GILES JA: The respondent was injured in a motor vehicle accident on 22 February 1992 and in a workplace accident on 26 May 1995. He brought District Court proceedings 9195/97 against Mr David Martin, the driver of the other motor vehicle ("the Martin proceedings") and 9194/97 against the appellant, his employer ("the Patrick proceedings"). The proceedings were heard together. 2 The hearing occupied five days in May and November 1999. On 20 April 2000 the judge published reasons in which he found in favour of the respondent as to both accidents, assessed damages for the respective accidents, and reserved questions of interest and costs. On 1 June 2000 the judge gave reasons in which he adjusted the assessments under the slip rule and dealt with interest and costs. 3 The judge had purported to give a verdict and order judgment for the assessed damages on 20 April 2000, notwithstanding that interest was outstanding. On 1 June 2000 he made orders apparently intended to substitute amounts reflecting the adjusted assessments and interest, plus costs orders. This was procedurally questionable, but no one questioned it and it is of no practical consequence. 4 In the Martin proceedings, in the result there was judgment for $84,565.10 and an order that Mr Martin pay the respondent's costs up to and including 18 December 1998 and the respondent pay Mr Martin's costs from 18 December 1998. The respondent incurred his costs burden because the judgment did not exceed an offer of compromise made by Mr Martin. 5 In the Patrick proceedings, in the result there was judgment for $142,292.37 and an order that the appellant pay the respondent's costs - " … including costs payable to the defendant Martin by the plaintiff in the matter of Kilkelly v Martin and including the costs of the parties of the arbitration hearing on 18th and 19th January 1999 except the costs of the defendant Martin on 7th and 11th May 2000" (so far as including costs payable by the respondent to Mr Martin, "the Bullock order"). 6 The judgment sum in the Patrick proceedings comprised - Non economic loss $70,440.00 Past economic loss $19,125.00 Future economic loss $30,651.00 Out-of-pocket expenses $17,076.37 Future medical expenses $5,000.00 Total $142,292.37

7 In circumstances and manner later described, on the respondent's application on 4 June 2003 the judge made orders which changed the costs orders. He effectively deleted the Bullock order from the order in the Patrick proceedings, and in the Martin proceedings ordered that the appellant - "4. … pay costs payable to the defendant by the plaintiff including the costs of the defendant of the arbitration hearing on 18 and 19 January 1999 except the costs of the defendant on 7 and 8 May 2000. 5. … pay the costs of the plaintiff of the arbitration hearing on 18 and 19 January 1999." 8 The appellant appealed against the assessment of damages and the original Bullock order. After the change to the costs orders it applied for leave to appeal against the Bullock order made in the Martin proceedings. The respondent cross-appealed against the assessment of damages and raised a number of matters, some more correctly grounds of cross-appeal, under a notice of contention. He probably needed leave to cross-appeal, but the appellant expressly took no point. Neither the respondent nor Mr Martin appealed in the Martin proceedings. 9 Some of the grounds of appeal and cross-appeal were withdrawn or agreed to be unnecessary for decision. The submissions as to other grounds made at the hearing had but passing connection with the stated grounds and departed from the previously filed written submissions. No objection was taken, and in these reasons I deal with the issues as finally presented for decision. They concerned - 1. the regime under which damages were to be assessed;

aspects of the assessment of damages for non-economic loss;

aspects of the assessment of damages for economic loss; and

The accident 10 The respondent had worked for the appellant for many years. At the time of the accident he was working at the container wharf at the Port Botany container terminal. Containers were being unloaded from a vessel alongside the wharf using a portainer, equipment later described which lifted containers from vessels and lowered them onto internal terminal vehicles (ITV's) which transported them elsewhere within the terminal. 11 The respondent was driving an ITV, similar to a tractor with a trailer attached. The container lowered by the portainer did not separate properly when placed on the trailer, was lifted up again still attached to the spreader, and fell back on the trailer from a height of about three metres. The respondent was thrown about in the cabin of the ITV. The appellant admitted breach of duty of care. 12 The respondent's principal injury was caused by his being thrown against the roof of the cabin. In the motor vehicle accident he had suffered injuries to his neck and back. In the workplace accident he suffered a compression injury to the neck which he said severely aggravated the injuries received in the motor vehicle accident.

The regime under which damages were to be assessed 13 The judge held that the portainer was a motor vehicle within the Motor Accidents Act 1998 ("the MA Act") and that the respondent's damages were to be assessed in accordance with Part 6 of that Act. The appellant submitted that this was in error, and that the damages should have been assessed in accordance with Division 3 of Part 5 of the Workers Compensation Act 1987 ("the WC Act"). The applicable damages regime of the WC Act was more restrictive than that of the MA Act, for example in a lower cap for non-economic loss for a most extreme case, in a different formula for calculating non-economic loss, and in a higher threshold for recovery of economic loss. If the judge's reasons for his assessment of damages were transposed to assessment under the WC Act, the damages would be less; if other challenges to his assessment were made good, the reduction in the damages would be even greater than if the assessment remained under the MA Act. 14 It was common ground that, if it applied, the damages regime of the MA Act trumped the damages regime of the WC Act. Whether the damages regime of the MA Act applied turned on whether the respondent's injury was "caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle" (MA Act s 69(1)). The appellant was the owner of the portainer. It was not disputed that the respondent's injury was caused by the appellant's fault in the use or operation of the portainer, presumably because the operator of the portainer was its employee or perhaps because of its maintenance of the portainer whereby the container did not separate properly. The question was whether the portainer was a motor vehicle within s 69(1). 15 Section 68 of the MA Act contained an inclusory definition of "motor vehicle" for Part 6, except for s 69. The definition of a motor vehicle for s 69(1) was that found in s 3(1) of the MA Act. At the time of the accident the definition was - " … a motor car, motor carriage, motor cycle, or other vehicle propelled wholly or partly by any volatile spirit, steam, gas, oil or electricity, or by any means other than human or animal power, but does not include a trailer or a vehicle used on a railway or tramway."

The definition was later changed, but it was agreed that the amendment did not have retrospective effect so as to apply in relation to the accident. 16 The portainer was a large mobile crane running on rails laid along the length of the wharf. A framework of legs and cross-bracing supported a boom and counterweight, the boom extending over vessels alongside the wharf. ITV's were driven between the legs to receive the lowered containers. The portainer was moved along the rails by a motor at the base of one of the legs, driving the wheels at that point. It could not move off the rails or off the wharf. The operator controlled its lifting and movement from a cabin placed high in the structure. 17 The portainer was not a motor vehicle in the common use of that description, but the definition went beyond the common use. The portainer was propelled by a means other than human or animal power. If the portainer was a vehicle, the refined question was whether it was a vehicle "used on a railway or tramway". 18 The appellant's submissions accepted that the portainer was a vehicle. The case had been conducted before the judge on that basis, and when there was raised on appeal whether it was a vehicle the appellant confirmed its position. I proceed on that basis, although I will return to whether the portainer was a vehicle. 19 The judge said - "The portainer is a propelled vehicle. The Court does not consider that it was being used on a railway or tramway. This is understood from the judgment of Justice Mahoney (with whom Justices Priestley and Clarke agreed) in Booker v SRA of NSW (No 1) (1992) 31 NSWLR 393. His Honour reasoned that restrictions upon the quantum of damages imposed by the Motor Accidents Act apply not merely in respect of motor vehicle accidents but also in respect of transport accidents of other categories, such as those falling within s 4(1)(d) of the Transport Accidents Act . In his Honour's opinion the purposes and effect of s 69 is to apply the restrictions imposed by the Act similarly to both motor vehicle and other transport accidents occurring on or after 1 July 1989. His Honour discussed the 'general scheme' of the 1988 Act (p 399) noting that the term motor vehicle in s 3 excluded ' a vehicle used on a railway or a tramway '. Were it not for the extended definition in s 69(2), then Part 6, would not apply to an accident involving the use of a railway or tramway vehicle. The purpose of the Act his Honour considers was that 'motor accident' in Part 6 would comprehend, inter alia, railway vehicles. In this Court's opinion the propelled portainer was not operating as an integral part of a railway or tramway as comprehended by the general scheme of the Act. The fact that it is propelled at the dockside along a fixed track does not affect its status as a motor vehicle within the meaning of s 3." 20 It is not entirely clear what guidance the judge found in the judgment of Mahoney JA in Booker v State Rail Authority of New South Wales (No 1) (1992) 31 NSWLR 393, and I do not think that guidance is to be found, but in my opinion the judge was not in error in his conclusion that the portainer was a motor vehicle within s 69(1). 21 In Booker v State Rail Authority of New South Wales (No 1) there had been a collision in 1990 between an electric train and a steam train, both running on the conventional railway system. The defendant implicitly accepted that s 69(1) did not apply because the trains were used on a railway and so were not motor vehicles. It submitted that Part 6 of the MA Act nonethless applied by virtue of s 69(2), which referred to "injury caused by or arising out of a transport accident (within the meaning, immediately before the date of commencement of Part 2, of the Transport Accidents Compensation Act 1987)". Whether the collision was a transport accident was in dispute, but could not be decided and was deferred. The decision was on the temporal operation of s 69(2). The date of commencement of Part 2 of the MA Act was 1 July 1989, and the plaintiff submitted that s 69(2) operated only until 1 July 1989. It was held that s 69(2) extended to transport accidents occurring on or after 1 July 1989. 22 This narrow temporal question was unrelated to the meaning of "motor vehicle" for s 69(1). But Mahoney JA, with whom Priestley and Clarke JJA agreed, found support for the holding in "the general scheme of the 1988 Act", saying - "Various provisions of Pt 6, for example, s 74 and s 76 refer to 'motor accidents'. The term "motor accident" is defined by s 3(1) to mean 'an accident caused by the fault of the owner or driver of a motor vehicle in ...' and 'a motor vehicle' is defined to exclude 'a vehicle used on a railway or tramway'. Were it not for the special provisions of s 68, the relevant provisions of Pt 6 would therefore not apply to an accident in the use or operation of a railway vehicle. But, in s 68, 'motor accident' is specifically defined to include within Pt 6 'a transport accident referred to in s 69(2)'. The purpose of this was, I think, to ensure that when, in Pt 6, 'motor accident' was used, it would comprehend, inter alia, railway vehicles. I am conscious that this does not provide a full answer to the submission made by Mr Coombs QC. If, as he submits, s 69(2) in its terms applies only to transport accidents occurring in the interim period, it would be possible to see the special definition of "motor accident" in s 68, as intended to operate only during that period. But, in my opinion, the legislative intention, as drawn generally from the 1988 Act, is that Pt 6 is to apply in the future to accidents which fall within the definition of "transport accident" in the 1987 Act." 23 His Honour's observations did treat an accident in the use or operation of a vehicle used on a railway as the same as an accident in the use or operation of a railway vehicle, and the extension worked by s 69(2) as intended to catch an accident in the use or operation of a railway vehicle which would not be caught through s 69(1). The reference to railway vehicles, however, was shorthand, sufficient for his Honour's purpose but lacking precision. The definition of "transport accident" in the Transport Accidents Compensation Act 1987 relevantly included "any form of transportation or conveyance operated by the Urban Transport Authority or the State Rail Authority", with qualifications which gave rise to the dispute over whether the collision was a transport accident (see Booker v State Rail Authority of New South Wales (No 2) (1993) 31 NSWLR 402). The electric train was operated by the Sate Rail Authority, and there was no doubt that both trains were vehicles operated on a railway. Mahoney JA's observations were not concerned with exposition of a defined phrase "railway vehicles" or the limits of the expression "a vehicle used on a railway or tramway". The scheme to which his Honour referred does not assist, because the railway vehicles caught through s 69(2) are much less than the whole class of railway vehicles and can not be seen as the obverse of vehicles used on a railway, quite apart from the added factor of vehicles used on a tramway. 24 Counsel's researches brought no other guidance in the cases. The unadorned words of the definition must be applied. 25 The appellant submitted that the portainer ran on rails, could not move off them, and was therefore being used on a railway. I do not think that is correct reasoning. The composite expression refers to use "on a railway or tramway". Both a railway and a tramway have vehicles running on rails, suggesting that mere running on rails is not sufficient: if it were, separate reference to a railway and a tramway would not have been necessary. 26 The focus should be on what is meant by a railway or a tramway. The primary definition of "railway" in the Macquarie Dictionary is "a permanent road or way, laid or provided with rails of steel, iron etc., commonly in one or more pairs of continuous lines forming a track or tracks, on which vehicles run for the transporting of passengers, goods and mail", and the primary definition of "tramway" is "a system of grooved tracks laid in urban streets, forming routes for the conveyance of passengers in trams". The former definition is not as express as the latter, but the same concept a system of rails on which trains run is brought into the definition by the association of railway and tramway. In my opinion a railway or a tramway is a transport system on which passenger or goods trains or trams run, and for a vehicle to run on a railway or tramway it must run on the rails or tracks of such a system. The system need not be large, but the portainer was not on any view a passenger or goods train or tram. 27 That leaves the portainer a motor vehicle within s 69(1), and damages for an injury caused by fault in its use or operation under the regime of the MA Act. The appellant submitted that it would follow that injuries caused by fault in the use or operation of much other equipment distant from a natural understanding of a motor vehicle would fall under the regime. The carriages of a big dipper, or a gantry crane running on overhead rails within a factory, if a vehicle, would not be used on a railway or tramway. "Vehicle" plays an important part in the definition, and from the words "or other vehicle" should be read in association with the preceding words "motor car, motor carriage, motor cycle". "Vehicle" is a control over excessive width of the definition, amongst other things excluding from its scope equipment running on rails but not on a railway or tramway where the equipment does not answer the description of a vehicle. I question whether the portainer is a vehicle for the purposes of the definition. 28 The respondent attempted a submission, not put to the judge, to the effect that it was sufficient that the workplace accident involved the use of a motor vehicle, the ITV, in conjunction with the portainer. The case had not been conducted on that basis, and the submission should not be permitted. In any event it has no substance. The only fault was in the use or operation of the portainer. The fact that the ITV was used to receive the container was of no consequence, and there was no fault in having it where it was. Fortunately for the respondent, he did not need to gain acceptance of the submission. 29 On this issue, the appeal fails.

The assessment of damages for non-economic loss 30 The judge found the severity of the respondent's non-economic loss at 28 per cent of a most extreme case. The appellant submitted that this was excessive, and that the judge had erred in failing to give proper consideration to the medical evidence and failing to give appropriate reasons for his finding. 31 Early in his reasons the judge discussed the respondent's credit, saying that determining the facts "very much depends on the reliability of the plaintiff as a witness". He concluded the discussion - "The plaintiff appeared to the court to be a person doing his best to tell the truth. It has a small reservation as to his reliability overall as a witness. In stating his perceptions about himself and his future he gave the impression of being somewhat overly pessimistic. No doubt this is partly due to the feelings of sadness he has concerning the impact the accidents have had on his life." 32 The judge's reasons under the heading "Discussion of the Plaintiff's Symptoms and the Medical Evidence" and "The Plaintiff's Pre-accident Health and Earnings" were effectively the same as his reasons on those matters in the Martin proceedings. There were differences in the structure of the two judgments, and the second heading was absent from the reasons in the Martin proceedings, but the substance was the same. 33 The judge began under the first heading - "The plaintiff said that at present his neck, back and left arm were the main problems. Simple tasks such as moving paperwork cause him pain. Although he had pain in his neck, back and arm prior to the 1995 accident it intensified after the second accident. It was nearly double what it was. He said he could cope all right up until the 1995 accident with his own treatment following advice from the health service professionals. He has to have ongoing physiotherapy and medication. The plaintiff claims a serious aggravation. The novel aspect of the injury that arose some months after the 1995 accident at Port Botany was the onset of myoclonic jerks. The plaintiff's case is that they are post traumatic. He described the jerks as not dissimilar to that experienced when nodding off to sleep and an involuntary jerk of the head occurs. They are more violent than the experience of nodding off. Initially they occurred as he was beginning to fall asleep in the evenings. He became particularly concerned after one episode while driving, during the day, over the Harbour Bridge. He then went to see Dr Saw who referred him to Dr Halpern a consultant neurologist. He placed him on medication. Presently the myoclonic jerks occur a few times a week. Dr Halpern suspects the myoclonic jerks are cervical in origin. The temporal association between the onset of the jerks and the fact that the plaintiff injured his neck in the accident satisfies the Court that it is more likely than not their origin is the workplace accident. He also thought the plaintiff had more than expected degenerative change which he attributed to the trauma to the plaintiff's neck in the accidents." 34 After referring the opinion of Dr Clive Sun, a rehabilitation specialist, and Ms Everingham, a psychologist, the judge said that "[t]here were a number of medical opinions tendered in evidence that support the plaintiff's evidence of his injuries, treatment and the progress of his symptoms". He referred to opinions of Drs Teo (1992), Wong (apparently a mistake for Dr Jagger, (1996), Ellis (1994), Alam (January 1995) and Dan (1995). 35 In his reasons in the Martin proceedings the judge then said - "In both accidents the plaintiff's injuries amounted to a significant impairment within the meaning of the Motor Accidents Act . The Court assesses the plaintiff's non economic loss arising out of the 1992 accident as 22% of the most extreme case. This amounts to $12,500." 36 In his reasons in the Patrick proceedings the judge undertook further discussion under the second heading. The material under that heading appeared in the Martin proceedings after the judge had stated his 22 per cent assessment, although presumably at least in part taken into account in that assessment. The discussion included an account of the evidence of the respondent's father, to the effect that after the motor vehicle accident the respondent seemed to go into his shell and complained all the time about aches and pains arising out of the accident and that after the workplace accident there was a significant change, there was complaint of pain mainly in the back and shoulders and "[he] appeared to become depressed". 37 In his reasons in the Patrick proceedings the judge then said - "The evidence suggests that the myoclonic jerks result from the Port Botany accident. Together with the increased symptoms the plaintiff has experienced since the second accident they result in a significant impairment of the plaintiff's ability to lead a normal life. The myoclonic jerks, although somewhat controlled now, are a particularly unpleasant intrusion into the plaintiff's day to day life. The court assesses damages for non economic loss at 28%." 38 It is apparent that the judge accepted the respondent's evidence that his pain intensified and nearly doubled after the workplace accident, assisted by the evidence of his father and the opinions of Drs Teo, Ellis, Alam and Dan, and that whereas the respondent had previously been able to cope he was significantly further impaired. He arrived at the 28 per cent assessment having regard to the increased symptoms caused by the second accident and in particular the myoclonic jerks. He specifically found ("the evidence suggests …") that the myoclonic jerks were caused by the workplace accident, relying on Dr Halpern's opinion and the temporal association between the onset of the jerking and the accident. 39 The appellant's principal complaint was that the judge erroneously found that the myoclonic jerks were caused by the workplace accident. It accepted that, if they were caused by an accident, it could only be that accident. It submitted that Dr Halpern postulated a cervical origin, but that there was extensive evidence of existing degeneration of the cervical spine and the evidence did not warrant a finding of causation by the accident. 40 There was the customary raft of medical reports, to many of which the judge did not refer. None of the doctors gave oral evidence. 41 In his report dated 19 April 1996 Dr Halpern said that the respondent's symptoms "seem to conform to myoclonic jerk", apparent distinct from hypnagogic jerks because suffered during the day as well as when going off to sleep. He recorded a history of the workplace accident and aggravation of the head and neck pain from the motor vehicle accident, a detailed history of the jerking, and his findings on examination. He said - "It may well be that the recurrence of hypnogogic [sic] and day occurring myoclonic jerking is a benign phenomena. However its occurrence in the presence of significant neck restriction and the recurrence of intermittent distal limb paraesthesia require the exclusion of any significant compression or impingement of the cervical spine. Reassuringly there are no long track signs. The cervical spine x-ray has shown some degenerative changes and loss of normal cervical lordosis while the CT scan of the cervical spine from September of last year shows a number of minor degenerative changes. I think it is appropriate to ask him to have a magnetic resonance scan of the cervical spine and somatosensory evoked potential responses tested." 42 Dr Halpern received the MRI scan, which he described in his report dated 10 May 1996: there were disc degeneration and arthritic changes. He said in the report - "Mr Kilkelly still has occasional myoclonic jerks although they are not as intense as they have been. Although they occur during the day they do so less frequently than previously with the majority still occurring at night prior to him going off to sleep. These latter episodes would be considered a physiological phenomena. Once more we discussed whether any particular position seems to provoke the episodes. He has had one on extension of the neck but this is not a consistent feature. Mr Kilkelly undoubtedly has greater than anticipated degenerative arthritic chance of the cervical spine for a man of his age. Presumably this is accounted for on the basis of his two episodes of traumatic injury to the neck. This would be supported by the absence of significant arthritic change elsewhere. I discussed that no significant abnormality such as a cervical intraspinal lesion or cord compressive process has been found. I suspect that the problem [myoclonic jerking] is cervical in origin although this would be difficult to determine." 43 The appellant submitted that this was but faint acceptance of a connection between the myoclonic jerks and the condition of the respondent's neck, and was insufficient for the judge's finding both in itself and when the judge also had before him, but did not in his reasons refer to, a contrary opinion of Dr Fitzsimons. 44 In a report dated 21 June 1998 Dr Fitzsimons said- "Myoclonic jerks which occur on falling asleep are typically a very normal phenomenon, and occur in many normal individuals within the population. Certainly they would have nothing to do with his accident. The more major body flinging episodes, occurring while wide awake, are much more difficult to categorise clinically. I suspect that they are likely to be non-organic. It would have been prudent to undertaken an electroencephalogram, to exclude electrical evidence of epilepsy, which can occur with myoclonus. I would have expected the EEG to be normal, given the non-organic sound of his major jerks. If it was indeed normal, this would confirm such opinion. Even if it was abnormal, I do not think that there is a connection with his head injury. … There is otherwise evidence of non-organic phenomena, but I would not wish to be precise in categorising such non-organic phenomena further. His body-throwing episodes might be a non-organic exaggeration of an organic but normal nocturnal myoclonic phenomenon, unrelated to either accident. It would be of some interest to know whether the electrical neurophysiological studies showed any evidence of a left C7 lesion in relation to the left arm pain induced by the 1992 accident. However, given the MRI scan discussed above, I would expect such electrical studies would probably be normal." 45 The appellant further submitted that, even if Dr Halpern accepted a connection between the myoclonic jerks and the condition of the respondent's neck, he did not relate the condition of the neck to the workplace accident but rather presumed that it was accounted for by "the two episodes of traumatic injury to the neck". It said that the judge did not in his reasons refer to opinions of Drs Schnier and Korber attributing the condition of the respondent's neck to degenerative processes. 46 Dr Schnier reviewed the respondent's radiology and gave a report dated 10 July 1998. He was aware of both accidents. The radiology included the MRI to which Dr Halpern had referred. Dr Schnier concluded that "[t]here was pre-existing degenerative intervertebral disc disease at C5/6 and C6/7 which has progressed at the expected rate between 1992 and 1995". The date 1995 must have included some radiology in September 1995, and presumably was meant to include the Halpern MRI of 29 April 1996 because Dr Schnier said that the MRI showed "the expected associated degenerative annular bulging" but "no convincing evidence of a superadded disc protrusion at C5/6". 47 Dr Korber also reviewed the radiology, and gave a report dated 7 May 1998. He concluded that - "In relation to the cervical spine in my opinion changes are degenerative. There is no evidence of frank disc herniation or disc protrusion. At the C5/6 level the disc has been carried backwards by spondylosis and spur formation rather than actually protruding. The appearances in the cervical spine have not significantly altered since the initial examinations." 48 In fact, there was other medical opinion supporting connection between the myoclonic jerks and the workplace accident. Dr Alam examined the respondent on 30 January 1995 for medico-legal purposes in relation to the motor vehicle accident, and again in July 1996 after the workplace accident. He recorded complaint of the myoclonic jerks, developing in April/May 1996. His assessment included that the respondent had incurred - "1. Two closed head injuries with concussion and he has the signs of a progressive Encephalopathy characterised by cerebral irritability and the onset of Myoclonia requiring anti-convulsive treatment.

A neck injury, by nature marked aggravation of Spondylitic change and the presence of two disc lesions at the C5/6 and C6/7 level with marked symptoms." 49 Dr Alam's prognosis included - "His two head injuries have been followed by marked headaches, and recently by syncopal episodes and progressing to Myoclonus probably rooted in post-concussive, post-traumatic Encephalopathy, such as to require an anti-convulsive Epilim, despite which medication these Myoclonic turns break through. He continues with irritability, memory and concentration impairment as part of this cerebral condition." 50 In my opinion, it was open to the judge to find on the balance of probabilities, as he did ("more likely than not … "), that the myoclonic jerks were caused by the workplace accident. There was ample medical acceptance that the trauma to the neck had aggravated its condition and the symptoms produced, notwithstanding the radiological appearance of degenerative progress, and those medical opinions were well founded in the judge's acceptance of the respondent's evidence. It is not necessary to go into the reports. Dr Halpern's opinion was qualified, but it remained as an expert opinion that the myoclonic jerking was cervical in origin and was occasioned by the condition of the respondent's neck to which trauma contributed. The appellant properly accepted that trauma could make a condition symptomatic without radiologically demonstrated change in the condition. The onset of the myoclonic jerks after the workplace accident made that accident the more likely event bringing about the jerking. The judge's reasoning to that effect was available. 51 The judge did not refer to the opinion of Dr Fitzsimons, or that of Dr Alam - he stopped with Dr Alam's January 1995 report. There was the usual difficulty of a mass of possibly conflicting reports without explanation through oral evidence or testing by cross-examination. Dr Fitzsimons' opinion was no less qualified than that of Dr Halpern, but did not obviously conflict. He referred to head injury, not cervical origin and any conflict was with the opinion of Dr Alam which also addressed head injury and found the myoclonia in a cerebral condition. 52 The judge could have referred to these apparently competing opinions on an alternative source of the myoclonic jerking. He could not have done much more than refer to them, since the medical evidence was left in a state in which he had no medical basis to prefer one rather than the other or the source of a cerebral condition rather than a cervical condition. He came to his decision because of "the temporal association between the onset of the jerks and the fact that the plaintiff injured his neck in the accident", and having done so I do not think it was incumbent on him to engage in a theoretical and unprofitable exercise. As the evidence was left, there was no material failure to give proper reasons. That can be one of the consequences of thrusting upon a judge a number of competing medical reports - usually a range of opinions - without any expert assistance in choosing between them. 53 The appellant's subsidiary complaint was that the judge erroneously found that the respondent's symptoms increased with the second accident. It submitted, by reference to the histories in some of the medical reports, that the respondent's pain and restrictions (both as to his neck and as to his back) had not been worsened by the accident, and with reference again to the reports of Dr Schnier and Korber that to the extent that it had the reason was degenerative progress. The high point for the appellant, in the medical reports, was the opinion of Dr Cummine in 1998 - "I consider the accident as described has acted as a temporary aggravating factor, and I think any effect of that accident will now have ceased. I think any persisting symptoms relate to underlying pre-existing cervical and lumbar spondylosis, and the original aggravation dating back to the motor vehicle accident in 1992." 54 I intend no disrespect to the submission in dealing with it quite briefly. The respondent's evidence of intensified pain, a near doubling, was accepted by the judge. Amongst the doctors, Dr Cummine was out on his own. There was a great deal of support in the histories taken by and opinions of other doctors for that position, and for connection with the workplace accident. The judge referred to some. He could have referred to Dr Alam's second report, following his examination of the respondent in July 1996, recording (apart from the myoclonic jerks) complaint of aggravation of lower back pain and a host of other matters and the opinion that "[t]he tug accident of 26th May, 1995 has materially aggravated his cerebral and spinal conditions". The judge's finding can not, consistently with accepted principles of appellate review, be put aside. 55 It was submitted, perhaps rather faintly, that the evidence of degenerative process required the judge to take into account that the respondent would have suffered an increase in his symptoms quite apart from the workplace accident: DNM Mining Pty Ltd v Barwick [2004] NSWCA 137. The appellant referred again to the opinions of Drs Schnier and Korber, and to the opinion of Dr Elis in 1994 that "more likely than not" the respondent would need "to have a discectomy at L5-S1 or spinal fusion or both". The evidence did not otherwise address this. When it might come to this was not forecast. It does not appear that a similar submission was made to the judge, or that the appellant addressed such a case at the trial. 56 In Watts v Rake (1960) 108 CLR 158 it was said that, where the plaintiff's pre accident condition might eventually have led to a similar disability to that resulting from the accident, it was for the defendant to disentangle from the plaintiff's disabilities those which were not its responsibility. The defendant has only an evidentiary burden, but it has it because the plaintiff can rely on a factual inference from the change in his ability: Purkess v Crittenden (1965) 114 CLR 164. I do not think that the appellant came anywhere near discharging that burden. 57 I do not understand that, if the appellant failed to show error in the aspects thus far considered, it submitted that the 28 per cent was excessive. In any event, while high, in my opinion it was within the range of severity open to the judge. In the result, therefore, on this issue the appeal fails.

The assessment of damages for economic loss 58 The judge said - "The plaintiff has a long and stable work history. He is motivated to continue in employment. He has developed and maintains high clerical skills as is indicated by his salary. As noted earlier he seemed somewhat overly pessimistic about his future. Although there appear to be some uncertainties concerning the future directions of his employer there was no evidence that the Port Botany terminal is other than a long term enterprise. The evidence suggested that with changing industrial conditions the bonuses all round are not so generous. The court is not persuaded that the plaintiff has substantiated any significant overtime loss. He has lost some bonuses. His progress within the organisation can be expected to be slower. Given his disability he is more at risk than he otherwise would be on the open labour market. It is these possibilities the Court takes into account in assessing economic loss. The myoclonic jerks do not appear to impact on the plaintiff's capacity for work as they do on his day to day living. However, for some years after the accident he appears to have had a stormy time. He has improved considerably. The Court considers that the proper distribution for the past economic loss claim distributed between the two accidents is 25% of the first accident and 75% to the second accident. The Court considers a past loss of $100 per week is fair compensation. Overall both accidents appear to be contributing equally to the disabilities the plaintiff experiences presently in the work place. For this reason the Court has attributed damages for future economic loss equally to the two accidents. His ongoing loss continues at $100 per week." 59 For past economic loss, in his reasons of 20 April 2000 the judge calculated loss for 222 weeks from 30 June 1995 to 2 November 1999 at $100 per week and took 75 per cent of that amount, producing a figure of $16,650. The figure was corrected under the slip rule in the reasons of 1 June 2000 to $19,125, although the basis for the new figure was not stated: it was an agreed calculation of the parties, and was probably an extension of the past economic loss to 20 April 2000. 60 The appellant did not complain of the $100 per week, although it said in passing that the figure was too high. It complained of the distribution between the accidents. It submitted that the medical evidence did not justify attributing 75 per cent of the damages for past economic loss to the workplace accident, and pointed out that for the future the attribution had been equal. Under the cross-appeal, the respondent submitted that the judge had erred in failing to award damages for the times following the accident for which the respondent was absent from work, as shown in a schedule which became exhibit N in the proceedings. 61 For future economic loss, in his reasons of 20 April 2000 the judge took $100 per week for 24 years to age 65 on the 5 per cent tables, deducted 15 per cent for vicissitudes, and allowed 50 per cent, resulting in a figure of $31,360. The recalculation on 1 June 2000 pursuant to the slip rule is not clear, but the new figure was an agreed calculation. 62 The appellant again did not complain of the $100 per week. It submitted that attributing even 50 per cent of the damages to the workplace accident was, in the light of the medical evidence, excessive. 63 In my opinion, the complaints as to past economic loss failed properly to appreciate what the judge did and why he did it. 64 Exhibit N listed workers compensation payments from 30 May 1995 to 10 November 1998. From the dates and amounts it could be inferred when the respondent was off work. For a time the workers compensation payments made up the lost wages, later on they did not. Thus there could be derived from exhibit N, if instructed in its use for this purpose, an amount for past economic loss: the respondent said on appeal that the amount was about $33,000. If so, acting upon exhibit N would increase the damages for past economic loss by about $5,000. 65 Exhibit N was tendered late in the hearing, not as anything to do with lost wages but as workers compensation payments to be deducted from any verdict. Prior to its tender the respondent had handed up a schedule of damages which, for past economic loss, took the immediate discrete periods for which the respondent was off work, for the next year an annual wage loss calculated from an income tax return, and for two years a weekly wage loss of $210 based on the calculated annual wage loss. The judge was not asked to act upon exhibit N for deriving past economic loss. 66 What his Honour did, in my view, was take the broad approach of a loss of $100 per week for the whole of the period since the workplace accident, but attribute 75 per cent of the damages for past economic loss to the workplace accident, rather than the 50 per cent which reflected his apportionment of causal contribution to the respondent's loss of earning capacity, because the respondent had for some of the past been off work and had lost more than $100 per week. The respondent had effectively proffered a similar broad approach, and the judge used $100 instead of $210. 67 Past economic loss, where the plaintiff has been off work rather than exercising a reduced earning capacity, should be ascertainable with some precision. The respondent did not until exhibit N provide materials permitting it to be ascertained. He did not at the trial seek to use exhibit N for that purpose. It was not for the judge to divine a further use for exhibit N. On 1 June 2000 the respondent submitted that the judge should act on exhibit N. The judge declined, saying that "there are a multitude of factors that were taken into account in - all of them variable, it is a deliberate judgment of the Court, it might be in error, but it is not a slip". 68 The appellant accepts the $100 per week, and thereby the broad approach, and in my opinion must also accept the differential attribution. The respondent did not ask the judge to do what he now says the judge erred in failing to do, but encouraged his Honour to the broad approach. In the circumstances of this case, in my opinion there was no error in the judge taking the broad approach and declining to re-address the matter. 69 It remains to consider, for past and future economic loss, whether the attribution of 50 per cent of the damages for economic loss to the workplace accident was excessive. The submissions were economical; the appellant essentially repeated the submissions deployed in challenging the 28 per cent severity, and said that the effect of the workplace accident on the respondent as found by the judge was in error. For the reasons I have given, I do not think that has been made out. 70 In my opinion, the appeal and cross-appeal on this issue fail.

The Bullock order 71 The appellant appealed purportedly as of right. The grounds of appeal in its notice of appeal filed on 25 August 2000 were that the portainer was not a motor vehicle and the damages should have been assessed under the WC Act regime and that the judge erred in making the original Bullock order. The respondent objected to the competency of the appeal. Costs aside, the amount at stake was less than $100,000, because it was measured by the difference in damages under the two regimes. The appellant's position was that the grounds of appeal were sufficient to put damages wholly in issue, but it amended to add grounds challenging the assessment of damages more widely. 72 It appears, however, that the respondent continued to maintain that the Bullock order should not have been made in the Patrick proceedings and should have been made in the Martin proceedings. On 7 June 2002 the appellant took out orders in the Patrick proceedings, including the costs order with its Bullock order. The respondent then moved in the District Court, pursuant to Pt 31 r 12A of the District Court Rules, for the orders which were made on 4 June 2003. 73 The respondent did not explain his reasons for this procedural rectitude. The ground of appeal had not taken issue with the proceedings in which the Bullock order had been made. The appellant submitted that the only explanation could have been to erect the hurdle of leave to appeal. The respondent said nothing to the contrary. The result was a contested application in the District Court and then the application for leave to appeal in this Court, both of which must have added considerable expense to the litigation. When it came to the hearing, the respondent expressly put no submissions on whether leave to appeal should be granted and left it to the Court. 74 Full submissions as on an appeal were received on the application. In my opinion leave to appeal should be granted. The orders of 4 June 2003 should not have been made and, addressing the substance of the matter, the Bullock order should be set aside. 75 In his reasons of 4 June 2003 the judge set out the orders made on 1 June 2000, the order taken out on 7 June 2002 and the varied orders sought by the respondent. He relevantly said - "The issue in the proceedings is whether the appeal pending before the Court of Appeal in relation to costs is in fact an appeal from an order made in proceedings 9194 of 1997 or in the related proceedings against Martin in proceedings 9195 of 1997. The argument before me on 1 June concerned the costs orders to be made in respect of both actions. The short minutes of order brought in by the parties should be read as such. The defendant argues that this Court is now functus officio. In my view I have a continuing responsibility to adjust the orders made to reflect the correct position. A judges power in this situation was described by Priestley JA in NSW Insurance Ministerial Corporation v Edkins at page 12E-F: Also in my opinion there is no merit in the argument concerning the judge being functus officio at the point where he announced his verdicts and costs orders in the two actions. Although he did not know it at that moment, he had not then completed his duties in the cases, there was a costs argument still to be heard. He heard it immediately and acted quite properly and with proper authority in doing so. As the order taken out by the defendant does not reflect the meaning of the orders made on 1 June this is sufficient cause to apply Part 31 rule 12A." 76 The judge purported to act pursuant to Pt 31 r 12A of the Rules, by which an order may be set aside if it was made irregularly, illegally or against good faith. From the written submissions, which were before us, the respondent submitted before the judge that there had been irregularity because, knowing that the respondent asserted that the Bullock order should have been made in the Martin proceedings, the appellant took them out without notice to the respondent. 77 In the absence of a finding of irregularity, the judge could not act pursuant to Pt 31 r 12A. He made no finding - he did not refer at all to irregularity. He did set aside the order as taken out, but without finding a proper basis for doing so. Further, any irregularity would infect only the taking out of the orders. It would not enliven changing the orders as made on 1 June 2000. 78 Despite the judge's reference to Pt 31 r 12A, that was not the basis on which he considered he could act. Rather, he acted as he did because he thought that he had a "continuing responsibility to adjust the orders made to reflect the correct position", when the order taken out by the appellant "does not reflect the meaning of the orders made on 1 June". He referred to New South Wales Insurance Ministerial Corporation v Edkins (1998) 45 NSWLR 8, although the passage he set out was concerned with making a further costs order, not with changing costs orders because of perceived error. 79 Even if the order taken out did not reflect the meaning of the orders made on 1 June 2000, that would not warrant more than setting aside the order taken out. The meaning of the orders made on 1 June 2000 was found in their words, and otherwise than under the slip rule there was no occasion to change the orders then made. The judge did not purport to act under the slip rule. 80 In my opinion, the making of the orders on 4 June 2003 comprehensively miscarried. Even if the Bullock order was incorrectly made in the Patrick proceedings, the judge's reasons provided no basis for changing the costs orders. 81 In whichever of the proceedings the Bullock order should have been made, why was it made? In his reasons of 1 June 2000 the judge said - "So far as the defendant Martin is concerned there is no issue that he is entitled to his costs against the plaintiff after 18 December 1998 when an offer of compromise was made. The issue is whether a Bullock order should be made. The nub of the case so far as damages were concerned was the attributability of the plaintiff's problems to both accidents. That was the reason why the cases were heard together. Whilst at first blush it appears anomalous that the actions of one defendant in making an offer of compromise might have adverse outcomes for another defendant, looking at the matter overall it is a natural incident of the dispute between the defendants attributing the plaintiff's ongoing problems to their respective conduct. It is also the case that Patrick's in this case took the approach of not making an offer of compromise at all. In a practical sense the settlement of the action prior to the trial was in the hands of both of the defendants. The defendant Patrick's should not be visited however with costs of 7th and 11 May 1999. These will be excepted from the order." 82 A Bullock order may be appropriate where the plaintiff has brought proceedings against two defendants and succeeded against one but failed against the other, the effect of the order being that the unsuccessful defendant bears the costs payable by the plaintiff to the successful defendant. In Sved v Council of the Municipality of Woollahra (1998) NSW Con R 55-842 at 56,605 I said - "It is not sufficient for the making of a Bullock order that it was reasonable for the plaintiff to bring the proceedings against both defendants, although sometimes the condition for making a Bullock order is stated in that way (eg Johnsons Tyne Foundry, Pty Ltd v Maffra Corporation (1948) 77 CLR 544 at 556; Altamura v Victorian Railways Commissioners (1974) VR 33 at 35). One statement of principle is that the order may be made where the costs have been reasonably and properly incurred by the plaintiff as between it and the unsuccessful defendant (eg Johnsons Tyne Foundry Pty Ltd v Maffra Corporation at 572-3; Norwest Refrigeration Services Pty Ltd v Bain Dawes (WA Pty Ltd (1984) 157 CLR 149 at 163; Gould v Vaggelas (1984) 157 CLR 215 at 247, 229); it has also been said that the conduct of the unsuccessful defendant must have been such as to make it fair to impose some liability on it for the costs of the successful defendant, or that the conduct of the unsuccessful defendant must show that the joinder of the successful defendant was reasonable and proper to ensure of recovery of the damages sought ( Steppke v National Capital Development Commission (1978) ACTR 23 at 30-31; Gould v Vaggelas at 229; Fennell v Supervision & Engineering Services Holdings Pty Ltd (1988) 47 SASR 6 at 7-8, 15; Lackersteen v Jones (No 2) (1988) 93 FLR 442 at 449). The difference in formulations is probably more apparent than real, as reasonableness as between the plaintiff and the unsuccessful defendant will normally be demonstrated by some conduct of the unsuccessful defendant which made it proper that the successful defendant be joined or that the unsuccessful defendant should bear the costs of the successful defendant. Such conduct was found in Lackersteen v Jones (No 2) in the unsuccessful defendant denying the authority of its agent whereby the plaintiff joined the agent who became the successful defendant, and more widely has been found in the unsuccessful defendant telling that the plaintiff in one way or another that it should look to the successful defendant for its remedy ( Altamura v Victorian Railways Commissioners ; Gould v Vaggelas; Fennell v Supervision & Engineering Services Holdings Pty Ltd )." 83 These principles do not readily extend to a plaintiff bringing separate proceedings against two defendants in respect of separate accidents, still less where the plaintiff succeeds against both defendants. The respondent brought separate proceedings against two defendants in respect of separate accidents, and succeeded against both. Nothing done by the appellant contributed to the respondent bringing his proceedings against Mr Martin. The appellant had an interest in attributing the respondent's present condition more to the motor vehicle accident than to the workplace accident, but it was entitled to take that stance and would have been entitled to do so even if there had not been the proceedings against Mr Martin. So far as the appellant's defence in that respect left the respondent with an interest in pressing his claim against Mr Martin, that was no reason to inflict on the appellant the costs of his doing so. 84 The judge appears to have been influenced towards making the Bullock order because it was necessary to attribute the plaintiff's problems between the defendants. I do not think that provided reason for the order. But more, the judge seems particularly to have been influenced by the fact that Mr Martin made an offer of compromise but the appellant did not. The appellant had no control over whether Mr Martin made or did not make an offer of compromise or what the offer was, or over whether the respondent accepted the offer of compromise. Yet the effect of the Bullock order, when the respondent succeeded against Mr Martin but had to pay costs to Mr Martin because he (the respondent) did not accept Mr Martin's offer of compromise, was to make the appellant pay costs because the respondent failed to accept Mr Martin's offer of compromise. This can not be right. 85 From his final words, the judge made the Bullock order because the appellant did not bring about a settlement of both proceedings by making an offer of compromise which, in conjunction with Mr Martin's offer of compromise, would satisfy the respondent. I am quite unable to see that, consistently with the principles on which such orders are made, a Bullock order was justified. 86 The appeal on this issue succeeds.

The result 87 The damages remain to be assessed under the regime of the MA Act. The assessments of damages for non-economic loss and past and future economic loss remain the same. The orders made on 4 June 2003 and the Bullock order should be set aside. The appellant has failed on its challenge to the assessment of damages but succeeded as to the Bullock order. The respondent has failed on its challenge to the assessment of damages and as to the Bullock order. Rather than have a complex costs assessment, I consider that the respondent's fairly limited failure as to damages and failure as to the Bullock order, for which it should bear both parties' costs, and both parties' wasted costs as to issues not finally presented for decision, is appropriately reflected in an order that the appellant pay 70 per cent of the combined costs of the appeal and the application for leave to appeal. I do not think a certificate under the Suitors Fund Act should be ordered. Ironically, added expense brought by the respondent's procedural rectitude falls to his account.

So far as necessary, extend the time to apply for leave to cross-appeal and grant leave to cross-appeal.

Dispense with filing and service of a notice of cross-appeal.

Set aside the order 4 made on 1 June 2000, and in lieu thereof order that the defendant pay the plaintiff's costs.

Appeal otherwise dismissed and cross-appeal dismissed.

Dispense with filing and service of a notice of appeal.

Order the appellant to pay 70 per cent of the respondent's combined costs of the appeal and application for leave to appeal. 89 McCOLL JA: I agree with Giles JA. 90 CRIPPS AJA: I agree with Giles JA. **********

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Judgment (25 paragraphs)

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Cases Cited (11)