plaintiff. Judgment for the plaintiff. The parties were to bring in agreed short minutes within seven days reflecting the reasons. The defendant was ordered to pay the plaintiff's costs as agreed or assessed,...
Key principles
In assessing damages where a plaintiff has established accident-related injury but had significant pre-existing injuries and restrictions, the court must consider the evidence of...
The court found that the 30 July 2014 accident materially aggravated the plaintiff's pre-existing right shoulder condition and aggravated his neck condition, and caused...
Where the evidence does not permit a reliable calculation of past economic loss or future loss of earning capacity, a buffer may be used. In fixing the buffers, the court...
The plaintiff did not establish an accident-related right foot injury where contemporaneous hospital and general-practice records did not record it, and the first located foot...
Issues before the court
Which physical and psychiatric conditions were caused by the accident?
How should prior injuries and restrictions affect the assessment of damages?
Plain English Summary
The defendant had already admitted negligence, so the trial focused on what the accident caused and how much compensation followed. The judge found that the accident significantly worsened the plaintiff's existing right shoulder injury, aggravated his neck condition and caused psychiatric disorders. The judge was not satisfied that the accident caused the plaintiff's right foot condition, a left shoulder injury, continuing left knee problems or a head injury. Because the plaintiff had serious pre-existing injuries, had not been in paid work for more than two years before the accident, and faced uncertainty about how long he could have worked in the proposed job, the court used lump-sum buffers rather than the plaintiff's larger earnings calculations. The judgment awarded damages for expenses, past economic loss, future earning capacity and future commercial assistance, reduced by 20 per cent for contributory negligence.
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What approach was appropriate to past economic loss and future earning capacity?
Was future commercial assistance warranted?
Cited legislation
2 cited instruments linked from this judgment.
Deep Dive
2,208 words · generated 29/09/2026
What happened
In Ramsey v Denton [2020] NSWDC 426, the District Court of New South Wales was asked to determine the extent of the plaintiff's injuries and disabilities caused by a motorcycle collision, and to assess damages. Negligence and contributory negligence were not open issues at trial: the defendant had admitted negligence, and a consent judgment entered on 11 November 2016 provided for a 20 per cent reduction for contributory negligence. The contested questions were causation and the amount of damages.
On 30 July 2014, the plaintiff was riding a motorcycle along Chittaway Road on the Central Coast when the defendant's vehicle turned across his path. He put his motorcycle down to avoid the car and slid into its side. The judgment records that he landed on his right side. The plaintiff, Stephen Ramsey, was an experienced electrician, but he also had a long history of accidents and injuries.
That history mattered to the damages assessment. Before the 2014 accident, the plaintiff had sustained injuries affecting his neck, right shoulder and back. In particular, the evidence established a full-thickness tear of the right supraspinatus tendon by 2011, spinal degeneration and sciatica. After a 2009 mine accident, he had been unable to work for an extended period and had made a total and permanent disablement claim. He later ran SME Electrical, but that business ceased operating in February 2012. The judge found he had not been in paid employment for two years and four months before the accident, apart from the possibility of intermittent cash jobs.
Shortly before the collision, the plaintiff had discussed working for Joe Sarkis, who ran a landscaping business. The judge accepted that Sarkis offered him a full-time job involving supervision and electrical work. The plaintiff's evidence was that the job paid $47 per hour with overtime, included a car and payment of telephone expenses, and was due to start shortly after the accident. Sarkis's evidence included that the work could require physical tasks, including heavy lifting. The judge found that the plaintiff accepted the offer and undertook a paid day inspecting jobs, but considered whether his prior restrictions would have allowed him to continue in the role.
The judgment found that the accident seriously aggravated the plaintiff's right shoulder condition, aggravated his neck condition and caused psychiatric disorders. It rejected a causal link between the accident and the plaintiff's later right foot complaints. It also did not find that the accident caused a continuing left knee problem, a left shoulder injury or a head injury.
Why the court decided this way
The central evidentiary question was how far the plaintiff's current complaints could be traced to the accident rather than to earlier injuries or unrelated conditions. The judge examined contemporaneous hospital and general-practice notes alongside imaging and specialist reports. The judgment gives particular weight to the records made soon after the collision, while acknowledging the need for caution in treating medical histories as definitive accounts.
For the right shoulder, the evidence showed a significant change in the structural condition. Imaging after the accident recorded a larger rotator cuff tear than the earlier imaging. The court found that the accident aggravated the pre-existing injury, increasing the tear and producing related problems. The 2017 repair improved the shoulder for a time but did not resolve the plaintiff's continuing pain and restriction. The judge accepted aspects of Dr Machart's evidence and found the more detailed assessment by Dr Sharpe persuasive, with Dr Harrington's review supporting an accident-related aggravation.
The court treated the foot differently. The hospital records from the day of the accident referred to right shoulder pain, but not an injury to the right foot. Dr Peterson's notes the following day likewise did not record a foot injury. The first reference the judge located to a right foot problem was a November 2014 note. Dr Hunter's opinion supporting a traumatic foot injury relied on an assumed earlier entry that could not be found in the records. On that evidence, the judge was not satisfied that the foot complaints resulted from the accident.
The psychiatric evidence was divided. Dr Jones had concluded that the plaintiff's depression and anxiety were not caused by the accident, while Dr Smith diagnosed PTSD, persistent depressive disorder and cannabis use disorder. The judge preferred Dr Smith's report, considering it thorough and consistent with the evidence from the plaintiff, his former partner and other witnesses about a change in demeanour after the accident. The judge also drew a Jones v Dunkel inference against the defendant for not serving the report of another psychiatrist, Dr George, who had examined the plaintiff.
The court's approach to earnings reflected the same attention to competing causes and contingencies. It accepted the plaintiff's willingness to take the Sarkis job, but found that his pre-existing shoulder, neck and back conditions were significant. The job involved travel across Sydney and the Central Coast, hands-on electrical work, and occasional heavy duties. The plaintiff had been away from regular work for more than two years, had previously experienced difficulty driving, and had said he was tired of electrical work. The judge considered it likely that he might have tried the job, but probably would have left within a month to six weeks. The likely alternative was intermittent, less demanding electrical contracting work.
As a result, the court did not accept the plaintiff's calculation based on ongoing weekly earnings through to retirement age. It used buffers because the length and value of likely work could not be assessed precisely. It awarded $75,000 for past economic loss and $125,000 for future loss of earning capacity. The judgment states that the future award took account of the pre-existing restrictions, the need for the plaintiff to earn a living, likely intermittent work, and the possible effect of the unrelated foot condition.
Before and after state of the law
The judgment did not purport to change the law. It applied existing principles to a factually complex personal injury claim. Its discussion of prior injuries drew on Watts v Rake, Purkess v Crittenden, Malec v JC Hutton and the New South Wales Court of Appeal's treatment of those authorities in Seltsam Pty Ltd v Ghaleb.
The judgment explains that a defendant asserting that a pre-existing condition contributed to a plaintiff's incapacity bears an evidential burden. The defendant must put forward evidence capable of establishing the condition and its possible consequences with reasonable precision. But once the evidence establishes relevant possibilities, the damages assessment is not confined to whether a future event is more likely than not. Under Malec, the court evaluates possibilities when considering hypothetical past events and future consequences. The plaintiff nevertheless retains the legal burden of proving causation.
The court also considered Gulic v Angelovski and Metro North Hospital and Health Service v Pierce on pre-existing conditions and earning capacity. The practical task is to distinguish loss caused by the defendant's negligence from incapacity that existed already or could have developed independently. In this case, the plaintiff's pre-accident shoulder, neck and back evidence was sufficiently substantial to affect the assessment, even though the records showed few relevant attendances between 2012 and the accident. The judge considered that the reduced medical attendance had to be understood in context: the plaintiff was not then undertaking regular physical work.
For future earning capacity, the court applied s 126 of the Motor Accidents Compensation Act 1999 (NSW). It referred to the statutory focus on the claimant's most likely future circumstances but for the injury and the requirement to adjust the award by reference to the possibility of relevant events. The judge also considered authorities including Sretenovic v Reed and Allianz Australia Insurance Ltd v Kerr on the use of a buffer where earning capacity has been reduced but the financial effect cannot be reliably calculated. The judgment stresses that a buffer is not automatic: the court must assess the evidence and the particular uncertainty in the case.
Key passages with plain-English translation
The judge stated: “Accordingly, the plaintiff's relevant physical injuries are limited to a serious aggravation of his right shoulder existing condition and an aggravation of his neck condition.” This summarises the physical injuries the court attributed to the accident. It does not include the disputed foot, left shoulder, knee or head complaints.
On the foot, the judge said: “I am not satisfied on the evidence that the plaintiff's right foot complaints arise from any injury in the accident.” In practical terms, the court found the evidence did not establish the necessary connection, particularly given the absence of a recorded foot complaint immediately after the collision.
On future earnings, the judge said: “In my view damages for loss of future earning capacity are best determined on a buffer basis.” This means the court considered a lump-sum estimate more appropriate than a calculation based on a fixed weekly loss extending to a specified retirement age. The judgment nevertheless considered the plaintiff's skills, prior earnings, injuries and likely work options in arriving at the figure.
The judge also made clear that the damages assessment was not simply a comparison of income before and after the collision. The relevant loss was diminished earning capacity, assessed in light of what the plaintiff could likely have earned in the counterfactual situation without the accident, and what he could likely earn after it.
What fact patterns trigger this precedent
The decision is most informative where liability is already established but the parties dispute which injuries a particular accident caused. It illustrates the significance of contemporaneous records when later accounts allege injuries not mentioned in early consultations. The court did not treat silence in the records as automatically decisive in every respect: it assessed the whole evidence. For the foot condition, however, the absence of an early report, combined with the mistaken assumption underlying one medical opinion, was important.
The decision is also relevant to claims involving substantial pre-existing injuries and a complex employment history. The plaintiff had documented shoulder, neck and back conditions, had made a total and permanent disablement claim, had operated a business that later closed, and had been out of paid employment before the accident. The court evaluated the proposed job in light of its actual physical and travel requirements rather than relying only on its proposed title or wage rate.
For future economic loss, the case illustrates the use of a buffer where the court finds some loss of earning capacity but cannot reliably calculate the amount. The judgment links that method to concrete uncertainties: whether the plaintiff could have continued with the proposed job, what other work he might have undertaken, the impact of pre-existing conditions, and the role of a non-accident-related foot condition.
The judgment also addresses future assistance where the plaintiff lives informally with family or a former partner. The court considered whether the plaintiff was likely to need separate accommodation and what tasks he could perform despite his injuries. It allowed a modest amount for occasional heavier tasks, discounted for the possibility that his living arrangements or condition might improve.
How later courts have treated it
The judgment itself does not identify later decisions that considered or applied Ramsey v Denton. On the material provided, it is therefore not possible to describe how later courts have treated this decision. The authorities cited in the judgment, including Seltsam, Malec, Gulic, Avopiling and Allianz, were used as legal sources for the judge's reasoning; they are not evidence of subsequent treatment of Ramsey.
The case's reasoning is grounded in its own record and findings. In particular, its conclusions about the shoulder, the foot and the work counterfactual depend on the medical evidence and employment circumstances before Dicker SC DCJ. The judgment should not be read as establishing that an unrecorded early injury can never be proved, or that a buffer must always be used whenever earnings are uncertain. The reasons instead show how this judge evaluated the particular evidence and cited principles.
Still-open questions
The judgment left some matters to be resolved through agreed short minutes. It directed the parties to account for payments under s 83 of the Motor Accidents Compensation Act 1999 (NSW) and noted that there may also have been payments on account of economic loss. The stated total of $207,164.84 was therefore subject to the necessary adjustments and formal orders.
The reasons do not provide a detailed arithmetic explanation for every component of the buffer awards. The judge explained the principal factors, including the plaintiff's prior restrictions and the uncertainty around future work, but the precise valuation remained an evaluative judgment. The decision also did not resolve whether the plaintiff would have continued university studies; the judge regarded the evidence as insufficient to determine that confidently.
The future effects of the unrelated foot condition were considered as part of the work counterfactual, but the judgment does not quantify that condition separately as an accident-caused injury. It also does not award non-economic loss, because the plaintiff had not been assessed as having greater than 10 per cent whole person impairment for the purposes of s 131 of the Act.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, get a qualified Australian lawyer to check it.
Catchwords
(2000) 54 NSWLR 536
Purkess v Crittenden [1965] HCA 34(2012) 246 CLR 182
Watts v Rake [1960] HCA 58
Judgment (10 paragraphs)
[1]
Introduction
I now turn to assess the question of damages. As judgment has been entered for the plaintiff it is necessary to consider the various heads of damages applicable in the light of the injuries which I have found arising from the 30 July 2014 accident.
The parties' various submissions in relation to the various heads of damages claimed are as follows:
Head of damages Plaintiff Defendant
Non-economic loss - N/A
Past out-of-pocket expenses $43,530 including s 83 payments of $41,461 $43,530 including s 83 payments of $41,461
Future out-of-pocket expenses $16,606.40 $5,000 buffer
Past loss of earnings $466,500 $25,000
Past loss of superannuation $51,315 11% of $25,000
Future loss of earning capacity $640,432.50 $75,000
Future loss of superannuation $70,447.58 12% of $75,000
Past domestic assistance - not claimed N/A N/A
Future commercial assistance $40,000 Nil but if awarded should be a modest buffer
[2]
Non-economic loss
The plaintiff was not assessed as having a greater than 10% whole person impairment as a result of the accident. Therefore, no damages for non-economic loss are recoverable by him: s 131 of MACA.
[3]
Past of out-of-pocket expenses
It was agreed between the parties that the defendant has paid the sum of $41,461.00 for past out-of-pocket expenses and claims a defence under s 83 of MACA for that sum. This sum must be taken into account for contributory negligence purposes: s 83(6) of MACA.
Other past out-of-pocket expenses have been agreed in the sum of $2,069.00.
[4]
Future out-of-pocket expenses
In his schedule of damages handed up at the time of final submissions, the plaintiff claims amounts as follows:
1. For general practitioner visits and medication - $10,000 as a buffer, precise calculation being impossible;
2. Treatment by a psychologist - six visits per annum for 10 years - $6,606.40.
3. Total $16,606.40.
The plaintiff will require general practitioner review and referrals for psychological/psychiatric care. I would allow 4 visits per year. This should be allowed for five years only as the treatment should be completed in this period and no other procedures or surgery are contemplated. There does not appear to be any justification for a greater period. I allow the sum of $1,426.04 ($80 per visit = $320 per year = $6.16 per week for 5 years x 231.5 = $1,426.04).
In relation to the claim for treatment by a psychologist, in my view it is unclear how the plaintiff will respond and whether he may also need psychiatric treatment and possibly antidepressants. In my view, a lump sum of $6,000 should be allowed under this head. Psychiatric treatment will likely be more expensive than psychological treatment.
In relation to the claim for medication, the plaintiff indicated on numerous occasions in his evidence that he seldom took medication and was often sick when he took it. He said he did use Voltaren. In my view, a lump sum of $1,000 should be allowed to the plaintiff in relation to this claim.
Accordingly, I allow the sum of $8,426.04 for future out-of-pocket expenses.
[5]
Past economic loss
At the time of the accident, the plaintiff had not been working for two years and four months, other than occasional possible cash jobs and his motorcycle importing business. Prior to the accident, the plaintiff indicated that he had received $200 from Mr Sarkis for his day with Mr Sarkis inspecting Mr Sarkis' jobs. I accept the plaintiff in relation to that evidence.
The plaintiff claims $466,500 on the basis of a payment of $1,500 net per week for 299 weeks up to 20 June 2020. This is based on the payment the plaintiff would have received as a supervisor/electrician with Greenacres Landscaping.
I accept the evidence of Mr Sarkis that he operated a business under the business name of Greenacres Landscaping at the relevant time and that he had constant work.
I also accept the evidence of the plaintiff that he was willing to attempt to work at Greenacres Landscaping. However, of course, the plaintiff had his pre-existing injuries. These have been set out above. The plaintiff had also not worked for two years and four months.
Mr Sarkis gave evidence, which I accept, that as a supervisor, the plaintiff would occasionally have to be involved in heavy duties including lifting sleepers or collecting or taking delivery of heavy goods such as bags of cement. The electrical jobs would also have likely involved physical work connecting lights or water features. In my view, the plaintiff would quickly have had substantial difficulty in completing the job as supervisor and electrician in the light of his pre-existing injuries and conditions, especially his shoulder injury, and the fact he had not worked for a substantial period of time.
I also take into account the plaintiff's continuing back and neck problems and conditions which had previously provided him in 2012 with difficulties in driving his car from the Central Coast to Hornsby. I find that Mr Sarkis' business had jobs throughout Sydney and on the Central Coast. Substantial travel would have been required.
However, the plaintiff's financial resources from his prior business and from his compensation claim arising from the 2009 accident were limited. Accordingly, I think it likely that the plaintiff would have attempted to undertake the work for Mr Sarkis for as long as he could but would have probably ceased it within a month to six weeks. I also think the most probable outcome but for the accident is that the plaintiff would have undertaken discrete electrical jobs, both domestic and commercial, which did not involve continuous or heavy work or undue strain on his foot.
[6]
Claim for loss of future earning capacity
The plaintiff makes a claim of $640,432.50 for loss of future earning capacity. This is on the basis that it is likely that the plaintiff would be employed at no lower rate than his employment rate at Greenacres Landscaping to the age of 67.
In my view, this claim is unrealistic, having regard to the plaintiff's pre-existing injuries and disabilities, the fact that he had not worked for two years and four months prior to the accident, his evidence that he was "over" being an electrician and wanted a change and the emergence of his unrelated toe condition. However, it must be taken into account that the plaintiff was a highly skilled tradesman and there appears to have been a regular demand for his services or at least the services of electricians with his experience and skills.
Again, in my view damages for loss of future earning capacity are best determined on a buffer basis. The court is essentially unable to assess a precise amount having regard to the number of uncertainties involved, particularly the emergence of the toe condition.
Section 126 of MACA which deals with future economic loss provides as follows:
126 Future economic loss - claimant's prospects and adjustments
(1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury.
(2) When a court determines the amount of any such award of damages it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events concerned might have occurred but for the injury.
(3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.
In New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536 Heydon JA stated as follows at [70]-[71]:
[70] First, damages to compensate for that part of reduced economic capacity which will be reflected in the future are sometimes analysed as being one type of "general damages". Like other types of "general damages", as Fullagar J said in Paff v Speed at 559, they are "of their very nature, incapable of mathematical calculation and (although the expression is apt to be misleading) commonly very much 'at large'. They are also at large in the sense that a jury has, in serious cases, a wide discretion in assessing them". In Russell v J Hargreaves & Sons Pty Ltd [1957] QSR 440 at 445, Taylor J said:
"Since ... it is impossible to prescribe fixed or precise standards for the translation into terms of money of physical injuries and pain and suffering and varying degrees of physical incapacity, it is inevitable that individual opinions as to what amount may be said to constitute full compensation in any particular case will vary. Indeed within the bounds of reasonableness they may vary greatly."
The field is an "uncertain" one: Breska v Lysaghts Works Pty Ltd (1956) 74 WN (NSW) 168 at 169, per Street CJ.
[71] Secondly, strictly the issue does not turn on a comparison between what money the plaintiff would have earned apart from the injury and what money the plaintiff will earn after the injury. The compensable loss is not a loss of income but the loss of capacity to earn income in a manner productive of financial loss: Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 at 347. The income earned before the injury is relevant, but only as an evidentiary aid in assessing damages for the loss of capacity to earn income: Paff v Speed at 566, per Windeyer J. Evaluation of the worth of a loss of capacity to earn - of a lost chance to earn - is of its nature a more imprecise inquiry than calculation of a lost income. It rests on the hypothesis - that the plaintiff will have undiminished capacity - which has been rendered false by events. It does not depend on calculating the income from a particular career which is no longer possible, but in calculating the damage to a capacity to carry on various careers. It is an exercise in estimation of possibilities, not proof of probabilities. H Luntz, Assessment of Damages for Personal Injury and Death, 3rd ed, at 91 [1.9.18], said: "it is not necessary for the plaintiff to establish the future loss with the same degree of precision as the present and past loss ... The court is really being asked to estimate as best it can the future effect of the injuries from which the plaintiff has been proved to be suffering as a result of the defendant's wrongful act".
In Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 at 639, Brennan J and Dawson J said: "the ascertainment of earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history". They approved Lord Diplock's statement in Mallett v McMonagle [1970] AC 166 at 176: "in assessing damages which depend upon its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that a particular thing will or would have happened and reflect those chances, whether they are more or less than even, in the amount of damages ...". The majority (Deane J, Gaudron J and McHugh J) in Malec v J C Hutton Pty Ltd said (at 643) that when the law takes account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring in a range from just above the speculative to just below the certain. The inquiry - the process of estimation of possibilities - is thus an imprecise and indeterminate one to be carried out within very broad parameters. The trier of fact may have to form conclusions on "slender material[s]": Callaghan v Wm C Lynch Pty Ltd (1962) 79 WN (NSW) 830; [1962] NSWR 871 at 877, per Evatt CJ, Herron J and Sugerman J. That language, unlike the reference to permitting "guess work or speculation" elsewhere in that judgment, was not criticised in Ivkovic v Australian Iron & Steel Ltd (1963) 63 SR (NSW) 598 at 607; 80 WN (NSW) 999 at 1006, per Manning J. However, Menzies J said that sometimes the assessment of damages involves "guess work rather than estimation": Jones v Schiffmann [1971] HCA 52; (1971) 124 CLR 303 at 308; see also Linsell v Robson [1976] 1 NSWLR 249 at 259, per Mahoney JA; Chaplin v Hicks [1911] 2 KB 786 at 792, per Vaughan Williams LJ. Lord Diplock described the factors underlying the assessment of damages for diminished earning capacity as "matters of prophecy or judicial guesses" in Paul v Rendell (1981) 55 ALJR 371 at 376; 34 ALR 569 at 578. The English position was summarised thus by Lloyd LJ in Foster v Tyne and Wear County Council [1986] 1 All ER 567 at 570:
"when it comes to estimating loss of earning capacity, there is no such thing as a conventional approach; there is no rule of thumb which can be applied. It would be so much easier if there were. But there is not. In each case the trial judge has to do his best to assess the plaintiff's handicap, as an existing disability, by reference to what may happen in the future. As has been said so often, that is necessarily a matter of speculation; it is necessarily a matter of weighing up risks and chances in all the circumstances of a particular case. The very fact that the approach must necessarily be so speculative means, of course, that the occasions on which this court will feel justified in interfering with a judge's assessment will be few and far between, for there is no established range or standard against which to measure the judge's award."
[7]
Future domestic or commercial assistance
An amount of $40,000 is claimed by the plaintiff for future commercial assistance. It was submitted that the plaintiff will in the future likely need commercial assistance as he will likely establish suitable accommodation for himself and will need help with some domestic tasks.
The plaintiff currently lodges with his eldest daughter or his ex-partner who remains kind and supportive to him.
Ms Russell gave evidence of the plaintiff having limitations with domestic tasks: T135.2-.23; T140.25-.39. The plaintiff stated that he had fewer limitations and that the domestic position is "the same": T104.29.
Before an amount for commercial assistance can be awarded some need arising from the accident must be shown. That need may include a need for commercial assistance likely to arise in the future: see Miller v Galderisi [2009] NSWCA 353 at [18]; Smith v Alone [2017] NSWCA 287 at [73]-[77].
The plaintiff lives in his daughter's house and Ms Russell's house as their guest. Ms Russell does not own the house she lives in which is owned by her elderly grandmother. In my view it is likely that the plaintiff will need his own residence in the future. That residence is likely to be a unit rather than a house. There is no evidence he intended in the future to rent a house. The plaintiff gave evidence of having difficulty with some tasks; T104.30. Ms Russell gave similar evidence: T140.39. Having regard to the aggravation to the right shoulder and neck I consider it likely the plaintiff will need some assistance with heavier tasks or above shoulder cleaning on an occasional basis. Doing the best I can, I allow $7,000 under this head after allowing for a discount as required by Avopiling, above, for the situation where there is improvement or he continues to reside as he currently does (based on a starting proposition of $50 per hour for four hours every 2 months for ten years).
[8]
Summary of the amounts awarded
Accordingly I award the following amounts as damages:
Head of damages
Non-economic loss - N/A Nil
Past out-of-pocket expenses $43,530.00
Future out-of-pocket expenses $8,426.04
Past economic loss $75,000.00
Future loss of earning capacity $125,000.00
Past loss of superannuation Nil further (within amount for past loss)
Future loss of superannuation Nil further (within amount for future loss)
Past domestic assistance - N/A Nil
Future commercial assistance $7,000.00
Sub-total $258,956.04
Less 20% for contributory negligence $51,791.20
Total $207,164.84
[9]
Determination
The parties should review my calculations and bring in short minutes of order reflecting these reasons. An allowance will need to be made for the s 83 payments. I also understand there may have been some payments to the plaintiff on account of his economic loss by the defendant.
Accordingly, I make the following orders:
1. Judgment for the plaintiff.
2. The parties are to bring in agreed short minutes of order within seven days reflecting the court's reasons for decision.
3. The defendant is to pay the plaintiff's costs of the proceedings as agreed or assessed.
4. The parties have leave to make an application within 14 days to vary the order as to costs in (3) above.
5. Liberty to apply to the Associate to Dicker SC DCJ to relist the matter on two business days' notice.
6. Exhibits are to be returned after 28 days.
[10]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 06 August 2020
The plaintiff submitted, in general summary, as follows:
1. The collision on 30 July 2014 was a substantial collision involving a large impact between the plaintiff's motor cycle and the defendant's motor vehicle. The evidence establishes that the plaintiff, having seen the car, slid his motorcycle into the car, falling on his right shoulder and side. This is consistent with the plaintiff suffering multiple injuries in the accident;
2. The plaintiff suffered two significant injuries in the accident:
1. his right shoulder; and
2. his right foot;
1. In relation to the right shoulder, it is open to the court to find that prior to the accident the plaintiff had a minor full thickness tear of the right supraspinatus tendon but after the collision there was a much more substantial and serious tear of the supraspinatus and damage to the surrounding areas. It is clear that the pre-existing injury to the right shoulder was seriously aggravated by the 30 July 2014 accident. Although Dr Bateman in his 17 August 2017 report stated that the plaintiff was functionally "doing very well" and that he should go on to "a good to excellent result by 12 months" (Exhibit A page 59), other evidence established that the plaintiff's injury aggravation to his right shoulder was not successfully resolved by the surgery undertaken by Dr Bateman. That is clear from the reports of Dr Bodel, Dr Sharpe and Dr Harrington as well as the plaintiff's own evidence which indicated that while his shoulder improved for a period, there was no lasting improvement. The conclusion should be reached that the operation undertaken by Dr Bateman of a repair of the rotator cuff lesion occurred but was not successful in resolving the injury and there is no satisfactory evidence to the contrary;
2. In relation to the plaintiff's injury to the right foot, the court should accept that the injury occurred in the accident. There is no other rational explanation for the injury. Problems with the plaintiff's foot are referred to in the notes of Dr Peterson on 10 November 2014, there is no evidence of a pre-existing condition with the foot and Dr Hunter in his 31 August 2017 report states that the defect in the metatarsal head of the plaintiff's right toe was "consistent with an acute injury such as this": Exhibit A page 72. While it appears that Dr Hunter was in error that pain in the right forefoot was documented two weeks after the injury by Dr Peterson in his notes, Dr Sharpe's opinion that it was not related to the accident should not be accepted. There is no other rational explanation for the foot injury;
3. The opinion of Dr G Smith in relation to the plaintiff's psychiatric condition should be accepted. This opinion is consistent with the evidence of substantial change in the plaintiff after the accident given by Ms Russell, Mr Lewin, Mr Sarkis and the plaintiff himself. The plaintiff's demeanour in giving evidence is consistent with psychiatric injury. The plaintiff was asked to see a Dr George on behalf of the defendant and a report has not been served. An appropriate Jones v Dunkel inference should be drawn that any report would not have assisted the defendant. Dr Smith's detailed report should be preferred to that of Dr Jones for these reasons. Dr Smith also expressed the view on page 16 of his report that the plaintiff's prognosis was very poor because of persistent anxiety and depressive symptoms and he was not currently fit for work in any capacity due to these symptoms;
4. Whilst the plaintiff did not have any formal work position from February 2012, he had been occupied with his work at SME Electrical up to February 2012. There were no relevant records of visits to his general practitioner about existing conditions between May 2012 and July 2014 and accordingly, he was asymptomatic for two years. Before the accident, Mr Lewin described him as a "gun" worker and Mr Sarkis also said he was a good worker and good with clients. Further, after the cessation of SME Electrical, the plaintiff was involved in importing motorcycles and undertook a few electrical jobs for cash. Dr Peterson's medical certificate for 31 July 2014 also referred to limited pre-existing injuries being sciatica which was described as being "stable" and "not a problem": Exhibit 2. The plaintiff was playing golf and was water skiing before the July 2014 accident and had commenced university shortly before the accident. He clearly had considerable capacity for work;
5. In relation to past economic loss, the court should find that the plaintiff had an agreement to start work for Mr Sarkis for substantial wages and overtime. His previous work at SME Electrical, as shown in his tax returns, showed substantial earnings. The plaintiff wanted employment, had prepared a curriculum vitae and the court should find that he would have continued his employment with Mr Sarkis. He could have directed other employees to undertake heavy work on his behalf. There should be no discount for the plaintiff's pre-existing injuries and a buffer was inappropriate;
6. In relation to future economic loss, the same principles apply. The plaintiff would have continued with Mr Sarkis or some other similar employment at similar rates. There should be a discount of 15% for vicissitudes;
7. While no claim is made for past domestic assistance, a claim for a buffer for future commercial assistance is appropriate. Although the plaintiff currently resides with his eldest daughter or his ex-partner, the plaintiff may in due course have to find suitable accommodation for himself and with his injury would have difficulty undertaking some maintenance and upkeep tasks because of his shoulder and foot. An allowance of $40,000 should be made for this. Although the plaintiff gave evidence that he could do most tasks as he did prior to the accident (T104.29), Ms Russell's evidence of his limitations should be preferred.
The defendant provided detailed written submissions. The defendant conceded that the plaintiff did have a reduced earning capacity following the July 2014 accident but having regard to his pre-existing conditions, his limitations and the fact that he had not worked for two years and four months, it is likely that any loss of earning capacity was limited. The evidence shows that there was in fact no common understanding between the plaintiff and Mr Sarkis as to the plaintiff's physical capacity. Mr Sarkis gave evidence that heavy work was needed by the plaintiff. Further, the court should find that the evidence does not substantiate the agreement between the plaintiff and Mr Sarkis as alleged. A modest buffer should be allowed for future out-of-pocket expenses, past loss of earnings and future loss of earning capacity. Some very limited allowance may be open to be awarded for future commercial assistance.
The defendant submitted, in summary, as follows:
1. Dr Jones' report should be preferred to Dr Smith's report as to the plaintiff's current psychiatric position. However, there was a common thread in the oral evidence of each of the witnesses that there was a change in demeanour and character in the plaintiff following the accident, with him becoming much more angry. There is a difference of opinion between the psychiatrists. This shows that the plaintiff can give different presentations on different days. It is accepted that a Jones v Dunkel inference should be drawn in relation to the defendant's failure to rely on the psychiatric report of Dr George whom the plaintiff attended for review. What it shows is that there are subtleties in the difference of presentation of the plaintiff to the different psychiatrists;
2. The plaintiff had substantial pre-existing injuries and limitations. This is established by Dr Peterson's notes and the various specialist and radiological reports prior to the accident. These are consistent with the plaintiff having ongoing major problems. The relevance of there being no complaints from May 2012 is limited. The plaintiff was not undertaking electrical work in this period and was on his own evidence, on a break or a holiday. While he was previously working, he had problems because of his pre-existing injuries. In the period from February 2012, the plaintiff had no regular employment of any sort, there was a frank tear in the supraspinatus in his shoulder and he had back problems for some years. Professor Ghabrial wished to do a discectomy. Further, the plaintiff had lodged a total and permanent disability claim which showed his problems were not transient. Dr Peterson gave a certificate supporting the claim;
3. The plaintiff's toe or foot injury should be found to be unrelated to the accident. First, the plaintiff has not established the foot injury arose from the accident such that any evidential onus shifts to the defendant. There is no proper evidence of a causal connection. Dr Bodel assumes a connection in his report and Dr Hunter incorrectly assumes that there is a reference to ongoing pain in the plaintiff's right forefoot documented two weeks after the accident by Dr Peterson (Exhibit A page 72). When foot problems were raised on 10 November 2014 with Dr Peterson, it was in the context of one leg being shorter than the other and heel problems which could not be attributed to the accident;
4. In any case, Dr Sharpe's opinion that the foot injury is unconnected should be preferred. This opinion is detailed and carefully explained. This discharges any evidential onus on the defendant. Dr Hunter's opinion was based on an incorrect assumption as to the date of reporting of problems in the foot. Dr Bodel's analysis merely accepts the plaintiff without analysing the records of complaint properly and Dr Sharpe provides a much more thorough and careful analysis. There is no reference in Dr Bodel's reports to the lack of complaint or reporting of the plaintiff of problems with his foot (see Dr Bodel's reports at Exhibit A pages 34 and 44). In his latest report, there is no proper analysis of Dr Sharpe's opinion on the point;
5. The plaintiff's problem with his foot, if it is unconnected to the accident, is relevant to his earning capacity as the plaintiff gave clear evidence that he had difficulties putting a steel capped work boot on because of his foot;
6. This is relevant to the analysis to be undertaken as to the loss of future earning capacity required under s 126 of the Motor Accidents Compensation Act 1999;
7. It is clear that the plaintiff said that he was "over" doing electrical work and this is relevant to the likelihood of him returning to it;
8. The court should not accept that an agreement was reached as alleged between the plaintiff and Mr Sarkis having regard to the discrepancies in the formal documentation of Mr Sarkis as to his business name and his registration for GST;
9. If the agreement is accepted, there was clearly no meeting of minds between the plaintiff and Mr Sarkis. The plaintiff thought the work was light supervisory work. Mr Sarkis clearly indicated that Mr Ramsey would have to do some heavy physical and lifting work: T160.29-.47 and T173.29-T174.1. Mr Sarkis was clearly not aware of the plaintiff's prior injuries when he made his job offer: T174.6-.31. The plaintiff would not have stayed in the job with Mr Sarkis for long because he would not have been able to do the work. Mr Sarkis himself said that on occasions he had to do hands-on physical work (T173.31) and the plaintiff's expectation was that it was light work which was incorrect. Also, by 2015 the plaintiff's problem with his toe and foot which was unconnected with the accident was developing. A modest buffer only should be awarded;
10. In relation to the claim for future domestic assistance on a commercial basis, the defendant accepted there was a possibility that the plaintiff may have to find suitable accommodation for himself. However, he is unlikely to rent a house with a garden as opposed to a unit. The procedure which the court is required to undertake under s 126 of the Motor Accidents Compensation Act should involve discounts, having regard to the percentage possibility of a future event occurring, and for vicissitudes in accordance with Avopiling Pty Ltd v Bosevski [2018] NSWCA 146. If awarded, a modest buffer should be allowed for this which should be significantly reduced below the plaintiff's claim of $40,000;
11. In relation to future treatment expenses, there is not a significant difference between the defendant's submission of $5,000 and the plaintiff's submission of $16,606. Clearly the plaintiff would require some GP referrals and psychological assistance in the light of the evidence would be justified. A significantly lower amount on all the evidence is more appropriate.
Findings of fact
Reference has been made above in relation to the various witnesses, to problems with their recollections and memory concerning the plaintiff. Mr Ramsey admitted to having problems with his memory. Ms Russell, his ex-partner, admitted to having problems with her memory since taking anti-depressants. They frequently gave answers which indicated that they did not recall matters. Curiously, the plaintiff, whilst admitting the accuracy of a chronology (T12.27), professed a lack of recollection of many matters in it. Ms Russell appeared to have a very limited recollection or awareness of a number of the plaintiff's prior accidents and injuries including his attendance on specialists in relation to them.
The plaintiff's good friend, Mr Lewin, who had been a friend of the plaintiff for about 20 years and saw him regularly, appeared to have very little knowledge or recollection about the plaintiff's injuries or work in the period from 2009 to the date of the July 2014 accident.
There were voluminous medical records in evidence before the court. Trial judges have been cautioned in relation to discounting a plaintiff's oral testimony on the basis of accounts given to various health professionals which appear to be inconsistent. This is particularly where the health professional has not been cross-examined: see Mason v Demasi [2009] NSWCA 227 at [2] per Basten JA and Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8]. I take these cautions into account. I note, however, that the plaintiff's first language was English, he appeared to be intelligent and articulate and his general practitioner, Dr Peterson, was consulted by him over many years. In addition, the consistency of medical records is important. In addition to medical records, there are numerous contemporaneous documents which assist the court. As indicated above, having regard to various witnesses' memory problems or lack of knowledge, in my view particular weight should be given to contemporaneous documents.
Taking the above matters into account together with the submissions made, I make the following factual findings:
1. The plaintiff was born in April 1966 which made him nearly 54 at the commencement of the final hearing and 48 as at the date of the accident on 30 July 2014.
2. The plaintiff is an electrician by trade. The evidence showed that he had considerable experience with commercial and industrial electrical matters. He had a lengthy history of work as an electrician including in major projects such as power stations, mines and significant infrastructure works such as the Lane Cove Tunnel. On all the evidence, the plaintiff was a driven and successful electrician for much of his working career. On occasions, the plaintiff ran his own electrical businesses.
3. The plaintiff had a long term de facto relationship with Ms Russell. They had three daughters together. Two are now adults and one is nearly 15 years of age. The plaintiff and Ms Russell are now separated and have had an on and off relationship for several years. However, they remain on friendly terms and Ms Russell appears to be generally kind and supportive of the plaintiff. Ms Russell lives in a house owned by her grandmother who is in a nursing home. She lives in the house with her two younger daughters. The plaintiff spends a number of days a week with his eldest daughter at her house and some other days of the week at Ms Russell's house.
4. The plaintiff had a large number of accidents in the course of his working career. In addition, he had other accidents outside of work. These will be considered in more detail in the medical findings.
5. The plaintiff's electrical licence has expired. However, due to his prior working history, the plaintiff is frequently offered various jobs as a commercial or industrial electrician. The plaintiff has not been in paid employment since the day of the accident, 30 July 2014.
6. In July 2008, the plaintiff was in a motorcycle accident when he hit a large pothole on his way to work. He injured his right shoulder and ribs. This will be considered further in the medical findings.
7. In November 2009, the plaintiff was involved in an underground vehicle accident in a coal mine. The plaintiff injured his neck, right shoulder and lower back. This was a more serious injury: Exhibit A page 163 (entry for 30 March 2010); Exhibit A page 140; Exhibit A page 302. This led to the plaintiff being unable to work for a lengthy period: report of Dr Peterson dated 4 April 2011 (Exhibit A page 139). This also led to the plaintiff making a total and permanent disability claim against his superannuation fund: Exhibit A pages 310-312; Exhibit A page 318; Exhibit A page 323-324. The plaintiff's general practitioner, Dr Peterson, certified the plaintiff as being unfit to work from 8 January 2010 to 7 March 2011: Exhibit A page 318.
It appears from the plaintiff's evidence that he was provided with some payment in relation to his claim. He described it as being "pensioned off".
Despite this, the plaintiff incorporated SME Electrical Pty Ltd and became a director of that company in 2010. This company was engaged in the building of electrical switchyards and substations. It also hired out electrical workers as a labour hire firm. The evidence of Mr Lewin to this effect is accepted. The plaintiff's evidence as to SME Electrical was somewhat unclear. In its first full year of operation, SME Electrical earned substantial fees but had very high expenses and operated at a loss according to its tax return for the year ended 30 June 2011. Despite this, the plaintiff reported in his tax returns fairly substantial personal earnings for the financial years ended 30 June 2011 and 30 June 2012. These are accepted;
1. Apparently due to the introduction of the carbon tax by the Commonwealth Government, the business of SME Electrical Pty Ltd was substantially affected and reduced. This was at the end of 2011, although some minor work continued at the beginning of 2012. It appears that SME Electrical Pty Ltd ceased business in about the first week of February 2012. At about this time the plaintiff had a further injury when he slipped on his driveway;
2. In the period from February 2012 to the date of the accident, 30 July 2014, the plaintiff was not in paid employment and was not running any electrical business with the possibility of some intermittent small electrical jobs which were paid by cash. In this period the plaintiff imported a number of motorcycles and was involved in a lengthy process to have them modified for Australian conditions. During this period, according to Ms Russell, the plaintiff and his family relied on savings or possibly payments as a result of the plaintiffs claim concerning the 2009 accident. The plaintiff said he was sick of being an electrician and wanted a break.
3. At some stage, the plaintiff commenced an electrical engineering course at the University of Newcastle. There is inconsistent evidence as to when this was. Ms Russell believes the plaintiff had been studying his course at university for between one and a half years and two years as at the date of the 30 July 2014 accident. The plaintiff gave evidence that he commenced his university course in June 2014, shortly before the accident: T127.42. In my view, in the absence of clear documentary evidence, the plaintiff is more likely to be accurate in relation to this matter. Accordingly, I find that he started his university course in June 2014. The university course was studied by him part-time.
4. Prior to the accident, the plaintiff had been active and was a participant in golf, water skiing, snow skiing and went for walks and positively interacted with his children. The evidence is not clear as to the extent of the plaintiff's engagement in these activities prior to the July 2014 accident. The plaintiff claims he water skied a week prior to the July 2014 accident in a limited fashion due to his prior injuries and was able to play golf off a good handicap despite his existing back and shoulder injuries. I accept that evidence but I am unable to find the frequency of such activities.
5. The plaintiff had a long-standing friend, Mr Joe Sarkis, who operated a landscaping business. The plaintiff met up with Mr Sarkis and others at a barbecue and card game on the June long weekend in 2014. Mr Sarkis was apparently proposing to have serious surgery in the near future. I accept the plaintiff's evidence that Mr Sarkis proposed to him becoming a supervisor in Mr Sarkis' landscaping business and undertaking any electrical works that were required. Mr Sarkis' evidence is generally consistent with that of the plaintiff on this issue. Mr Sarkis and the plaintiff had a number of telephone conversations and in due course Mr Sarkis offered the plaintiff a fulltime job at $47 per hour with overtime, a car and the payment of telephone expenses. Despite not having worked for over two years, the plaintiff was interested in the job and accepted the offer. He did not tell Mr Sarkis about his pre-existing injuries and Mr Sarkis was not aware of them. Mr Sarkis thought the plaintiff was fit from his prior dealings with him.
6. Arrangements were made and the plaintiff met Mr Sarkis at a jobsite in Blacktown in Sydney. At that time, the plaintiff was living near Lake Macquarie on the Central Coast of New South Wales. The plaintiff and Mr Sarkis inspected three or four sites where Mr Sarkis had work and met some of Mr Sarkis' workers. I accept the plaintiff's evidence that Mr Sarkis paid him $200 in cash for his time on this day but no formal documentation was ever signed in relation to Mr Ramsey's employment. The plaintiff was to commence work for Mr Sarkis a few days later.
7. The plaintiff candidly said that he did not know how long the work would last. The plaintiff had not worked regularly for over two years and four months as an electrician. He had significant restrictions in relation to his back, right shoulder and sciatica. The proposed work apparently involved some hands-on electrical work. He had previously had difficulty driving because of his back condition from his previous accidents: Exhibit A page 258. The plaintiff gave evidence that Mr Sarkis undertook business all over Sydney and on the Central Coast. I accept that evidence. The need for frequent lengthy daily travel, the requirement for the plaintiff to take undertake hands-on electrical work, the need for the plaintiff to undertake sometimes heavy lifting work including the lifting of sleepers and bags of cement, the plaintiff's lengthy break from work as an electrician and his evidence that he was "over" being an electrician in 2012, all raise serious doubts as to the plaintiff's ability to continue with this employment for Mr Sarkis for any lengthy period in the light of his existing medical conditions as at July 2014. This will be considered further when past and future economic loss is considered.
8. On 30 July 2014, when the plaintiff was riding along a road on the Central Coast, he needed to stop and use public toilet facilities. He was slowing down to turn into a sports field when the defendant in her vehicle turned in front of the plaintiff. Liability has been admitted as indicated above. In order to avoid a collision the plaintiff put his motorcycle down and crashed into the side of the defendant's vehicle landing on his right hand side. The extent of the plaintiff's injuries arising from the accident is strongly in dispute between the parties. These will be considered in the medical findings below.
9. The plaintiff contacted Ms Russell by telephone. She came to the scene of the accident and took him to Wyong Hospital where he remained for several hours. Radiological investigations were undertaken at the hospital. The plaintiff went home with Ms Russell and the next day consulted his regular general practitioner, Dr Peterson. The plaintiff saw Dr Peterson several times over the next six months. He had continuing consultations with Dr Peterson and other general practitioners at the Bonnell's Bay medical surgery over the subsequent years;
10. Dr Peterson referred the plaintiff to Dr Bateman. Although surgery to the plaintiff's shoulder was proposed in October 2014 this did not occur until April 2017 by Dr Bateman. The plaintiff has also had surgery to his right foot.
11. I accept the plaintiff's evidence that he has substantially not worked since the 30 July 2014 motor vehicle accident. As indicated above, the plaintiff's de facto relationship with Ms Russell terminated a number of years ago but they remain on friendly terms. The plaintiff's evidence was that his lack of income eventually led to the need to sell his house and other assets due to a lack of regular income.
Principles relating to the relevance of prior accidents and injuries
As indicated above, there is substantial evidence in these proceedings of the plaintiff being involved in a number of accidents prior to the July 2014 accident where he had been injured and had ongoing medical problems and restrictions.
In Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208, Ipp JA (with whom Mason P agreed) considered the High Court cases of Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 and Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164. The court held in Seltsam that the onus of proof that a defendant must discharge when making the allegation that a plaintiff's pre-existing condition or injury was a contributing factor to the injury sued upon arising from the negligent act or omission was not an onus to prove that the pre-existing condition or injury had made a material contribution to the plaintiff's injury. A pre-existing condition or injury that was proved to have possible, not probable, ongoing consequences to a plaintiff must be taken into account by the court in assessing causation and damages. There was no requirement that evidence adduced by the defendant must be sufficiently precise and definite to displace the inference that the disabling condition or pain from which the plaintiff suffered was caused by the accident in question: at [100]. Ipp JA said that what was said by the High Court in Watts v Rake and Purkess v Crittenden had to be qualified by the principles stated in Malec v JC Hutton [1990] HCA 20; (1990) 169 CLR 638. Ipp JA stated the following in Seltsam at paragraphs 104-109:
"[104] What was said in Watts v Rake and Purkess v Crittenden now has to be qualified by these principles (cf Commonwealth of Australia v Elliott [2004] NSWCA 360 at [81]). Malec has an important bearing, for example, on the way in which a court must determine whether a defendant has discharged the "disentangling" evidentiary burden on it of showing that part of the plaintiff's condition was traceable to causes other than the accident and that, had there been no accident, the plaintiff would have suffered disability from his pre-existing condition.
[105] Where a defendant alleges that the plaintiff suffered from a pre-existing condition, the evidential onus as explained in Watts v Rake and Purkess v Crittenden remains on the defendant and must be discharged by it. Nevertheless, to the extent that the issues involve hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring, the exercise of "disentanglement" discussed in those cases is more easily achieved. That is because the court is required to evaluate possibilities in these situations - not proof on a balance of probabilities.
[106] Without intending to give an exhaustive list of possibilities, it may be that, had the defendant's negligent act not occurred, a pre-existing condition might have given rise to the possibility that the plaintiff's enjoyment of life and ability to work would have been reduced and to a susceptibility to further injury; in addition, other causes entirely unrelated to the defendant's negligent act might have contributed to the plaintiff's ultimate condition.
[107] Appropriate allowances must be made for these contingencies. A proper assessment of damages requires the making of a judgment as to the economic and other consequences which might have been caused by a worsening of a pre-existing condition, had the plaintiff not been injured by the defendant's negligence. A pre-existing condition proved to have possible ongoing harmful consequences (capable of reasonable definition) to the plaintiff, even without any negligent conduct on the part of the defendant, cannot be disregarded in arriving at proper compensation.
[108] As was pointed out in Newell v Lucas [1964-5] NSWR 1597 (at 1601 per Walsh J, with whose judgment Hardie and Asprey JJ agreed), the court must determine whether a comparison may be made between the plaintiff's condition prior to the injuries sustained by the defendant's negligence (including the plaintiff's economic and other prospects in that condition) and the plaintiff's condition and prospects after the injuries. Nothing in Watts v Rake and Purkess v Crittenden precludes the judge from carrying out this exercise.
[109] Of course, if the evidence does not adequately establish the pre-existing condition or its possible consequences (as was the case in Purkess v Crittenden), it would not be possible to carry out such a comparison and assessment. In regard to the possible consequences, a scintilla of evidence would not suffice. The evidence must be such that a reasonable person could draw from it the inference that the possible consequences contended for by the defendant existed (see McCormick, Evidence, 5th ed, para 338, p 511)."
Causation
Under s 3B(2)(a) of the Civil Liability Act 2002 (NSW) ("CLA"), Divisions 1-4 and 8 and Part 1A (Negligence) apply to "motor accidents". Therefore, in determining whether a driver of a motor vehicle has breached his or her duty of care and whether any breach was causative of any injury suffered by a plaintiff in any motor vehicle accident, the court must apply the sections in those divisions including ss 5D and 5E of the CLA relating to causation.
Sections 5D and 5E of the CLA provides as follows
5D General principles
(1) A determination that negligence caused particular harm comprises the following elements -
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability).
(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent -
(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and
(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
5E Onus of proof
In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation."
The plaintiff, therefore, always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.
The question to be determined in the present case is whether the breach of duty of care which has been admitted in the Defence caused the injuries of which the plaintiff complains. These have been determined above in my medical findings.
The determination of factual causation under s 5D(1)(a) of the CLA involves the application of a "but for" test of causation. That is to say, a determination that in accordance with the section that negligence was a necessary condition of the occurrence of harm is a determination on the balance of probabilities that the harm in fact occurred and would not have occurred absent the negligence: Strong v Woolworths [2012] HCA 5; (2012) 246 CLR 182 at [18]; Curtis v Harden Shire Council [2014] NSWCA 314 at [14]-[22] per Bathurst CJ, at [197] per Beazley P; and at [319]-[324] per Basten JA. It has not been suggested by the plaintiff that the present case is an exceptional one for the application of the approach referred to in s 5D(2) of the CLA: see Lloyd v Thornbury [2019] NSWCA 154 at [82].
Judgment for the plaintiff. The parties were to bring in agreed short minutes within seven days reflecting the reasons. The defendant was ordered to pay the plaintiff's costs as agreed or assessed, with leave to apply to vary that costs order within 14 days. The court also granted liberty to apply for relisting on two business days' notice and directed that exhibits be returned after 28 days. The damages calculation stated a total of $207,164.84 after the 20 per cent contributory negligence reduction, subject to accounting for relevant payments.
In assessing the plaintiff's past economic loss, in my view this is best achieved by the award of a buffer having regard to the uncertainty of the length of time that the plaintiff would have remained employed with Mr Sarkis and the degree of other electrical contracting jobs which he would have undertaken. I reject the plaintiff's submission to the contrary.
The possibilities of the plaintiff's existing medical conditions prior to the accident becoming worse or the plaintiff having difficulties obtaining work also need to be considered in accordance with the principles in Malec v JC Hutton (1990) 169 CLR 638 and Avopiling Pty Ltd v Bosevski [2018] NSWCA 146.
Doing the best I can on all of the evidence, I would allow the amount of $75,000. This takes into account that six years have passed since the accident and the fact that the plaintiff was a highly skilled tradesman but had not worked for some time and had continuing medical restrictions. This sum includes an amount for past superannuation loss.
The plaintiff points to the amounts in the plaintiff's tax returns for 2011-2012. However, these were earned in a substantial business which had closed. The plaintiff did not open any other business undertaking electrical work from February 2012 to July 2014.
In Sretenovic v Reed [2009] NSWCA 280 McColl JA (with whom Beazley JA agreed) considered the assessment of future loss of earning capacity. Her Honour stated as follows at [79]-[81]:
[79] I turn then to the issue of future economic loss. The primary judge's finding in this respect was also tainted by reason of the erroneous findings I have identified. It was also, in my view, inappropriate for his Honour to assess the impairment of the respondent's future earning capacity over the entire period of his anticipated working life. Rather this was a case where, as the appellants submitted, a buffer should have been awarded.
[80] Compensation for lost earning capacity is awarded because diminution in an injured plaintiff's earning capacity "is or may be productive of financial loss": Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 (at 347). It is incumbent upon the plaintiff to prove the loss for which compensation is claimed: Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402 (at 412).
[81] It is appropriate to award damages by way of a buffer, including in a case such as this where damages are to be determined pursuant to the Civil Liability Act, when the impact of the injury upon the economic benefit from exercising earning capacity after injury is difficult to determine. In such a case where the plaintiff has an earlier demonstrated earning capacity, the court undertakes a comparison between the economic benefits the plaintiff derived from exercising that earning capacity before injury and the economic benefit derived from exercising earning capacity after injury, although the difference cannot be determined otherwise than by the broad approach of a buffer: Penrith City Council v Parks [2004] NSWCA 201 (at [3]-[5]) per Giles JA; applied K-mart Australia Ltd v McCann [2004] NSWCA 283 (at [62]) per Pearlman AJA (Handley and Ipp JJA agreeing); see also Hornsby Shire Council v King [2005] NSWCA 67 (at [23]) per Ipp JA (Mason P and Brownie AJA agreeing); Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 (at [33]) per Hodgson JA (McColl JA agreeing). In the latter case Mason P (at [2]) opined that "a buffer or cushion award is usually reserved to the situation where there is a smallish risk that otherwise secure employment prospects may come to an end, in consequence of the tort-related injury, at some distant time in the future".
It is clear from the reasoning of the Court of Appeal in Sretenovic that the award of a buffer or cushion is reserved to a situation where the precise loss of the plaintiff is difficult to determine and there is a "smallish risk" that the plaintiff's secure employment prospects will come to an end or the plaintiff's capacity has been clearly reduced but how that will inhibit his or her earning capacity in consequence of the tort-related injury suffered by the plaintiff is uncertain.
In Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 McColl JA stated the following at [6]-[9]:
"[6] The circumstances in which damages by way of a buffer are appropriate was summarised in Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 ; (2008) 172 IR 453 (at [84]) per McColl JA (Mason P and Beazley JA agreeing), a case in which a challenge to a buffer of $120,000 failed, as follows:
84 As to the future economic loss, it is appropriate to award damages by way of a buffer, including in a case such as this where damages are to be determined pursuant to the Civil Liability Act, when the impact of the injury upon the economic benefit from exercising earning capacity after injury is difficult to determine. In such a case, the Court still undertakes a comparison between the economic benefits the plaintiff derived from exercising earning capacity before injury and the economic benefit derived from exercising earning capacity after injury, although the difference cannot be determined otherwise than by the broad approach of a buffer: Penrith City Council v Parks [2004] NSWCA 201 (at [3]-[5]) per Giles JA; applied K'mart Australia Ltd v McCann [2004] NSWCA 283 (at [62]) per Pearlman AJA (Handley and Ipp JJA agreeing); see also Hornsby Shire Council v King [2005] NSWCA 67 (at [23]) per Ipp JA (Mason P and Brownie AJA agreeing); Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 (at [33]) per Hodgson JA (McColl JA agreeing). In the latter case Mason P (at [2]) opined that "a buffer or cushion award is usually reserved to the situation where there is a smallish risk that otherwise secure employment prospects may come to an end, in consequence of the tort-related injury, at some distant time in the future", but, with respect, the accepted wisdom appears to be that a buffer can be deployed in circumstances such as the present.
[7] The award of a buffer for future economic loss in circumstances "where earning capacity has unquestionably been reduced but its extent is difficult to assess" reflects the proposition that, to paraphrase, the want of precise evidence "does not necessarily result in non-recovery of damages": New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536 (at [87]) per Heydon JA. It must also be taken into account, when considering the appellant's complaint about the adequacy of the claims assessor's reasons for quantifying the buffer, that the task of assessing damages for lost earning capacity is "necessarily impressionistic"; Brear v James Hardie & Co Pty Ltd [2000] NSWCA 352; (2000) 50 NSWLR 388 (at [49]) per Mason P (Spigelman CJ and Priestley JA agreeing).
[8] While, as Giles JA said in the Nominal Defendant v Lane (at [67]), "s 126 is presumably intended to promote intellectual rigour", the authorities recognise that, whether in the s 126 context or when applying common law principles of assessment of damages as to future hypothetical scenarios, there is a point at which, even with the application of the requisite degree of intellectual rigour, an element of impression must be involved. The claims assessor properly arrived at this point once he had made the minimum factual assumptions necessary for the s 126 exercise. The appellant has not identified any legal error in the award of the buffer.
[9] The foregoing should not be seen as a licence to award buffers indiscriminately. Where the evidence enables a more certain determination of the difference between the economic benefits the plaintiff derived from exercising earning capacity before injury and the economic benefit derived from exercising that capacity after injury, recourse should not ordinarily be had to the award of damages for future economic loss by way of a buffer. Each case must turn on its own facts."
Basten JA stated the following at paragraphs [27]-[30]:
"[27] In summarising a comprehensive review of the principles to be applied in this area, Heydon JA stated in Moss at [87]:
The task of the trier of fact is to form a discretionary judgment by reference to not wholly determinate criteria within fairly wide parameters. Though the trier of fact in arriving at the discretionary judgment must achieve satisfaction that a fair award is being made, since what is involved is not the finding of historical facts on a balance of probabilities, but the assessment of the value of a chance, it is appropriate to take into account a range of possible outcomes even though the likelihood of any particular outcome being achieved may be no more than a real possibility.
To the extent that this court suggested in Nominal Defendant v Livaja [2011] NSWCA 121 at [39] that hypothetical elements should be established on the balance of probabilities, those statements were wrong and should be disregarded.
[28] Structural difficulties with the form of s 126 (and the more generally applicable equivalent provision, namely s 13 of the Civil Liability Act 2002 (NSW)) have been the subject of comment in numerous cases. It has been pointed out that the calculation of future economic loss depends not only upon assumptions about unimpaired future earning capacity, but also upon the extent to which earning capacity is, or is likely to be, diminished as a result of the injury. Section 126 makes no direct reference to the latter limb of the calculation, unless subs (3) is addressed to the broader set of assumptions and not limited to those referred to in subs (1).
[29] Further, subs (2) has been understood as referring, at least primarily, to the reduction commonly allowed for "vicissitudes" which, absent particular features warranting some other approach, is usually fixed at 15%. In circumstances where, for example, the employment situation of the claimant is inherently unstable, a greater percentage is allowed. In Amoud v Al Batat [2009] NSWCA 333 I explained my understanding of s 126(2) in the following terms at [25]:
Subsection (2) requires an adjustment to an otherwise appropriate amount to take account of the possibility that "the events concerned might have occurred but for the injury". There is clearly a step between the exercise addressed in subs (1) and that required by subs (2). That step must be to identify the departure from the baseline earning capacity (calculated in accordance with subs (1)) caused by the injury. The third step is to calculate, as a monetary amount, the present value of the difference between the baseline and the assessment of post-injury earning capacity. The diminution caused by the tortious injury will provide a figure for assessing the appropriate award of damages. It may not be the final figure, because the diminution caused by the accident might have occurred, in part or in whole, in any event, within the working life of the claimant. Some allowance must be made for that circumstance: it is that allowance which constitutes the adjustment required by subs (2).
[30] The lacuna in s 126 may have occurred because the drafter was following the reasoning in Malec . The adjustment which was required in that case was to take account of the possibility that factors unconnected with the injury might have resulted in the same disability in any event: at 645. That problem aside, there is a point (which may be differently assessed by different courts) beyond which the selection of a figure for economic loss is so fraught with uncertainty that the preferred course is to award a lump sum as a "buffer", without engaging in an artificial exercise of commencing with a precise figure, and reducing it by a precise percentage. The suggestion that such a commonsense approach was precluded by legislation in the form of s 126 was rejected, as noted by the trial judge, in Penrith City Council v Parks [2004] NSWCA 201, by Giles JA at [3]-[5]. Since then, a similar approach has been adopted in at least 20 cases in this court: see, eg, Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 at [33] (Hodgson JA; Mason P and McColl JA agreeing); Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99; 172 IR 453; [2008] Aust Torts Rep 81-949, at [84] (McColl JA; Mason P and Beazley JA agreeing); Zreika v New South Wales [2009] NSWCA 99 at [29] (Ipp JA; Beazley and Macfarlan JJA agreeing); Gulic v O'Neill [2011] NSWCA 361 at [67]-[69] (Whealy JA; Campbell JA and James J agreeing). It was not submitted that in principle such a course was not open to the assessor, acting in conformity with s 126. Nor was it contended that s 126 varies general law principles in any material respect. Such a contention would involve a challenge to the reasoning in Penrith City Council at, for example, [58] (McClellan AJA)."
Macfarlan JA stated as follows at paragraph [66]-[67]:
"[66] I agree with the judgment of Basten JA but add the following observations in relation to the buffer that the assessor awarded in respect of future economic loss.
[67] It has been accepted since Penrith City Council v Parks [2004] NSWCA 201 that it is not inconsistent with s 13 of the Civil Liability Act 2002 or the similarly worded s 126 of the Motor Accidents Compensation Act 1999 for a buffer to be awarded to compensate an injured person for the possibility that he or she may suffer economic loss in the future as a result of a loss of capacity to earn income. In Leichhardt Municipal Council v Montgomery [2005] NSWCA 432, Mason P spoke of such an award being usually reserved for "the situation where there is a smallish risk that otherwise secure employment prospects may come to an end, in consequence of the tort-related injury, at some distant time in the future" (at [2])."
It is difficult to determine whether the plaintiff would likely have finished his university course. He had only just commenced it at the time of the accident. He had undertaken no previous formal studies on the evidence since his apprenticeship. There must be some real doubt about whether he would have continued with the course. In my view, on the whole of the evidence the plaintiff's most likely future circumstances but for the injury are that the plaintiff would have sought sporadic electrical contractor jobs which did not require heavy activity or lifting and which he could manage within his pre-existing injuries. These would probably be on domestic or minor commercial electrician jobs. He would likely rely on some of his previous contacts such as Mr Sarkis. This would allow him to pace his jobs in accordance with his injuries. Alternatively, he may have undertaken some duties where only electrical inspection and limited supervision were required. The right foot condition would likely have been very troublesome and limiting. I have found that the plaintiff suffered a number of further aggravating injuries as a result of the July 2014 accident. In my view, there is appropriate evidence that the plaintiff would likely suffer economic loss in the future as a result of a loss of a capacity to earn income regarding these injuries.
I take into account all the matters I have indicated in relation to past economic loss. I take into account the plaintiff's prior high earnings and his skills and experience. The plaintiff's need to make a living is relevant as his savings would be exhausted. The usual deduction for the vicissitudes of life must be considered. With his various pre-accident conditions it is likely he would have ceased work before aged 67, possibly around age 60-63.
Taking into account the various matters which I have indicated, I think it is appropriate to allow the amount of $125,000 by way of a buffer for loss of future earning capacity. This amount also considers the plaintiff's pre-existing injuries and restrictions at the time of the accident, his prior difficulties in travelling any lengthy distances and the fact that regular driving of distances would be required and the plaintiff's right foot condition and his need to earn money as part of his livelihood consistent with his injuries. In my view, the plaintiff's pre-existing injuries would have substantially impacted on the jobs which he would have been able to do and his prospects with the likelihood that he would only intermittently work on smaller jobs or contracts.
I would allow no further amount for loss of superannuation which I have taken into account in assessing the award. I find in any case that the plaintiff would more likely have worked as a private contractor with his prior injuries and not as an employee.
In Metro North Hospital and Health Service v Pierce [2018] NSWCA 11, White JA (with whom Macfarlan and Payne JJA agreed) gave the leading judgment. The issue in that case was whether the plaintiff's epilepsy was a progressively deteriorating condition which contributed to his disability. White JA stated the following at paragraphs 110-115:
"[110] The primary judge accepted that the Hospital's negligence materially contributed to an increased burden of Ms Pierce's epilepsy. Ms Pierce submitted that accordingly the Hospital had the onus of adducing evidence that the worsened burden of her incapacity was partly the result of her pre-existing condition. In Purkess v Crittenden Barwick CJ, Kitto and Taylor JJ said (at 168):
… where a plaintiff has, by direct or circumstantial evidence, made out a prima facie case that incapacity has resulted from the defendant's negligence, the onus of adducing evidence that his incapacity is wholly or partly the result of some pre-existing condition or that incapacity, either total or partial, would, in any event, have resulted from a pre-existing condition, rests upon the defendant. In other words, in the absence of such evidence the plaintiff, if his evidence be accepted, will be entitled to succeed on the issue of damages and no issue will arise as to the existence of any pre-existing abnormality or its prospective results, or as to the relationship of any such abnormality to the disabilities of which he complains at the trial. It was, we think, with the character and quality of the evidence required to displace a plaintiff's prima facie case that Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 was essentially concerned. It was, in effect, pointed out that it is not enough for the defendant merely to suggest the existence of a progressive pre-existing condition in the plaintiff or a relationship between any such condition and the plaintiff's present incapacity. On the contrary it was stressed that both the pre-existing condition and its future probable effects or its actual relationship to that incapacity must be the subject of evidence (ie either substantive evidence in the defendant's case or evidence extracted by cross-examination in the plaintiff's case) which, if accepted, would establish with some reasonable measure of precision, what the pre-existing condition was and what its future effects, both as to their nature and their future development and progress, were likely to be. That being done, it is for the plaintiff upon the whole of the evidence to satisfy the tribunal of fact of the extent of the injury caused by the defendant's negligence.
[111] This was said in the context of a personal injury case arising from a motor vehicle accident. The plaintiff experienced severe and disabling pain in her cervical region. There was evidence that before the accident she suffered from degenerative changes in the spine which were most marked in the cervical region. It was asserted for the defendant that it was probable that at some unspecified time she would have become similarly disabled even if she had not been injured in the motor vehicle accident. The High Court held that the medical evidence upon which the defendant relied, that was accepted by the trial judge, did not establish with any reasonable degree of precision the extent of the plaintiff's pre-existing condition or its likely future effects (at 169).
[112] In the present case the Hospital discharged its evidentiary onus of establishing that Ms Pierce's pre-existing condition was one of likely progressive deterioration. She had the legal burden of establishing the extent to which the Hospital's negligence damaged her. No reasonable precision was possible either of the likely progression of her epilepsy in the absence of the telemetry event, nor of the extent to which the defendant's negligence worsened her existing condition. The defendant's negligence in the present case was in the treatment of an existing condition that is factually remote from the circumstances in Watts v Rake and Purkess v Crittenden.
[113] In Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; (2005) 3 DDCR 1, Ipp JA, with whom Mason P agreed, said in relation to Malec v J C Hutton Pty Ltd:
103 Therefore, according to Malec:
(a) In the assessment of damages, the law takes account of hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring.
(b) The court must form an estimate of the likelihood that the alleged hypothetical past situation would have occurred.
(c) The court must form an estimate of the likelihood of the possibility of alleged future events occurring.
(d) These matters require an evaluation of possibilities and are to be distinguished from events that are alleged to have actually occurred in the past, which must be proved on a balance of probabilities.
104 What was said in Watts v Rake and Purkess v Crittenden now has to be qualified by these principles (cf Commonwealth v Elliott [2004] NSWCA 360 at [81]). Malec has an important bearing, for example, on the way in which a court must determine whether a defendant has discharged the 'disentangling' evidentiary burden on it of showing that part of the plaintiff's condition was traceable to causes other than the accident and that, had there been no accident, the plaintiff would have suffered disability from his pre-existing condition.
[114] The fact that Ms Pierce suffered epilepsy that was likely to deteriorate progressively was to be determined on the probabilities. The likely extent of the progression of her condition was an issue to which the principles in Malec v J C Hutton Pty Ltd applied. The fact that Ms Pierce's epilepsy was a progressively deteriorating condition was established on the balance of probabilities.
[115] For these reasons I reject Ms Pierce's challenge to the primary judge's finding that her epilepsy condition as it existed before the telemetry event of 5 January 2010 was likely to deteriorate progressively."
In Gulic v Angelovski [2018] NSWCA 161 Sackville AJA (with whom Beazley P and McColl JA agreed) gave the leading judgment. The case was a claim under the Motor Accidents Compensation Act 1999 (NSW) ("MACA"). At paragraphs 34-38 Sackville AJA stated as follows:
"[34] The parties' submissions did not direct close attention to the principles applying where a plaintiff who claims damages for loss of earning capacity by reason of the defendant's negligence suffered from pre-existing injuries or disabilities prior to the date the negligence occurred. Although the principles were not in dispute, it is convenient to refer to them.
[35] Section 5D of the Civil Liability Act 2002 (NSW) (CL Act) was in force at the notional trial date. Section 5D(1)(a) provides that a determination that negligence caused particular harm requires the negligence to be a necessary condition of the relevant harm. Section 5E of the CL Act states that in proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.
[36] A plaintiff is entitled to damages for any diminution in his or her earning capacity resulting from injuries sustained by reason of the defendant's negligence. But the plaintiff is not entitled to damages for the degree of incapacity that arose from conditions pre-dating the defendant's negligence. It is therefore ordinarily necessary to assess the plaintiff's earning capacity prior to and following the accident. That task includes assessing the plaintiff's economic prospects at the relevant times.
[37] The plaintiff must adduce evidence that the injuries sustained in consequence of the defendant's negligence are or may be associated with his or her post-accident inability to exploit fully his or her earning capacity. Evidence of this character ordinarily establishes a prima facie case that the defendant's negligence caused the plaintiff's diminished earning capacity. If the defendant contends that the plaintiff's current diminished earning capacity is due in whole or in part to a pre-existing injury or condition, the defendant has the burden of adducing evidence to that effect. The evidence must be such as to enable the court to draw an inference as to the consequences for the future of the pre-existing condition. If evidence of this kind is adduced, the plaintiff retains the burden of proving that the loss of earning capacity was caused by the injuries sustained as a consequence of the defendant's negligence.
[38] In applying these principles it may be necessary to allow for possibilities and contingencies. For example, a defendant may discharge the evidential onus by adducing evidence that, had the accident not occurred, the plaintiff's ability to work might have been compromised in any event by a pre-existing condition. In such a case an allowance must be made for the possibility of a deterioration in the plaintiff's earning capacity occurring independently of the defendant's negligence. Conversely, a plaintiff whose earning capacity is diminished at the date the accident occurred may be entitled to damages that take account of the chance that his or her earning capacity would have increased but for the injuries sustained in the accident."
In Dal v Chol [2018] NSWCA 219, White JA considered the effect of a subsequent motor vehicle accident on the plaintiff's claim for damages in relation to an earlier accident. White JA stated as follows at paragraph 5:
"[5] The appellant did not plead nor seek to prove that the second motor vehicle accident in July 2015 had contributed in any degree to the respondent's present incapacity to perform the kind of work that he performed as a motor vehicle mechanic prior to the 2013 collision. No submission to that effect was advanced on appeal or before the primary judge. This Court held in Kessey v Golledge [1999] NSWCA 424 at [46] that the defendant bore the onus of adducing evidence that the plaintiff's incapacity at trial was caused or contributed to by a second accident. This is consistent with Purkess v Crittenden (1965) 114 CLR 164 at 168; [1965] HCA 34 and Watts v Rake (1960) 108 CLR 158 at 163-164; [1960] HCA 58 where the High Court held that if the defendant alleged that the injured plaintiff's incapacity was wholly or partly due to a pre‐existing condition, the onus of adducing evidence of that matter lay on the defendant. That must be so a fortiori if the defendant contends that a later injury has contributed to the plaintiff's incapacity. The only relevance of the second motor accident is that it brought to an end the respondent's employment with Evapco."
See also the discussion in Kabic v AAI Limited trading as GIO [2019] NSWCA 247 where the Court of Appeal also confirmed Seltsam, above, and Metro North, above: at [170]-[172]. The Court of Appeal emphasised that the approach to assessing damages in relation to hypothetical and future events in Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 at [640] and [642]-[643] applied also to past hypothetical events. Justice White (with whom Meagher and McCallum JJA agreed) stated as follows at paragraph 174:
"174. The submission did not acknowledge that the principles in Malec v J C Hutton Pty Ltd apply also to past hypothetical events. That is, that in the assessment of past economic loss, account should be taken of the possibility that if he had not been injured, Mr Kabic might have been unable to work as a formworker even up to trial, that was more than five years after his injury."
As stated, in the present case there was substantial and clear evidence in the form of radiological reports, specialist reports and general practitioner notes in relation to the plaintiff's injuries prior to the accident. The appellate courts have made clear that both in relation to past hypothetical events and future events a pre-existing condition or injury to a plaintiff that was proved to have possible, not probable, ongoing consequences to a plaintiff must be taken into account by the court in assessing damages. Where a defendant alleges that a plaintiff suffered from a pre-existing condition, the evidential onus remains on the defendant and must be discharged by it. Where that is done the court is required to evaluate possibilities not prove on the balance of probabilities. The pre-existing condition and its future probable effects must be the subject of evidence which, if accepted, would establish with some reasonable precision that the pre-existing condition existed and what its future effects, development and progress, were likely to be. The court must then form an estimate of the likelihood of the possibility of alleged future events occurring and an evaluation of possibilities in the future and hypothetical situations in the past.
Here, the plaintiff's pre-existing smaller right supraspinatus tear, related problems, neck restrictions and back problems including sciatica and a significant degree of lumbar deterioration, have been clearly established to my satisfaction. Although problems were not recorded in the medical notes after May 2012, the plaintiff was not undertaking physical work as an electrician and had lodged a total and permanent disablement claim in 2011 with supporting medical certification. In my view, it is very likely that the plaintiff's pre-existing conditions would have quickly created problems for him if he had returned to regular physical work. This is consistent with the reports of Drs Machart, Sharpe and Harrington. Alternatively, at least that was very possible.
The toe/foot condition which I have found on the evidence not to be connected to the July 2014 accident must also be taken into account as a subsequent post-accident injury/condition: Dal v Chol, above. The plaintiff referred to his difficulty wearing steel capped work boots. A period of rehabilitation would have been required-post surgery for this condition.
As set out above in my medical findings, I have found:
1. That the plaintiff suffered a serious aggravation to his right pre-existing right shoulder injury in the July 2014 accident. Although some improvement was obtained by the April 2017 operation to repair the rotator cuff tear, the plaintiff continues to suffer from additional pain and restriction in his right shoulder. On all the evidence, that appears to be greater pain and restriction than he had prior to the July 2014 accident;
2. The plaintiff suffered an aggravation to his neck injury in the July 2014 accident which has continued to give him some problems and pain;
3. The plaintiff suffers from psychiatric disorders as a result of the 30 July 2014 accident.
I am not satisfied on the evidence:
1. That the plaintiff suffers any continuing left knee problems which are caused by the accident;
2. That the plaintiff suffers any problems with his left shoulder which were caused by the accident;
3. That the plaintiff suffered any head injury in the July 2014 accident;
4. That the plaintiff's right foot injury was caused by the July 2014 accident.
There is, in my view, no reason why it is not appropriate for the scope of the defendant's liability to extend to the harm so caused which I have found on the evidence: s 5D(1)(b) of the CLA. There is also no reason why responsibility for the harm should not be imposed on the defendant: s 5D(4) of the CLA.