Ramsey v Denton

Court of Appeal (NSW)|2021-06-24|Before: Meagher JA, Cavanagh J, Respondent J

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Judgment

MEAGHER JA: I agree with Cavanagh J.
SIMPSON AJA: I agree with Cavanagh J.
CAVANAGH J: The appellant sustained injuries in a motor vehicle accident on 30 July 2014 ("the accident").

Background

Most of the background facts were either not in dispute or were the subject of findings which are not the subject of challenge in this appeal.
At the time of the accident the appellant was 48. He was an electrician by trade having worked for various periods in self-employment and other times on significant projects such as the Lane Cove Tunnel.
He had been involved in a number of other accidents during the course of his work and suffered various injuries, the significance of which was the central issue on the hearing.
By the time of the accident, his electrical licence had expired.
He had not been in paid employment since closing his electrical business, SME Electrical Pty Ltd, during the financial year ending 30 June 2012.
During the period February 2012 to 30 July 2014, the only commercial or potentially income earning activity that he had pursued was the importation of a number of motorcycles from the United States with the intention of converting them to Australian standards and then selling them for a profit. However, that venture had not proved to be successful and had been discontinued prior to the accident.
The latest tax return in evidence is for the year ending 30 June 2012 which reflected his earnings with the SME electrical business.
At some stage prior to the accident the appellant commenced an electrical engineering course at the University of Newcastle. There was inconsistent evidence from the appellant's ex-partner, Ms Shayne Russell, and the appellant as to when he had started that course. Ms Russell suggested that he started between 18 months and 2 years prior to the accident, whereas the appellant stated that he only commenced approximately a month prior to the accident. The appellant says that he did not complete the course because of the accident. The primary judge accepted that he had commenced the course but expressed doubt about whether he would have completed it irrespective of the accident.
Over the June 2014 long weekend (that is, less than 2 months prior to the accident) the appellant had been offered employment as a supervisor in a landscaping business operated by his friend, Joe Sarkis. In the days prior to the accident, Mr Sarkis had shown the appellant a number of sites where he might be working but the appellant had not actually commenced paid employment with Mr Sarkis prior to the accident. He intended to do so the very next week. He said that he would be paid $47.00 per hour with overtime, a car and telephone expenses.
Mr Sarkis gave evidence and whilst the primary judge accepted that the offer of employment was made, his Honour found that Mr Sarkis was unaware of the appellant's prior pre-existing problems (discussed below).
The reason for the initial offer of employment was that Mr Sarkis needed to take time off from his own business due to the need for neck surgery. There was uncertainty as to for how long the job might have been available.
The accident occurred on 30 July 2014 when the respondent turned across the path of the appellant. In attempting to take evasive action the appellant caused his motorcycle (and himself) to slide along the road.
The appellant commenced his oral submissions by complaining that the primary judge had misunderstood the circumstances of the accident. The appellant submitted that the primary judge had erred in his description of the accident as follows at [1]: "The plaintiff saw the motor vehicle turn in front of him and placed his motor cycle down which slid into the side of the car."
The appellant disputed that the collision occurred in that way. However, there was little focus on the circumstances of the accident at the hearing and his Honour's findings in respect of injury and loss did not reflect any reliance on any particular finding as to the circumstances of the accident. Further, even contributory negligence was agreed (at 20%) prior to the hearing.
The central issue on the hearing and indeed on appeal was the nature and extent of any injuries and disabilities caused by the accident and their impact on the appellant's earning capacity, having regard to a number of pre-existing conditions from which he suffered.
After the accident, the appellant was taken by Ms Russell to Wyong Hospital. A CT scan was taken. He was not admitted. The next day he attended his general practitioner, Dr Peterson. He continued to see Dr Peterson on a regular basis. The medical records suggest that the appellant had clinical features of a rib fracture, but no fracture was revealed on radiological investigation. The notes of the Wyong Hospital and Dr Peterson refer to right shoulder and right hip problems.
He was also referred to a specialist, Dr Bateman, in respect of his right shoulder problems. He underwent shoulder surgery in early 2017. He also had surgery to his right foot in late 2017.
The appellant had a long history of accidents/injuries prior to the accident although many of these accidents were minor and did not result in significant periods off work. Some were more serious.
In June 2006 he was subject to an episode of carbon monoxide poisoning whilst working in the Lane Cove Tunnel. He was admitted to hospital following that incident and commenced to develop psychological symptoms which required treatment. He suffered from depression and was prescribed anti-depressants. Those symptoms abated after a number of months.
In July 2008 he was involved in a motorcycle accident when his motorcycle hit a pothole resulting in injuries to his right shoulder, right arm, right hip and right neck. The primary judge accepted that he had made a reasonable recovery following that accident and returned to work as an electrician.
Then in November 2009, he was involved in an accident in an underground vehicle in a mine. The appellant hit the roof of the vehicle and injured his neck, right shoulder, right elbow and left hip. The primary judge found that this resulted in ongoing disabilities in those areas.
In August 2010, he underwent a CT scan on his lumbar spine. He was complaining of back pain and sciatica on the right side. Professor Ghabrial recommended a right L5/S1 discectomy which did not occur. As a result of chronic neck pain, back and right shoulder pain, he was certified unfit for work from 8 January 2010 until 7 March 2011.
He made an insurance claim for a lump sum on the basis of total and permanent disablement. In his claim he referred to his right rotator cuff injury and right back pain and sciatica as the basis of his permanent and total disablement. His GP, Dr Peterson, provided a report in support of the claim. He said: "… The patient is incapable of performing an electrician's job including carrying ladders and tools and safely climbing up machinery. He may end up being fit for supervisory or administrative work but not for any manual work … The patient's occupation as an electrician is not capable of being performed. The patient is capable when pain is controlled and performing the duties of a non manual supervisor/administrator or company director."
Despite these problems he incorporated the business SME Electrical in 2010, which he operated successfully until the financial year ending 2012. The primary judge accepted that he continued to suffer from right shoulder and back problems during the period which he operated SME Electrical.
Other than the importing venture the appellant did not work between closing the SME business in 2012 and the date of the accident.
The appellant did not perform any work between the date of the accident and the hearing.

The relevant findings

The primary judge accepted that the appellant suffered an aggravation of his pre-existing right shoulder problem in the accident. He sustained a significantly greater rotator cuff tear with significant tearing of the biceps. His Honour found that this was the most significant injury caused by the accident. He also accepted that he suffered from right thigh bruising and aggravation of his neck condition.
The primary judge also accepted that the appellant suffered from (what he described as) psychiatric disorders as a result of the accident.
The primary judge did not accept that any continuing knee and left shoulder problems were caused by the accident. Further, his Honour did not accept that the appellant suffered any head injury or that he injured his right foot in the accident.
The appellant claimed $1,500 net per week for the period between the time of the accident and the hearing on the basis that he would have been working for Mr Sarkis in a supervisory capacity throughout that period.
His Honour accepted that Mr Sarkis operated a landscaping business and that he had constant work and further that the appellant was willing to attempt to work in that business. However, he found that the appellant would quickly have had substantial difficulty in completing the work which Mr Sarkis had asked him to perform because of his pre-existing injuries and conditions, especially his right shoulder injury, and the fact that he had not worked for a substantial period of time.
His Honour also had regard to the appellant's continuing back and neck problems, being conditions which his Honour found were present since at least 2012. This led to a finding that: 1. although the appellant would have commenced work with Mr Sarkis, he probably would have ceased that work within a month to 6 weeks; and 2. because of his pre-existing injuries the only work he would have been able to perform would have been discrete electrical jobs, both domestic and commercial, which did not involve continuous or heavy work or undue strain on his foot.
In view of the difficulties in assessing loss, his Honour allowed a buffer of $75,000 for past economic loss. Similarly, for future loss of earning capacity, his Honour assessed damages on a buffer basis. His Honour allowed the sum of $125,000.
For the purposes of assessing future economic loss, as required by s 126 of MACA, his Honour made findings as to the appellant's most likely future circumstances, if not for the accident. He expressed doubt about whether the appellant would have continued with his University course even but for the accident. He considered that his most likely circumstances would have been that he would have sought sporadic electrical contractor jobs. He might have also undertaken some work in electrical inspection and limited supervision work.
Although his Honour did not find that the right foot injury was related to the accident, he accepted that the appellant had problems with his right foot which he considered would have been troublesome and limiting. That is, the assessment of loss was affected by both pre-existing conditions and the development of an unrelated condition (the foot injury) subsequent to the accident.
His Honour also found that, with his various pre-accident conditions, he would have been likely to cease work before age 67, possibly around 60 to 63, even if not for the accident.
His Honour specified that the buffer of $125,000 included any allowance for superannuation.
Past domestic assistance was not claimed. His Honour allowed a figure of $7,000 for future domestic assistance.

Nature of the Appeal

There are six grounds of appeal as follows: 1. His Honour erred in failing to find that the appellant's psychiatric impairment brought about by the accident rendered him not fit for work in any capacity from the time of the accident and into the future. 2. His Honour erred in failing to find in respect of the appellant's claim for economic loss that the appellant's ability to complete his university degree in electrical engineering had been brought to an end by the accident related psychiatric impairment. 3. His Honour erred in finding that the injury to the appellant's right foot was not caused by the accident. 4. His Honour erred in failing to find that the appellant had almost no physical restrictions for the two years prior to the accident. 5. His Honour erred in finding that the appellant's pre-existing conditions would have prevented him from returning to regular physical work. 6. His Honour erred in failing to accept Shayne Russell's evidence as to the appellant's post-accident restrictions.
The focus of the appellant's oral submissions was on the general proposition that the primary judge's assessment of damages does not accurately reflect his pre-accident condition and the consequences of the accident. He says that after deductions and payment of legal costs, he received very little from the judgment. He is left in the position that he is unable to work and must survive on the pension.
In particular, he submits that the primary judge should have had more regard to his psychiatric condition which he suggests of itself rendered him unfit for work and further that the primary judge was in error in not finding that his foot problem was related to the accident.
Having regard to the assessment of whole person impairment under Part 3.4 of MACA [1] of not greater than 10%, the appellant was not entitled to any amount for non-economic loss. He did not pursue a claim for past care. The award in respect of future care was limited (a total of $7,000). Perhaps other than Ground 6, none of the grounds of appeal relate to that aspect of the assessment. The appeal is in respect of the allowances for past and future economic loss.
Having regard to the evaluative nature of the task, an appeal from an assessment of economic loss might be difficult without establishing some error in the findings of fact which ground the trial judge's assessment. [2] This reflects the fact that the task of assessing damages for lost earning capacity is necessarily impressionistic. [3]
Having said that, although the appellant did not make specific submissions directed to each ground of appeal, it is apparent from the grounds that he seeks either to challenge the findings of fact which led to the primary judge's assessment or asserts error in the assessment of the evidence.
It cannot be said that the primary judge was unaware of or failed to apply the relevant principles in undertaking the assessment. In a carefully worded and extensive judgment, his Honour reviewed all of the evidence and identified the principles to be applied before making findings on the evidence and carrying out his assessment.
Particularly relevant to the assessment of the appellant's entitlement to damages are the following matters: 1. whilst the compensation is described as damages for economic loss, the appellant is being compensated for a diminution in earning capacity. Damages are awarded because the diminution in an injured person's earning capacity "is or may be productive of financial loss" [4] ; 2. the onus is on the claimant to prove the loss for which he seeks compensation [5] ; 3. however, it is not incumbent upon the injured claimant to prove what employment he or she "is not incapacitated from performing". If the defendant contends that the injured person has a residual earning capacity the onus is on the defendant to adduce evidence of what the claimant is capable of doing and what jobs are open to him [6] ; 4. in circumstances in which a claimant suffers from any pre-existing conditions which might impact on his capacity to earn even but for the accident, the defendant bears the evidential onus of disentangling them; that is, of establishing the extent to which the pre-existing conditions would have impacted upon the claimant's capacity to earn even irrespective of the consequences of the accident for which compensation is sought; and 5. if a defendant maintains that a claimant would not have been capable of working for some period or at some point because of a pre-existing condition, the defendant must adduce evidence in support of the proposition.
Further, even in circumstances in which the assessment of economic loss is by way of buffer, as in this case, it is necessary that any assessment for future economic loss be made in accordance with MACA, s 126 (now replaced by s 4.7 of the Motor Accident Injuries Act 2017 (NSW)).
As set out in s 126(1) of MACA the Court cannot make an award 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 are in accordance with the claimant's most likely future circumstances but for the injuries.
In this matter, the primary judge awarded a buffer both for past and future economic loss.
Awarding a buffer for future economic loss is both well-known and regularly adopted. [7] Whilst a more precise calculation might generally be preferred, a buffer would be permissible when the task of assessing loss of earning capacity cannot be undertaken with reference to precise weekly amounts due to the uncertainty of the claimant's likely future circumstances and the number of variable factors which would render a more precise assessment merely artificial and speculative.
It also remains necessary for the judge, having set out the necessary findings in accordance with s 126, to provide some guide as to the basis of the amount of the buffer.
It is not suggested that the primary judge failed to comply with those obligations in this matter.
The awarding of any buffer for past economic loss is more unusual. This is because the Court is generally assessing loss with reference to the evidence as to what has actually occurred since the accident and is also in a better position to assess and make findings as to what would have occurred but for the accident, bearing in mind the more limited period between the accident and the hearing. However, again there is no principle which prohibits the awarding of a buffer for past economic loss in an appropriate case.

Ground 1 - Findings in respect of psychiatric impairment

The appellant relied on a report of Dr G Smith, Consultant Psychiatrist, dated 6 February 2020. The respondent did not serve the report of her medico-legal expert, Dr George.
The only other psychiatric evidence was a report from Dr Matthew Jones, a MAS medical assessor who carried out an assessment on 17 July 2018 for the purposes of the whole person impairment assessment. Dr Jones found that there was insufficient evidence to justify the diagnosis of any ongoing psychiatric disorder.
He found that any psychiatric illness was not caused by the motor accident. That finding was only binding in terms of the assessment of whole person impairment. It did not bind the primary judge in terms of his own findings as to any relationship between any psychiatric impairment and the accident.
The primary judge accepted the evidence of Dr Smith. Dr Smith diagnosed post-traumatic stress disorder, persistent depressive disorder with persistent major depressive symptoms and cannabis use disorder. He considered that the appellant's symptoms had persisted since 2014.
The primary judge noted that the report of Dr Jones had apparently not been made available to Dr Smith. In any event, his Honour preferred the opinion of Dr Smith. He accepted that the appellant suffered from the conditions referred to by Dr Smith and that he required treatment for them. He said Dr Smith's report was consistent with the evidence of the appellant, Ms Russell, Mr Lewin (a work colleague/friend) and Mr Sarkis.
In his summary findings on causation (at [237]), his Honour made a specific finding that the appellant "suffers from psychiatric disorders as a result of the 30 July 2014 accident".
Whilst it is difficult to be certain of the import of the appeal ground without more specific submissions for the appellant, the ground of appeal is to the effect that the primary judge erred in failing to have proper regard to the opinion of Dr Smith in making findings as to the appellant's capacity for work in the past and the future.
The respondent's response is not to challenge any findings in respect of Dr Smith but merely to highlight Dr Smith's actual opinion. The respondent highlights the following opinion of Dr Smith: "Mr Ramsey is not currently fit for work in any capacity due to his anxiety and depressive symptoms with marked functional impairments."
The respondent submits that this is merely an opinion as to his psychological impairment at the time of consultation rather than an opinion as to his condition for the whole period subsequent to the accident.
I do not agree. In my view it is clear from the whole of his report that Dr Smith relates his diagnosis to the accident in 2014 and accepts that, whilst there has been some fluctuation in the intensity of his symptoms, he had not been completely free of depressive symptoms for several years after the accident.
It is correct to say that, even though his Honour expressly accepted the opinion of Dr Smith, he did not make any specific finding that the appellant had been unfit for work since the accident as a result of his psychological condition. Indeed, he did not make any specific finding that the appellant had been unfit for work since the accident.
This may be because even the respondent appeared to accept that proposition (see respondent's written submissions in the District Court at par 96) and there is nothing in the exchanges in oral submissions in the District Court which tends to suggest that this was an issue. Further, his Honour's findings as to impairment and loss of earning capacity were reflective of both the physical and psychological conditions.
In any event, Dr Smith was not cross-examined and his Honour accepted his opinion without qualification. Thus, implicit in his Honour's observations on Dr Smith must be acceptance of his opinion as to fitness for work. Indeed his Honour stated that Dr Smith's opinion was relevant to the assessment of economic loss.
However, even if it is open to the appellant to suggest that his Honour's express findings do not reflect the full import of Dr Smith's opinion, I do not accept that this would have impacted upon the assessment of past or future loss.
This is because it is apparent from the judgment as a whole that the assessment of economic loss for both past and future was reflective of a very limited earning capacity even but for the accident.
The assessment made by the primary judge was based on the ongoing impact of the pre-existing conditions and work capacity even but for the accident on 30 July 2014. On my analysis of the judgment, the amounts allowed for past and future economic loss were intended to reflect the difference between the appellant's limited pre-accident capacity and the further diminution caused by the accident. There is no statement by the primary judge that at the time of the hearing the appellant had any capacity for work. Implicit in the primary judge's assessments was acceptance of the proposition that the appellant had been unfit for work between the time of the accident and the hearing.
In those circumstances, it could not be said that the absence of an additional; express finding as to unfitness for work based only on the psychological condition impacted on the assessment of economic loss.
The appellant fails on Ground 1.

Ground 2

This ground relates to the appellant's assertion that he was unable to complete his University degree in electrical engineering due to the psychological consequences of the accident.
The appellant said in re-examination that he commenced his University course in June 2014 being about 3 or 4 weeks prior to the accident. Ms Russell suggested that he had been at University for probably a year and a half to 2 years. The primary judge accepted that he commenced at University part-time in June 2014. His Honour went on to express doubt as to whether he would have continued with the course irrespective of the accident. As his Honour said, he had only just commenced it at the time of the accident and he had undertaken no previous formal studies on the evidence since his apprenticeship.
His Honour went on to make findings as to the appellant's most likely future circumstances but for the injury (having regard to MACA, s 126) and found that the appellant 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.
Whilst, as I have identified under Ground 1, Dr Smith opined that the appellant was not currently fit for work in any capacity, the doctor did not offer any opinion as to his capacity to complete his University studies. Having regard to the other findings and observations of Dr Smith, it must be implicit in his acceptance of the severity of the appellant's psychiatric symptoms that the nature and extent of those symptoms would have impacted upon his ability to study.
The difficulty for the appellant with this ground of appeal is that: 1. the primary judge expressed doubts as to whether the appellant would have completed his University course in any event, having regard to the fact that he only just commenced it and he was attempting to return to study after a longer period of absence; 2. the course was in the nature of a bridging course and was said by the appellant to be only a 6 month course. This might cast some doubt on the evidence of Ms Russell that he had been undertaking it for a period of 18 months to 2 years; 3. the appellant did not provide written submissions in the Court below although he provided a schedule of damages. In the schedule, the appellant sought both past and future economic loss on the basis that he would have been a site supervisor/electrician with Greenacres Landscaping earning $1,500 net per week. Nothing is said about the potential for other employment on completion of the University course; and 4. when making oral submissions on the psychiatric evidence in the Court below, nothing was said by the appellant about the effect on the University course. No submission was made about the appellant's earning capacity if he had been able to complete the University course.
Indeed, the appellant initially did not give any evidence-in-chief about his University course. During cross-examination, there was agreement that the appellant would be permitted to give further evidence about the job with Mr Sarkis (as that had not been the subject of any evidence-in-chief either). The only evidence adduced in this further examination was to the following effect: "Q: Did you still seek to continue University studies? A: Yes, I still kept going to University."
He was cross-examined extensively on the job offer from Mr Sarkis but he was not asked any questions about his University course albeit he referred to it in the context of an answer to the effect that he was tired of being an electrician. He wanted to do something different.
Only in re-examination was he then asked any questions about his University course. It was suggested to him that his CV refers to the course commencing in 2012. He responded by saying that he commenced in the 3 or 4 weeks prior to the accident.
On my review of the amended statement of particulars (filed 6 months prior to the commencement of the hearing), the evidence, submissions and chronology, it is apparent that the basis of the appellant's claim for economic loss changed between the time of the filing of the amended statement of particulars and the conclusion of the hearing. In both the original statement of particulars and the amended statement of particulars, the appellant identifies a claim for economic loss on the basis that he would have completed his electrical engineering course and obtained work using both qualifications. That might explain his statement during cross-examination that he had enough of being an electrician (that is, "being on the tools") and that he wanted to do something different.
However, no final submissions were made to the effect that economic loss should be assessed with reference to his potential earnings as an electrical engineer. As set out in the schedule of damages, his claim was that economic loss should be assessed on the basis of his potential earnings working as a supervisor with Greenacres Landscaping.
On my analysis the appellant seeks to pursue a point in this Court that was not pursued on the hearing. Whilst the findings of the primary judge would not support the proposition that the appellant would have gone on to complete the course and derived a higher income from those qualifications in any event, there is no error in not making findings which were not sought on the hearing.
Ground 2 fails.

Ground 3

The appellant challenges the finding that he did not sustain any injury to his right foot as a result of the accident.
The issue was given some attention on the trial. There was competing expert medical evidence. The primary judge made a specific finding that he was not satisfied that the appellant's right foot complaints arose from any injury sustained in the accident.
Again, the appellant's oral submissions on this topic in this Court were brief. He was directed to the notes of his general practitioner, Dr Peterson, which do not record any reference to a foot problem until 10 November 2014. He submitted that Dr Peterson's notes were incorrect as he did complain to the doctor of his foot problem in the period between the accident and 10 November 2014. Plainly the primary judge did not accept this.
His Honour considered the competing medical evidence as to the relationship between the problem with the right foot and the accident.
As the appellant stated in evidence, the problem with his right foot is the reason he could not perform even the supervisory work in the landscaping business at any time subsequent to the accident. The pain and limitation in his right foot meant he would be unable to wear work boots and stand on his feet for long periods.
In my view, the finding made by the primary judge on the lack of a causal relationship between the right foot problem and the accident was open to his Honour. Whist the nature of the appeal is by way of re-hearing, a finding on causation is a finding of fact. It is necessary for the appellant to establish error, not merely seek a different finding.
His Honour considered all of the evidence including the evidence of the appellant and his ex-partner, the contemporaneous notes and records of the Wyong Hospital and the general practitioner, Dr Peterson, the reports as to the treatment of the right foot and the competing medico-legal opinions.
Despite the evidence of the appellant as to the significance and immediacy of the right foot problem there is no reference to any complaint about the foot in the Wyong Hospital records. Dr Peterson does not record any reference to a right foot problem until November 2014 despite the number of visits to the doctor by the appellant.
As noted by the primary judge, the orthopaedic surgeon to whom the appellant was referred for treatment for his right foot, Dr Michael Hunter, accepted that the appellant complained to Dr Peterson in the period immediately following the accident that is, in the two weeks after the accident. This statement is not recorded or referred to in the doctor's notes. It is either based on an incorrect statement made by the appellant or it is an incorrect assumption made by the doctor.
Similarly, whilst Dr Bodel, the orthopaedic surgeon who examined the appellant for the purposes of this case, refers to the nature and consequences of the right foot injury, he assumes that it is related to the accident rather than offering an opinion based on available evidence. The primary judge considered that Dr Bodel did not pay sufficient regard to the appellant's history prior to the accident and the limited complaints made in July/August 2014 by the appellant.
On the other hand, his Honour found the report of Dr Sharpe (following an assessment on 18 July 2018) particularly persuasive. That report was prepared for the purposes of the whole person impairment certificate under Part 3.4 of MACA. Whilst the opinion as to causation was not binding on the primary judge, his Honour was entitled to have regard to the doctor's opinion. The doctor's report contains an extensive summary of all of the relevant documentation, summaries of the complaints made by the appellant, findings on clinical examination and all of the relevant documentation. Dr Sharpe made a specific finding that the right foot ankle/arthropathy of the right MTP joint/crush injury was not caused by the accident.
None of the doctors were cross-examined. Medical causation is a matter of expert medical opinion. In circumstances in which the parties choose not to cross-examine any of the doctors, it may be difficult for a party to establish error on the part of a judge in preferring one medical opinion over another.
The primary judge expressed a preference for the opinion of Dr Sharpe on the relationship between the right foot problem and the accident. The appellant has not established that the primary judge failed to consider any relevant evidence on the issue and no error has been demonstrated in his Honour's preference for the opinion of Dr Sharpe, particularly having regard to the absence of any contemporaneous complaints in the notes of the Wyong Hospital or Dr Peterson's notes.
Ground 3 fails.

Grounds 4 and 5

Grounds 4 and 5 can be dealt with together.
The appellant seeks to challenge the findings as to the significance and impact of his pre-existing conditions on the assessment of loss of earning capacity. He asserts that the primary judge should have found that he had almost no physical restrictions in the two years prior to the accident. He further asserts that the primary judge erred in finding that his pre-existing conditions would have prevented him from returning to regular physical work.
The findings in respect of his pre-existing conditions were critical to the assessment of economic loss. This is because there was ample evidence to establish that as a result of the combination of both his post-accident physical and psychological symptoms the appellant was unfit for the type of work he had been performing for most of his working life. If not for the findings on his pre-existing conditions, damages would have been assessed on the basis that his capacity to earn had been significantly diminished as a result of the accident.
His Honour was plainly aware of the evidentiary burden imposed on the respondent to separate the consequences of the accident from the pre-existing problems. He referred in detail to those cases which identify the correct approach. [8]
His Honour carried out an extensive review of all of the factual and medical evidence. He found that there was substantial and clear evidence in the form of radiological reports, specialist reports and general practitioner notes in relation to the appellant's injuries prior to the accident. He referred also to other evidence such as the appellant's claim for total and permanent disablement based on the right rotator cuff injury and a nerve impingement issue in his back.
This led to the critical findings as follows: "229. 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. 230. 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."
Further, his Honour made the following findings on the consequences of the accident: "237. As set out above in my medical findings, I have found: (a) 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; (b) The plaintiff suffered an aggravation to his neck injury in the July 2014 accident which has continued to give him some problems and pain; (c) The plaintiff suffers from psychiatric disorders as a result of the 30 July 2014 accident. 238. I am not satisfied on the evidence: (a) That the plaintiff suffers any continuing left knee problems which are caused by the accident; (b) That the plaintiff suffers any problems with his left shoulder which were caused by the accident; (c) That the plaintiff suffered any head injury in the July 2014 accident; (d) That the plaintiff's right foot injury was caused by the July 2014 accident."
These findings led to a further finding in assessing economic loss as follows: "256. Accordingly, I think it likely that the plaintiff would have attempted to undertake the work for Mr Sarkis for as long as could but would have probably ceased it within a month to six weeks."
The primary judge took account of the fact that even as a supervisor he would occasionally be involved in heavy duties and that electrical jobs also likely involved physical work. He found that the appellant would have had substantial difficulty in completing the job as a supervisor and electrician in light of his pre-existing conditions, especially the shoulder injury and the fact that he had not worked for a substantial period of time. He also took into account the appellant's continuing back and neck problems and conditions which previously had caused him to have difficulties with driving his car in 2012.
Subject to one matter which arose during exchange on the hearing of the appeal, the appellant has not demonstrated any error in the findings as to the appellant's pre-existing conditions and their likely impact on his ability to work. As his Honour indicated, there was extensive evidence in respect of these pre-existing conditions and their significance. This was the focus of the respondent's cross-examination. It is because of the impact of the pre-existing conditions and the uncertainties as to the type of work that the appellant might have been able to perform if not for the accident that resulted in the primary judge assessing economic loss by way of a buffer for both the past and future.
Having regard to the principles to which I have already referred, there is no error in that approach. It was plainly permissible in respect of the future and the facts and circumstances of this case make it one of those cases where it was appropriate to assess past loss also by way of a buffer.
Having said that, there is one finding which was not the subject of any evidence from the appellant or respondent or cross-examination of the appellant or any medical evidence.
For the purposes of assessing future economic loss the primary judge found that "[w]ith his various pre-accident conditions it is likely he would have ceased work before age 67, possibly around age 60-63". His Honour took account of this earlier retirement age in assessing the amount of the buffer for future loss of earning capacity. As his Honour had already accepted that but for the accident the appellant would have continued to seek sporadic electrical contract jobs which did not require heavy activity and lifting such as work of a domestic or minor commercial nature or may have undertaken some electrical inspector and limited supervision duties, it must be that his Honour accepted that even despite his pre-existing conditions, he had a remaining earning capacity but for the accident.
In finding that but for the accident the appellant would have ceased work between the age of 60 and 63 in any event, his Honour was necessarily finding that by the age of 60 to 63, he would have no earning capacity because of his pre-existing conditions and subsequent foot problem.
Having accepted that he would have been able to work on some part-time basis between 2014 when the accident occurred (but for the accident) and the age of 60, his Honour could only have made a finding that his earning capacity would have ended by the age of 60 if there was evidence to support that finding. Whilst the assessment of damages in these circumstances is necessarily impressionistic, the respondent bore the onus of establishing not just that the appellant suffered from pre-existing conditions. The respondent also had to establish how they would have impacted upon his capacity to earn.
In terms of early retirement, a defendant would normally rely on an expert medical opinion contained in a report, raise the issue with the plaintiff and if the issue is not covered in the medical evidence, cross-examine an expert on the topic.
In this matter the issue was not taken up with the appellant. The respondent chose not to cross-examine any medical expert or adduce any evidence to the effect that the pre-existing conditions would deteriorate to such an extent that he would have been incapable of undertaking any work by the age of 60, even irrespective of the motor vehicle accident. No medical expert offers that opinion.
His Honour referred to making the usual reduction for the vicissitudes of life (correctly) but also made the express finding that he would retire probably between the ages of 60 and 63. This is not merely a deduction for the vicissitudes of life. It had the effect of reducing the period for which future economic loss might have been assessed.
Further the finding is not based on any submission of the respondent made in the Court below. In her written submissions, the respondent referred to the appellant having a future notional working life of 13 years until the age of 67. No submission was made that there should be a finding that, but for the accident, the appellant would have retired prior to that time. Although there is no express ground of appeal which refers to this finding, Mr Ryan appropriately accepted that this is the sort of matter that might have been raised if the appellant was legally represented and that the issue fell within the broad scope of the appeal as the appeal centres on the primary judge's assessment of past and future economic loss.
The point is best dealt with under Ground 5. Whilst I do not accept that the appellant has established error in any other aspect of the assessment, I do not consider that there was a sufficient evidentiary basis for the primary judge to find that because of the appellant's pre-existing conditions he would have likely ceased work possibly around the age of 60 to 63.

Ground 6

There is no merit in this ground. No specific submission was made by the appellant in respect of this ground. I accept the respondent's submissions that his Honour's findings as to Ms Russell's evidence were open having regard to the whole of her evidence. Ms Russell plainly had a poor recollection of matters relating to both pre and post-accident events.
His Honour was entitled not to accept Ms Russell's evidence insofar as it related to the claim for future commercial care or economic loss.

Conclusion

In all the circumstances, no error has been demonstrated in the findings or assessment of the primary judge other than the finding in respect of early retirement.
In my view, that finding only impacts upon the period during which the appellant would have had an earning capacity, assuming the accident had not occurred. As identified by the primary judge, the assessment of the buffer in the sum of $125,000 is intended to reflect the extent to which the appellant's earning capacity was diminished as a result of the accident. In the circumstances this Court is in a position to reassess damages.
Absent a finding that the appellant would have retired early, damages should be assessed on the basis that the appellant would work to the age of 67 but for the accident. I adopt the approach and assessment of the primary judge but consider that on a finding that he would have worked to the age of 67, a further $50,000 should be added to the buffer for future economic loss. This is consistent with the primary judge's approach to future economic loss, except that it allows for a more lengthy period of loss.
In the circumstances, I propose the following orders: 1. The appeal is allowed. 2. The judgment of the District Court is set aside. 3. In lieu thereof, judgment for the appellant in the sum of $257,164.84.
Although his solicitors filed a notice of appeal, he is not legally represented on the appeal. I do not know when the solicitors ceased to act. Ordinarily the appellant having succeeded in the outcome of the appeal would be entitled to an order for costs. In circumstances where he was represented at the commencement of the appeal the respondent should pay the appellant's legal costs up to the time his solicitors ceased to act.

Endnotes

See report of Assessor, Dr Sharpe dated 18 July 2018.
Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 at [82] (per McColl JA, Mason P and Beazley JA agreeing); Wilson v Peisley (1975) 50 ALJR 207 at 209 (Barwick CJ).
Pollard at [82]; Brear v James Hardie & Coy Pty Ltd (2000) 50 NSWLR 388; [2000] NSWCA 352 at [49] (per Mason P, Spigelman CJ and Priestley JA agreeing).
Graham v Baker (1961) 106 CLR 340 at 347; [1961] HCA 48 (Dixon CJ, Kitto and Taylor JJ).
Todorovic v Waller (1981) 150 CLR 402 at 412; [1981] HCA 72 (Gibbs CJ and Wilson J).
Rabay v Bristow [2005] NSWCA 199 at [73] (per McColl JA, Handley and Bryson JJA agreeing).
Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244 at [38] (per Basten JA, McColl and Macfarlan JJA agreeing).
At para [223] the primary judge referred to Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; Watts v Rake (1960) 108 CLR 158; [1960] HCA 58; Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34. 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: 17 December 2021

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