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[2013] NSWDC 77
District Court of NSW
2013-04-12
Mr J
Original judgment source is linked above.
Table of Contents Nature of case [1] - [3] Issues [4] Analysis sequence [5] Issue 1 - Facts [6] - [37] Mr Bender's background [7] Injuries received in accident [8] - [14] Medical treatment and allied assessments [15] - [29] Work effects and mitigatory employment [30] - [34] Domestic effects [35] Mitigation [36] Life span [37] Issue 2 - Limitation issue [38] Issue 3 - Indemnity amount sought by plaintiff [39] - [40] Issue 4 - Causation of Mr Bender's back disability [41] - [78] Issue 5 - Assessment of notional damages pool [79] - [109] Non-economic loss [82] - [84] Past economic loss [85] - [88] Fox v Wood [89] Future loss of earning capacity [90] - [94] Past loss of superannuation [95] Future loss of superannuation [96] Past unpaid domestic assistance [97] - [98] Past paid domestic assistance [99] - [101] Future paid domestic assistance [102] - [105] Future out-of-pocket expenses [106] - [108] Past out-of-pocket expenses [109] Application of s 151Z [110] - [111] Disposition [112] Costs [113] Orders [114]
Nature of case 1In these arcane proceedings, which relate to a motor vehicle accident that occurred on 18 December 1993, the plaintiff, Texpine Pty Ltd, was the employer of Mr Henk Bender, who was injured in that accident, in which the defendant, Jane Morris, drove her vehicle into an intersection contrary to the direction of a red traffic control signal, and into collision with Mr Bender's vehicle, which was being driven lawfully within the intersection in question. 2The ensuing collision involved some considerable force. Mr Bender sustained fractured ribs, soft tissue injuries to the right flank of his lower back, injury to both legs, and a possible head injury. In these proceedings, the employer asserts that because of the now admitted negligence of the defendant, it has incurred a liability to pay workers' compensation benefits to or on behalf of Mr Bender. 3In that regard, the employer now seeks indemnity for those payments pursuant to s 151Z(1)(d) of the Workers' Compensation Act 1987 ["the WC Act"]. The proceedings are governed by the now repealed former Motor Accidents Act 1988 ["the MA Act"], the Civil Liability Act 2002 ["the CL Act"], and by the principles enunciated in Grant v Royal Rehabilitation Centre Sydney [1999] NSWCA 250, per Cole AJA at [8] - [10]. This requires that a determination be made of the likely amount that Mr Bender would have been entitled to recover at common law, as restricted by statute, if he had brought his own proceedings against the defendant.
Issues 4The issues to be determined in these proceedings are first, whether Mr Bender's lower back complaints, for which he was paid compensation by the plaintiff, were relevantly caused by the subject accident. That issue fell to determined by an analysis of medical reports containing conflicting opinions where the authors of the reports were not called to give oral evidence. Secondly, the amount, and all the constituent elements of the amount, that Mr Bender would have recovered by way of compensatory damages if he had sued the defendant. Thirdly, a determination is required of the amount the plaintiff seeks to recover in these proceedings, as limited by the amount Mr Bender would have been likely to have recovered, as required by the operation of s 151Z(1)(d) of the WC Act. Fourthly, the extent to which, if any, the plaintiff's entitlement to recover the damages is affected by the limitation bar that arises from the operation of s 14 of the Limitation Act 1969.
Analysis sequence 5For convenience, I will commence the analysis by dealing with the factual, limitation and the quantum of indemnity issues, followed by the causation of damage issue, and then finally, in order to apply the requirements of s 151Z of the WC Act, the identification of the probable damages pool that would have been awarded to Mr Bender if he had brought his own proceedings against the defendant.
Issue 1 - The Facts 6In the paragraphs that follow I set out my findings on the factual matters that underpin the plaintiff's claim for recovery of the payments it made to or on behalf of Mr Bender.
Mr Bender's background 7Mr Bender was born in Frankfurt, Germany in 1964. There, he completed an apprenticeship as a motor mechanic. He arrived in Australia aged 20 years in 1974. He had been continuously employed until the time of the subject accident in 1993. Before that accident, he had worked variously as a storeman and in retail customer service. At the time of the accident Mr Bender was employed by the plaintiff company selling audio-visual equipment. Before the subject accident, Mr Bender was fit and well, without any physical or other restrictions. Significantly, and relevant to the issues to be decided, he had no prior back disabilities.
Injuries received in the accident 8In the events of the accident, Mr Bender's vehicle, a small sedan, had proceeded into an intersection as permitted by a green traffic control signal. The defendant's vehicle approached Mr Bender's vehicle from the right in disobedience of a red traffic control signal. The defendant accelerated her vehicle into the intersection, and into heavy impact with the driver's side door of Mr Bender's vehicle. Mr Bender's vehicle sustained considerable damage and deformity, and was written off as being beyond repair. 9Immediately after the collision, Mr Bender managed to climb out of the passenger side of his vehicle. Shortly afterwards he noticed pain in his lower back. After climbing out of the vehicle he either fainted or lost consciousness for a short time. He was taken by ambulance to Royal Prince Alfred Hospital, where he stayed for about 24 hours. There, he was attended to by medical staff and, unsurprisingly, he has only limited recollection of any discussions which took place in that context. He later noticed some wrist pain, and fractured ribs were detected on the right side of his chest. It was thought he had sustained some kind of kidney injury because of an injury described as being in his right flank region. He remained off work for an initial period of about 3 weeks. 10Subsequently, over the time since the subject accident, Mr Bender noticed he was experiencing increasing lower back pain. That lower back pain has continued to affect Mr Bender until the present time. In these proceedings, the defendant challenged the suggestion that the plaintiff's back problems were caused by the subject accident. 11The police report into the incident, which was commenced on the day of the accident, and completed on 4 January 1994, described Mr Bender's injuries as comprising trauma to the right kidney, a fractured rib, bruising to the right shoulder and to the head: Exhibit "F". That information did not come from Mr Bender: T75.44. 12On 7 January 1994, in an employer's workers' compensation claim form, Mr Bender's injuries were described as being to a kidney and to the ribs: Exhibit "B". In an employee insurance claim form signed by Mr Bender on 18 January 1994, which was just one month after the accident, he described the injuries he sustained in the accident as being to his right kidney area, internal bruising, and an injury to his right lower back: Exhibit "C". Mr Bender has had lower back problems since the accident, and these have increased in intensity and distribution over time, despite spinal surgery comprising microdiscectomy at L5-S1. 13In view of those matters I am persuaded that Mr Bender indeed suffered an injury to his lower back in the subject accident. The general effect of the medical evidence is that the injury was probably a soft tissue injury. 14In reaching that conclusion, I have not overlooked the controversy emerging from within the tendered medical reports as to whether Mr Bender in fact injured his lower back in the subject accident, and whether the lower back problems that continued to evolve relate to the progression of a degenerative process unrelated to the trauma of the subject accident. The starting point for the causation analysis is the recognition of the fact that Mr Bender was the person best placed to identify the areas of his body that sustained injury in the subject accident. The consequences of those injuries for these proceedings, is a matter that has been the subject of my consideration of Issue 4, and there I set out my reasons for determining the causation issue in the plaintiff's favour.
Medical treatment and allied assessments 15The plaintiff tendered a folder of medical reports relating to Mr Bender's injuries, the treatment of those injuries, and the assessment of his remaining disabilities: Exhibit "A". 16The defendant also tendered a folder of reports upon which it relied for its contention that Mr Bender's back condition, for which he was ultimately operated upon, and for which he continues to receive payments of workers' compensation, was not causally related to the accident in question: Exhibit "1" 17After being discharged from hospital on the day following the accident, and in view of his experience of ongoing back pain over time, Mr Bender has undergone a number of radiological investigations of his lumbosacral spine. The effect of those imaging studies was to ultimately reveal a broad based left paracentral disc protrusion at the level L5-S1, resulting in a moderate degree of asymmetrical canal stenosis. There was also mild canal stenosis at the L2-3 to L4-5 levels. 18To assist the analysis of the foundations of the defendant's causation argument, as an aide to analysis, in the paragraphs that immediately follow, it is convenient to first identify in outline form, the course of Mr Bender's medical attendances. 19On 27 March 2006, at the request of the plaintiff's workers' compensation insurer, Mr Bender was examined by Dr Bruce Trevitt, a consultant orthopaedic surgeon. Dr Trevitt's report was not prepared for the purpose of legal proceedings, and it did not acknowledge the Code of Conduct for expert witnesses. It was prepared to assist the workers' compensation insurer as to how to view Mr Bender's claim for compensation. 20Dr Trevitt took a history of Mr Bender suffering back pain in the subject accident in 1993, and it had become constant by about mid 1994, and then even more troublesome by 1996, which caused Mr Bender to change his employment from a sales position to a driver of diplomatic vehicles. Dr Trevitt recorded a further history of those problems worsening in around 2002. Dr Trevitt's opinion was that Mr Bender had been left with left sided thoracolumbar pain which dated from the 18 December 1993 accident. He also noted Mr Bender had, by a presumed underlying condition of his lumbar spine, been pre-disposed to the development of thoraco-lumbar degenerative changes. Dr Trevitt went on to express the opinion that if future deterioration occurred, this would be attributed to the natural history of such degenerative changes. However, he dated the symptoms present at the time of his examination to the motor vehicle accident in question, due to the soft tissue injury sustained at that time. 21On 8 August 2007, Mr Bender underwent a neurological surgical procedure involving a left-sided L5/S1 microdiscectomy, which was performed by Dr Nair. Subsequent nerve conduction studies carried out on him showed that Mr Bender had been left with a slightly reduced left sural nerve sensory action potential but no significant neurogenic abnormality in the left S1 nerve distribution. 22The spinal surgery gave Mr Bender significant relief from the acute discogenic pain in his left leg, but he has been left with significant low back pain and sciatica. More recent MRI scans have revealed the presence of a Grade I L5 on S1 degenerative retrolisthesis, with associated symptoms. 23Mr Bender's ongoing back and related pains are still being treated with anti-neuropathic medications, but with limited benefit. His back and related problems have been extensively examined, considered and reported upon: Exhibit "A". 24Insofar as the identification of Mr Bender's ongoing disabilities are concerned, of the reports within Exhibit "A", I consider that the 28 October 2010 report of Dr Michael Couch, a consultant occupational physician, provides an informative, accurate and thorough analysis of Mr Bender's residual disabilities. In that report, Dr Couch specifically excluded from his consideration, the question of whether Mr Bender's current disabilities were, in the relevant legal sense, caused by the subject accident, a matter requiring determination in connection with Issue 4. 25In essence, the identified disabilities relate to a fluctuating but severely painful back condition, depending upon activity, that causes Mr Bender significant discomfort and limitation in all aspects of his life, including his work capacity, his domestic activities, his family, leisure and social activities. Mr Bender has been treated at a pain management clinic for those problems, however those pains still persist. 26Dr Couch has stated, and I accept, that Mr Bender should be restricted in his physical and work activities and related postures, with no more than 4 hours per day, for 5 days per week. 27On 18 February 2009, Dr Peter Conrad, a consultant surgeon who had also assessed Mr Bender on a number of occasions, suggested a fitness for work of only 12 hours per week, with limitations to be placed on activities and postures. He also recommended about 6 hours per week of home care assistance. He also foreshadowed a foreshortening of his normal working life by 5 years, instead of the usual 65 years. Dr Conrad assessed Mr Bender's back impairment at 35 per cent. 28On 2 June 2010, a WorkCover Medical Assessment Certificate was provided by Dr Mohammed Assem, a consultant rehabilitation specialist. This revealed a deterioration in Mr Bender's back condition. Dr Assem assessed Mr Bender's total permanent percentage back impairment at 25 per cent, with referred effects in each leg. 29The foregoing descriptions comprise the background of the causation issue to be determined in these proceedings.
Work effects and mitigatory employment 30At the time of his accident, Mr Bender was earning $435 per week net. He was initially absent from work for just over 2 weeks, resulting in an initial loss of earnings in the sum of $870 net. 31Mr Bender returned to work in January 1994, he remained in his pre-accident work for a few months and later that year he left because of back pain. Mr Bender obtained mitigatory employment as follows: (a)At HOMAG, in 1994 in a sales position for a few months, which was uncomfortable because of his back pain; (b)At Cash Converters for 12 months, in 1995/1996, at $220 per week net, working about 20 hours per week, yielding earnings of about $11,440 net; (c)At the German Consulate, as a driver, from 1 April 1996 until about September 2002, during which time he suffered no financial loss; (d)At Beacon Lighting, between 2003 and 2007 after a period of unemployment for about a year. In 4 years of earnings in that period, Mr Bender earned $200 per week net for about 20 hours of work per week, yielding earnings of $41,600; (e)Since 2007, Mr Bender has not been employed. In 2006, he received some lump sum compensation, and has continued to receive prospects of weekly compensation. 32The notional claim for economic loss is analysed in more detail in the portion of my reasons that deal with the economic loss components of the likely damages pool, had Mr Bender brought his own claim for damages. 33As a result of his injuries, Mr Bender has had to accept his work limitations and he has had to reduce his working hours commensurate with the recommendations of the medical experts who have advised him on such matters. 34As a result, the plaintiff points to a claim for a difference between Mr Bender's actual earnings and his probable earnings, had he remained uninjured. This is analysed in the portion of my reasons that deal with the economic loss components of the likely damages pool, had Mr Bender brought his own claim for damages.
Domestic effects 35 As a result of his injuries, Mr Bender has been unable to fulfil a full range of his normal domestic tasks, and he has had, and will continue to have, an injury based need for domestic assistance in that regard. This is analysed in the portion of my reasons that deal with the domestic assistance components of the likely damages pool, had Mr Bender brought his own claim for damages.
Mitigation 36Mr Bender was referred for radiological investigations and he has appropriately sought and submitted himself to medical advice and treatment, including surgical treatment, and pain management treatment. The defendant did not submit that Mr Bender had in any way unreasonably failed to mitigate the effects of his injuries.
Life span 37In assessing Mr Bender's entitlement to damages, there is nothing that reasonably arises from the evidence to suggest that the usual statistical median life span would not apply to the plaintiff's circumstances. At age 49 years, Mr Bender has a probable median statistical life span of 36 remaining years. Uninjured, he would have had an otherwise normal working life span. I now turn to the limitation issue.
Issue 2 - The limitation issue 38The defendant has pleaded a limitation defence pursuant to s 14 of the Limitation Act 1969. These proceedings were commenced by the plaintiff on 13 July 2012. The plaintiff only seeks the recovery of payments it made for or on behalf of Mr Bender within the 6 year period before that date, unaffected by any limitation issues. Accordingly, the limitation defence does not relevantly arise. I now turn to the issue of identification of the amount for which the plaintiff seeks indemnity from the defendant.
Issue 3 - Indemnity amount sought by plaintiff 39By paragraph 10 of its statement of claim filed on 13 July 2012, the plaintiff claimed indemnity from the defendant pursuant to s 151Z of the WC Act for payments of workers' compensation to or on behalf of Mr Bender to 25 March 2011, totalling $144,271.64, plus payments that were expected to be made prior to trial. By paragraph 10 of the defence filed on 6 February 2013, which was certified by the solicitor on the record pursuant to s 347 of the Legal Profession Act 2004, the defendant denied the said payments. The basis of that denial was not apparent. 40However, ultimately, it was agreed that up to the date of trial, the plaintiff had made payments to and on behalf of Mr Bender in the amount of $206,007.50, plus interest in the accrued amount of $50,068.34, with interest continuing on a daily basis, in the amount of $24.07. Accordingly, the amount sought by the plaintiff in these proceedings, to the date of today's judgment, is calculated at $257,279.34, comprising the total of the principal amount claimed, plus interest to trial, plus 50 days of interest accrued form trial to the date of judgment. I now turn to the causation issue upon which the indemnity issue depends for its success.
Issue 4 - Causation of Mr Bender's back disability 41In determining the causation issue regarding Mr Bender's back problems, the plaintiff bears the onus of proof of such matters, and the causation requirements of s 5D of the CL Act must be met in order for a finding to be made in favour of the plaintiff on that issue. In some cases, of which this is one, the test of causation under s 5D can be a relatively simple and undemanding application of the "but for" test. 42The starting point for the causation analysis is the admitted negligence of the defendant, as there can be no causation finding under s 5D of the CL Act without an underpinning admission or finding of negligence. 43The analysis then shifts to a consideration of Mr Bender's evidence in which he stated that he had not experienced back problems before the subject accident, a consideration of Mr Bender's evidence that he experienced lower back pain shortly after the accident, and a consideration of the contemporaneous records relating to that period. 44For that analysis, In this regard, the following matters are relevant: (a)Mr Bender was in perfect health before the accident, and had no previous back problems: T8.14 to T8.21. He was aware of having lower back pain whilst at Royal Prince Alfred Hospital, where he was taken immediately following the accident: T11.25. His back pain continued in the time that immediately followed, and he was obliged to stay away from his work: T12.1 to T12.13. His back disabilities continued thereafter, to varying degrees and at varying times, depending upon the activities in which he was from time to time engaged, requiring that he take pain alleviating medications and substances, and requiring that he change his work; (b)The Royal Prince Alfred Hospital outpatient notes of 18 December 1993 describe Mr Bender's injuries as comprising pain in the right lower ribs, and on the side and the right flank, as well as abdominal pain. There was a query as to whether there had been a head injury, as there was a history of fainting when he got out of the vehicle: Exhibit "A", Tab 10; (c)When Mr Bender was at the hospital he felt very much in pain and that "everything was very hazy" and with regard to communications at the time, he did not recall being spoken to at the hospital: T53.20 to T53.40; T60.8. In my view, this suggests that the hospital notes alone, cannot be taken to be a definitive record of the injuries suffered by Mr Bender; (d)During cross-examination, when questioned over the entry in the hospital notes as to him having suffered a kidney injury, Mr Bender pointed out an area of his right lower back as being the area affected: T63.43. This was consistent with the causation case the plaintiff seeks to make; (e)In the claim form completed by Mr Bender one month after the accident, he described having sustained a right lower back injury: Exhibit "C". This is consistent with Mr Bender having sustained a back injury in the accident, which, a month later, was still causing him pain, there being no intervening back injury in the meantime in that month. 45The earliest imaging of Mr Bender's lower back was undertaken on 10 May 2007. This comprised x-rays and CT scans. These were reported as revealing a retrolisthesis of L4 and L5, and an L5-S1 disc protrusion, with some spinal canal stenosis. The imaging does not assist in identifying when these abnormalities occurred. 46Mr Bender had endured low back pain for some time before undergoing the above investigations. Dr Farbotko identified the history of onset of those problems as being an accident "some years ago", which I take to be a reference to the subject accident: Exhibit "A", Tab 2. 47On 8 August 2007, presumably at the referral of Dr Farbotko, the plaintiff was operated on by Dr Nair, a neurosurgeon, for left sided L5/S1 microdiscectomy: Exhibit "A", Tabs 2 and 4. 48Thereafter, a number of medical consultations ensued, as is evident within Exhibit "A" and summarised at paragraphs [15] to [29] above. 49Significantly, and consistent with the plaintiff's oral evidence, on 17 November 2009, at Exhibit "A", Tab 5, Dr New summarised the history as follows: "He has had debilitating low back pain since this [the 1993] accident noting that he did not have any low back or leg pain prior to this accident." 50That history was also recounted by Mr Bender to the pain clinic in 2010, in the context of his back pain becoming worse over time: Exhibit "A", Tab 6. 51On 2 June 2010 Dr Mohammed Assem, a consultant rehabilitation specialist and WorkCover Medical Assessor, recorded a summarised history of Mr Bender having had persisting low back problems since the subject accident in 1993, with continuing deterioration: Exhibit "A", Tab 15. 52On 8 November 2005, and again on 17 February 2009, Dr Peter Conrad, a consultant surgeon, took a history of ongoing back problems since the subject accident, for which he assessed impairment of the back at 35 per cent according to the guidelines: Exhibit "A", Tabs 20 and 24. 53On 27 March 2006, at the request of the workers' compensation insurer, Dr Bruce Trevitt, a consultant orthopaedic surgeon, recorded his summary of the plaintiff's history as follows, at Exhibit "A", Tab 23: "He states that around the middle part of 1994 (as best he can recall) he was getting some mild, constant, mid back pain. He says by that time he thought his symptoms had reached a stable state and the constant, mild pain remained present. He had resumed his normal work activities and normal leisure time activities. In about 1996, the back pain started to become a little more troublesome. He states that he changed his job in 1995/1996 from a sales assistant to a diplomatic driver. He says that he was driving diplomatic vehicles at the time when he noticed his back pain was starting to increase in severity and become more troublesome. He thinks he did finally have some physiotherapy treatment probably in 1996 in Edgecliff. At any rate, this treatment did not help his symptoms particularly and he continued working as a driver of diplomatic vehicles with the constant lumbar pain. Probably in 2002, he had a single, somewhat peculiar incident. He says that he stepped out of the car and felt as if there was "no feeling" in his legs. It is difficult to obtain a word picture here but I understand that as he moved out of the car, he had very sudden, very severe pain in the back area and through the whole of both legs without localisation. He grabbed hold of the car door (fortunately the window was open) and stopped himself falling completely to the ground but needed help from his two mates to get him inside and help him sit down. He said at that time there was severe pain in all of his back and down both legs and that this severe pain slowly eased after about three hours. Even then he needed help to get back into his car but was able to drive home. The next day he went back to normal working activities with his symptoms as they were before (ie relatively mild, constant lumbar pain). As indicated, he went on working as a driver of diplomatic vehicles until 2004 when he left this work and resumed his previous work as a sales assistant. On that occasion, he went back to work as a sales assistant on a part time basis because of the increase in severity of his lumbar pain. Essentially, he has had no change in his symptoms since then but on specific questioning, he thinks overall the symptoms are probably becoming slowly more troublesome." 54On 24 May 2011, Dr Kevin Seex, a spinal surgeon, recorded the following summary of the plaintiff's history at Exhibit "A", Tab 8, as follows: "There was a gradual onset of back pain as well as bilateral leg pain since 2006. The symptoms have been getting progressively worse. The back pain is considerably worse than the leg pain. The leg pain radiates to the buttock and posterior thigh on both sides. It does not radiate past the knee. The symptoms are worse with activities such as bending, sitting and standing. There are no claudicant features, weakness or paraesthesia. Following the left L5/S1 microdiscectomy the leg symptoms improved slightly. There is ongoing back pain which is constant." 55The defendant has seized upon the above summaries by Dr Trevitt and Dr Seex as the foundation for its causation argument. It is noteworthy that neither Dr Seex, who was communicating in short form to Mr Bender's general practitioner, nor Dr Trevitt, who was communicating to the worker's compensation insurer, made any acknowledgment of the Expert Witness Code: UCPR Sch 7, which requires, amongst other matters, cogent reasons for the expression of opinions: Sch 7 Cl 5(c). 56Dr Trevitt went on to provide the following opinion at pages 3 and 4 of his report: "Mr Bender presents with left thoracolumbar pain which he dates from a motor vehicle accident on 18 December 1993. It is clearly consistent that he may have had a soft tissue injury at the time of the motor vehicle accident. He does have some developmental wedging of the vertebral bodies in the area and has a very poor posture so that his pre-existing tendency may well predispose him to thoracolumbar degenerative changes. However the symptoms are consistent with the residual discomfort following a soft tissue injury. In my opinion, future deterioration, if it occurs, would be attributable to the natural history of degenerative disease in the thoracolumbar region. Therefore, I consider his current state to be a stable state of maximum medical improvement with respect to the injury on 18 December 1993 and having left him with some mild thoracolumbar discomfort. Given the excellent range of motion and the lack of any suggestion of radiculopathy, I would assess Mr Bender as having 15% permanent impairment in the thoracolumbar region of his back related to the motor vehicle accident. There is no evidence of permanent impairment in the lower limbs which could be related to that accident." 57Significantly, in answer to a question put to him by the insurer, Dr Trevitt considered that Mr Bender's back injury did not relate to a previous injury. He thought that this was not an aggravation case, but one of soft tissue injury to the thoracolumbar spine, consistent with Mr Bender's history. Dr Trevitt commented that Mr Bender's symptoms appeared genuine with respect to the clinical findings: Report of Dr Trevitt, pages 4 - 5. 58In support of its causation argument, the defendant relied upon two letters from Dr Ian Barrett, a consultant orthopaedic surgeon. Dr Barrett has never examined Mr Bender, and was presented with unspecified "papers" for comment on Mr Bender's condition. The first of Dr Barrett's letters was dated 19 June 2012. It responded to a letter of request dated 23 May 2012, which was not in evidence. It made no acknowledgment of the Expert Witness Code. The second of Dr Barrett's letters was dated 14 February 2013, which did acknowledge the Expert Witness Code. 59In his second letter Dr Barrett referred to a letter of request dated 10 January 2013, which was not in evidence. It referred to documents numbered 1 - 5. It addressed a series of 5 questions, which in essence identified Dr Barrett's opinion, on the papers, to the effect that the plaintiff's development of lumbar back pain, and the left posterior paracentral disc protrusion resulting in surgery, had no relationship to the motor vehicle accident in question, opinions to which I shall shortly return. 60In my view there are inherent and fundamental obstacles to the success of the defendant's causation arguments in this case. Those obstacles first, the clear and continuous history from the plaintiff, which I accept, and which has been medically accepted, for example, by Dr Trevitt, that the plaintiff sustained a soft tissue back injury which has been symptomatic since, despite attempted remedial surgery. Secondly, the plaintiff has called evidence that is sufficient to discharge its onus of proof on the causation issue, and the medical analysis advanced on behalf of the defendant is, in my view, of insufficient persuasive weight to compel a finding that causation has not been established on the balance of the probabilities. 61On the plaintiff's evidence alone, the clear history of absence of pre-accident back problems and the advent of continuous back problems since the motor vehicle accident in which he hurt his lower back, compels a prima facie commonsense conclusion that causation has been satisfactorily established: Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538. 62Forst's case has limited application where cogent expert medical evidence has been called on an issue so as to dispute an unaided commonsense analysis. As the defendant has introduced medical evidence, this requires an analysis of such evidence that argues against a finding of causation in the plaintiff's favour. 63In that regard, when properly analysed, for the reasons that follow, I do not regard the various opinions and comments against causation by Dr Trevitt, Dr Seex and Dr Barrett, as being at all persuasive. 64First, the letter from Dr Seex involves a great deal of speculation. His commentary was based on impression, and it was not stated to be a definitive diagnosis. He stated that Mr Bender "may be symptomatic from the retrolisthesis". That statement falls far short of what is required to reach a state of persuasion that there has been a break in the causal chain. Furthermore, Dr Seex has based his commentary on an invalid assumption, namely that Mr Bender's gradual onset of back pain dated from 2006. This is contrary to the evidence given by Mr Bender in these proceedings, and which I have accepted. I find the comments by Dr Seex in his letter dated 24 May 2011, do not constitute an expert opinion in the relevant sense: UCPR r 32, Sch 7 Cl 5(c), and I do not accept it as a valid basis upon which to reach a negative finding on causation, against the weight of the evidence to the contrary view and in favour of a causation finding as sought by the plaintiff. 65Similarly, the report of Dr Trevitt is problematic to the defendant's causation argument. Apart from some historical inaccuracies such as the identification of the hospital Mr Bender was taken to and the time spent there (St Vincents instead of RPAH; 12 hours instead of about 24), Dr Trevitt's report does not have (because it was not required of him at the time) the rigour required by acknowledgment of the Expert Witness Code. For those reasons, diminished weight should be given to his opinions. 66Furthermore, when Dr Trevitt's historical summary is examined, the picture that emerges from pages 1 - 2 of his summary is of Mr Bender having back pain increasing in its intensity, from the time of the accident in 1993, through the changes of employment that followed, to the time of his 2002 experience of back pain on alighting from a vehicle, and continuing until the date of Dr Trevitt's examination in March 2006. In my view, that history is supportive of the plaintiff's causation case, aided by Dr Trevitt linking the plaintiff's problems to the 1993 soft tissue back injury, and not to the causation issue the defendant seeks to make. 67To the extent that Dr Trevitt expresses opinions on the presence of the developmental wedging of vertebral bodies in Mr Bender's lumbar spine, and his reference to a possible pre-existing tendency to develop degenerative changes, that evidence is unpersuasive because it does not deal with Mr Bender's evidence of the absence of symptoms before the accident, and the phenomenon of continuation of symptoms since, and how in those circumstances, Mr Bender's symptoms could be said to be due to a cause other than the subject accident. Dr Trevitt's opinion was fixed as at 2006, and has in any event been overtaken by events, namely Mr Bender's 2007 back surgery for disc protrusion, and other opinions based on that additional clinical information. I therefore do not accept Dr Trevitt's opinion insofar as it seeks to cast doubt upon the causation case the plaintiff seeks to make. 68The final plank in the defendant's causation case is the body of opinions expressed by Dr Barrett. In my view, in the context of the causation debate in these proceedings, the opinions of Dr Barrett should be given little if any weight, for the reasons that follow. 69First, Dr Barrett's first letter, dated 19 June 2012, does not have the required indicia of an expert report. It is in reality merely a limited commentary. Apart from the absence of any acknowledgment of the Expert Witness Code, the summary of the relevant history is incomplete, and does not reflect the plaintiff's evidence concerning the timing of the onset and continuation of his back pain. The reliability of that letter as a basis for contradicting the plaintiff's case on causation is significantly diminished. 70Secondly, the unspecified "papers" Dr Barrett was asked to consider are not completely identified, and therefore, his letter is opaque to analysis for the purpose of determining whether he had the full facts before him when prefacing his commentary. 71Thirdly, insofar as Dr Barrett seeks to analyse the summarised history recorded by Dr Trevitt, which has already been noted to contain some factual misstatements, this is not a valid forensic pathway given the inherent difficulties involved in such an exercise: Mason v Demasi [2009] NSWCA 227. 72Fourthly, Dr Barrett relies upon the opinion or report of Dr Shatwell, a report that was not tendered in these proceedings. Procedural fairness requires that a commentary framed in that way be given diminished weight. 73Fifthly, Dr Barrett's first letter was written "on the basis of the information available". As that information has not been satisfactorily identified, I consider that no reliance should be placed on his opinions that purport to express views on the causation issue. 74Sixthly, Dr Barrett's opinion to the effect that Mr Bender's disabilities relate to the 2002, and possibly later incidents, rather than the 1993 accident, involves speculation on an important matter of fact, where Mr Bender's evidence of continuity of back problems since the accident is not improbable, and Dr Barrett has never met or examined Mr Bender, or had the opportunity of exploring and clarifying that important piece of history. This leads me to the view that Dr Barrett's cited opinion should be discounted in favour of acceptance of the cogent causation evidence relied upon by the plaintiff. 75Seventhly, Dr Barrett's commentary letter dated 14 February 2013 suffers from similar problems of opacity to analysis because the additional material the defendant supplied to Dr Barrett for his comment has not been identified with sufficient certainty. Furthermore, Dr Barrett's stated acknowledgment of the Expert Witness Code in this last report is not curative of the earlier omission to do so. Dr Barrett's diagnostic statement at page 3 of his supplementary letter to the effect that Mr Bender did not notice low back and low limb pain until some four years after the accident is contrary to the evidence given by Mr Bender, which I have accepted. That inconsistency compels me to the view that Dr Barrett's opinions cannot be relied upon in this case to deny the causation case which the plaintiff seeks to make, and which I am satisfied has been made out. 76It is difficult to see how, in the light of the acknowledged mechanism of soft tissue back injury in 1993, that it could be reasonably said that Mr Bender spontaneously developed back pain five years later, and again in 2002, unrelated to the 1993 accident, without a reasoned discussion on how such an opinion could apply. Given the absence of persuasive supporting reasons, I do not accept Dr Barrett's opinions that have been tendered by the defendant in this case. Similarly, I do not accept as fact, as has been assumed by Dr Barrett, that there has been a significant temporal delay between the motor vehicle accident in 1993 and the onset of the relevant pains as related by Mr Bender in his evidence. 77The above analysis leads me to the conclusion that but for the injury Mr Bender received in the accident that occurred on 18 December 1993, he would not have incurred a back injury, and the resultant related disabilities which have continued to adversely affect him since that accident, and which he has described in his evidence, and which is addressed in the medical reports tendered on behalf of the plaintiff in these proceedings, and which I have accepted: s 5D of the CL Act. 78I now turn to the identification of the notional pool of damages that would have probably been awarded to Mr Bender if he had brought his own proceedings, in order to determine whether the plaintiff can succeed in the present claim.
Issue 5 - Assessment of notional damages pool 79In the paragraphs that follow, I set out my assessment of the pool of likely damages Mr Bender would have received if he had brought his own proceedings against the defendant. The parties were at issue regarding the pool amount of damages that Mr Bender would have received if he had brought his own proceedings to claim damages for his injuries. 80In the tabulation that follows, and for the reasons which follow that tabulation, I set out the effect of the submissions of the parties concerning Mr Bender's likely damages, and my findings concerning the issues raised by those submissions. Where a range was submitted, for convenience, the upper end of the submitted range has been incorporated into the tabulation. In the course of the hearing, a number of agreements were reached concerning some of the elements required to assess special damages: Exhibit "J". These have also been incorporated into the tabulation. Head of damage Plaintiff's submissions Defendant's submissions Findings
81The reasoning for my assessment of the likely damages pool follows.
Non -economic loss 82On behalf of the plaintiff, it was submitted that damages for non-economic loss should be assessed at 40 per cent of the maximum amount provided at the relevant time by s 79 of the MA Act, namely $184,800. In contrast, on behalf of the defendant, it was submitted that such damages should be assessed at 20 per cent, which was the equivalent of $55,400. 83In my view, the amount submitted by the defendant for damages for non-economic loss is manifestly inadequate having regard to the injuries and disabilities suffered by Mr Bender, as earlier outlined in these reasons. I consider that the amount submitted on behalf of the plaintiff, is within the upper middle range for such damages, and is an appropriate sum to be awarded for non-economic loss. 84That amount should therefore be included in the assessed pool of damages, and it has been included in the tabulation at paragraph [80] above.
Past economic loss 85On behalf of the plaintiff, it was submitted that damages for past economic loss should be assessed at $251,570. In contrast, on behalf of the defendant, it was submitted that such damages should be assessed at $111,870. 86The calculation of past economic loss advanced by the plaintiff proceeded upon the basis of a differential calculation which demonstrates the difference between the actual post accident earnings derived by Mr Bender and the projected earnings had he remained in the same or similar full time employment to his pre-injury position. That differential calculation was identified during argument to amount to $251,570: MFI "2". The details of the calculation was as follows: (a) Absence from work for a period of 2 weeks following injury on 18.12.1993 870 (Allow 2 weeks at $435 net per week) (b) 1995 / 1996 10,400 (Allow 1 year at $200 net per week while Mr Bender was employed by Cash Converters) (c) 20.9.2002 - 11.9.2003 25,500 (51 weeks unemployed at $500 net per week) (d) 12.9.2003 - 30.4.2007 56,400 (188 weeks at $300 net per week when Mr Bender was employed by Beacon Lighting) (e) 1.5.2007 - to date 158,400 (unemployed - allow 264 weeks at an average of $600 net per week)
87The calculations for the above periods broadly correspond with the earlier identified mitigatory earnings derived by Mr Bender in periods set out in paragraph [31] above. I accept the plaintiff's submission that the estimates in the above calculations represent conservative assumptions and calculations, and I consider them to be reasonable, in contrast to the sum submitted by the defendant for $111,870, which in my view, is arbitrarily calculated, and is without reasonable foundation. 88The amount of $251,570 should therefore be included in the assessed pool of damages, and it has been included in the tabulation at paragraph [80] above.
Fox v Wood 89The parties were agreed that Fox v Wood damages, being reimbursable tax paid on weekly workers compensation payments, should be assessed in the amount of $12,500. That amount should therefore be included in the assessed pool of damages, and it has been included in the tabulation at paragraph [80] above.
Future economic loss 90On behalf of the plaintiff, it was submitted that damages for future economic loss should be assessed at $371,875. In contrast, on behalf of the defendant, it was submitted that such damages should be assessed at $60,000. 91The defendant's submitted calculation seems to be based on the notion that an arbitrary buffer sum would be the appropriate method by which to notionally compensate Mr Bender for what is a very considerable and continuing future loss of earning capacity in this instance. The defendant's submission proceeded upon the assumption that Mr Bender's back disability was not caused by the subject accident, an assumption that I have not accepted in my reasons for finding for the plaintiff in respect of Issue 4 above. 92I consider that the approach submitted on behalf of the plaintiff is the appropriate method for valuing Mr Bender's notional future economic loss in this instance. That approach is conventional, and is justified by the identifiable differential earnings due to the back disability, and takes into account the permanency of that loss over the remainder of Mr Bender's working life. 93The projection of $700 per week net, in itself a reasonable sum, at 5 per cent over 18 years to age 67 years (x 625), and discounted for potentially adverse vicissitudes by 15 per cent, yields the amount of $371,875. I consider that sum to be reasonable and appropriate, particularly in view of the unchallenged evidence of Dr Conrad to the effect that Mr Bender is likely to suffer a total loss of earning capacity in the terminal 5 years of his working life due to his back injury. 94The amount of $371,875 should therefore be included in the assessed pool of damages, and it has been included in the tabulation at paragraph [80] above.
Past loss of superannuation 95In accordance with convention, using the well-settled actuarial formula, damages for loss of past superannuation benefits should be assessed at 11 per cent of $251,570, being the amount assessed for past economic loss, yielding an amount of $27,672. That amount should therefore be included in the assessed pool of damages, and it has been included in the tabulation at paragraph [80] above.
Future loss of superannuation 96In accordance with convention, using the agreed actuarial formula, damages for loss of future superannuation benefits should be assessed at 13.77 per cent of $371,875, being the amount assessed for future economic loss, yielding an amount of $51,207. That amount does not require discount as the basal sum has already been discounted. That amount should therefore be included in the assessed pool of damages, and it has been included in the tabulation at paragraph [80] above.
Past unpaid domestic assistance 97On behalf of the plaintiff, it was submitted that damages for past gratuitously provided domestic assistance should be assessed at $82,368. In contrast, on behalf of the defendant, it was submitted that no such assessment should be made as it was contended that the services provided did not meet the statutory threshold for monetary assessment. 98The calculation submitted on behalf of the plaintiff was based on the provision of 4 hours domestic assistance at an average rate of $20 per hour over the 18 years since the subject accident. The effect of the now repealed s 72 of the MA Act is that only the hours in excess of 6 hours per week are claimable as past domestic assistance. The tabulation in the Appendix calculates the value of 4 hours of such assistance at the variable statutory rate over the period of time claimed by the plaintiff. In my view, that calculation should be allowed as Mr Bender as received such serves as a result of his injury. Accordingly, the sum of $70,313 should be allowed and added to the assessed pool of damages in the tabulation at paragraph [80] above.
Past paid domestic assistance 99On behalf of the plaintiff, it was submitted that damages for past paid domestic assistance should be assessed at $18,200. In contrast, on behalf of the defendant, it was submitted that no such assessment should be made as it was contended that the services provided did not meet the statutory threshold for monetary assessment. 100The evidence discloses that over the past 10 years, Mr Bender has paid $35 per week for domestic assistance for gardening and lawnmowing services. I consider that this amount should be allowed as a form of out-of-pocket expense to which the threshold identified in s 72 of the MA Act does not apply. Accordingly, I do not accept the defendant's threshold based argument to the contrary. The calculation submitted by the plaintiff for $35 over 10 years is $18,200. I consider that amount should be discounted to allow for seasonal variations in the pattern of lawnmowing. I propose rounding that amount down to $14,000. 101That amount should therefore be included in the assessed pool of damages, and it has been included in the tabulation at paragraph [80] above.
Future paid domestic assistance 102On behalf of the plaintiff, it was submitted that damages for future paid domestic assistance should be assessed in the range $77,862 to $136,259. In contrast, on behalf of the defendant, it was submitted that no such assessment should be made as it was contended that the services provided did not meet the statutory threshold for monetary assessment, arguing that authority precludes such an award: Miller v Galderisi [2009] NSWCA 353. 103On the evidence adduced in this case, Mr Bender's wife, who works full time, and who travels long distances and over long periods of time away from her home to get to and from her work, is unlikely to be in a position to continue to provide domestic assistance to Mr Bender. I therefore consider that the plaintiff's claim in this case is distinguishable from the circumstances discussed in Miller v Galderisi. 104The claim for future domestic assistance at the commercial rate of $38.50 per hour for 4 hours per week, namely $154 per week, projected over the claimed 36 years (x 884.8), yields the amount of $136,259. I do not propose to discount that amount because Mr Bender's back condition has been deteriorating, and it is therefore possible that he will require a greater level of care. This is an adverse vicissitude that operates against the defendant. 105Accordingly, the amount of $136,259 should therefore be included in the assessed pool of damages, and it has been included in the tabulation at paragraph [80] above.
Future out-of-pocket expenses 106On behalf of the plaintiff, it was submitted that damages for future out-of-pocket expenses should be assessed at $25,520. In contrast, on behalf of the defendant, it was submitted that such damages should be assessed at $5000. 107In my view, the amount submitted on behalf of the defendant is arbitrary, and it seems disproportionate to the seriousness and extent of Mr Bender's back disability. In contrast, the claim made on behalf of the plaintiff, which is the equivalent of $28.84 per week, which is to cover general and specialist medical consultations, paramedical therapies and medications, seems reasonable and I consider that sum should be allowed, noting that the plaintiff does not seek the projection over the statistical median life expectancy. 108The projection of $28.84 over 36 years at 5 per cent (x 884.8) yields an amount of $25,517. As with future domestic assistance, I do not propose to discount this sum, for similar reasons. Accordingly, that amount should therefore be included in the assessed pool of damages, and it has been included in the tabulation at paragraph [80] above.
Past out-of-pocket expenses 109The parties have agreed that the total medical and treatment expenses incurred in the treatment and management of Mr Bender's injuries resulting from the subject accident amount to a total of $17,645. That amount should be included in the assessed pool of damages, and it has been included in the tabulation at paragraph [80] above.
Issue 6 - Application of s 151Z 110On behalf of the plaintiff, it was submitted that if the notional pool of Mr Bender's damages is assessed at an amount greater than the payments made by the insurer and which are the subject of this claim, then the plaintiff should succeed for the amount claimed, plus claimed interest: T95.50. 111The assessment identified at paragraph [80] and in the course of the reasons in connection with the determination of Issue 5 indicates that the plaintiff's submission should be accepted. I find that the plaintiff has satisfied the threshold requirements of s 151Z to enable a verdict and judgment in its favour, as claimed.
Disposition 112The plaintiff has succeeded in establishing its entitlement to damages and interest to the date of judgment as claimed, in the total amount of $257,279.34, and it should receive a verdict and judgment for that amount.
Costs 113As the plaintiff has succeeded in its claim, it is entitled to an order that the defendant pay its costs of the proceedings on the ordinary basis, unless some other entitlement can be shown.
Orders 114I make the following orders: (1)Verdict and judgment for the plaintiff in the amount of $257,279.34, including pre-judgment interest in the sum of $51,271.84; (2)The defendant is to pay the plaintiff's costs of the proceedings on the ordinary basis unless otherwise ordered; (3)The exhibits may be returned; (4)Liberty to apply on 7 days notice if further orders are required. APPENDIX CALCULATION OF VALUE OF PAST GRATUITOUS DOMESTIC ASSISTANCE / CARE ACCORDING TO THE MOTOR ACCIDENTS ACT 1988, s 72 (7 hours per week between 1 April 1996 and 12 April 2013) PERIOD WEEKS WEEKLY HOURLY AMOUNT FOR s.72 RATE s.72 RATE 7 HOURS PER WEEK
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