Thomas v Bass [2006] WASCA 59

Torts - Negligence - Causation - Admission of new evidence - Assessment of damages for non-pecuniary loss under Motor Vehicle (Third Party Insurance) Act - Assessment of damages for future economic loss at general law - Once and for all rule

Motor Accidents Act 1988 (NSW), s 79

Motor Vehicle (Third Party Insurance) Act 1943 (WA), s 3C

Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167

Doherty v Liverpool District Hospital (1991) 22 NSWLR 284

Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638

Mulholland v Mitchell [1971] AC 666

Southgate v Waterford (1990) 21 NSWLR 427

Wylde v 'Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997

Knight v Anderson (1997) 17 WAR 85

March v E & M H Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506

Medlin v The State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1

Morris v Zanki (1997) 18 WAR 260

Paul v Rendell (1981) 55 ALJR 371

Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118

Tubemakers of Australia Ltd v Fernandez (1976) 10 ALR 303

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

1 MURRAY J: In this matter I have had the advantage of reading in draft the reasons for judgment of Le Miere J. I respectfully agree with his Honour's approach and I am content with the final orders proposed. There is little that I would add.

2 I think I should record my agreement that the fresh evidence tendered should, as both parties proposed, be admitted. I would take that course essentially for the reasons given by Le Miere J, to which I have nothing to add.

3 Having done that, I would deal first with the cross-appeal, which I agree should be dismissed. It is abundantly clear that the trial Judge found that the symptoms of which the appellant complained at the trial and which were projected into the future were causally related to the motor vehicle accident. On the evidence before his Honour, which has been sufficiently discussed by Le Miere J, that finding was clearly open. Nothing on the new evidence admitted on the appeal, which has also been discussed so far as necessary by Le Miere J, precludes such a finding or dictates that the trial Judge should have been unpersuaded that the appellant had established, on the balance of probabilities, that the respondent's negligence in causing the motor vehicle accident had resulted in the harm in respect of which the appellant sued for damages.

4 Indeed, it seems to me that the evidence adequately supported the conclusion that the motor vehicle accident disrupted the appellant's recovery from the underlying symptomatic pathology for which she had then had treatment. That necessitated, as a reasonable response by the appellant's medical advisers, attempts to alleviate her condition by undertaking further medical and surgical procedures. I agree that the medical interventions and her treatment thereafter could hardly be described as conservative. It may be that the proper conclusion is that the course of treatment contributed to the exostosis, or bony overgrowth, in the shoulder joint which, of itself, worsened her condition and ultimately required excision. But the point is, I think, that there is no evidence that the medical and surgical procedures were other than reasonable responses by expert clinicians to the medical problem presented by the appellant's condition. In those circumstances, the chain of causation initially flowing from the traumatic event of the motor vehicle accident was not broken.

5 As to the assessment of damages itself, and particularly the award for non-pecuniary loss, within the meaning of s 3C of the Motor Vehicle (Third Party Insurance) Act 1943, again, I have little to add to the judgment of Le Miere J. In my opinion, the trial Judge did not apparently

overlook any relevant matters affecting this aspect of his Honour's assessment, but I agree that, having regard to those matters, an award based on an assessment of 8 per cent of "a most extreme case" is manifestly inadequate. I would have regard to the matters discussed by Le Miere J, and would concur in his Honour's view, that a more appropriate assessment would be one based upon 20 per cent of a most extreme case.

6 As to the future economic loss, again I agree with the conclusion of Le Miere J. In my opinion, it must be remembered that by the time the assessment came to be made, the appellant had, for a considerable period been re-established in her employment. She was coping, albeit with some difficulty. Admittedly, her employment circumstances were supportive because, to the extent that she was not able to perform the full range of her duties, she was assisted by the teacher whose aide she was.

7 As to the future then, the question was whether there was any real likelihood that she would not be able to continue in that employment as she had planned, with the result that she would not so readily be able to obtain similar employment, or with the result that she might be forced to retire earlier than she had planned. These were matters only susceptible to a global assessment, and the provision of a lump sum to be awarded now to take account of the chance that in future she would suffer loss of her employment in the way that I have mentioned. The uncertainty was considerable, and I find myself unable to say that the judgment of the trial Judge in this regard is unsupportable as a sound exercise of discretion.

8 It follows that I, too, would allow the appeal and substitute for the award of $30,200, judgment for the appellant in the sum of $70,500.

9 EM HEENAN J: I have read, in draft, the reasons to be published by Le Miere J. I agree with those reasons and have nothing further to add.

10 LE MIERE J: In 1996 the appellant experienced pain in her right shoulder and it was catching when, for example, she lifted her arm up above head height. She is unable to identify any event which precipitated those problems. During 1996 and 1997 she had a number of injections into the shoulder but none of these were of any assistance. On 4 June 1997 Mr Wright, an orthopaedic surgeon, performed an acromioplasty on the appellant's right shoulder. Mr Wright found that there was impingement of the rotator cuff, that is, the structure around the shoulder joint capsule composed of muscle and tendon fibres. Mr Wright shaved the underside of the acromion, that is the prominence or highest point of

the shoulder blade, to increase the space between it and the tendons beneath so as to allow more room for the tendons to move.

11 After the acromioplasty the appellant was relieved of the catching in her shoulder and the trial Judge found she was progressing well. The appellant returned to work in August 1997. When Mr Wright saw the appellant on 7 August 1997, the week after she had resumed work, Mr Wright noted that the appellant's shoulder had improved considerably since the acromioplasty.

12 On 12 October 1997 the appellant was involved in a motor vehicle accident. She was seated in her stationary car with her seatbelt on waiting to turn right from Safety Bay Road into her driveway. A vehicle driven by the defendant ran into the back of the appellant's vehicle. The force of the collision caused the appellant's vehicle to cross to the other side of the road and mount the kerb. The appellant was flung forward and backwards and her seat was broken.

13 The appellant experienced pain in her shoulder and back. She continues to suffer pain and restricted use of her right shoulder and difficulties in carrying out her employment as well as restrictions upon other activities.

14 The appellant commenced proceedings in the District Court claiming damages for personal injury arising out of the motor vehicle accident. The defendant admitted that the accident was caused by his negligence and the action proceeded to an assessment of damages. The learned trial Judge stated that the plaintiff's claim was that she had injured her right shoulder as a result of the accident and the respondent's case was that the right shoulder problems were a result of a pre-existing condition and that the motor vehicle accident caused no more than a temporary exacerbation.

15 The appellant consulted Mr Wright on 23 October 1997, that is 11 days after the motor vehicle accident. Mr Wright found that the appellant had relapsed significantly and was almost as bad as she had been before the acromioplasty on her right shoulder. Over the next few months the appellant attended upon a number of medical practitioners and received treatment including an arthrogram with hydrodilation, that is a process involving the injection of a quantity of saline into the shoulder to stretch the capsule of the joint; physiotherapy; manipulation under general anaesthetic; and laser acupuncture.

16 On 27 February 1998 Dr Kennedy, a medical practitioner specialising in musculoskeletal medicine, performed arthroscopic surgery on the appellant's right shoulder joint. Dr Kennedy performed a bursectomy and revised the previous acromioplasty to widen the space further to allow the smooth passage of the rotator cuff tendon in the subacromial space.

17 Following that procedure the appellant continued to be treated by Dr Kennedy. On 8 December 1998 the appellant attended on Mr Alexeeff, an orthopaedic surgeon, and subsequently upon other medical practitioners and underwent further investigations and treatment.

18 On 1 April 1999 Mr Alexeeff performed an arthroscopy on the appellant's right shoulder during which a remnant osteophyte at the subacromial space and an inferior clavicular osteophyte were shaved. Following the arthroscopic surgery the appellant underwent further treatment including physiotherapy, hydrotherapy, a ganglion block, a suprascapular block and manipulation under general anaesthetic.

19 On 5 August 1999 Mr Alexeeff performed open surgery on the appellant's shoulder. Mr Alexeeff excised the lateral 1 cm of distal clavicle. Following that surgery the appellant continued to undergo physiotherapy and her shoulder improved considerably. However, the improvement did not continue and the appellant's condition became progressively worse.

21 The trial Judge accepted the plaintiff as a truthful witness. The trial Judge noted that the respondent's case was not that the appellant was wilfully dishonest but rather that as a matter of assessment of the medical evidence she had not proved her disability was occasioned by the motor vehicle accident. Essentially, the trial Judge accepted that the plaintiff suffered from the symptoms, disability and pain of which she gave evidence and had to determine the extent to which her disability was caused by the motor vehicle accident.

22 The trial Judge referred to the appellant's evidence and that of the medical practitioners who gave evidence. The trial Judge referred to the acromioplasty performed by Mr Wright on 4 June 1997 and observed that post-operatively the appellant was relieved of the catching in her shoulder and seemed to have progressed well. She returned to work in August 1997. His Honour noted that on 11 August 1997, that is two months before the motor vehicle accident, Mr Wright observed that whilst the appellant's shoulder had gone backwards a bit since she had resumed work the previous week, the appellant said that it was nowhere near as bad as it was before the operation.

23 The trial Judge found that the appellant deteriorated following the accident and became progressively worse.

24 As I have said, Mr Alexeeff performed open surgery on the appellant's right shoulder on 5 August 1999 at which time he excised 1 cm from the end of the clavicle. On 18 August 1999 Mr Alexeeff reported considerable improvement with good active motion. By 28 October 1999 Mr Alexeeff reported a 100 per cent improvement with respect to active motion of the right shoulder. On 13 January 2000 the appellant had improved sufficiently to be fit to return to work with the only limitations being a restriction to overhead activity and heavy lifting. However, the trial Judge found that the improvements did not continue. By the middle of 2000 the benefits of Mr Alexeeff's surgery had disappeared. The appellant became progressively worse.

25 The learned trial Judge stated that Mr Alexeeff said the appellant's problems were in the acromioclavicular joint. Mr Alexeeff says these are problems not associated with the motor vehicle accident and accordingly although the accident would have caused a recurrence of symptoms those symptoms would most likely have reappeared anyway because of the underlying pathology.

26 Professor Skirving, an orthopaedic surgeon who first saw the appellant in October 2001, did not agree with Mr Alexeeff that the appellant's problems were with the acromioclavicular joint. Professor Skirving said that if that had been the problem he would have expected the appellant's symptoms to continue after the acromioplasty in June 1997. He said the claim that it was a problem with the acromioclavicular joint ignores the chronology of the apparent improvement from time to time. The learned trial Judge said that Professor Skirving acknowledged he could not precisely identify what was injured in the motor vehicle accident. He was also unable to precisely state the pathology giving rise to the appellant's present problems. Professor Skirving said that the appellant probably had some degree of capsulitis, that is the inflammation of a capsule that restricts motion in the shoulder.

27 The learned trial Judge observed that Mr Alexeeff had on two occasions performed surgical procedures on the appellant and hence his knowledge of her shoulder workings was firsthand. His Honour stated that for that reason he would prefer the opinion of Mr Alexeeff to that of Professor Skirving but if Mr Alexeeff was correct then his surgery in August 1999 would have fixed the problem. It only did so for a temporary period and by July 2000 the pain had returned. The appellant said she had become progressively worse since that time. His Honour concluded that that cast doubt on Mr Alexeeff's diagnosis.

28 The learned trial Judge then referred to Professor Skirving's suggestion that the chronology of events is a useful tool where diagnosis is not certain. His Honour summarised that chronology in this way. In 1996 the appellant had a painful shoulder which was obviously quite severe. After the original surgery in June 1997 she seemed well on the road to recovery despite a small setback when she returned to work. The appellant had the motor vehicle accident in October 1997 which put her back where she started from. Despite extensive treatment nothing seems to have done any good until in August 1999 a further area of impingement was located. Surgery had a significant effect but a year later the appellant was back to where she had began. His Honour then concluded that logically it was open to find the appellant's pain was occasioned by the accident because the surgery to correct the two identified problems was successful. His Honour concluded that that was the proper approach. That is, the learned trial Judge found that the appellant's pain was occasioned by the motor vehicle accident.

Motor Vehicle (Third Party Insurance) Act

29 Before further outlining the reasons for decision of the learned trial Judge it is necessary to say something about s 3C of the Motor Vehicle (Third Party Insurance) Act 1943 ("the Insurance Act"). Section 3C of the Insurance Act imposes restrictions on damages for non-pecuniary loss (including pain and suffering and loss of amenities or enjoyment of life). Section 3C provides a statutory maximum amount of damages that may be awarded, a statutory minimum amount below which no damages can be awarded and a statutory formula for circumstances where the amount of damages is more than the minimum and less than the maximum. The maximum amount may be awarded only in a most extreme case. Subsection 3C(2) provides that the amount of damages to be awarded for non-pecuniary loss is to be a proportion, determined according to the severity of the non-pecuniary loss, of the maximum amount that may be awarded.

30 The proper approach to the interpretation of the relevant statutory provisions is that determined with respect to s 79 of the Motor Accidents Act 1988 (NSW) on the basis that it was intended that Western Australian courts should interpret phrases used in the provisions of s 3A - s 3D of the Insurance Act by reference to existing New South Wales case law. In Wylde v 'Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997 at 3 - 4 and 6 - 8, reference was made to Southgate v Waterford (1990) 21 NSWLR 427 at 440:

"There are a number of ways by which trial judges could approach the task of apportionment required by s79(2) and s79(3). It is inappropriate in this case for this Court to mandate any particular way of arriving at the 'proportion' required by s79(2). But clearly, because the task in hand is that of awarding damages for 'non-economic loss', it is appropriate for the trial judge to consider and make findings on those elements in the evidence which are relevant to such loss. This will require the judge to consider and make findings on the evidence relevant to those heads of damage formerly considered in the award of general damages. Then it is necessary for the judge to conceive 'a most extreme case'. Only for such a case may the maximum amount provided by s79(3) be awarded. The use of the indefinite article 'a' has already been noted. Opinions of what constitute 'a most extreme case' will doubtless vary. But clearly quadriplegia would fall into that class. The amount to be awarded must then be apportioned somewhere between nil and [the maximum amount]; but in a ratio which the judge fixes keeping in mind the fact that the cap of a statutory maximum is retained for a 'most extreme case'."

"It is likely that, over time, experience will develop in assigning cases on the scale, just as earlier it did in the apportionment required for contributory negligence. But each case will necessarily depend upon its own facts. At least in the first instance, the determination of the 'proportion' is committed by law to the trial judge. He or she has the outside parameters which are fixed by the legislation. The task of determining the 'proportion' which follows may not be scientific or normative; but it is not wholly at large. A wide measure of discretion has always existed in fixing damages for non-economic loss. All that this legislation does is to require that the damages under this head be fixed in harmony with the fact that Parliament has determined that a maximum will be laid down, varied from time to time and reserved for 'a most extreme case'."

32 The learned trial Judge determined the severity of the appellant's non-pecuniary loss to be 8 per cent of the maximum amount that may be awarded. The maximum amount at the relevant time was $240,000. Eight per cent is $19,200. Subsection 3C(5) requires the amount of non-pecuniary loss to be assessed by deducting the amount of $12,000 from the assessed amount of non-pecuniary loss. Accordingly, his Honour allowed the amount of $7,200 for non-pecuniary loss.

33 Past loss of earning capacity had been agreed at $3,000. The learned trial Judge then went on to consider future economic loss. His Honour noted that the appellant was, with some difficulty, coping with her employment as an education assistant. His Honour said that the appellant will not necessarily suffer any loss in the future. His Honour found that there probably will be some but the extent was uncertain. The appellant's net income for the year ended 30 June 2002 was about $20,000. His Honour concluded that "a reasonable allowance for future loss of earning capacity is one year's net income and I would therefore allow $20,000". His Honour awarded the appellant total damages of $30,200.

34 The appellant appeals from the trial Judge's assessment of damages on two grounds. The first ground is that the learned trial Judge erred in law in awarding the appellant damages for non-pecuniary loss at 8 per cent of a most extreme case (ie $7,200) such award being sufficiently below the range of a sound discretionary judgment and so low as to amount to an erroneous estimate of the entitlement of the appellant to damages for non-pecuniary loss. The appellant particularises factual findings of the trial Judge which called for a far greater award and factors which did not appear to have been fully considered by the learned trial Judge which call for a far greater assessment. The second ground is that the learned trial Judge erred in fact and in law in awarding the appellant the sum of $20,000 for future loss of earning capacity, such award being too low given:

(b) the difficulties faced by her in her employment as a teacher's aide in a kindergarten given the physical nature of that employment (the appellant being found by the learned trial Judge to be a truthful witness); and

(c) the probability that the appellant will be unable to continue in that employment in the future.

35 The respondent cross-appealed on the following seven grounds, omitting particulars:

"1. His Honour erred in fact in finding that the pain suffered by the appellant (plaintiff) was occasioned by the accident.

2. By reason of (1) hereof the award of 8 per cent of a most extreme case is:

(i) against the weight of the evidence; and

(ii) contrary to his Honour's own findings.

3. Alternatively, his Honour has substituted his own findings for those of the medical witness whose evidence he accepts.

4. His Honour's award of economic losses into the future was:

a against the weight of the evidence; or

b excessive in the circumstances.

5. Alternatively, by reason of matters pleaded in Grounds 1 and 2 hereof, any loss of time in the future would not causally related to the motor vehicle accident [sic].

6. His Honour should have found that:

a. there was no identifiable pathology to explain the appellant's (plaintiff's) symptoms.

b. the role of the motor vehicle accident was only to create a short term aggravation of the underlying pathology; or alternatively

c. was such as only to delay her recovery from the underlying pathology;

d. there is no causal link between the symptoms complained of by the plaintiff and the motor vehicle accident.

7. The appellant (plaintiff) had failed to establish that the plaintiff had proved her case."

36 On 21 May 2004, that is 13 days before the hearing of the appeal, the appellant filed a notice of motion seeking leave to adduce fresh evidence at the hearing of the appeal. The fresh evidence was described as being that contained in the reports of Mr Peter Campbell, orthopaedic surgeon, dated 2 April and 7 May 2004, and annexed to the affidavit of the appellant sworn 21 May 2004. In her affidavit the appellant deposed that since the trial she had consulted Mr Campbell. In his report of 7 May 2004 Mr Campbell said that an MRI of the appellant's shoulder undertaken some time between 2 April and 7 May 2004 showed that a distal end of the clavicle was still abutting her acromion. Mr Campbell said that there was a small defect anteriorly but the bulk of the joint dorsally was still intact. Mr Campbell noted that this was despite the fact of a history of having at least two arthroscopic excisions and one open excision of the distal end of the clavicle and stated: "I do not know what has been performed in the past but the MRI clearly shows that the distal end of the clavicle has not been removed. This is not the appearance of new bone formation either". Mr Campbell also observed that the MRI showed a new bony exostosis, that is the piling up of bone at a site of injury or surgery, either related to previous surgery or trauma.

37 The appeal first came on for hearing on 3 June 2004. On that occasion the appeal was adjourned for the purpose of allowing the parties to put on any further evidence they wished in support of or opposition to the motion to adduce fresh evidence.

38 Unfortunately the further hearing of the appeal did not proceed until 8 November 2005 because of the time taken by the parties to obtain further medical evidence. At the resumed hearing of the appeal and with the consent of the respondent the appellant put before the court a supplementary appeal book containing, amongst other things, further medical reports from Mr Campbell, Professor Skirving and Mr Alexeeff, as well as Mr Campbell's reports of 2 April and 7 May 2004. The appellant sought leave to admit all of these materials as evidence in the appeal. The respondent consented to that motion.

39 In his report of 30 June 2004 Mr Campbell reported that on that date he had carried out an arthroscopic assessment of the appellant's shoulder and performed a 1.5 cm excision of the distal end of the clavicle. Professor Skirving provided a report of 12 October 2004. After having considered the further MRI scan caused by Mr Campbell to be performed on 30 April 2004 Professor Skirving opined that the end of the clavicle would have become moulded and remodelled and that the gap between the excised distal end of the clavicle and the acromion has, over the process of years, narrowed giving the appearance that perhaps the distal end of the clavicle was not excised. Professor Skirving is of the opinion that the heterotopic new bone or as it has been termed exostosis is the result of the appellant's previous multiple surgical procedures. In his further report of 23 November 2004 Professor Skirving accepted that Mr Alexeeff had excised the distal end of the clavicle in August 1999 and opined that over the intervening years there has been some narrowing of that apparent gap giving an illusion that the distal end of the clavicle was not excised. Professor Skirving repeated his opinion that there was a bone exostosis which is likely to be the result of the surgical procedure performed. Professor Skirving concluded that the gradual narrowing of the acromioclavicular joint over the intervening years, as well as the exostosis indenting the supraspinous muscle may well be a cause of the appellant's recurrent symptoms. Professor Skirving concluded by stating his hope that Dr Campbell's removal of the exostosis and excision of a further 1.5 cms of the distal end of the clavicle will solve the appellant's shoulder problem.

40 Mr Alexeeff provided a report of 21 April 2005 in relation to the developments that had occurred since trial and in particular the further investigations carried out by Mr Campbell. Mr Alexeeff agreed that the exostosis arising from the anterior inferior aspect of the distal clavicle is a post-surgical change. Mr Alexeeff stated that the appellant had pre-existing shoulder problems and the motor vehicle accident may well have caused a temporary increase in her symptomatology but it did not cause any new pathology. Mr Alexeeff said that it did not create the need for further surgery. Mr Alexeeff then said that it is possible that the pain from which the appellant suffered subsequently and about which she was complaining at the trial was caused by the exostosis which is likely to be a post-surgical change, part of the process of heterotopic ossification and unrelated to the motor vehicle accident. Mr Alexeeff opined that the subsequent regrowth of bone was likely to be related to an aberrant response to the multiple surgical procedures. Mr Alexeeff concluded that there was a distinct possibility that further and recurrent heterotopic ossification may occur despite the recent surgical procedure by Mr Campbell which would again reproduce her symptoms.

41 It is clear that Mr Alexeeff excised about 1 cm of distal clavicle on 5 August 1999. Neither party submits otherwise. At the resumed hearing of the appeal on 8 November 2005 counsel for the appellant submitted that the upshot of all of the further evidence, that is the reports of Mr Campbell, Mr Alexeeff and Professor Skirving, is that after Mr Alexeeff excised about 1 cm of the distal clavicle in August 1999 there has been a regrowth of heterotopic new bone or exostosis and that is the result of the appellant's previous multiple surgical procedures and the cause of her symptoms.

42 The Court has discretionary power to receive further evidence as to matters occurring after the date of the decision from which the appeal is brought and there is no need to show special grounds. Where, as here, the parties both submit that the fresh evidence should be received, the court will be inclined to do so unless there is good reason not to. In exercising the discretion, the court has regard to the general undesirability of admitting further evidence.

43 In a personal injuries action a successful plaintiff is awarded a lump sum which is fixed once and for all. As a general rule, once that sum is fixed, it is not revised upwards or downwards in the light of subsequent developments. So much of what is involved in medical evidence as to the condition of an injured plaintiff consists of uncertain prognostication that it is likely to be the rule, rather than the exception, that some events occur after a trial which, if they had occurred before the trial and had been known to the court, would have altered the assessment of damages.

44 In Mulholland v Mitchell [1971] AC 666, 679 - 680, cited with approval by Gleeson CJ in Doherty v Liverpool District Hospital (1991) 22 NSWLR 284 at 295, Lord Wilberforce said that the admission of fresh evidence by the court of appeal is a matter of discretion and degree. His Lordship added:

"Negatively, fresh evidence ought not to be admitted when it bears upon matters falling within the field or area of uncertainty, in which the trial judge's estimate has previously been made. Positively, it may be admitted if some basic assumptions, common to both sides, have clearly been falsified by subsequent events, particularly if this has happened by the act of the defendant. Positively, too, it may be expected that courts will allow fresh evidence when to refuse it would affront common sense, or a sense of justice."

45 As a general rule evidence of events which occur following the trial which amount to the realisation of a specific contingency will not be admitted in an appeal from a lump sum based upon the facts known at the date of the trial where the fresh evidence is of events which occurred following the trial and was the realisation of a specific contingency which the court allowed for or made a discount for: see Doherty v Liverpool District Hospital (supra). However, the appellant does not seek to lead the fresh evidence for that purpose.

46 The trial Judge accepted the evidence of the appellant that she suffered the symptoms of which she complained. Furthermore, the trial Judge found at par 40 of his reasons that the appellant's symptoms were caused by the motor vehicle accident. The trial Judge reached that conclusion having regard to the evidence of Professor Skirving and the chronology of events. The trial Judge found that Professor Skirving was unable to precisely state the pathology giving rise to the appellant's problems at the time of trial. The fresh evidence appears to identify that pathology. The fresh evidence does not falsify any basic assumptions, common to both parties. Counsel for the appellant submits that the fresh evidence corroborates or supports the finding of the trial Judge that the appellant's symptoms were caused by the motor vehicle accident. Counsel for the appellant does not submit that the fresh evidence establishes some event that the trial Judge did not allow for or that the fresh evidence establishes that any allowance made by the trial Judge was erroneous because his Honour made too great or not enough allowance for the contingency of some future event. Counsel for the appellant expressly did not rely on the fresh evidence in support of the appellant's appeal against the award of future economic loss.

47 The respondent also sought to rely upon the fresh evidence. The respondent also submits that the fresh evidence establishes that the appellant's symptoms before and at the time of the trial were caused by the bony regrowth. However, counsel for the respondent submitted that the fresh evidence establishes that the bony regrowth, and hence the appellant's symptoms were not caused by the motor vehicle accident.

48 In my view the fresh evidence should be admitted for the following reasons. Both parties submit that the fresh evidence should be admitted. The central issue at trial was whether and to what extent the appellant's symptoms were caused by the motor vehicle accident. A major controversy was identifying the pathology or mechanism causing the appellant's symptoms. The parties to the appeal are agreed that the fresh evidence establishes that a bony regrowth was causing the appellant's symptoms. That is a result of investigations carried out after the trial which were of course not available, and could not with reasonable diligence have been available, at the trial. The evidence does not bear upon matters falling within the field or area of uncertainty in which the trial Judge made an estimate as to the appellant's future prognosis. Rather, the evidence establishes the cause of the appellant's symptoms. By his cross-appeal the respondent raises before this Court the issue of the cause of the appellant's symptoms. It would be artificial to ignore the fresh evidence whilst considering that issue.

49 The first ground of the cross-appeal is that the learned trial Judge erred in fact in finding that the pain suffered by the appellant was occasioned by the accident. It is convenient to consider this ground first because if it is successful the other issues fall away. The respondent supports the ground with the following particulars:

"(a) His Honour accepted the evidence of Mr Michael Alexeeff;

(b) that evidence was to the effect that the role of the motor vehicle accident in the appellant (plaintiff)'s injuries was solely to delay her recovery from the original pathology;

(c) the appellant (plaintiff) was free of pain following the operation carried out by Mr Alexeeff in August of 1999;

(d) logically, if the appellant (plaintiff) was pain free thereafter, the return of symptoms could not be related to the motor vehicle accident."

50 Paragraph (a) of the particulars is not correct. The learned trial Judge did not accept the evidence of Mr Alexeeff. In par 38 of his reasons, the learned trial Judge noted that Mr Alexeeff had on two occasions performed surgical procedures and his knowledge of the appellant's shoulder workings was firsthand. His Honour said that for that reason he "would" prefer the opinion of Mr Alexeeff to that of Professor Skirving. However, his Honour went on to say that if Mr Alexeeff was correct then his surgery in August 1999 would have fixed the problem. It only fixed the problem for a temporary period and by July 2000 the pain had returned. His Honour stated that that fact threw some doubt on Mr Alexeeff's diagnosis. The learned trial Judge then went on to refer to the opinion of Professor Skirving. Professor Skirving suggested that the chronology of events was a useful tool where diagnosis is not certain. At par 40 of his reasons the learned trial Judge said that it was open to find that the appellant's pain was occasioned by the accident because the surgery to correct the two identical problems was successful. His Honour concluded that notwithstanding the difficulties of diagnosis he was satisfied that that is the proper approach. In effect, the learned trial Judge adopted the approach of Professor Skirving in preference to the opinion of Mr Alexeeff.

51 Where a trial Judge has made a finding of fact contrary to the evidence of a witness, including an expert witness, an appellate court cannot act on that evidence to reverse the finding unless it is satisfied that any advantage enjoyed by the trial Judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial Judge's conclusion: Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 per McHugh J at 178. In the present case, the learned trial Judge's decision on the issue of causation was based on the evidence of Professor Skirving and his Honour's consideration of the chronology of events. Those matters led the trial Judge to a finding contrary to the opinion of Mr Alexeeff. His Honour was not bound to accept the whole of Mr Alexeeff's evidence concerning the causation of the appellant's symptoms. There is no basis for concluding that insofar as his Honour preferred the evidence of Professor Skirving and the inference to be drawn from the chronology of events, he failed to use or palpably misused the advantage which he had of seeing and hearing the witnesses. In any event, his Honour took the view that if Mr Alexeeff's diagnosis was correct then his surgery in August 1999 should have fixed the problem but did not. His Honour was entitled to take that view.

52 The respondent relied upon the fresh evidence in support of this ground of the cross-appeal. In particular the respondent relies upon the report of 21 April 2005 of Mr Alexeeff. Mr Alexeeff says in effect that the pain from which the appellant suffered at the time of the trial was caused by the exostosis, that is the piling up of bone at the site of surgery. Mr Alexeeff stated his opinion that that regrowth of bone is unlikely to be related to the motor vehicle accident but more likely to be related to an aberrant response to the multiple surgical procedures.

53 That opinion raises the issue whether the surgical procedures were a result of the motor vehicle accident. If they were then the motor vehicle accident is a legal, if not medical or scientific, cause of the exostosis and hence the appellant's symptoms. In his report Mr Alexeeff says that the appellant had a shoulder problem before the motor vehicle accident and that the accident may well have caused a temporary increase in her symptomatology but it did not cause any new pathology. Mr Alexeeff states that the accident did not create the need for further surgery.

54 Again, Mr Alexeeff's opinion must be approached with caution, wary of the difference between legal and scientific or medical causation. Mr Alexeeff says that the motor vehicle accident did not create the need for further surgery because it did not cause any new pathology. However, Mr Alexeeff says that the motor vehicle accident caused a temporary increase in the appellant's symptomatology. The learned trial Judge found that after the acromioplasty performed by Mr Wright in June 1997 the appellant improved to the extent that she was able to return to work in August. The trial Judge found that the appellant deteriorated following the motor vehicle accident and became progressively worse. The learned trial Judge referred to the report of Mr Wright of 9 June 1998 in which he said that before the accident the appellant's shoulder had been improving and since the accident there was significant deterioration of her symptoms which had not settled despite further treatment. On 27 February 1998 Dr Kennedy performed arthroscopic surgery to the appellant's right shoulder. The learned trial Judge did not find that the symptoms had abated. On 1 April 1999 Mr Alexeeff performed arthroscopic surgery. The learned trial Judge found that although there was some improvement by 30 June 1999 the appellant was still having considerable pain. On 5 August 1999 Mr Alexeeff performed further open surgery and excised 1 cm from the end of the clavicle.

55 In light of those findings of the trial Judge the fresh evidence does not establish that the surgical procedures carried out by Dr Kennedy in February 1998 and by Mr Alexeeff in April and August 1999 were not relevantly caused by the motor vehicle accident. The conclusion to be drawn from the learned trial Judge's reasons is that the surgical procedures were carried out because of the appellant's symptoms. There is evidence to support that conclusion. The learned trial Judge found, in effect, and the fresh evidence does not establish the contrary, that the appellant's symptoms immediately before each of those procedures was caused, or contributed to, by the motor vehicle accident.

57 This ground is that the trial Judge substituted his own findings for those of the medical witness, Mr Alexeeff, whose evidence he accepted. The learned trial Judge did not accept the evidence of Mr Alexeeff on the critical issue of whether the motor vehicle caused, or contributed to, the appellant's symptoms. His Honour was not obliged to do so. His Honour was entitled to reach the conclusion that the appellant's symptoms were caused by the motor vehicle accident. This ground does not add anything to ground 1 of the cross-appeal. Insofar as this ground refers to damages other than future loss of earning capacity this ground is not made out. In so far as it relates to future loss of earning capacity I will consider this ground later in my reasons.

Appeal ground 1, cross-appeal ground 2 - non-pecuniary loss

58 The appellant submits that the trial Judge erred in awarding the appellant damages for non-pecuniary loss at 8 per cent of a most extreme case, such award being significantly below the range of a sound discretionary judgment. The respondent submits that the award of 8 per cent of a most extreme case was too high.

59 The appellant submitted that the factual findings of the trial Judge which called for a far greater award were that the motor vehicle accident was the cause of the appellant's shoulder symptoms and that the level of pain experienced by the appellant is significant, and was still significant five years and eight months after the accident. Furthermore, the appellant submits that the trial Judge appears not to have fully considered some facts which call for a far greater assessment. Those facts include that the appellant underwent five surgical procedures as a consequence of the accident, underwent significant amounts of treatment for her shoulder including pain relief injections, physiotherapy and chiropractic and was required to take significant amounts of medication and that the ongoing pain state and failure of the various treatments had caused the appellant significant psychological distress.

60 The learned trial Judge referred to the various surgical procedures and treatment which the appellant underwent in the course of discussing the cause of the plaintiff's symptoms. In the course of that narrative the learned trial Judge also referred to the pain suffered by the appellant. At the conclusion of that discussion the learned trial Judge concluded that the pain suffered by the appellant was caused by the accident. His Honour then went on to consider the appellant's non-pecuniary loss as a proportion of a most extreme case. His Honour set out his consideration in the following five sentences before concluding that the appropriate proportion was 8 per cent of a worst case:

"I accept the level of pain experienced by the [appellant] is significant. Objectively it has not been sufficient to prevent her continuing to work. It is likely that the conclusion of the litigation will be beneficial.

Fixing the proportion of a worst case is never an easy task. In this case I am not persuaded it is a significant proportion."

61 Eight per cent of a worst case is a very small assessment where a plaintiff has suffered significant shoulder pain and restricted movement for more than five years and is continuing to suffer that pain. It could not reasonably be concluded that the appropriate proportion of a worst case is not "a significant proportion" unless there was some additional factor to bring about that conclusion. The trial Judge referred to two matters. The first was that the pain experienced by the appellant had not been sufficient to prevent her continuing to work. The second was that it is likely that the conclusion of the litigation would be beneficial.

62 It is correct that the appellant had continued working at the date of trial. However, the learned trial Judge does not appear to have taken into account, or given sufficient consideration to, the fact that she had done so with difficulty. The appellant was unable to do any of the normal duties of an education assistant that involved heavy lifting or reaching. She was unable to carry out some of the duties that involved helping or restraining the children. Some of the normal duties of an education assistant were done for the appellant by the teacher who she was supposed to be assisting. Some of the activities she does carry out cause her difficulty and her shoulder hurts and "plays up". The appellant said in evidence that she felt her shoulder was getting worse and she did not know how long she would be able to go on for. In his report of 26 February 2002 Professor Skirving stated his opinion that the appellant was able to continue her work as a teacher's aide but said that she would probably continue to have some discomfort and difficulty working at or above shoulder height.

63 In addition to her difficulties at work the appellant stated that her domestic activities were also restricted. She continued to suffer pain. Professor Skirving accepted that the appellant has continuing symptoms in the shoulder and that she had not regained full movement and that she had a probable permanent disability which he estimated to be 15 per cent of her shoulder function.

64 The learned trial Judge was entitled and correct to find that the appellant's disability did not prevent her continuing to work. However, the learned trial Judge was obliged to take into account that the appellant was restricted in the work activities that she could carry out. She was only able to continue as an education assistant because the teacher she was assisting carried out some of the teacher's assistant's duties. Furthermore, the appellant was restricted in carrying out activities and suffered pain at work. The pain that the appellant has suffered and will continue to suffer in working as an education assistant is a relevant consideration in assessing non-pecuniary damages. The learned trial Judge appears not to have taken that factor into account in assessing non-pecuniary damages.

65 The learned trial Judge erred in assessing that the severity of the appellant's non-pecuniary loss was not a significant proportion of a most extreme case in part because the appellant's pain had not been sufficient to prevent her continuing to work. The learned trial Judge failed to have proper regard to the fact that the appellant was not able to carry out all of the duties ordinarily performed by a teacher's assistant and experienced pain in carrying out some functions in the course of her employment.

66 The second factor referred to by the learned trial Judge was that it was likely that the conclusion of the litigation would be beneficial.

67 In his report of 21 November 2002 Mr Alexeeff stated his belief that the appellant's situation was complicated by the medico/legal process and he would anticipate some degree of functional recovery following the conclusion of that process. In re-examination Mr Alexeeff explained his comment as follows:

" ... I think the whole medico-legal situation has its effect. We are involved in it, but we are not privy to what happens out of hours. It must have an effect on people, I think. As clinicians we're aware, I mean the medical literature is dotted with studies showing that people who have a compensable situation don't do as well as people who don't.

... That's nothing more or less than that, effectively. I mean, she has got to the point where the issue has to be resolved. ... I don't think she'll never have - I don't think she'll ever have a normal shoulder, well, what we would perceive in this room as a normal shoulder but I think she would have a functional shoulder and to some degree I think she's borne that out. I mean, one is always impressed when one sees people who have attempted to keep working. I mean, to my knowledge this lady has done that.

... I don't think [there is any reason why she shouldn't]. Not from a functional point of view, from a musculoskeletal point of view. You know, it may be appropriate that - I mean, as I say, I would be happy to see her and if she still is in pain, I mean, it would be appropriate to try and sort of define some way that she can get on with her life to be pain free, I mean, it's unpleasant pain apart from everything else."

68 There was no sufficient evidence on which the trial Judge could find that the appellant did not have a permanent disability and that she would cease to have any significant pain in her shoulder upon resolution of the legal proceedings. The evidence of the appellant and Professor Skirving, which the learned trial Judge accepted, included that the appellant had endured significant pain and restricted function of her shoulder for more than five years and that the appellant had a permanent disability and would continue to suffer from pain and restricted function in her shoulder. The trial Judge was entitled to find that the conclusion of the litigation would be beneficial to the appellant but did not find that the conclusion of the litigation would cause her to cease having any significant pain or disability. The learned trial Judge's finding that the conclusion of the litigation would be beneficial to the appellant was not a sufficient foundation for the conclusion that the severity of the appellant's pain and suffering and loss of amenity was not a significant proportion of a most extreme case.

69 In assessing the appropriate proportion of a most extreme case the learned trial Judge should have taken into account the pain and disability suffered by the appellant and should have had regard to the extensive treatment she had undergone over a long period of time. Having regard to all those matters the learned trial Judge erred in concluding that the appropriate proportion of a most extreme case was not "a significant proportion" and in assessing the proportion to be 8 per cent. The learned trial Judge failed to have regard to the significant pain the appellant had suffered and would continue to suffer, the appellant's restricted movement and the extensive treatment undergone by the appellant. The assessment lies outside the range of a sound discretionary judgment.

70 I find that the appropriate proportion of a most extreme case is 20 per cent. I do so having regard to the trial Judge's finding that he accepted the plaintiff as a truthful witness, that his Honour accepted the level of pain experienced by the appellant is significant, that the appellant has a permanent disability and will continue to endure pain and restricted functions both at work and domestically. I have regard to the fact that the appellant has undergone extensive treatment including a number of surgical procedures. I also have regard to the fact that the learned trial Judge has assessed damages on the basis that the appellant will probably continue in employment as a teacher's assistant for most of her expected working life and will experience problems and pain in doing so. Having assessed the appropriate percentage of a most extreme case to be 20 per cent and applying the formula set out in s 3C of the Insurance Act, the non-pecuniary damages payable is $47,500. I would substitute that sum for the amount of $7,200 allowed by the learned trial Judge for non-pecuniary damages.

71 For the reasons stated, ground 2 of the cross-appeal is not made out.

Appeal ground 2, cross-appeal grounds 3 and 4: future economic loss

72 The appellant submits that the sum of $20,000 awarded by the trial Judge for future loss of earning capacity was too low. The respondent submits that the trial Judge should have made no award for future economic loss or alternatively should have allowed a lesser sum.

73 In assessing damages for future economic loss where questions arise as to the future effect of the plaintiff's physical injury, the degree of probability of the plaintiff ceasing remunerative work at an earlier time than she would otherwise have done so must be evaluated by the court: see Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638.

74 The learned trial Judge found that the appellant would not necessarily suffer any economic loss in the future. His Honour found that there probably will be some but the extent is uncertain. His Honour allowed $20,000, which is equivalent to one year's net income.

75 The respondent submits that there was no basis to make an award for economic loss because the trial Judge found that the appellant was able to and had continued working, both Mr Alexeeff and Professor Skirving thought that she would improve following the conclusion of the litigation, the trial Judge found that it was likely that the conclusion of the litigation would be beneficial and there was no identifiable pathology to explain the appellant's symptoms.

76 The learned trial Judge found that the appellant probably would suffer some economic loss in the future. His Honour was entitled to make that finding. The appellant was not able to carry out the full range of duties involved in her position as a teacher's assistant. She experienced pain and difficulty in carrying out the duties that she was able to perform. The appellant's evidence was that the situation was getting worse and she was finding it hard to cope. The trial Judge accepted the plaintiff as a truthful witness. The trial Judge also found that the plaintiff experienced a significant level of pain and was coping with her work with difficulty. In those circumstances there was some chance that the appellant would suffer economic loss in the future. Unless the chance is so low as to be regarded as speculative - say less than 1 per cent - the learned trial Judge was obliged to take that chance into account when assessing the damages: Malec v Hutton (supra) at 643. The learned trial Judge must have assessed that the chance of the appellant suffering economic loss in the future was more than speculative. His Honour was entitled to so find. The cross-appeal on these grounds fails.

77 The appellant submitted that at the date of trial she was continuing to work as a teacher's assistant but experiencing significant difficulties in doing so. The appellant intended to work until 55 - 60 years of age. She was 46 years old at trial. Accordingly, the appellant submitted, an award of $20,000 for future loss of earning capacity is inadequate. The appellant submitted that whilst the calculation is necessarily hypothetical it is apparent that the learned trial Judge has not given sufficient regard to the appellant's ongoing pain and reduced shoulder movement and the impact that has on her daily functioning and work, which inevitably will mean the appellant will either be dismissed or retire much earlier than she otherwise would have.

78 The ongoing pain and reduced shoulder movement experienced by the appellant in continuing to work is a matter that sounds in general or non-pecuniary damages. I have taken that into account in finding that the learned trial Judge erred in his assessment of non-pecuniary damages and in assessing the appropriate non-pecuniary damages.

79 I accept that the appellant's ongoing pain and reduced shoulder movement is relevant to the assessment of loss of earning capacity if the appellant establishes that those factors will mean the appellant will either be dismissed or retire much earlier than she otherwise would have.

80 The evidence does not establish that it was certain that the appellant would suffer some economic loss in the future. It is not certain that the appellant would retire or be dismissed from her employment earlier than she would otherwise have done so. In those circumstances it was for the trial Judge to assess the degree of probability of those events occurring. It has not been demonstrated that the trial Judge made any error in doing so. Ground 2 of the appeal is not made out.

81 Ground 5 of the cross-appeal is that by reason of matters pleaded in grounds 1 and 2 of the cross-appeal any loss of time in the future was not causally related to the motor vehicle accident. I understand "loss of time" to refer to loss of time in remunerative employment. Grounds 1 and 2 of the cross-appeal are not made out. For the reasons stated in discussing those grounds of appeal, ground 5 is not made out.

82 Ground 6 is that the trial Judge should have found that:

"(a) there was no identifiable pathology to explain the appellant (plaintiff)'s symptoms;

(b) the role of the motor vehicle accident was only to create a short term aggravation of the underlying pathology, or alternatively

(c) was such as only to delay her recovery from the underlying pathology;

(d) there is no causal link between the symptoms complained of by the plaintiff and the motor vehicle accident."

83 For the reasons discussed in relation to ground 1 of the appeal and grounds 1, 2 and 3 of the cross-appeal, this ground also fails.

84 Ground 7 of the cross-appeal is that the appellant had failed to establish that she had proved her case. For the reasons stated in relation to the other grounds of the cross-appeal this ground fails.

85 I have found that the award of $7,200 for non-pecuniary loss should be set aside and an amount of $47,500 should be allowed for non-pecuniary loss. I would not set aside the award of $20,000 for future economic loss. There is no appeal from the award of $3,000 for past loss of earning capacity. Accordingly, the appellant is entitled to judgment as follows:

86 I would allow the appeal, set aside the award of damages of $30,200 and substitute judgment for the appellant for $70,500.

• Post-accident surgery
• Decision of trial Judge
• Motor Vehicle (Third Party Insurance) Act
• The trial Judge's assessment of damages
• The appeal
• The cross-appeal
• Notice of motion to adduce fresh evidence
• The first hearing of the appeal
• Should the new evidence be admitted?
• Cross-appeal ground 1
• Cross-appeal ground 3
• Appeal ground 1, cross-appeal ground 2 - non-pecuniary loss
• Appeal ground 2, cross-appeal grounds 3 and 4: future economic loss
• Other grounds of cross-appeal
• Conclusion