The appellant's left knee
53In September 2002 the appellant attended his general practitioner, Dr Mar, complaining of an injury to his left knee. A torn medial meniscus was diagnosed. He was referred to Dr Johnson who performed an arthroscopy. He was off work for four weeks then returned to his full duties as a bricklayer.
54I have referred to the evidence the primary judge accepted in reaching her conclusion about the relationship between the appellant's left knee condition and his accident. That evidence should be amplified as follows.
55The physiotherapy notes of 9 July 2007 prepared while the appellant was still in hospital noted that he reported left knee pain. On 10 July 2007 the physiotherapy notes recorded that the appellant complained of left knee pain in the anterolateral aspect on weight bearing. This was the last record of a complaint by the appellant about his left knee until he visited Dr Johnson in March 2009.
56At trial the appellant said he had complained to the doctor at Westmead Hospital about his left knee on every occasion he went in for a check-up. He said "they keep telling me in many occasion that it is all part of my injury of my back ...".
57The respondents relied upon two propositions to seek to make good their Watts v Rake submission. The first was the absence of any reference to a significant knee injury in the appellant's discharge summary. They also relied upon the fact that there was no reference to the appellant's knee in the statement of claim filed on 29 April 2008. (It is not entirely clear when such a reference was included. There were references to the appellant's left knee in the second further amended statement of particulars filed on 25 September 2009 and it appears that those references had been in an earlier document as the underlined - and presumably new particulars - did not relate to his left knee, but to the development of thrombosis following the surgery to his left knee). They point to the fact that the appellant made no complaint about his left knee when seen by Dr Sanki in April 2009 - a referral which appears to have been for the purpose of exploring the reason for the appellant's complaint of upper abdominal pain which Dr Sanki diagnosed as a right and left sided hernia. Similarly the appellant did not complain to Dr Ellis whom he saw on two occasions, once in July 2008 and again in February 2009.
58That submission is accurate insofar as Dr Ellis's 16 July 2008 report is concerned. That report recorded the previous injury to the appellant's left knee which Dr Ellis described as a "torn ligament, which required reconstruction and he recovered uneventfully". Dr Ellis re-examined the appellant on 24 February 2009. On that occasion, Dr Ellis recorded the appellant as complaining of lower back pain which spread to the back of both legs and was, at that stage, affecting predominantly the left leg. Dr Ellis recorded that the appellant walked with a limp due to pain in his left leg. The respondents were careful to point out that while Dr Ellis recorded the appellant as complaining of pain in his left leg, he did not locate it to his left knee. However, Dr Ellis saw the appellant again in October 2009. By that stage Dr Johnson had operated on the appellant's left knee. In his report of 3 November 2009 Dr Ellis recorded that the appellant had injured his left knee in the 2007 accident and recorded the operation Dr Johnson had performed. Dr Ellis referred to an MRI examination of the appellant's left knee in October 2009. The respondents did not submit that anything turned on that MRI examination. Dr Ellis also referred to the appellant's previous left knee injury recording that he had recovered after the operation performed in 2002 and that his left knee had been asymptomatic before the 2007 accident. Dr Ellis expressed the opinion that the appellant's left knee had been severely injured in the 2007 fall.
59The respondents' principal submission relied upon a report prepared by Dr Oakeshott for medico-legal purposes in September 2009. Dr Oakeshott did not review any radiology reports, nor was there any documentation available to him indicating that the appellant had complained of, or received any treatment for a left knee injury while he was in hospital after the 2007 accident. Dr Oakeshott said he could not identify any documents indicating the appellant had had treatment, or complained about, his left knee during 2007 and 2008. The appellant told Dr Oakeshott about the injury to his left knee in 2002. Dr Oakeshott had no documents about that injury or the operative procedure which was performed. Dr Oakeshott did have Dr Johnson's 23 March and 3 June 2009 reports to Dr Mar. Neither of those reports, as Dr Oakeshott observed, referred to the 2002 left knee injury or operation.
60Dr Oakeshott expressed the following opinion:
"Mr Varga has significant degenerative changes in the left knee. For the reasons discussed above I consider that his present left knee condition is related to the reconstructive surgery that was required in 2002 to that knee.
The timing of his re-referral to Dr Johnson in March 2009 is consistent with the development of degenerative changes following the left knee injury and surgery that had occurred in 2002.
It is to be noted that there is no available evidence of any investigations or medical treatment of his left knee immediately following the injury on 2 July 2007 and following his return to work in November 2007.
I therefore consider that the requirement for a total knee replacement with which I agree is not related to any work-related injury that could be attributed to the incident on 2 July 2007."
61Dr Oakeshott accepted that the appellant had significant degenerative changes in his left knee and would require a total knee replacement.
62In their written submissions the respondents contended that Dr Oakeshott had provided "a cogent opinion as to why the condition of the left knee could not be related to the fall". The passage of Dr Oakeshott's report to which that submission referred was that part of the report in which Dr Oakeshott said he could not identify any documents recording medical treatment or complaint about the appellant's left knee during 2007 and 2008 and references to Dr Ellis' 16 July 2008 and 2 March 2009 reports.
63The difficulty with the respondents' submissions are twofold. First, Dr Oakeshott did not see the hospital notes recording that the appellant had complained about his left knee immediately after his fall in 2007 and while still in hospital. Secondly, the appellant gave evidence which the primary judge was entitled to accept that he had complained to medical practitioners about his left knee during 2007 and 2008 but that medical practitioners had tended to link that pain to his back condition. Thirdly, Dr Oakeshott did not refer to Dr Ellis' November 2009 report. In that report, as I have said, Dr Ellis accepted that the appellant had injured his left knee on 2 July 2007 leading to the operative procedures Dr Johnson undertook in June 2009. Dr Ellis had no difficulty attributing the appellant's left knee condition to the 2 July 2007 fall. In this respect it will be noted that Dr Ellis examined radiological reports, which, I as have noted, Dr Oakeshott did not do.
64In my view, contrary to the respondents' submissions, Dr Oakeshott's opinion was not soundly based in fact. It did not demonstrate that the appellant's left knee condition could not be related to the fall. He provided no ratiocination which demonstrated why, in his view, the timing of the appellant's referral to Dr Johnson in March 2009 was consistent with the development of degenerative changes following the 2002 injury, rather than the 2007 injury. His report does not explain why the absence, according to him, of complaint by the appellant following the 2007 accident made it even a possibility that the symptoms which developed in 2009 were related to the 2002 condition.
65In my view, the respondents failed to demonstrate error in a manner entitling the Court to carry out the comparison and assessment exercise to which Ipp JA referred in Seltsam Pty Ltd v Ghaleb (at [108] - [109]).
66The respondents also submitted that Dr Edwards had provided a "logical opinion rejecting the relationship between the herniae and the fall". Dr Edwards did not consider the herniae could reasonably be said to be related to the appellant's fall because had they been sustained as a result of that fall "the complaints of abdominal pain would have occurred in closer temporal relationship to" it.
67The appellant gave evidence, which the primary judge accepted, that he had complained about pain in his groin both to doctors at Westmead Hospital and to Dr Mar, but been told that pain was caused by his back injury. Dr Sanki, who diagnosed the herniae in September 2008, expressed the opinion that those herniae related to the fall.
68To the extent Dr Edwards expressed any contrary view, it was based on the proposition that the appellant would have complained earlier about pain in his groin. In my view the primary judge was entitled to accept the appellant's evidence about his earlier complaints about pain in his groin and, too, Dr Sanki's opinion that the herniae related to the 2007 accident.
69The respondents have not made good the two substantive attacks they relied upon to undermine the primary judge's assessment of the appellant's non-economic loss at 40 per cent.
70The respondents' other attack on the assessment of non-economic loss relied upon Reece v Reece . In that case the court reduced an assessment for non-economic loss for a plaintiff who was aged 64 at the time of accident and who suffered significant injuries to her right hand, left hand and right knee in a motor vehicle accident from 33 per cent for a most extreme case as required by the Motor Accidents Act 1988 (NSW), s 79 to 22 per cent. Handley JA (with whom Clarke and Sheller JJA agreed) noted (at 105) that although "the plaintiff was entitled to a finding that her normal life had been significantly impaired and that she had suffered a significant degree of non-economic loss [t]he question remains ... whether 33 per cent of a most extreme case represents a wholly disproportionate assessment of the degree of the plaintiff's loss such as to entitle and require this Court to interfere on established principles." His Honour then said:
"The difficulty, in my opinion, with his Honour's assessment is to reconcile it with the assessment that might properly be made in a case of a much younger woman, say 30 years old, who before her injury had a similar range of interests and hobbies but had young children to help bring up and who, of course, faced a much longer period during which she would experience the pain, the disabilities and the progression of her condition."
71The respondents submit that the appellant's non-economic loss should be assessed at 30 per cent of a most extreme case, which was the figure for which they had contended at trial.
72Reece v Reece states the uncontroversial proposition that the plaintiff's age at the time of the assessment of damages is a factor relevant to the assessment of non-economic loss, a proposition Handley JA made abundantly clear when considering Reece v Reece in Marshall v Clarke (Court of Appeal, unreported 5 July 1994); see also Christalli v Cassar [1994] NSWCA 48 (at 3) where Kirby P (with whom Powell and Cole JJA agreed).
73Age, however, is only one of the numerous matters the Court takes into account in its assessment of non-economic loss, which is defined in s 3 of the 2002 Act as follows:
" 'non-economic loss' means any one or more of the following:
(a) pain and suffering,
(b) loss of amenities of life,
(c) loss of expectation of life,
(d) disfigurement."
74The assessment of non-economic loss depends on the circumstances of each plaintiff, albeit as s 16 of the 2002 Act now requires, as assessed by reference to a "most extreme case". In this respect, in my view however, Windeyer J's remarks in Thatcher v Charles [1961] HCA 5; (1961) 104 CLR 57 (at 71 - 72) remain cogent:
"Compensable loss depends not only on the severity of the physical injury but on the consequences for the individual. No two injuries are really the same; and the consequences of apparently similar injuries vary infinitely for different individuals. Thus amounts given in different cases may be harmonious on principle, although appearing disproportionate when the physical injuries alone are regarded. Measuring in money such things as pain and suffering or the impairment of capacity to lead life to the full really involves dealing in incommensurables. It is an attempt to weigh imponderables."
As Handley JA observed in Dell v Dalton (1991) 23 NSWLR 528 (at 532), although Windeyer J was in dissent, this passage "reflected the previous law".
75When considering the respondents' challenge to the primary judge's determination of the severity of the appellant's non-economic loss by reference to the "most extreme case" standard, the Court is guided by the proposition that such a finding is not readily susceptible to appellate review, involving questions of fact and degree, and matters of opinion, impression, speculation, and estimation calling for the exercise of commonsense and judgment. The Court is only entitled to intervene and disturb the ultimate conclusion of the trial judge in accordance with the ordinary principles governing appellate review of awards of damages for personal injuries: Dell v Dalton (at 533 - 534) per Handley JA (Kirby P and Priestley JA agreeing).
76In my view the primary judge's assessment of the appellant's non-economic loss as 40 per cent of a most extreme case was within an appropriate discretionary range for damages. The respondents have not demonstrated that in determining that percentage her Honour acted on a wrong principle of law, misapprehended the facts or made "a wholly erroneous estimate of the damage suffered": Moran v McMahon (1985) 3 NSWLR 700 (at 718, 723) per Priestley JA (Kirby P and McHugh JA agreeing).
77The respondents' next challenge to the appellant's damages was to the award for past economic loss. They submitted that that award was excessive having regard to the fact the appellant's actual earnings for the financial year ending two days before the accident were only $5,000 gross. While they accepted that they conceded at trial that the appellant was earning $500 at the time of the accident, they contended that that concession did not relate to all prior or subsequent periods.
78The respondents' written submissions identified two passages in the trial transcript as relevant to the respondents' concession about the appellant's earnings at the time of the accident. In the first counsel for the respondents at trial accepted that their medical evidence supported the fact that the appellant was not fit for his pre-injury employment. However he contended that the appellant's capacity to perform his employment as a bricklayer had already been reduced before the accident by about 50 per cent, then submitted that that reduction would naturally progress with his advancing age. He identified the major issue as future economic loss until age 70.
79Counsel for the appellant at trial (who did not appear on appeal) handed the primary judge a schedule of damages in which he had calculated past economic loss over the two and a half years since the accident at $500 a week. He relied on the same figure for future economic loss, calculating that head of damages on the hypothesis the appellant would work for another ten years.
80When counsel for the respondents came to the issue of past economic loss, the primary judge asked him what he said about the $500 a week for that head of damages. Counsel for the respondents accepted that it was not in issue that that was what the appellant was earning at the time of the accident, but submitted that the appellant had an ability to earn which would reduce the figure of $500 a week for the entire (past) period of two and a half years. He then turned to the issue of future economic loss and submitted her Honour would not allow that amount for the future. Although the submissions appear to have suffered in transcription, his argument appeared to be based on the proposition that the appellant had a residual earning capacity and that, in any event, having regard to the heavy nature of his occupation he would not have worked for another ten years as counsel for the appellant contended.
81The respondents' challenge in this Court to the primary judge's award for past economic loss was confined to the submission that the appellant had told Dr Edwards that he passed his time carrying out normal activities, was able to mow the lawn, drove a car, that sitting for prolonged periods could cause him discomfort and that he limped constantly on his left leg as well as that he had applied for several jobs including driving a tanker but had been refused. They made no specific submissions as to future economic loss.
82In my view the respondents have not demonstrated any error in her Honour's calculation of economic loss. Rather it appears to me that her Honour accepted the respondents' submissions. She did not allow the appellant $500 a week as claimed. Rather, as is apparent from her reasons in relation to future economic loss, she awarded him $350 net per week for the past and the same amount for the future.
83As to the future, in particular, her Honour only awarded the appellant future economic loss to age 67 and found he had some residual earning capacity. In those respects her Honour, in my view, clearly accepted the respondents' submissions. The respondents cannot demonstrate error when the primary judge accepted their submissions. I discern no error in her Honour's reasoning as to the past. The appellant's statement about "normal activities" clearly related to life's daily travails, not the hard labour of a bricklayer's toils.
84The respondents' challenge to her Honour's award of damages in respect of attendant care was confined to the proposition that that award was inconsistent with the appellant's medical evidence. Attention was drawn to Dr Ellis' report of 2 March 2009 in which he said that the appellant needed domestic assistance for at least four hours a week on a continuing basis.
85The primary judge accepted Ms Klemens' evidence that she was doing an extra eight hours a week of work in and around the house as a result of the appellant's accident. Ms Klemens also said that she had undertaken that amount of extra work in and around the house since the appellant's accident. The respondents do not challenge the proposition that the services she was undertaking were of a domestic nature: s 15, 2002 Act. On that basis the requirements in s 15(3), 2002 Act were established. In my view the primary judge was entitled to accept that evidence which, as the appellant submitted, did not contradict Dr Ellis' evidence, but was based on more detailed evidence at trial from Ms Klemens in particular. I would reject the respondents' challenge to this head of damages.