Vosebe Pty Ltd v Bakavgas; Vosebe Pty Ltd v Vapore

CATCHWORDS: TORTS - Negligence - Plaintiff injured assisting supplier to unload building materials - Whether duty of care owed by builder. - DAMAGES - Whether appropriate findings made - Whether primary judge's assessment of plaintiff erroneous - Whether award excessive. - DAMAGES - Assessment - Divisible and indivisible loss - Disentangling - Assessment of future hypothetical events. - DAMAGES - Assessment - Poor employment record - Future economic loss - Increased allowance for vicissitudes.

LEGISLATION CITED: Civil Liability Act 2002 (NSW) s 13 Workers Compensation Act 1987 s 151Z

ACQ Pty Ltd v Cook (No 2) [2008] NSWCA 306 Arthur Robinson (Grafton) Pty Ltd v Carter [1968] HCA 9; 122 CLR 649 Commonwealth of Australia v Elliot [2004] NSWCA 360 De Sales v Ingrilli [2002] HCA 52; 212 CLR 338 Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472 Fox and Wood (1981) 148 CLR 438; (1981) 35 ALR 607 Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638 Moran v McMahon (1985) 3 NSWLR 700 CASES CITED: Najdovski v Crnojlovic [2008] NSWCA 175 Purkess v Crittenden [1965] HCA 34; 114 CLR 164 Roads and Traffic Authority of NSW v Chandler [2008] NSWCA 64 Seltsam v Ghaleb [2005] NSWCA 208; 3 DDCR 1 Shorey v PT Limited [2003] HCA 27; 77 ALJR 1104 State Rail Authority of New South Wales v Earthline Constructions Pty Limited [1999] HCA 3; (1999) 73 ALJR 306 Thompson v Woolworths (Queensland) Pty Limited [2005] HCA 19; (2005) 221 CLR 234 Watts v Rake [1960] HCA 58; 108 CLR 158 Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53; 184 CLR 485

TEXTS CITED: H Luntz, Assessment of Damages for Personal Injury and Death (4th ed, 2002) at [1.9.12]-[1.9.13]

CA 40068/08: VOSEBE PTY LIMITED t/as Batemans Bay Windows & Glass (Appellant/Cross-Defendant) Nick BAKAVGAS (First Respondent/Cross-Appellant) PARTIES: GEOFF FIELDING DEVELOPMENTS PTY LIMITED (Second Respondent)

CA 40069/08 VOSEBE PTY LIMITED t/as Batemans Bay Windows & Glass (Appellant) Frankco VAPORE (Respondent)

S G CAMPBELL SC/ A QUINLIVAN (Appellant (Vosebe)) COUNSEL: P G MAHONY SC/ P J NOLAN (First Respondent (Bakavgas)) J E MACONACHIE QC/ JG STEWART (Second Respondent (Geoff Fielding Dev P/L)) M J JENKINS (Respondent (Vapore))

A R Conolly & Company (Appellant (Vosebe)) SOLICITORS: Stacks Goudkamp Lawyers (First Respondent (Bakavgas)) McCulloch & Buggy Solicitors (Second Respondent (Geoff Fielding)) Rankin & Nathan Solicitors (Respondent (Vapore))

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40068/08 DC 3985/05 CA 40069/08 DC 6232/05

BEAZLEY JA HODGSON JA BASTEN JA

22 MAY 2009 VOSEBE PTY LTD t/as Batemans Bay Windows and Glass v Nick BAKAVGAS and Anor VOSEBE PTY LTD t/as Batemans Bay Windows and Glass v Franco VAPORE Judgment 1 BEAZLEY JA: I agree with Hodgson JA. 2 HODGSON JA: On 16 September 2002, Nick Bakavgas (the Plaintiff) was injured when glass doors fell on him near a building site. On that day, he had commenced as an employee of Franco Vapore (the Employer or Mr Vapore). The project on the building site was being conducted by Geoff Fielding Developments Pty Limited (the Builder). The glass doors had been delivered to the site by Vosebe Pty Ltd (the Supplier). 3 The Plaintiff was paid workers compensation by the Employer, such payments amounting to $192,543.82 by 14 February 2008. 4 The Plaintiff sued the Builder and the Supplier for negligence; and the Builder put on a cross-claim against the Supplier seeking indemnity or contribution. In separate proceedings, the Employer sued the Supplier for recovery of workers compensation payments under s 151Z of the Workers Compensation Act 1987. 5 Both proceedings were heard by Robison DCJ; and on 28 February 2008, the primary judge made orders disposing of them. 6 In the proceedings by the Plaintiff against the Builder and the Supplier, the primary judge gave a verdict and judgment for the Plaintiff against the Supplier in the sum of $539,917.20; gave a verdict and judgment for the Builder; dismissed the Builder's cross-claim; ordered the Plaintiff to pay the Builder's costs on the ordinary basis until 24 April 2007 and thereafter on an indemnity basis; ordered the Builder to pay the Supplier's costs of the cross-claim; ordered the Supplier to pay the Plaintiff's costs on the ordinary basis up to 13 February 2008 and on the indemnity basis from 11 am 13 February 2008; and ordered the Supplier to indemnify the Plaintiff in respect of costs ordered to be paid by the Plaintiff, excluding costs over and above those on the ordinary basis. 7 In the proceedings by the Employer against the Supplier, the primary judge gave a verdict and judgment for the Employer in the sum of $226,332.09 (including interest of $33,788.27), and ordered the Supplier to pay the Employer's costs. 8 The Supplier appeals to this Court, challenging the dismissal of the Plaintiff's claim against the Builder, the quantum of damages awarded to the Plaintiff, and the Bullock order for costs. The Plaintiff cross-appeals, seeking judgment and costs against the Builder. In the other proceedings, the Supplier appeals challenging the quantum of the amount of recovery by the Employer.

Circumstances 9 There is now no relevant dispute about the following circumstances of the accident. 10 Just before the accident, the Plaintiff obtained work with the Employer and was expecting to receive in the order of $400 per week. The Employer was a gyprocker and the Plaintiff was engaged to work with him as an assistant. 11 The building site where the accident occurred was a site on which two units were approaching lock-up stage. The Plaintiff started at around 7 am or 8 am on the day of the accident, and was given various tasks at the direction of Mr Vapore. 12 Also on the site at the time of the accident was Tony Kennedy, a sub-contractor to the Builder, who in the absence of Geoff Fielding, the principal of the Builder, was delegated by the Builder to supervise the site. 13 Those on site stopped for morning tea, in a room within one of the units. The Plaintiff was in the room with Mr Vapore. Alf Sierzega, a long-time employee of the Supplier, which was a supplier of glass, together with another person entered the room and asked for help. At the time, Mr Vapore was attending to a telephone call. The Plaintiff offered to help. 14 The Plaintiff then went outside with Mr Sierzega and his offsider. They went to the Supplier's truck, which was parked on the road beside the building site. It was near a cliff-face, and exposed to the elements including the wind. The truck had arrived to deliver about six glass doors, each about 2.3 metres high and 900mm wide, each weighing about 40 kilos. The truck had a fairly long tray, with an A-frame designed for transport of glass. At the time, it was windy, with significant gusts occurring from time to time. 15 Mr Sierzega said to the Plaintiff to "hop up onto the truck, and when we untie the doors just apply pressure, pushing the glass doors keeping them firm on the A-frame". The doors were untied and Mr Sierzega and his offsider took one of them onto the site. The Plaintiff applied as much pressure as he could to hold the doors back, but the wind blew the doors and the Plaintiff believed he could not hold them any longer. He jumped off the truck, and the doors fell onto him, glass broke, and the Plaintiff was injured.

Decision of primary judge 16 The primary judge held that Mr Sierzega was negligent in having the Plaintiff on the truck in those circumstances, not re-securing the load when he took one door away, and not giving the Plaintiff any instructions as to what to do if the wind blew up. Accordingly, he found the Supplier liable. 17 As regards the Builder, the primary judge referred to Thompson v Woolworths (Queensland) Pty Limited [2005] HCA 19; (2005) 221 CLR 234. The primary judge found the Builder did not have responsibility to organise a system of materials delivery, and there was nothing to indicate that the Builder, through Mr Kennedy, was aware that the Plaintiff would be doing what he did at the direction of Mr Sierzega. Accordingly, he found no liability in the Builder. 18 I will say more about damages later.

Issues on appeal 19 The Supplier relies on the following grounds in its appeal against the Plaintiff and the Builder: 1. ……

The Trial Judge erred in arriving at a verdict and judgment for the First Defendant/ Second Respondent [the Builder] against the Plaintiff/ First Respondent.

In the event that the Trial Judge's judgment for the Plaintiff/ First Respondent against the Second Defendant/ Appellant [the Supplier] be maintained, the Trial Judge erred in failing to apportion liability to the Plaintiff/ First Respondent between the Second Defendant/ Appellant and the First Defendant/ Second Respondent.

The Trial Judge failed to rationally engage with the Second Defendant's/ Appellant's case that the First Defendant/ Second Respondent had negligently caused injury to the Plaintiff/ First Respondent.

4A. The Trial Judge erred in failing to find that the First Defendant/ Second Respondent owed to the Plaintiff/ First Respondent a duty either to ensure that reasonable care was taken or to exercise reasonable care to avoid the Plaintiff/ First Respondent being exposed to risk of injury whilst he was assisting in the unloading of glass products.

4B. The Trial Judge erred in failing to find that the First Defendant/ Second Respondent breached its said duty of care to the Plaintiff/ First Respondent and thereby cause the Plaintiff's/ First Respondent's relevant injuries.

4C. The Second Defendant/ Appellant adopts, asserts and relies upon all of the Appeal grounds raised by the Plaintiff/ Cross-Appellant in his Notice of Cross-Appeal.

The Trial Judge failed to rationally engage with the Second Defendant's/ Appellant's case that any alleged tort had not caused any significant injury to the Plaintiff/ First Respondent other than a facial laceration and facial scarring.

The Trial Judge failed to properly use and misused his advantage as the Trial Judge with respect to the assessment of the credibility, acceptability and reliability of the evidence of the Plaintiff/ First Respondent.

The Trial Judge erred in finding that the Plaintiff/ First Respondent suffered any significant tort-induced injuries other than a facial laceration and facial scarring.

The Trial Judge's award of damages was outside the range of sound discretionary judgment.

The Trial Judge erred in ordering the Second Defendant/ Appellant to pay costs awarded in favour of the First Defendant/ Second Respondent against the Plaintiff/ First Respondent.

The Trial Judge failed to provide adequate reasons for his findings on the issue of any party's alleged liability to the Plaintiff/ First Respondent.

The Trial Judge failed to provide adequate reasons for his findings on the issue of any alleged tort having caused particular injury and damage to the Plaintiff/ First Respondent.

The Trial Judge's finding(s) to the effect that the First Respondent's symptoms were " in his mind " and the First Respondent believed " that all of his problems stemmed from the incident " in September 2002, and that such symptoms and problems were compensable were not open on the evidence, were against the evidence …… and constituted an error in the judicial process. 20 Relevantly, the Plaintiff relies on the following grounds in his cross-appeal: 6. The Trial Judge should have made the following material findings of fact:- i. That the First Cross-respondent [the Supplier] had a contract with the Second Cross-respondent [the Builder] to deliver only the glass sliding doors to the Second Cross-respondent.

ii. That the installation of the glass sliding doors was the responsibility of the Second Cross-respondent.

iii. That the Second Cross-respondent was responsible for ensuring the safe unloading and storage of the glass sliding doors on its worksite.

iv. That the Second Cross-respondent failed to provide access to the work site for the purpose of unloading.

v. That the Second Cross-respondent allowed access to the work site to be blocked.

7. The Trial Judge erred in finding as a material fact that the First Cross-respondent had a contract with the Second Cross-respondent to both deliver and install the glass sliding doors to the Second Cross-respondent's worksite. 21 The Builder relies on the following grounds of a notice of contention: 1. If there is found to have been a duty of care owed by the Second Respondent [the Builder] to the First Respondent [the Plaintiff], the duty was not breached.

2. If the Second Respondent breached any duty of care it owed to the First Respondent, the breach was not causally connected with injuries suffered by the First Respondent. 22 In its appeal against the Employer, the Supplier relies on the same grounds as in its other appeal to reduce the amount of damages. 23 I will consider in turn the following issues: (1) The liability of the Builder. (2) The quantum of damages (dealing in turn with the Plaintiff's history, the primary judge's decision, and the issues on appeal). (3) The Bullock order for costs.

Liability of the Builder 24 Mr Campbell SC for the Supplier submitted that the Builder had obligations concerning the safety of the site and the co-ordination of trades and other activity on the site, including the delivery of materials. 25 He submitted that, to the extent that the primary judge found that the Builder's obligation did not extend to organising and co-ordinating the delivery of the glass doors, because the Supplier's contract was to supply and install the doors, this was an error: The invoices were for supply only, Mr Kennedy's evidence was that the carpenters would install, and it was not put to Mr Sierzega that he was to install. 26 Mr Campbell submitted that the Builder, through his representative on the site Mr Kennedy, was in control of the site, and had obligations together with the Supplier to ensure that the delivery was carried out in such a way as not to involve unreasonable risk of injury; and the Builder should have ensured that the Plaintiff was competent to assist in the unloading and/or had support appropriate to someone who was not competent and/or that the Plaintiff was not put at risk by lending assistance in the dangerous windy conditions. 27 These submissions were supported by submissions from Mr Mahony SC for the Plaintiff. He submitted that Mr Kennedy had accepted the responsibility to supervise the site on behalf of the Builder. The Plaintiff was vulnerable because of his obvious inexperience, and Mr Kennedy knew that the delivery was of glass, a hazardous material to deliver and unload. He submitted that the Builder through Mr Kennedy had a duty of care to provide a proper system for delivery on the site, particularly in circumstances where the entrances to the site were blocked. 28 In my opinion, as submitted by Mr Maconachie QC for the Builder, Mr Sierzega was in control of the operation of unloading the truck, and there was nothing about the aspect of that operation in which the Plaintiff was injured that concerned control of the site or co-ordination of activities on the site. It was reasonable to leave arrangements for the handling of the glass to persons experienced in doing so. It did not matter whether the Supplier's contract was merely to supply or to supply and install. 29 Further, as also submitted by Mr Maconachie, it was not shown that Mr Kennedy had authority from the Builder to direct what subcontractors and other persons did on the site; and in any event, as found by the primary judge, Mr Kennedy did not know exactly what Mr Sierzega had on his truck, and there was no suggestion that he should have known. 30 In all those circumstances, I am not satisfied the primary judge erred in finding there was no duty of care of the Builder to the Plaintiff in respect of activities on Mr Sierzega's truck; and even if there were a duty of care, in my opinion the evidence would not have supported a finding of breach. 31 For those reasons, I would not allow the Supplier's appeal or the Plaintiff's cross-appeal on the question of the liability of the Builder.

Plaintiff's history 32 Turning to the question of damages, it is convenient first to set out a brief account of the Plaintiff's history. 33 The Plaintiff was born on 21 August 1970 in Canberra. He left school in about 1985. 34 After he left school, he obtained employment in his uncle's business Stratos Glass and Aluminium, and, according to the Plaintiff, he worked there about 16 to 18 months (although a report of Woden Valley Hospital Psychiatric Unit dated 10 March 1993 said it was eight months: Blue 436-7). 35 The Plaintiff then worked on and off at various jobs, including Mother Nature's Fruit Shop and Fish Shops. 36 From the time the Plaintiff left school until the accident, he played competitive soccer to a high standard. 37 However, from 1986 and right through to 2000, the Plaintiff committed numerous driving offences, including numerous offences of driving an unlicensed vehicle and driving without a licence or when his licence was suspended. Also, in 1992 he contravened a domestic violence order taken out against him by a de facto partner, and was given 200 hours community service. 38 In 1994, he obtained employment with Cannons Warehouse and Food Barn. During this employment, there was an accident when he was thrown off a cherry-picker, fell some distance and hurt his lower back. This resulted in his receiving workers compensation for "roughly a year" according to the Plaintiff's evidence (or approximately two years, according to a pre-sentence report dated 17 April 1997: Blue 476). The Plaintiff received a lump sum payout in September 1996, the gross payout being $55,000 and the net amount received by the Plaintiff after solicitor's fees and medical expenses being around $36,000. 39 In 1996 the Plaintiff started a business as a mechanic and panel-beating shop. However, this business failed after about two or three months. 40 On 17 July 1997, the Plaintiff was dealt with for offences of driving whilst cancelled and driving in a dangerous manner. The pre-sentence report noted longstanding problems of drug dependence and an explanation for the offences that he and his de facto partner had been fighting and he had to get away from her. For the dangerous driving, he was sentenced to three months imprisonment to be served by 12 periods of periodic detention, and he was given an 18 months drugs of dependence treatment order. For the other offence, he was given a six month suspended sentence. 41 The Plaintiff married in 1997 and moved to Batemans Bay. 42 However, a risk status report dated 19 January 1998 (Blue 387) noted that he had a high risk of re-offending because his lifestyle was constantly in crisis mode - gambling, using speed, living at different places, arguing with his mother, ex-wife and other family members; and the statement referred to an ongoing abusive and violent relationship with his ex-wife. 43 A report of the ACT Corrective Services dated 16 February 1998 (Blue 520) noted that he had reported on 15 January 1998 that he would admit himself for detox to Arcadia House, but had failed to do so; that on 23 January 1998 he stated he had been coming down off speed; that he separated from his wife in November 1998 (that must mean November 1997); that he presented as drug affected on many occasions; and that he attended periodic detention erratically. 44 A report of the Drug Panel dated 24 April 1998 noted failure to attend meetings for counselling and recommended cancelling of the treatment order. 45 It appears that in 1997 and 1998 the Plaintiff had casual jobs for periods of perhaps up to three or four months in Batemans Bay, in Fish and Chip shops, as a bricklayer's labourer, and as a cleaner. The Plaintiff moved back to Canberra in 1998 or 1999, then back again to Batemans Bay in 1999. It appears that he was on unemployment benefits for long periods, particularly in the period leading up to the accident. 46 There was a son born to himself and his wife on 28 March 2000. 47 On 1 December 2000 the Plaintiff was sentenced for driving while disqualified and driving in a manner dangerous. He was given suspended sentences, and made subject to the supervision of ACT Corrective Services for 12 months. In January 2001, he was convicted of possession and supply of small quantities of cannabis. 48 He failed to attend appointments with ACT Corrective Services in August and September 2001; although a report of 7 August 2001 (Blue 498), while reporting that he had broken up with his wife about eight months previously, also reported that he was working gyprocking and tiling bathrooms, that he said he was not using drugs or alcohol, and that he appeared determined not to return to his old lifestyle. 49 It appears that he resumed living with his wife some time between August 2001 and September 2002. 50 On 16 September 2002 he commenced employment with the Employer and the subject accident occurred on that day. The Plaintiff was taken to Batemans Bay Hospital, and then transferred to Moruya District Hospital. He was discharged on 17 September 2002. 51 He returned home to his wife, but it appears that they separated about the end of September 2002, when he went to Batehaven Caravan Park. He continued thereafter to have a troubled relationship with her. 52 The ambulance record of 16 September 2002 noted that the Plaintiff had a two-minute loss of consciousness. He was treated at Batemans Bay Hospital with analgesics and intravenous fluids, and lacerations on his right lower leg were sutured. At Moruya District Hospital, deep facial lacerations on the left side of his face were repaired with multiple sutures. An x-ray revealed a fracture of the floor of the left eye orbit, and also a fracture of the tip of the nasal bone. A pre-operative check list (Blue 29) disclosed "broken teeth" about which it was noted "back left today". 53 The Plaintiff saw a general practitioner Dr Langley on 19 September 2002. According to Dr Langley's report (Blue 50) the Plaintiff complained of pain in the face and severe headaches, and also low back pain and right knee pain. However, it may be, having regard to Dr Langley's own notes, that the complaint of back pain was not made until 3 October 2002 (see Blue 174). 54 A plain x-ray of the lumbar spine and right knee taken on 22 October 2002 was normal; but an MRI scan of the lumbar spine on 17 December 2002 revealed lumbar disc disease with possible L4 nerve root impingement, and mild foraminal encroachment of the left L5 nerve root. 55 The Plaintiff again saw Dr Langley on 28 November 2002, when he was distressed and tearful, complained of loss of teeth and numbness to upper teeth, and ongoing lower back pain (Blue 51, 176). 56 The Plaintiff saw Dr Langley on 10 January 2003, and Dr Langley's notes record "was doing well to involvement in struggle outside hotel on 4/1/03 was protecting 17 year old nephew. Prior to Sat night - felt good - was almost fully recovered - no limping" (Blue 177). 57 On 20 January 2003 the Plaintiff was again charged with driving while disqualified; and on 30 January 2003 he was arrested for allegedly assaulting his wife. He was then in police cells for four or five weeks; and subsequently he was sentenced to six months in prison. 58 When he came out of prison in July 2003, he tried unsuccessfully to reconcile with his wife. He did some work in a fruit shop in Canberra in September and October 2003, and did labouring work for Capital Renovators in November 2003 and with O'Sullivan Constructions from December 2003 to March 2004. 59 In March 2004 he consulted another GP Dr Langsford, and subsequently Dr Langsford referred him to a sports physician Dr Kellet and a Psychiatrist Dr Tym. 60 The Plaintiff saw Dr Kellet on 18 May 2004, and Dr Kellet expressed the view that "the prospects for a good outcome and a return to fulltime physical work for Mr Bakavgas are not good, based on the psycho-social factors probably more than the physical factors". 61 The Plaintiff saw Dr Tym on 29 June 2004 and 13 July 2004. Dr Tym originally thought he was suffering from a major depressive disorder; but then changed that opinion to an opinion that he was suffering from adjustment disorder with anxiety and depressed mood (Blue 55-58). Later, Dr Tym gave a diagnosis of post traumatic stress disorder; and also referred to a longstanding attention deficit disorder (ADD) (Blue 59-60). At this time (3 May 2006) Dr Tym expressed the view that the Plaintiff was not physically fit for his pre-injury duties but was as psychologically fit, if not more fit, than he had been prior to the accident because the previously undiagnosed ADD was being treated. Dr Tym expressed the view at that time that the Plaintiff's mental state had made a complete recovery. 62 From August 2004 until the time of the hearing in 2008, the Plaintiff was regularly consulting a GP, Dr Voon. Dr Voon records ongoing complaints of constant headaches, back pain, depression and recurring anxiety about his physical, financial and mental well-being (Blue 71). Dr Voon expressed the view (Blue 72) that the Plaintiff had not been fit to return to his pre-injury occupation since his injury; that his condition had not stabilised; and that, in the presence of structural damage and the chronic nature of his condition compounded by his depression, his prognosis should be guarded. 63 It appears that between about March 2004 and the date of the hearing, the Plaintiff had little employment. It appears that he worked for three or four weeks in 2007 with Traffic King. However, two weeks before the hearing, he commenced work with Craig Loiterton, trading under the name Gunderoo Building Company, and Craig Loiterton gave evidence at the hearing suggesting a willingness to keep the Plaintiff in that employment.

Decision of primary judge on damages 64 The primary judge did discuss the medical evidence at some length, but made no clear finding as to any current physical or psychological disability of the Plaintiff. In particular, he made no explicit findings on the existence, causation or effects of any depression or other psychological condition of the Plaintiff, or the existence, causation or effects of any disability of the Plaintiff's lower back, or as to the extent of any continuing pain suffered by the Plaintiff. However, although there was no explicit finding on these matters, there is implicit in the judgment a finding that the Plaintiff was significantly disabled from work by his physical condition or his psychological condition or some combination of the two. 65 The primary judge did make findings that he did not consider the Plaintiff had set out to lie, although there were elements of exaggeration in his account (Red 134, 146, 168). He found that the Plaintiff had suffered facial injuries (Red 167-168) and a serious and significant injury of a dental nature (Red 134). He found that the incident had caused the Plaintiff considerable pain (Red 134-135), and that his scarring was "very significant" (Red 135). 66 The primary judge accepted the Plaintiff's evidence that he had pain in his teeth, in his left shoulder, lower back, his right knee, in his ankles and all around his head; but did not make it clear the time to which he was referring (Red 135). The primary judge found there was aggravation to a previous back injury (Red 136) and that his back problem had been significantly exacerbated by the incident (Red 163-164, 168). He found that the Plaintiff's preoccupation with the events of 16 September 2002 was a symptom of his condition (Red 134). 67 As regards independent witnesses concerning the Plaintiff's condition and changes in his behaviour, he made no explicit finding that Mr Loiterton's evidence was accepted, but it is implicit that it was accepted (Red 147-148). The primary judge explicitly accepted evidence of Mr Jinna (Red 148). 68 The primary judge assessed the non-economic loss as thirty per cent of a most extreme case, giving $101,500. He assessed past out-of-pockets at $85,383.23, and future out-of-pockets at $59,375.78. He assessed medication at $39,598.34. He assessed past economic loss at $50,000. As regards future economic loss, he assessed that on the basis that uninjured the Plaintiff would have been able to earn $600 per week, and that in his injured state he would be able to earn $300 per week; and after allowing a discount for vicissitudes of thirty per cent, this gave a figure of $167,286. To this he added a figure for superannuation of $15,400, and a Fox and Wood component of $21,373.85.

Submissions on damages 69 In written submissions, it was put for the Supplier that the Plaintiff was clearly exposed as someone who had deliberately misled medical practitioners and the Court in order to falsely advance his case on injury and damages arising from the accident; and the primary judge erred in finding that the Plaintiff had not set out to lie and in merely finding elements of exaggeration in his account. 70 It was submitted that the Plaintiff did not tell doctors that his back problem from the 1994 accident persisted for eight years right up to the 2002 accident, but (for example) told Professor Lance that "the back pain persisted for about a year" (Blue 82) and told Dr Millons that he "made a good recovery" and "went along untroubled until the incident of 16/09/02" (Blue 98); that in cross-examination the Plaintiff originally denied using prohibited drugs to ease his back pain (Black 140-41), but later admitted that right up to the 2002 accident he used amphetamines and cannabis to ease his back pain; that the Plaintiff had deliberately lied to the psychiatrist Dr Phillips when he said (Blue 124) he did not think he had suffered psychological problems at any time in the past, that he felt good about himself until the accident, and that he had been a happy and hard working person who enjoyed a normal family life; and that the truth was that his domestic and emotional life was in tatters up to the 2002 accident, he was depressed throughout 2002 due to persisting back pain, and things were happening in his head he did not understand causing him to break the law and become violent towards his wife (Black 133-44). It was submitted that the plaintiff had conceded that he deliberately misled Dr Phillips (Black 160). 71 It was submitted that the plaintiff failed to prove any significant long-lasting back and psychological injuries caused by the 2002 accident, particularly where the medical evidence was of little weight because of inaccurate history, and where there was evidence of Dr Langley's note of 10 January 2003 that he was then almost fully recovered. 72 It was submitted that the primary judge failed to provide adequate reasons for finding that the Plaintiff's attribution of all his problems to the 2002 accident was itself caused by the accident, and for relying on this to accept that the Plaintiff's problems that he complained of were due to the accident. 73 It was submitted that the damages for non-economic loss were excessive, because the only proved accident related injury was facial lacerations and scarring; and that the primary judge was wrong to find that dental injuries were suffered in the accident (and did not give reasons for finding this). 74 It was submitted that the claim for past and future out-of-pockets and medication, as well as past and future economic loss, must largely fail because of the failure of the claim for serious and persistent back injuries and psychological injuries. It was also submitted that, even if the primary judge's findings as to injuries were maintained, the primary judge erred in the award for economic loss, because the evidence did not support the finding that the Plaintiff would have earned more than $15,000 net per annum, which the primary judge found to be his residual earning capacity. 75 In oral submissions, Mr Campbell submitted that the Plaintiff's case was not supported by the medical evidence. He referred to the opinion of the treating psychiatrist Dr Tym that the Plaintiff was as psychologically fit, if not more so, than before the accident (Blue 60); and the opinion of the Plaintiff's medico-legal neurologist Professor Lance that the Plaintiff would be physically able to resume work but required continuing psychiatric and psychological care (Blue 88). The opinion of the Plaintiff's medico-legal orthopaedic specialist Dr Millons was that "orthopaedically, apart from some minor problems with the left shoulder and perhaps some minimal irritability in the lower back, there does not appear to be too much untoward going on which would preclude a return to the workforce" (Blue 109-10), with even this being on the basis of an incorrect history. Mr Campbell submitted that no weight, or very little weight, could be given to the opinions of the medico-legal psychiatric specialist Dr Phillips, because of the untrue history; and in any event, the primary judge did not find in accordance with Dr Phillips' opinion that the Plaintiff was suffering from a pain disorder (Blue 138).

Decision on damages 76 In my opinion, the Supplier has not shown that the primary judge failed to properly use or misused his advantage with respect to assessment of the Plaintiff's credibility (cf Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472 at 479) or made findings which were not plausible or did not result from rational engagement with the evidence (cf State Rail Authority of New South Wales v Earthline Constructions Pty Limited [1999] HCA 3; (1999) 73 ALJR 306). 77 In my opinion, it is plain that the Plaintiff did not concede that he deliberately misled Dr Phillips, on a full reading of the relevant part of the transcript. He gave an explanation for wrong histories to Dr Phillips that they were not conscious and deliberate, and that after the accident his "life got a hell of a lot worse" (Black 160). As regards the history given to other doctors, he said that his "back never hurt anywhere near as much as it does now before the accident" (Black 164: this statement was ruled as unresponsive by the primary judge but not struck out); and that during the eight years from 1994 to 2002 the back pain was hardly ever severe, that he could do anything (work, run, play soccer), and that there were periods when he suffered no pain (Black 196-97). 78 It is clear from the reports of Dr Phillips that Dr Phillips was made aware of much of the pre-accident problems of the Plaintiff concerning drug dependence, violence, depression, and dysfunctional personality traits (Blue 129, 137-39). 79 The primary judge did have the advantage of seeing and hearing the Plaintiff; and I am not satisfied that his conclusion that the Plaintiff did not set out to lie, but that there were elements of exaggeration in his account, is one that should be disturbed on appeal. 80 On the question whether the Plaintiff proved significant long-lasting back and/or psychological injuries caused by the 2002 accident, the primary judge's findings that there was aggravation to a previous back injury and that the back problem was significantly exacerbated was supported by the Plaintiff's own evidence, with some support from Mr Loiterton (Black 270-71), and was also supported by Dr Langley. There was strong support to his having significant ongoing psychological problems caused by the accident from the evidence of Dr Phillips and Dr George; and it was open to the primary judge to regard this as of weight even if these doctors did not have a completely full and accurate history. The advantage to the Plaintiff from diagnosis and treatment of his attention deficit disorder is not a matter that would reduce damages. On that basis, in my opinion it was open to the primary judge to accept that the Plaintiff has significant continuing disability from physical and/or psychological injury; and in my opinion that opinion is not vitiated by a failure to be precise about the identification of the particular psychological complaint or the precise contributions to his disability of psychological and physical problems. In my opinion, the primary judge's reasons were adequate. 81 As regards the question of dental injury, there were early references to broken teeth in the hospital record and Dr Langley's notes referred to earlier; and the Plaintiff's explanation for not seeking treatment within the first couple of years after the accident, namely lack of funds, was one which could reasonably be accepted. In those circumstances, in my opinion, a case for disturbing the primary judge's finding on dental injuries is not made out. 82 In my opinion, this has not been shown to be a case where the Court of Appeal should overturn the general findings of the primary judge; and in my opinion it follows that there is no basis for intervening in relation to non-economic loss and out-of-pocket expenses. 83 As regards economic loss, the award could be considered generous. In particular, I may have been inclined to assess the Plaintiff's earning capacity uninjured at $400 per week, and injured at $200 per week, subject to the same thirty per cent discount; which would have reduced future economic loss by $55,762 and superannuation by $5,133. However, in my opinion this is not a case where the primary judge has been shown to have applied 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. In my opinion a case is not made out for appellate intervention. 84 For those reasons, in my opinion the challenge to the damages awarded to the Plaintiff fails.

Bullock order 85 The primary judge made an order that the Supplier pay the Plaintiff the costs that the Plaintiff had been ordered to pay the Builder, giving as reasons that it was reasonable for the Plaintiff to have joined the Builder as well as the Supplier, and that a statement signed by Mr Sierzega telegraphed that there could be a liability in the Builder. 86 In my opinion, Mr Sierzega's statement did not amount to conduct by the Supplier that itself supported the reasonableness of the Plaintiff suing the Builder. This was not a case in which the Supplier itself had put on a cross-claim against the Builder, or made any suggestion that the Builder should be joined, as happened in ACQ Pty Ltd v Cook (No 2) [2008] NSWCA 306. In my opinion, the reasonableness of the Plaintiff, as a matter of caution, joining the Builder is not sufficient to justify the Bullock order; and in my opinion the primary judge erred in making that order.

ORDERS 87 The Supplier's appeal against the Builder has totally failed, and the Supplier's appeal against the Plaintiff has largely failed. I propose to order that the Supplier pay the Builder's costs of the appeal, and to pay three-quarters of the Plaintiff's costs of the appeal. The Plaintiff's cross-appeal against the Builder will be dismissed. This was largely responsive to the Supplier's appeal and did not add to costs, and I would propose no order as to the costs of the Plaintiff's cross-appeal. 88 The orders I propose are as follows: (1) In the Supplier's appeal against the Builder and the Plaintiff, set aside the order that the Supplier indemnify the Plaintiff in respect of costs to be paid by the Plaintiff to the Builder. (2) Otherwise dismiss the Supplier's appeal. (3) Supplier to pay the Builder's costs of the appeal and three-quarters of the Plaintiff's costs of the appeal, the Plaintiff to have a certificate under the Suitors' Fund Act 1951 in relation to the balance of his costs, if otherwise eligible. (4) Plaintiff's cross-appeal dismissed, with no order as to costs. (5) Supplier's appeal against the Employer dismissed with costs. 89 BASTEN JA: I agree with Hodgson JA except in relation to the challenge to the award of future economic loss.

(1) Background 90 It is not in doubt that Mr Bakavgas ("the plaintiff") suffered a significant injury as a result of the accident on 16 September 2002. It is also not in doubt that, as at the date of the trial in February 2008, the plaintiff had a significant diminution in earning capacity. The real questions for determination by the trial judge were, first, the probable level of the plaintiff's earning capacity pre-accident and, secondly, the extent to which the accident had diminished that earning capacity. Precisely how those matters were assessed by the trial judge is not entirely clear from his Honour's reasons. These were delivered orally on 27 February 2008 (Day 1) and 28 February (Day 2) and, in relation to damages alone, extended over some 40 transcript pages. (The transcript of Day 2 was not properly paginated.) In large part, he summarised the evidence relevant to the issues and noted things as having been "taken into account". However, the various factual considerations were transformed into dollar amounts without clear findings of fact on specific issues. 91 No doubt an experienced and diligent trial judge is entitled to a degree of deference as to the manner in which he or she choses to express reasons for judgment, particularly in respect of matters which require evaluation and are, to a large extent, impressionistic. Nevertheless, the useful discipline which derives from requiring specific findings is now mandated by s 13 of the Civil Liability Act 2002 (NSW), which states: " 13 Future economic loss - claimant's prospects and adjustments (1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. (2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury. (3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted."

(2) Issues relevant to future economic loss (a) general 92 In the present case, the plaintiff's injuries were, broadly speaking, as follows:

(a) facial scarring, (b) damage to teeth; (c) aggravation of lower back problems, and (d) aggravation of psychological problems. 93 Apart from some minor issues as to the extent of the dental work required by the accident (and the suggestion that there were pre-accident dental problems) the first two categories of injury were not significant, with respect to future economic loss, except to the extent that they were causative of psychological problems. It was the latter injuries which had a direct impact on the plaintiff's earning capacity, but in each case there was a pre-existing disability. 94 At the time of the accident, the plaintiff was 32 years of age. He had left school at the age of 15 and apparently played soccer for some 10 years, including first grade soccer. His Honour noted that he had "been employed at various times over the years, not for long periods; it could be described as intermittent employment, certainly not of lasting duration": Judgment, Day 1 at 4. In 1994 he sustained an injury to his back which, according to his own evidence, meant that he was "off work for roughly a year": Judgment, Day 1 at 4. For several years prior to the accident, he appears not to have received more than $15,000 per year in wages. Such work as he did obtain was as a labourer. He also accepted in his oral evidence that he had over various periods been a drug user, had numerous driving offences and was for significant periods in difficult domestic relationships which had included violent episodes. 95 It appeared that his earning capacity, but for the accident, was likely to be limited to that of a labourer. It was also likely, on the basis of past history, that his level of employment would be intermittent, with periods of unemployment. Absent the 2002 accident, there was also a possibility that the lower back injury resulting from the 1994 accident would lead to a diminution in earning capacity at some stage in the future. On the other hand, there was a possibility that his disrupted social life might resolve to some extent in the future, leading to more regular employment. 96 Each of these were factors which needed to be identified and, so far as possible, quantified by the trial judge, at least in relation to the percentage possibilities of change. 97 The evidence which fell to be assessed by the trial judge in respect of damages fell into three categories. First, there was the evidence of the plaintiff himself who was extensively cross-examined, both as to the extent of his disabilities and in relation to the histories which he gave to various medical practitioners. Secondly, there was the evidence of two friends of the plaintiff, a Mr Jinna and a Mr Loiterton, who had known the plaintiff at various stages during his life in Canberra. Thirdly, there were the medical reports: no medical practitioner was called for cross-examination. 98 It was said on appeal that the trial judge had erred in excusing the plaintiff's misleading statements to medical practitioners as "exaggeration", rather than deliberate dishonesty. Further, it was said that his Honour erred in treating the plaintiff's belief that all his problems stemmed from the accident in September 2002 as a symptom of the psychological state caused by the accident, rather than deliberately misleading behaviour: see Judgment, Day 1 at 68. 99 This challenge fails in both respects. First, so far as the objective circumstances of the plaintiff's life before the accident are concerned, it is clear that his Honour accepted that there were serious inaccuracies in the accounts given to medical practitioners, with the result that their views had to be discounted to make allowance for such inaccuracies. Further, to the extent that his Honour accepted that the plaintiff exaggerated with respect to the results of the accident, he took the step which a finding of dishonesty would also have required, namely to discount the plaintiff's evidence in that regard. Whether greater caution would have been displayed with respect to particular findings, had his Honour been persuaded of the plaintiff's dishonesty is not a matter upon which this Court can embark. This was clearly a case in which the advantages enjoyed by the trial judge in assessing the credibility of the plaintiff as a witness must be acknowledged. The question ultimately is one of the level of disability which the plaintiff suffered at various times, and its cause: his state of mind in that regard was only of secondary significance. 100 Although the trial judge said that Mr Jinna's evidence impressed him it is not clear what he derived from it: Judgment, Day 1 at 55. Mr Jinna had known the plaintiff since the late 1980s, but had lost touch with him for most of the 1990s. Mr Jinna's evidence was in substance that the plaintiff was more subdued during the last two years than in the earlier years of their association. That appears in part to have been a reaction to the physical scarring, but also to challenges in his personal life: Tcpt, 18/02/08, pp 164-165. A reading of the whole of Mr Jinna's brief evidence does not suggest that there was much of substance in it to assist the trial judge with the matters which were ultimately determinative in relation to damages. 101 Mr Loiterton had only met the plaintiff in early 2004. His evidence gave some support to the plaintiff's claims that he could not lift or maintain heavy work: Tcpt, 18/02/08, p 172. He gave evidence that he had offered the plaintiff employment for approximately the full month prior to the trial, apparently to do filing, estimating, processing orders and learning to use a computer: Tcpt, p 175. Mr Loiterton did not have an extensive business operation, and had paid the plaintiff for only 15 hours work. He gave evidence that he had advanced some $15,000 to $20,000 to the plaintiff over a period of three years: Tcpt, pp 189 and 191. He denied that he had any agreement about repayment of the money but agreed that he had been offered repayment out of any compensation received for his injury: Tcpt, pp 190-191. His Honour inferred from this evidence that the plaintiff would continue to be employed by Mr Loiterton "for some considerable period of time": Judgment, Day 2, fourteenth page. 102 The real difficulty which the plaintiff faced in the present case was that his poor record in recounting problems with his health rendered it difficult for him to establish on the balance of probabilities the loss which he had suffered as a result of the 2002 accident.

(b) lower back injury 103 On 17 December 2002 the plaintiff had an MRI lumbar spine scan resulting in the following report, accepted by the trial judge (Judgment, Day 1 at 71): "At L4/5 the disc is normal in height and T2 signal intensity but there is a moderate left far lateral disc/osteophyte complex noted causing moderate encroachment on the foramen with possible irritation of the exiting left L4 root (axial slices 16-18, sagittal slice 3). Slight thickening of the ligamenta flava is also noted with a mild degree of left lateral recess narrowing in relation to the left L5 root (axial slice17)." 104 In May 2004 the plaintiff saw a Dr John Kellett, identified as a sports physician, who noted his history of low back pain and examined him for pain and disability in his back and legs. He concluded: "I have asked Mr Bakavgas to have a repeat MRI scan of his lumbosacral spine and, if there is no significant deterioration in the disc protrusion, I would recommend a graduated physical retraining/work hardening program. The prospects for a good outcome and return to full time physical work for Mr Bakavgas are not good, based on the psychosocial factors probably more than the physical factors. Based on his past work history, it is probable that the aim should be for some physically less demanding form of work, at least for a considerable period of time to allow him to get back into a regular work habit." 105 In September 2005 the plaintiff saw Professor James Lance, a consultant neurologist. In relation to his past health Professor Lance noted: "He told me that he fell several metres off a cherry-picker in 1996 and injured his back. He said that back pain persisted for about a year and he had to take six to eight months off work, because of it." 106 He also noted the plaintiff's description of "constant pain in the lower back but after a month or so of daily back pain may have 2-3 days free". He continued: "He said that the pain radiates to his hips, buttocks and down the outer side of the calf and ankle. He said that the underside of both big toes feel numb at times and his legs feel weak. The back pain is made worse by moving around during the day and at times, is made worse by bending. He said that it fluctuates in severity." 107 On examination Professor Lance noted: "He was able to touch his toes and straight leg raising was full without discomfort. When the back was in the flexed position, he appeared to be tender over the lower lumbosacral spine and said that extension and rotation of the spine hurt. Muscle tone, power and coordination were normal in the upper limbs. Muscle tone and power were normal in the lower limbs. Sensation was intact." 108 Professor Lance concluded: "Mr Bakavgas has post-traumatic headaches, aggravated by his state of anxiety and depression. There is no indication of root irritation or compression in the lumbosacral area. I did not assess his left shoulder which is the province of an orthopaedic surgeon and did not attempt to assess his dental problem." 109 In October 2005 the plaintiff saw Mr David Millons, a specialist surgeon. He noted a history of a slipped disc in 1996 whilst working as a storeman-packer, resulting in him being "off work for two months". The only treatment reported was "some physiotherapy". Mr Millons noted the MRI report of 17 December 2002 and commented, "Mr Bakavgas' symptoms are right sided". In his opinion he stated: "There is a past history of a back injury in 1996 from which he, apparently, made a good recovery. He went along untroubled until the incident on 16/09/02. Something clearly happened to him that day which has turned the tide of things very much against him. … Mr Bakavgas claims to have problems with his lower back. There is evidence of some mild degenerative change in the lower lumbar region, a finding not infrequently seen in a man of his age. His back is mildly stiff and irritable. There is no convincing evidence of any frank nerve root irritation or neurological deficit in either lower limb. Mr Bakavgas has had some problems with his right knee. There does not appear to be a great deal untoward going on there. Radiologically, the knee has not turned up anything untoward. Orthopaedically, apart from the left shoulder, there does not appear to be too much untoward going on which would preclude a return to work. There do appear to be very considerable psychological problems on which I am not competent to comment." 110 The plaintiff was cross-examined about his back pain after the fall from the cherry-picker which in fact occurred in 1994 at Tcpt, 15/02/08, p 76. After being referred to the history taken by Professor Lance that the pain had persisted "for about a year" he was asked: "Q. You certainly had back pain that persisted for a lot longer than about a year, didn't you? A. No, but I was referring to after the accident. Q. Excuse me. You certainly had back pain that persisted for longer than a year after your accident in 1994, didn't you? A. Yes. Q. It persisted right up until 2002; that's to say for eight years, didn't it? A. Yes. Q. It persisted in various degrees of severity, didn't it? A. Yes. Q. And when it was at its most severe you resorted to not just prescribed analgesic medication and anti-inflammatory medication, but also to intravenous amphetamines and cannabis? A. Yes sir." 111 The accident occurred near the south coast town of Batemans Bay and the plaintiff was treated by Dr James Langley from the Batemans Bay Medical Centre. Dr Langley's notes through 2002 contain a number of references to low back pain and a painful right knee. On 10 January 2003 the following note appeared: "Was doing well to [until?] involvement in struggle outside hotel on 4 January 03. Was protecting his 17 year old nephew. Prior to Saturday night - felt good - was almost fully recovered - no limping. Mild low back pain persisted. … Now increased low back pain, right knee." 112 Dr Langley also noted that the plaintiff was keen to return to work but would be unfit until 27 January. He did not return to work, but was incarcerated shortly thereafter. 113 The only sustained period of work undertaken between the date of the accident and the date of trial appears to have been approximately three or four months working for a construction company in Canberra. That work appears to have been undertaken in the second half of 2003. He was asked if it was "pretty arduous work" and agreed it "wasn't easy": Tcpt, 13/02/08, p 17. He said that he had been mixing cement, erecting concrete formwork, and other work preparatory to laying concrete, including digging and using a compactor which required two men to lift it: Tcpt, pp 18-20. He gave evidence in chief that the work had been for three or four months and that he had to stop because he was "wearing down slowly from things that I had to lift, this and that, it wasn't a problem that I couldn't really do it, it was just painful while I was doing it and as I was going on and on it got worse": Tcpt, p 34. He appears to have seen a Dr Langsford at the Capital Medical Centre, until July 2004, although no records appear in the papers before this Court from Dr Langsford. 114 On 28 September 2006, some four years after the accident, the plaintiff was referred to a neurosurgeon, Dr Nadana Chandran. Dr Chandran was aware of the past history of a "slipped disc" in "1996" and the fact that the plaintiff was off work for a year at that time. In expressing an opinion, Dr Chandran stated: "The history given by this man indicates that he developed symptoms after an incident at work in September, 2002. While he had extensive symptoms and disability described, there was very little to find on clinical examination. He had symptoms of back pain radiating into both legs but the scan has shown only a far lateral protrusion on the left which can explain the pain down the left leg but not the right leg. Further conservative measures have been offered, with no indication for any surgical intervention. On the basis of the history and the underlying disc protrusion, it was felt that he should not go back to any heavy physical work but consider retraining. His present condition may be considered as arising from the injury that he described as having occurred in 2002 with symptoms going on since then." 115 The plaintiff underwent a medical assessment by Dr Brian Zeman in October 2006 at the Vocational Capacity Centre. Dr Zeman took a history which included the following: "Using a diagram, he [the plaintiff] indicated areas of pain on both sides of the neck, left lower neck, between the shoulder blades, anterior sides of the lower chest, front of both knees, and low back. The worst pain was in the low back. It was constantly present although fluctuating in severity. The low back pain radiated down the back of the legs to the toes. His pain varied and he had difficulty stating what made it worse. Sometimes, he could do some things but on another occasion, it would be painful. He also could not say what relieved the pains. Sometimes, the tablets helped and other times not." 116 Dr Zeman appears from his report to have carried out a thorough physical examination. Dr Zeman's conclusions included the following: "Although at various stages, he has reported neck, knee and shoulder pains, he has no significant clinical signs or functional restrictions, and no significant pathology on investigations. Unrelated to the accident, he has: - non-specific low back pain with investigation showing L4/5 disc prolapse and left nerve root compression that preceded the accident by 10 years. - long standing behavioural and psychological problems with poor work history and a criminal record that included prior periodical detention, and a jail sentence of six months soon after the accident for unrelated events." 117 Dr Zeman had explained earlier in his summary of his examination: "The circumstances of the accident in 2002 would not have caused or significantly exacerbated the lumbar spine condition that was pre-existent. On clinical examination and investigations, he has no significant pathology in the neck, left shoulder or right knee. Although he reports pain at various sites, the pain has been inconsistent and with no objective clinical signs and no reported consistent functional limitations." 118 The trial judge referred to the report of Dr Zeman (Judgment, Day 2, fifth page) but only after he had already made a finding in two parts. The first part (third page) was as follows: "He certainly had a back problem over the years but his back problem appears to me to be one which was of itself somewhat transient. No doubt he had his good days and bad days and certainly there was some recourse to illicit drug abuse, as has been clearly identified in the evidence. But in one way, shape or form, it seems to me that the [plaintiff] was able to cope with that despite the problem that he had. Certainly there is some history of work, but only of a relatively short duration." 119 The second part of the finding was that the accident has "significantly exacerbated" his back problems and therefore had "a significant effect on his work capacity": Day 2, fourth page. His Honour made no finding as to the extent of the exacerbation or diminution in earning capacity. Nor did he make any finding as to whether the diminution continued unvaried throughout the period following the accident. The basis upon which the trial judge reached this conclusion is not entirely clear, in part because he dealt in his descriptive passages variably with the physical injuries and the psychological deficit. When he came to make a finding in relation to the back problem, he appears to have done so on two grounds, namely that the "mechanics of the accident itself" supported the likelihood of that occurring and the views of the treating practitioners: Judgment, Day 2, eighth page. That appears to have been largely in reliance upon the opinion of Dr Langley (referred to above) that the plaintiff "had lumbar disc disease which was at least aggravated by the injury on 16.09.2002": Report, 1 August 2003, p 3. Although Dr Langley thought it likely that he would have "ongoing back pain" and that heavy manual work "may not be possible", he made no attempt to distinguish the possible causes of that conclusion. He recommended referral to an orthopaedic surgeon, which occurred. Whether Dr Langley would have deferred to the views of the orthopaedic surgeon is not known. It appears that Dr Langley did not have an opportunity to read or comment upon Mr Millons' report. Furthermore, no medical expert appears to have expressed the view that the "mechanics of the accident" were more likely than not to have aggravated the back injury. 120 The appellant's case that it was not open on the medical evidence to be satisfied that the plaintiff had proved a causal connection between his back problems and the accident has force. Although the causal link might depend in part upon the evidence given by the plaintiff, his evidence might be expected to have limited weight given the nature of the issue, together with surrounding circumstances concerning his mental state and his use of illegal drugs as a form of medication, at least prior to the 2002 accident. It must also be noted that, on the plaintiff's case, he had not tested his back between 1994 and 2002 with any extended period of heavy labour, as for example on a construction site. The injury on 16 September 2002 occurred on his first day in that job.

(c) psychological problems 121 At the time of the trial there was evidence that the plaintiff was suffering from significant psychological disabilities. There were then questions as to their nature, extent and cause. The primary evidence relied upon by the trial judge was that of Dr Jonathon Phillips who had seen the plaintiff, at the request of his solicitors, on 24 October 2005 and on 14 August 2007. Dr Phillips had access to a number of reports from psychologists and neuropsychologists, as well as from the plaintiff's general practitioner, Dr Voon and others who had assessed the plaintiff, including officers within the Department of Corrective Services. 122 Dr Phillips described the plaintiff as having "pre-existing psychological vulnerabilities" and doubted that he had ever been a psychologically robust person (and thus capable of dealing with stress): Report, 11 September 2007, p 6. Dr Phillips continued: "Unfortunately, Mr Bakavgas continues to experience a mixture of physical and psychological symptoms and the plaintiff has become extremely focused on his symptomatology in general. … Whilst it is possible that some of Mr Bakavgas' somatic symptoms link directly with the accident (particularly truncal pain, left shoulder girdle pain), it will be much harder to make a link between his other symptoms and the accident." 123 Dr Phillips diagnosed the plaintiff as suffering from "adjustment disorder with depressed mood": Report, p 8. He continued: "Standing back a little from Mr Bakavgas' symptoms, it needs to be stated that the plaintiff has always been a less than robust person from the psychological point of view and has been a person with longstanding personality traits which are to his disadvantage. The accident was a traumatic incident in the plaintiff's life. His reaction to the psychological shock of that incident and the physical problems caused at the time of the incident have been unusual and excessive, but almost certainly beyond his conscious control. The plaintiff has moved from being a person who coped (marginally) with the demands of life to become a person with a moderately high level of invalidism (which is likely to be permanent). … I still support a treatment program (as detailed in the earlier report) but I am now deeply pessimistic regarding the plaintiff's capacity to regain reasonable health." 124 The significance of this conclusion needs to be addressed in the light of the history which Dr Phillips recorded under the heading "Current symptoms" which concluded with the following paragraph: "Mr Bakavgas said that at times he thought himself to be 'going crazy'. He had attended a psychiatrist (Tym) and had discussed this matter with him. He thought the psychiatrist had diagnosed him to suffer from schizophrenia. Overall he attributed his symptoms to the accident noting 'all I need is (to get) this compo over … and then find some work'." 125 The trial judge appears to have accepted that remark and added (Judgment, Day 1 at 79): "That indicates to me that the plaintiff is not only focused upon what he believes his injuries are, which followed the accident on 16 September 2002 but he is also focused on the court proceedings themselves. At one stage in his evidence he indicated that effectively he did not want to continue with the case. … So no doubt these proceedings themselves have weighed heavily upon the plaintiff." 126 What inference was drawn from these remarks by the plaintiff and Dr Phillips' evidence is not clear. One available inference might have been that the plaintiff was likely to recover to some extent in terms of mental stability, once the proceedings were completed. 127 The plaintiff was also seen by Dr Graham George, a consultant psychiatrist, briefed by the insurers of one of the defendants. Dr George's final conclusion did not differ significantly from that of Dr Phillips. He opined (possibly for the purposes of workers' compensation) that the plaintiff was suffering from a work-related injury. 128 His Honour appeared to give some weight to the views of Dr Robert Tym as a treating practitioner. He stated (Judgment, Day 1 at 72): "Dr Tym ought to know the first plaintiff quite well, having regard to the history of treatment and that he is still treating the plaintiff." 129 Dr Tym was a consulting psychiatrist, practising in the ACT. In his first report to the plaintiff's referring general practitioner (Dr Langsford), dated 16 July 2004, Dr Tym noted that "[t]he overwhelming problem at the present time appears to be a drastic deterioration of every aspect of his demeanour since the accident at work on 16.01.02 [sic]". What was meant by "demeanour" is not entirely clear and the causal relationship with the accident appears to have depended upon the plaintiff's history, because Dr Tym first saw him (it appears) on 29 June 2004. Dr Tym identified as "the most probable diagnosis" a "post-mental-trauma categorical-type Major Depressive Disorder" (MDD) requiring anti-depressants. He noted that a psychologist, Mr Rob Apathy, had detected a "background" attention deficit disorder (ADD) which he described as "drowned out" by the MDD. He expressed the view that the plaintiff would get better. 130 Dr Tym's second report of 2 September 2004 was in the form of a referral to another consultant psychiatrist, Dr Bennett. (There was no report from Dr Bennett.) Whether Dr Tym had seen the plaintiff between his first report and the second is not expressly stated but should be inferred from the comments. Dr Tym adjusted his first diagnosis, favouring a form of adjustment disorder. He also noted that the plaintiff had been receiving dexamphetamine for ADD which had provided consistent improvement. (The accuracy of that conclusion was later doubted.) 131 On 3 May 2006, Dr Tym provided a further report to an insurer. In that he diagnosed the plaintiff as suffering from a type of post-traumatic disorder, as well as "moderate to severe" ADD. He identified the ADD as "lifelong" but only diagnosed after the accident. He opined that it rendered the plaintiff "to some extent vulnerable to acute fear experiences giving rise to PTSD". He noted that he had complained of visual memory flashbacks and had exhibited "the visual perceptual anomaly of persistent peripheral oscillopsia". However, Dr Tym reported that the latter condition had resolved and that the flashbacks had also gone. He concluded: "The worker is not physically fit for his pre-injury duties but he is as psychologically fit, if not more fit, than he had been prior to the accident. It might be considered that he is more fit because his previously undiagnosed ADD is being treated with the dexamphetamine. The prognosis is dependent upon the recovery of his physical state. His mental has made a complete recovery." 132 On 7 December 2005 Dr Arthur Shores, a consultant neuropsychologist, undertook an assessment of the plaintiff at Westmead Hospital. He noted a "possibility" that the plaintiff had suffered "a closed head injury in the accident". However, he thought the likelihood was that the brain injury was "minor", and permanent long-term neuropsychological sequelae would not be expected. (No other practitioner diagnosed a brain injury.) He thought he required on-going treatment for depression and was suffering from "high levels of psychological distress". 133 On 11 July 2006 the plaintiff was assessed by Dr Wendy Roberts, a consultant neuropsychologist. Dr Roberts concluded that "his present presentation is largely a reflection of long-standing psychological problems" and stated that she did not believe that he had suffered "a diagnosable psychological disorder as a result of the accident". She noted the earlier diagnosis of "ADHD" [sic] but noted the lack of evidence that he had met the criteria for that disorder and said he did not do so on presentation to her. She made a similar comment in relation to PTSD. With respect to "ADHD", she concluded that the plaintiff did not need treatment for that condition and continued: "In any case, he told me that he did not ever take dexamphetamine, which appears contrary to Dr Tym's information that he improved on it, unless of course, Mr Bakavgas was not telling him the truth." 134 Taken as a whole, the medical evidence was inconclusive and inconsistent. Medical practitioners appeared to think that the plaintiff's problems were largely psychological, whereas the psychologists were inclined to think the problems were mainly physical. 135 The trial judge appears to have discounted Dr Roberts' views to the extent that they were inconsistent with those of Dr Tym, the treating psychiatrist: Day 2, seventh page. However, there are clearly difficulties with Dr Tym's reports. They travel through a number of diagnoses, without specification of the criteria which were satisfied to support such diagnoses and without explanation as to the changes. His Honour did not make any attempt to identify states of psychological health at different times and Dr Tym's conclusion in May 2006 that the plaintiff was "psychologically fit" was not discordant with that of Dr Roberts. 136 After a discursive summary of the evidence, the trial judge made no finding in relation to psychological injury before commencing on his assessment of damages. In assessing future economic loss, his Honour noted that he had a "serious injury" and in particular "an aggravation of previous back problems and other matters": Judgment, Day 2, thirteenth page. He also noted as part of the plaintiff's personal background, for which the defendants were not responsible, his ADD. When considering future out-of-pocket expenses, his Honour identified a need to attend "30 sessions of counselling". The purpose of the counselling is not identified, but appears to have been based on the recommendation of Dr Phillips in his report of 15 February 2006 (p 9). This appears to involve an implicit finding that the plaintiff suffered from a depressive disorder triggered by the accident. Whether it was found to have any consequence for his future earning capacity is unclear.

(3) Relevant legal principles 137 It was not in doubt that the plaintiff was entitled to damages for any diminution in his earning capacity resulting from the injuries suffered on 16 September 2002, even if the injury were an aggravation of a pre-existing condition. In this case the pre-existing condition could have been not merely the degenerative condition in the lower back, but also the psychological vulnerability. As noted by Kirby J in Shorey v PT Limited [2003] HCA 27; 77 ALJR 1104 at [44] that was an application of the principle explained by Dixon CJ in Watts v Rake [1960] HCA 58; 108 CLR 158 at 160. 138 The joint judgment in Shorey (Gleeson CJ, McHugh and Gummow JJ) treated the case as turning on a question of fact, namely whether the plaintiff's fall, for which the defendant was responsible, was "a cause" of her subsequent serious disabilities. Kirby J agreed: at [45]. His Honour continued, referring to the judgment of Dixon CJ in Watts: "If the disabilities of the plaintiff can be disentangled and one or more traced to causes in which the injuries he sustained through the accident play no part, it is the defendant who should be required to do the disentangling and to exclude the operation of the accident as a contributory cause." 139 It follows that the defendant took the plaintiff as it found him and is liable in damages for the full extent of the incapacity caused by its negligence. It was not, however, responsible for such degree of incapacity as arose from pre-existing conditions: Commonwealth of Australia v Elliot [2004] NSWCA 360 at [78]-[79] (Giles JA, Hodgson and Tobias JJA agreeing). Such questions of causation are usually answered by assessing the plaintiff's earning capacity prior to and following the accident. In respect of the former, the best evidence is usually the actual earnings of the plaintiff in the year or years immediately preceding the injury. That is because, in order to assess loss flowing from the accident, it is neither necessary nor appropriate to undertake some abstract assessment of the plaintiff's abilities. Thus, in the present case, it may be thought that the plaintiff had abilities which were under-utilized prior to the accident. However, whether or not he was capable of earning more than he in fact did is only a relevant factor if there is reason to suppose that he would have exercised his capacities to a greater extent in the future. That would be a matter for the plaintiff to prove. 140 Watts is also authority for the proposition that there is an evidential burden on a defendant to show that the plaintiff's condition would have deteriorated in any event, regardless of the accident: Watts at 160 (Dixon CJ, affirmed in Purkess v Crittenden [1965] HCA 34; 114 CLR 164 at 168 (Barwick CJ, Kitto and Taylor JJ). As explained by Ipp JA in Seltsam v Ghaleb [2005] NSWCA 208; 3 DDCR 1, applying Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638, the assessment of the degeneration of the plaintiff's condition in any event, being a future hypothetical situation, must be undertaken by reference to the possibilities and is not a matter to be proved or disproved on the balance of probabilities: Seltsam at [105]-[107]. 141 The extent to which Watts must be understood as "qualified" by the principles identified in Malec is not a matter which requires determination in this case. It may be noted, however, that in Watts Dixon CJ was considering three answers relied upon by the defendant to the claim against him: at 160. The first concerned the question of pre-disposition or vulnerability discussed above. The second was that "part of [the plaintiff's] present condition is traceable to causes other than the accident". It was to that proposition that Dixon CJ gave the response referred to at [138] above. As suggested by Professor Luntz, the reasoning in Malec is concerned with indivisible loss whereas the question of disentanglement appears to apply with respect to potentially divisible damage: H Luntz, Assessment of Damages for Personal Injury and Death (4th ed, 2002) at [1.9.12]-[1.9.13]. 142 The third answer raised by the defendant in Watts was that "had there been no accident he would eventually and prematurely have been incapacitated by the seeds of disability within him". The principle that the defendant should prove satisfactorily and to a degree of precision how and when that would have occurred is that which must now be read in the light of Malec. Once it is sufficient that possibilities may be taken into account, the nature and degree of the burden cast on the defendant, even if only evidential, must be flexible. This, however, would seem to be a different matter from the "disentangling" of independent causes of an injury. 143 Section 13(1) of the Civil Liability Act (set out at [91] above) requires that the Court determine the plaintiff's "most likely future circumstances but for the injury". That is to be understood as referring to the circumstances within the range of possibilities, which are more likely than any others to eventuate: see, eg, Roads and Traffic Authority of NSW v Chandler [2008] NSWCA 64 at [55]. Further, s 13(2) requires that the Court adjust the damages "by reference to the percentage possibility that the events might have occurred but for the injury". That exercise requires the application of Malec principles: see Najdovski v Crnojlovic [2008] NSWCA 175 at [49]. Section 13 only applies to the assessment of future economic loss.

(4) Findings as to future economic loss 144 With respect to future economic loss, his Honour noted a claim for an amount of $203,133. His Honour then set out the plaintiff's assertions in the following terms (Judgment, Day 2, twelfth to thirteenth pages): "It is asserted in the schedule that as a result of the injuries and disabilities the plaintiff is unable to return to work as a plasterer or any employment in the construction industry. It is asserted that the plaintiff is now fit to work in a more sedentary form of employment. However, he has not been previously employed in such a capacity. It is asserted that the plaintiff claims a loss of earning capacity based on the wages comparable for a labourer, say $750 gross, or $600 nett per week. There is an acknowledgement in the schedule that the plaintiff has a residual earning capacity of $300 nett per week, so the claim is for the sum of $300 loss per week until retirement and on the five percent table of multipliers less the amount for vicissitudes of fifteen percent there is a claim in the sum of $203,133 together with a claim for a future loss of superannuation benefits in the sum of $22,000 calculated at 9% of the gross loss of future earnings." 145 Although his Honour noted he had "considerable concerns" about the quantum of the claim, the only variation on the plaintiff's schedule which resulted was an increase in the discount from 15% to 30% "for vicissitudes". He awarded an amount of $167,286, together with an additional sum of $15,400 for loss of superannuation benefits. There was a further allowance of $21,373.85 to cover the loss resulting from the consequential repayment of workers' compensation payments which had already been subject to tax, commonly identified as the Fox v Wood component. 146 By inference, his Honour accepted the assumptions on which the calculation of lost future earning capacity was based as those articulated on behalf of the plaintiff. He also identified the percentage by which damages were adjusted to take account of the possibility that certain events might have occurred but for the injury. There has, accordingly, been a sufficient statement for the purposes of s 13(3) of the Civil Liability Act. 147 In discussing his concerns as to quantum, his Honour noted a number of factors which had been described when assessing past economic loss, a number of which continued: Judgment, Day 2, thirteenth page. Those factors included the following (eleventh page): "I must take into account these matters: there is a prior accident work history, such as it is. It was a history which was intermittent with periods on unemployment benefits, periods whereby the first plaintiff came into trouble with the law. Any periods of employment were not of long duration and on the plaintiff's own evidence he received insufficient earnings to justify the lodging of an income tax return. He does not have a car licence. He, of course, has the criminal history. There is that time when he spent some six months in custody post-accident." 148 It appears that the increase in vicissitudes was to account for the possibility that he would not have engaged in full time employment until retirement, but for the accident. The question is whether that allowance was sufficient given, as the defendant submitted, on the basis of his past work history, his most likely future circumstances would not have seen him earning more than $15,000 net per annum. 149 The approach adopted by the trial judge to the assessment of future economic loss appears to have been based on a diminution of earning capacity caused by the aggravation of his lower back condition. There was no reference to any assumption that his psychological condition had deteriorated in a manner which affected his future earning capacity. Although the defendant challenged the finding with respect to the lower back injury, that challenge should be rejected. There was supportive evidence from the plaintiff which his Honour plainly accepted and which cannot effectively be challenged in this Court. There was also some support in the medical evidence. The remaining issue is whether his Honour made sufficient allowance for the possibility (or likelihood) that the plaintiff would not, but for the injury, have exercised his earning capacity to the full. This question resolves into two parts: first, was the possibility that the earning capacity will not be fully exercised in the future adequately dealt with by way of an allowance for "vicissitudes"? Secondly, if so, was the allowance made by his Honour sufficient?

(5) Allowance for vicissitudes 150 The difficulty in answering the first question is to know what alternatives were open. In assessing future economic loss, the trial judge is required to assess a current discounted value of likely future earnings. If the likelihood was that the plaintiff would never exercise his full earning capacity, it may be necessary to reverse the exercise and consider what earnings he was likely to have achieved. However, his Honour accepted that he was in employment at the date of trial and that such employment was likely to continue. Given that finding, there was no error in treating the question as one to be addressed by making an allowance for the possibility that he would not remain in full time employment for the rest of his working life. 151 The second part of the challenge involves the allowance of 30%, based on the plaintiff's pre-existing psychological difficulties, tendency to use drugs, absence of a driving licence and other factors suggesting likely instability in the future. As was accepted more than a decade ago, "the practice in New South Wales is to proceed on the basis that a 15 percent discount is generally appropriate, subject to adjustment up or down to take account of the plaintiff's particular circumstances": Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53; 184 CLR 485 at 497-498 (Dawson, Toohey, Gaudron and Gummow JJ). Whether that figure is in fact now appropriate was doubted by McHugh J more recently in De Sales v Ingrilli [2002] HCA 52; 212 CLR 338 at [99], where his Honour said: "Some years ago I was a party to the reasons in a special leave application which stated that there was 'no reason to doubt the correctness' of a 15 per cent discount for the vicissitudes of life. Further reflection on statistics concerning unemployment and the payment of social services and workers' compensation, however, now makes me think that the figure of 15 per cent is too high - at least for low to middle income workers." 152 By contrast, De Sales was concerned with a deduction in Western Australia where the accepted practice was to reduce an award for general contingencies by about 5%. How, in a country where common law principles apply uniformly, subject to statutory variation, such discrepancies in practice can legitimately arise was not explained. 153 The difficulty for present purposes, however, is to know what is covered by the standard discount in this State, in order to make appropriate allowance for the plaintiff's particular circumstances. In Arthur Robinson (Grafton) Pty Ltd v Carter [1968] HCA 9; 122 CLR 649 at 659 Barwick CJ identified "ill health, unemployment, road or rail accidents, wars, changes in industrial emphasis" as the principal factors affecting future earning capacity. In Wynn, at 497, the joint judgment noted Professor Luntz' identification of "sickness, accident, unemployment and industrial disputes" as the four major contingencies (other than death) likely to result in a loss of income. If the discount were achieved by reference to some statistical information, one would need to know what factors were taken into account in the statistics. For example, the unemployment rate may include persons, like the plaintiff, who through choice or for psychological reasons, do not maintain full employment. There is a risk that to assume such a characteristic as peculiar to the plaintiff may result in an element of double counting. On the other hand, use of employment statistics need not correlate directly with the standard allowance for vicissitudes. As explained in the joint judgment in De Sales, the consequences of unemployment in assessing damages may well depend upon when the anticipated unemployment occurs: see [68]-[70] (Gaudron, Gummow and Hayne JJ); see also at [31] (Gleeson CJ). 154 It is clear that, in the present case, the trial judge assessed the plaintiff's chance of unemployment as significantly higher than the average case. In such circumstances, it was appropriate to apply a larger and separate discount for the specific contingency: see De Sales at [15] (Gleeson CJ). Understandably, there was no suggestion that such a contingency was expected to arise at any particular time: rather, based on past experience, it was likely to be an on-going consideration with respect to the plaintiff. 155 The calculation of loss of income was based on the premise that, in a particular year, the plaintiff would exercise an earning capacity providing him with $600 per week net. On that assumption, he would receive approximately $31,000 a year, or double the highest income he could be assumed to have earned in the past. To reduce that amount by 15% on account of his previous work history would still give rise to an assumption that he would receive $26,500 per annum, but for the injury. Perhaps more appropriately, taking account of the total discount for vicissitudes (30%), the assumption is that he would have earned $21,700 per year on average. On the other hand, if the most likely circumstance was that he would continue to earn at the maximum rate which, on his evidence, he had earned during the previous decade, it would have been necessary to discount his future economic loss by approximately 50%. On one approach, that calculation would assume that he had worked for approximately six months each year. His past work history, as revealed in the evidence, would suggest that such an assumption was generous to the plaintiff. That assumption is no doubt appropriate, because his Honour had a degree of confidence in the continuation of his current employment, with a man running a small business, with no history of employees and to whom he appears to have owed a significant financial debt. However, whether employment from that source would have been available had he not suffered the injury, is a matter of speculation. The employer appears to have worked on minor projects in the construction industry, without employees and engaging contract labour from time to time, if needed. 156 There was no material referred to by his Honour (or to which the Court has been taken) supporting a more favourable outcome for the plaintiff than that noted above. Although the assessment of contingencies involves an evaluative judgment of a kind with which this Court would not normally interfere, the figure adopted by the trial judge in the present is not one which can be justified on the evidence. It is a case where interference is justified. I would allow the appeal to this limited extent, and discount the amounts on account of future economic loss by a figure of 50%, to cover both general contingencies (15%) and the specific likelihood that the plaintiff would not, but for the injury, have exercised his earning capacity to the full (35%). 157 The gross claim before discount was, his Honour noted, $238,980. Applying a 50% discount to that figure, the proper award should be $120,000. (No greater level of precision is appropriate.) On my calculations, the adjusted superannuation loss should be $13,500. An appropriate reduction is also required with respect to the Fox v Wood component. I would allow the parties an opportunity to recalculate these latter amounts so that a judgment can be given in lieu of that delivered below. **********

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