Plaintiff's Non-Economic Loss
21 Three issues arose in relation to the appellant's non-economic loss: first, whether he had suffered compensable injury within the terms of s 151G arising from the March 1996 incident and if so in what amount; secondly, whether he had suffered compensable injury in respect of the November incident and if so in what amount; and thirdly whether it had been established on the evidence that pre-existing degenerative changes in the appellant's lumbo-sacral spine were such as to affect his entitlement (if any) to damages for non-economic loss.
22 It is convenient to deal with the last question first. There was again no dispute between the parties that the appellant had pre-existing degenerative changes to his spine and had suffered previous injury to his coccyx region when, in January 1991, he had a fall at the Shellharbour Square Shopping Centre. He brought proceedings against the Centre which were settled favourably to the appellant.
23 The effects of that accident and the then state of his pre-existing degenerative condition were summarised in a report of Dr Silva, consultant orthopaedic surgeon, dated 11 December 1992:
"[The appellant] had long standing low backaches of an episodic nature for many years when the incident at Shellharbour Square occurred on 3.1.91. …
… the incident of 3.1.91 aggravated pre-existing osteoarthritic changes in the facet joints of the lumbo-sacral spine and considering the fact that he returned to pipe laying on 20.1.91 it is probably reasonable to conclude that by that time the aggravation had largely resolved and the prognosis for the incident on 3.1.91 is good and he does not require any continuing treatment for the disabilities arising from the incident of 3.1.91."
24 The appellant also said that after his return to work sometime after the 1991 accident, and in the time leading up to the March 1996 accident, he did not have any pain or restriction of movement in his lower back and was able to engage in his usual sporting activities.
25 Dr Matheson, the appellant's treating orthopaedic surgeon, in his report of 26 February 1999, in referring to the fact there was evidence of degenerative changes to the appellant's spine which pre-dated both 1996 accidents stated:
"… It would perhaps be reasonable to attribute one-third of his back disability to a pre-existing condition but all of this leg disability one would have to attribute to the two incidents that occurred."
26 Dr Maloney, in a medico-legal report dated 12 November 1999, provided to the respondent's solicitor, attributed 50% of the appellant's incapacity to his pre-existing condition and 50% to the two accidents.
27 His Honour held that the appellant's pre-existing condition was responsible for half of his "current condition" and the two falls to the other half. In doing so he noted that this attributed a greater percentage disability to the appellant's condition not caused by the March and November 1996 incidents than Dr Matheson had expressed. However, he stated that Dr Matheson "was unaware of relevant material" . This appears to be a reference to his Honour's finding that the appellant not only had pre-existing degenerative changes, but had also sustained an injury to his coccyx in September 1996. Both parties agree this finding was wrong and should be ignored. His Honour did not make any reference to Dr Maloney.
28 However, the appellant submitted that his Honour's finding that 50% (or for that matter any percentage) of non accident attribution to his injury was not sustainable on the basis of the principles in Watts v Rake (1960) 108 CLR 158 and Purkess v Crittenden (1965) 114 CLR 164.
29 In Watts v Rake , Dixon CJ at 159-160 expressed the principle in these terms:
"The plaintiff showed satisfactorily that, although not without disabilities, he was before the accident able to lead an active life both in work and in physical recreation and that his enjoyment of life was not impaired much, if at all. He proved further that the physical injuries he sustained in the accident had been a cause of the crippled condition in which he finds himself … If no more appeared it needs no argument to show that he should receive a full award of damages assessed on the footing of what he has suffered and what he will endure in the future. But for the defendant it is answered, first that he was predisposed to many or at least some of the arthritic and other conditions which have so seriously and rapidly developed as a consequence of the accident considered at all events as a precipitating cause … If the injury proves more serious in its incidents and its consequences because of the injured man's condition, that does nothing but increase the damages the defendant must pay. … If it be the case that at some future date the plaintiff would in any event have reached his present pitiable state, the defendant should be called upon to prove that satisfactorily and moreover to show the period at the close of which it would have occurred ." (emphasis added)
30 Menzies J stated at 163-164:
"Prima facie, where a plaintiff was in apparent good health before an accident and is in bad health thereafter, the change would be regarded as a consequence of the accident and it is for the defendant to prove that there is some other explanation for it, e.g., that the plaintiff has aggravated his condition by some unreasonable act or omission. Similarly, although it is of course material to ascertain what was the pre-accident condition of the plaintiff who alleges that his post-accident ill health is due to the accident, it is for the defendant to prove that before the accident the plaintiff was in a condition that, without the accident, would have led to his post-accident state of health ." (emphasis added)
31 In Purkess v Crittenden , Barwick CJ, Kitto and Taylor JJ pointed out, as is now well recognised, that the principle in Watts v Rake related to the evidentiary burden of proving a particular issue. They said at 168:
"It was, in effect, pointed out that it is not enough for the defendant merely to suggest the existence of a progressive pre-existing condition in the plaintiff or a relationship between any such condition and the plaintiff's present incapacity. On the contrary it was stressed that both the pre-existing condition and its future probable effects or its actual relationship to that incapacity must be the subject of evidence (i.e. either substantive evidence in the defendant's case or evidence extracted by cross-examination in the plaintiff's case) which, if accepted, would establish with some reasonable measure of precision, what the pre-existing condition was and what its future effects, both as to their nature and their future development and progress, were likely to be. That being done, it is for the plaintiff upon the whole of the evidence to satisfy the tribunal of fact of the extent of the injury caused by the defendant's negligence."
32 In the present case the evidence was that the appellant had pre-existing degenerative changes to his back and that those changes constituted a certain percentage of his back impairment. That evidence, however, does not establish what must be established by a defendant who seeks to limit a plaintiff's damages because of pre-existing disability. The principle in Watts v Rake and Purkess v Crittenden is not affected by the provisions of s 151G. That section governs the method of computation and depending upon that computation qualifies a plaintiff's entitlement to damages. Accordingly, there was no evidence upon which his Honour could act so as to reduce the appellant's damages for pre-existing disabilities.
33 The next question is whether the plaintiff suffered any compensable injury from the March 1996 incident.
34 As I have already indicated, the plaintiff gave evidence that in the period leading up to the March 1996 incident he was not suffering from any pain or restriction of movement in his lower back. He was playing sport regularly, especially golf. He also played softball and occasionally played a game of squash and played touch football with friends.
35 He did not seek any medical attention. He said:
"… I continued my duties as normal and I think I just forgot all about it."
36 He continued to play sport after the accident, as and when he could. Any interruption to his sport was only caused by his inability to find time and playing partners. He did not take any time off work. He did not claim to be in pain or otherwise suffer any impairment.
37 Even if it could be argued that the appellant had suffered some injury, any damages which would otherwise flow would have been minimal. Once the provisions of s 151G, and subs (4) in particular, are applied to the assessment it is clear that the appellant was not entitled to damages in respect of the March incident.
38 That leaves the question of whether the appellant was entitled to damages in respect of the November 1996 accident. His Honour accepted the appellant's evidence that although he did not feel immediate serious pain, serious pain developed shortly after. He underwent chiropractic treatment for 2 - 3 months and was eventually referred by his general practitioner to Dr Graham, orthopaedic surgeon in late January or early February 1997. He had a CAT scan in late January. At that time, the appellant was complaining of pain going from the low back to the right buttock. The pain was worsened by coughing, sneezing, stooping, lifting, sitting and standing, with bending, stooping and prolonged sitting and standing being the worst features for him. He could not play sport. Dr Graham described him as "severely disabled" and recommended a discography which was carried out on 5 March 1997. That procedure was unsuccessful and Dr Graham referred the appellant to Dr Matheson, who, on 6 August 1997 carried out "bilateral fenestration operations" of L3/4 and L4/5 with decompression and fusion using titanium cages filled with cancellous bone graft. Dr Matheson was of the opinion post-operatively that:
"The prognosis is not good here. He has two level disc disease with operations and he is likely to have some continuing disability in the future."
39 He considered the appellant, at that point, to be unfit for all forms of employment. Later, on 25 November 1997, the left cage at the L3/4 level, which had prolapsed with compression of the left L4 nerve root, was removed.
40 In a later report of 26 February 1999, Dr Matheson reported that he was unable to differentiate between the effect of the incidents of the two accidents. He said however:
"I am unable to differentiate really between the effects of the incidents of 13th March, 1996 and 8th November, 1996. On the grounds that the March incident occurred first, one would assume that was the principal incident in tipping him into chronic back pain. If one were to differentiate between these two incidents, I guess it would be reasonable to ascribe 60% of his disability to 13th March, 1996 and 40% of his disability to the 8th November, 1996. However, this is simply a guess but the best guess I can manage."
41 He confirmed the opinion expressed in this report in a later report dated 4 July 2000 in which he reviewed the medical evidence provided to him in relation to various of the appellant's earlier injuries.
42 The trial judge found that "it was the fall in November 1996 which precipitated the need for the extensive and, unfortunately, complex surgical treatment" which the appellant required. However, he accepted Dr Matheson's 'opinion' that the appellant's injuries could be attributed as to 60% to the March fall and 40% to the November fall. He awarded damages on that basis.
43 The appellant disputes this approach. He submitted that, approaching the assessment of damages on the correct basis of two separate injuries, the appellant was not, in fact entitled to damages for the injuries received in March 1996 because he would not satisfy the threshold requirements of s 151G. I have already dealt with that issue and agree with this submission.
44 By way of contrast, after the second accident, the appellant was indisputably severely disabled. Dr Matheson's medical guess at the proportion of disability attributable to the appellant's condition is not relevant to the question which the Court has to determine in assessing common law damages. In my opinion, as a matter of legal causation, the appellant's disabilities and impairment are attributable to the second accident.
45 Senior counsel for the appellant and respondent were asked by the Court to put forward the percentage of a most extreme case which each submitted was an appropriate assessment of the appellant's disability. Senior counsel for the appellant submitted 50% (or a few percentage points either side) was the appropriate assessment. Senior counsel for the respondent submitted the range was 35 - 40%, although he sought to support the judge's attribution of 60/40 to the respective injuries. I have already given my reasons for rejecting that attribution.
46 As I have indicated, the medical evidence clearly discloses that the appellant has a severe back injury and has and will continue to have low back pain. He has dysaesthesia in his left leg with some mild weakness. He had lengthy periods of time off work and will only ever be fit for light duties. His usual domestic activities are restricted, he cannot play sport and sexual activity has become extremely limited because of pain.
47 In my opinion, the appellant's non-economic loss should be assessed as 45% of a most severe case. Accordingly, he is entitled to an award of $99,742.50.