Basha v Vocational Capacity Centre Pty Ltd [2009] NSWCA 409 (15 December 2009)

Last Updated: 21 December 2009

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Basha v Vocational Capacity Centre Pty Ltd [2009] NSWCA 409


FILE NUMBER(S):
40084 of 2009

HEARING DATE(S):
16 November 2009

JUDGMENT DATE:
15 December 2009

PARTIES:
Carolyn June Basha - Appellant and Cross-Respondent
Vocational Capacity Centre Pty Ltd - First Respondent and First Cross-Appellant
David Verhagen - Second Respondent and Second Cross-Appellant

JUDGMENT OF:
Tobias JA McColl JA McClellan CJ at CL

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 5856 of 2007

LOWER COURT JUDICIAL OFFICER:
Garling DCJ

LOWER COURT DATE OF DECISION:
19 December 2008


COUNSEL:
S Norton SC with S P Brennan - Appellant and Cross-Respondent
S D Kalfas SC with R G Gambi - Respondents and Cross-Appellants

SOLICITORS:
Brydens Law Office - Appellant and Cross-Respondent
Unsworth Legal - Respondents and Cross-Appellants

CATCHWORDS:
TORTS – negligence – breach of duty – appellant sustained aggravation of shoulder injuries during vocational assessment conducted by respondents – respondents on notice of appellant’s recent shoulder surgery – whether breach of duty in proceeding with assessment rather than postponing it
DAMAGES – personal injuries – non-economic loss – whether assessment of 20 per cent of most extreme case inadequate – review of primary judge’s assessment as to severity of non-economic loss – Civil Liability Act 2002 (NSW), s 16
DAMAGES – personal injuries – whether assessment of past and future economic loss inadequate
DAMAGES – personal injuries – domestic assistance – whether statutory threshold satisfied – Civil Liability Act 2002 (NSW), s 15

LEGISLATION CITED:
Civil Liability Act 2002 (NSW)
Supreme Court Act 1970 (NSW)
Workers Compensation Act 1987 (NSW)

CATEGORY:
Principal judgment

CASES CITED:
Angel v Hawkesbury City Council [2008] NSWCA 130
Carolyn Basha v Vocational Capacity Centre Pty Ltd & Anor, (District Court of New South Wales, unreported, Garling DCJ, 19 December 2008)
Cranssen v R [1936] HCA 42; (1936) 55 CLR 509
Flannery v Halifax Estate Agencies Ltd t/as Colleys Professional Services [2000] 1 All ER 373
Fox v Percy [2003] HCA 22, (2003) 214 CLR 118
House v The King [1936] HCA 40; (1936) 55 CLR 499
Jones v Bradley [2003] NSWCA 81
Khan v Polyzois [2006] NSWCA 59
New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486
North Sydney Council v Lygon 302 Pty Ltd (1995) 87 LGERA 435
Rogers v Whittaker [1992] HCA 58; (1992) 175 CLR 479
Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434
Soulemezis v Dudley (Holdings) Ltd (1987) 10 NSWLR 247
Sydney Water Corporation v Turano [2009] HCA 42;(2009) 83 aljr 1168
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422
Westfield Shoppingtown Liverpool v Jevtich [2008] NSWCA 139
Wong v R [2001] HCA 64; (2001) 207 CLR 584
Woolworths Ltd v Lawlor [2004] NSWCA 209
Wynn Tresidder Management v Barkho [2009] NSWCA 149
Yates Property Corporation Pty Limited (In Liq) v Darling Harbour Authority (1991) 24 NSWLR 156

TEXTS CITED:


DECISION:
1. Cross appeal dismissed with costs. 2. Appeal allowed with costs. 3. Set aside the primary judge’s awards in respect of non-economic and economic loss. 4. Parties to file Short Minutes of Order in the Registry setting out the award to the appellant including interest as appropriate within seven days.



JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40084/09

DC 5856/07

TOBIAS JA

McCOLL JA

McCLELLAN CJ at CL

Tuesday 15 December 2009

Carolyn June Basha v Vocational Capacity Centre Pty Ltd & Anor

Judgment

1 TOBIAS JA: I agree with McColl JA.

2 McCOLL JA: Carolyn June Basha, the appellant, brought proceedings in the District Court of New South Wales against Vocational Capacity Centre Pty Ltd, the first respondent and David Verhagen, the second respondent, alleging they had been negligent in conducting a vocational assessment of her in September 2004 using an assessment process known as an Isernhagen Functional Capacity Evaluation (“Isernhagen FCE”). His Honour Judge Garling found in her favour and awarded her $64,525 damages: Carolyn Basha v Vocational Capacity Centre Pty Ltd & Anor (District Court of New South Wales, unreported, Garling DCJ, 19 December 2008).

3 The appellant appeals in respect of the quantum of damages. By notice of cross appeal, the respondents appeal against the primary judge’s finding, in substance, that they breached any duty of care they owed to the appellant. Notwithstanding that cross-appeal, it is convenient to refer to the parties throughout the judgment as the appellant and respondents respectively.

4 Although the respondents filed separate defences in the District Court of New South Wales, they were jointly represented at trial by Mr R Gambi. On appeal they were, again, represented by the same counsel, Mr S Kalfas of Senior Counsel who appeared with Mr R Gambi. It was not in issue, accordingly, that the respondents were jointly liable for whatever befell the appellant if it was proved to have been caused by a breach of any duty of care they owed her.

Statement of the case

5 The appellant was employed by the Government Insurance Office between 1995 and July 2002. She sustained a work-related injury in that employ in March 2001. She was paid workers compensation in respect of that injury. In October 2002 the Government Insurance Office made her redundant.

6 On 12 August 2003 the appellant had a right shoulder rotator cuff repair performed by Professor Sonnabend. On 9 August 2004 Professor Sonnabend undertook a decompression procedure on her left shoulder.

7 The Government Insurance Office’s workers compensation insurer required the appellant to attend a vocational assessment on 1 and 2 September 2004. The vocational assessment was undertaken by the second respondent, a physiotherapist, who appears to have been employed by the first respondent.

8 The appellant’s case at trial was that in the course of the vocational assessment she was required to perform physical tasks and exercises which were beyond her capacity and which were ill–advised, having regard to her medical condition. In particular, she complained that in the course of the vocational assessment, she was required to crawl a distance of nine metres or thereabouts which caused her to favour her left (recently operated upon) shoulder, thus causing her to put excess weight on her right shoulder. She alleged that in consequence of being required to undertake that exercise she sustained further injury, in particular aggravation of the injuries she had previously suffered in her shoulders and neck in the course of her employment and that, in due course, she required further surgery.

9 The respondents put in issue in their notice of appeal whether any breach of their duty of care to the appellant caused her injuries. That ground of appeal was abandoned in the respondents’ written submissions. Mr Kalfas conceded that as a result of the assessment the appellant suffered an injury to her right shoulder.

Evidence: liability

10 It is convenient to deal first with the issue of liability. Most but not all of the material to which I refer below was narrated by the primary judge in his judgment. It is appropriate to refer to all the evidence I regard as relevant to the issue of liability to discharge the Court’s rehearing function: s 75A, Supreme Court Act 1970 (NSW); Fox v Percy [2003] HCA 22, (2003) 214 CLR 118 (at [25]).

11 The appellant’s account of the background to the assessment as set out by the primary judge was not substantially challenged.

12 According to the primary judge, it was not in dispute that when the appellant attended the assessment, “[h]er right shoulder had no real problems except for a bit of restriction and her left shoulder was good at the time she went to the appointment”, but that her neck was still “a bit of a problem”.

13 The appellant’s general practitioner Dr Simone, advised in a report of 10 March 2005, that on 27 August 2004 Professor Sonnabend had stated following the left shoulder decompression, that “[the appellant] already has a virtually full range of pain-free shoulder movement, both she and I are delighted with the result”.

14 The appellant’s evidence was that the assessment took place over three hours on the first day and two hours on the second day. There was a dispute at trial as to whether this was the time occupied by the actual physical testing. For reasons I shall explain, liability did not turn on the precise period of physical testing.

15 The appellant gave evidence that she had to perform various tests, during which she felt strain. Relevantly, these included: a two handed test in which she had to carry a tool box with weights over nine metres; a task requiring her to put clothes pegs in a chain for which purpose she had to lift her arms up some distance (and which she stopped because she found it “very hard on her shoulders”); a task requiring her to crawl along the floor “a significant distance” (which she stopped because she found it hurt her neck and shoulder); and a task involving repetitive bending movements.

16 The appellant said she had to take medication on the first evening of the assessment. She said she had pain in her shoulders, back and leg. At the end of the second day she said both shoulders as well as her neck and one of her legs were painful. Her right shoulder was more painful than the left. The right shoulder pain prevented her sleeping.

17 According to Dr Simone, when he saw the appellant on 10 September 2004, she reported the assessment “had caused her a persisting pain in her right shoulder and limitation in function of this shoulder”. He noted her “shoulder was so severely injured that it did not settle with physical therapy on that day”. He then arranged for various investigations and said that, apart from the pre-existing changes, these investigations demonstrated an effusion of the bicep sheath, thinning of the biceps tendon, a minor partial tear at the humeral insertion of the supraspinatus tendon and a definite recent acute bursitis with bursal fluid. He said these were clearly new and extensive recent injuries and, in all probability, associated with the “moderately aggressive rehabilitation assessment”.

18 When what Dr Simone described as the appellant’s “new injury” did not settle, she was referred back to Professor Sonnabend in January 2005 who arranged for an MR arthrogram from which he concluded there existed pathology involving the biceps tendon at the top end of the bicipital groove. Professor Sonnabend performed an arthroscopy on the appellant’s right shoulder in September 2005. This procedure, which the primary judge described as “relatively minor”, appeared to have at first produced dramatic pain relief but ultimately Professor Sonnabend did not believe it made a significant difference.

19 At the request of the appellant’s solicitors, Mr Peter Middleton, a physiotherapist, prepared a report directed to the appropriateness or otherwise of the vocational/functional assessment which relevantly stated:

“2. The vocational assessment was ill advised: being only one month after her left shoulder injury it should have been anticipated that testing functional activity would be untimely, likely to provoke or harm the post-operative shoulder and - due to resultant poor performance of the left shoulder, favouring by the other arm predictably strain [sic] and aggravate the right shoulder and neck.

3. The vocational assessment was misdirected because it employed unsuitable, unnecessary and/or irrelevant tests of activity such as:

- crawling on all fours

- sustained overhead activity

- weight-carrying activity.

The above tests are particularly inappropriate on a recently operated shoulder. Again, as a result of favouring that arm, excessive effort could have predictably subjected Mrs Basha's neck and right shoulder to further injury.

4. The vocational assessment was poorly executed because

- 5 hours of physical testing, even carefully meted out, and over 2 sessions, is an extraordinarily protracted and provocative physical examination

- Mrs Basha stated that she was not forced to persist with each painful, provocative activity asked of her, but nor was she advised to cease at the onset of pain. She claims to have repeatedly complained of escalating pain, yet was allowed to persist at each activity until she refused to continue. A prudent examiner should intervene earlier, not just out of concern for the patient but also to maintain the validity of successive tests ie. to ensure that subsequent test scores are not distorted by escalating pain from the preceding tests.” (emphasis added)

20 Mr Middleton had not used the Isernhagen FCE test. In his evidence in chief he was asked:

“Q. From a physiotherapist’s point of view, if someone’s crawling an extended distance on their hands and knees what effect has that on the shoulder?

A. On a post operative shoulder extremely unadvisable, in fact it’s specifically against the surgeon’s and generally any surgeon’s post operative protocol.” (emphasis added)

21 In response to a question about whether, in substance, from the point of view of general physiotherapy practice, the fact a patient had had surgery on an upper limb would influence what a patient would be asked to do, he answered:

“A. Well with a bilateral arm task for example, there would be compensatory movements performed by the opposite arm to compensate for the lack of function of the recently operated shoulder, and the best example would be crawling in which – I think everyone here can recognise that you couldn’t possibly crawl without favouring the shoulder that was not supposed to be loaded.

Q. Of course we have here a patient who’d undergone about a year or so previously a right shoulder surgical procedure?

A. Mm

Q. If you’re a physiotherapist dealing with this patient and knowing that as well as the fact that the left shoulder had recently undergone surgery what would be your recommendations as to any crawling and things of that sort?

A. Well the left shoulder alone was a reason not to crawl, on the left shoulder, but at the same time there would be concerns about the excessive load required on the right shoulder out of the need to minimise weight bearing through the recently operated shoulder, so if anyone chose to try that it’s extremely hard work to crawl with most of your weight on one arm.” (emphasis added)

22 Mr Middleton had recorded in his report the appellant’s advice that she had undergone physical testing consisting of more than five hours of physical manoeuvres over two consecutive days. It appears that Mr Middleton was asked to sit in court during the evidence and heard different times quoted as the period of the physical component of the assessment. He was asked in cross-examination whether that advice was relevant to his opinion and responded that it was not really “because by whichever testimony is taken as accurate it’s still a lot of testing.”

23 In cross-examination Mr Middleton explained in the following terms why a patient recovering from recent shoulder surgery was advised not to lift even small weights:

“A. Because there’s a repairing tendon that takes six weeks minimum to have even partially knitted, and even up to many months before it’s a solid repair.

Q. And if she made no complaint in relation to the left shoulder per se when doing that test, what would be the problem?

A. It’s still a risk. Without warning the repair of that shoulder could come apart.

Q. ... you mentioned that crawling that was a problem because you said I think you couldn’t possibly expect anyone to crawl without favouring a recently operated left shoulder?

A. Mm

Q. That’s just pure speculation on your part isn’t it?

A. If it’s not immediately apparent to everybody here, I would like to assure you based on many years of experience that would be a very unusual capacity in that time frame after shoulder surgery.

Q. Do you have any evidence, either from what you heard today or from what Mrs Basha told you, that she was favouring her left shoulder when she did the crawling test?

A. No”

24 Mr Middleton was asked about this cross-examination in re-examination, relevantly as follows:

“Q. You, of course, have expressed the view that she was favouring the right arm whilst doing a number of these activities including crawling?

A. That’s right, and not only that but she would be breaking the doctor’s orders if she weren’t to favour that shoulder.

Q.... on what basis did you come to the conclusion that favouring of the injured left arm occurred, what factual basis?

A. ... Any patient four weeks after shoulder surgery would be unable to crawl on that shoulder without favouring it.” (emphasis added)

25 The appellant tendered two medico-legal opinions. The first, dated July 2008 from Dr Peter Conrad, expressed the opinion, which the primary judge quoted, that:

"Due to the inappropriate examination at the ‘Capacity Centre’ [the appellant’s] right shoulder was aggravated by the test using weights and this resulted in the necessity for a further operation by Professor Sonnabend on her right shoulder."

26 Dr Conrad was asked to comment on Mr Middleton’s report. He agreed with Mr Middleton’s opinion that the appellant suffered significant and adverse consequences from the vocational assessment and with his statement that the performance of the assessment was “ill advised – misdirected, poorly executed and negligent”. He said:

“In particular, if it is true that the Vocational Assessment was one month after left shoulder surgery, I am sure that Professor Sonnabend would have been horrified to learn of this, and if asked for an opinion, would have forbidden such a Vocational Assessment to be done so soon after surgery.”

27 Dr Conrad accepted the statement in Mr Middleton’s report that the appellant was physically tested for more than five hours over two consecutive days and added to the opinion I have extracted above:

“Also putting an injured patient through five hours of physical testing is totally inappropriate.”

28 Dr Conrad was not required for cross-examination.

29 The primary judge referred briefly to similar evidence from Dr Ellis in his second report of 22 August 2007 that the assessment “was not appropriately timed being a little more than three weeks after a rotator cuff operation on her left shoulder” and that “it is certain that shoulder was at least aggravated by the examination.”

30 Dr Ellis was also not required for cross-examination.

31 The second respondent gave evidence that he was an experienced physiotherapist. According to the primary judge he had “only a vague recollection” of the appellant’s examination and most of his evidence was based on his notes and his usual practice. He said his examination was carried out to allow him to report on the appellant’s suitability for employment in the future. He said the crawling exercise was necessary in case the appellant needed to work in a childcare centre or had dropped something on the floor. He said he did not notice problems during the examination.

32 In handwritten notes set out on a document headed “Client History Form” the second respondent recorded what was clearly the appellant’s report to him of Professor Sonnabend’s advice to her of 27 August 2004 that she should:

“Use arm day by day. Slowly build up strength ... no weights specified by Dr Sonnabend – W/C Cert. Classified as unfit until 10 September 2004”. (emphasis added)

33 In the section of his notes headed “Physical Examination Form”, the second respondent noted that the appellant weighed 68 kilograms. Another document headed “Functional Capacity Evaluation Score Sheets” set out the heading of each test (and in some cases a description) which formed part of the assessment against which the second respondent recorded his observations.

34 The crawl test was described in the pro forma section of the Score Sheets as “Client crawls reciprocally on all fours for 9 metres”. Against the written word “distance” on the form the second respondent entered “9M” presumably recording that the appellant in fact travelled that distance. Against the word “Comments”, he recorded “slow pace. Alt. arms + legs. Hunched T/sp [thoracic spine]. Ascends moderately easily through left leg. C/o [complains of] discomfort in neck if trying to look forward.”

35 At the conclusion of the assessment the second respondent prepared a Functional Capacity Evaluation Summary Report. Relevantly he noted the nature of the appellant’s pre-existing injury as “gradual onset of bilateral shoulder and neck pain ...”. The second respondent undertook a physical assessment of the appellant, relevant parts of which were recorded as follows:

“Restricted shoulder range of motion bilaterally. The right shoulder was mainly restricted by tightness and consistent with her previous reconstructive surgery. The left shoulder was restricted by pain, consistent with recent surgery.”

Under the heading “Consistency of Performance”, the second respondent recorded:

“Her neck and shoulder mobility restricted her during tasks requiring repetitive rotation or activities such as crawling”.

Under the heading “Physical Work Restrictions” he wrote that the appellant demonstrated restrictions in a number of areas including “crawling”. He added:

“Please note that Mrs Basha attended this assessment only three weeks after her left shoulder operation. During her most recent review with the surgeon, some three days prior to this assessment, Mrs Basha was advised to minimise manual handling tasks. As such she was taken through manual handling activities at an extremely low weight of 2kg or less. The tasks were not taken to their maximal levels to ensure that the surgery was not compromised and her left shoulder could continue to heal...” (emphasis added)

36 In his evidence in chief the second respondent said that he required the appellant to undertake the crawl test notwithstanding her recent left shoulder surgery because:

“She had already demonstrated that she could bear weight through that hand. She used that hand to push up out of chairs. She used her hands to push up from a squat. She demonstrated the ability to bear weight through the shoulder already and she didn’t report symptoms with that. The test in itself doesn’t bear a lot of weight through the shoulder anyway, so I felt it was safe to continue.”

37 In cross-examination the second respondent was taken to the note in his report recording Professor Sonnabend’s recent advice that the appellant should “minimise manual handling tasks”. It was put to him that a reasonable person in his position, having been advised of the appellant’s recent shoulder surgery and her surgeon’s advice not to use her left arm, would have cancelled the assessment. His response was:

“I think they would have changed the assessment to accommodate that by doing what I did.”

38 The second respondent accepted in cross-examination that crawling necessarily meant taking “from time to time the weight of your body on one arm and one or both knees as you move along and move the other arm out in front of you”. He disagreed with the proposition that this was “the height of foolishness ... when dealing with a woman who had an injured left shoulder, with the surgery and the recommendation she told [him] about”. The following exchange then took place.

“Q. You knew that anything you got her to do that involved her left arm would mean the risk of her favouring her right arm didn’t you?

A. That would – that certainly could occur yes.

Q. That’s exactly what you did, you did tests on her that necessarily involved her favouring the right arm, you know that don’t you?

A. There was not evidence that she was favouring the right arm.

Q, Have you ever tried to crawl, whether it’s 9 metres or not, on two knees and one arm?

A. Yes.

Q. Ungainly and difficult manoeuvre isn’t it?

A. It is.

Q. That’s what you had her doing wasn’t it?

A. No she was using both arms.”

39 The respondents qualified Dr Eva Schonstein, a physiotherapist who opined in her report of 3 November 2008 that the assessment had not been negligently conducted. Her report was divided into three sections. The first provided her opinion on the second respondent’s assessment of the appellant having regard to accepted industry protocols available in September 2004. The second set out her opinion on the broad purposes of such an assessment and the effects, if any, on the assessment if some (unidentified) tests were excluded. The third set out her opinion on Mr Middleton’s report of 5 April 2008. The primary judge paraphrased a portion of the second section of Dr Schonstein’s opinion which, as it appeared in the original, stated:

“The test items are generic and are designed to cover most functional tasks needed to perform everyday tasks (including work). The exclusion of crawling, bending, manual dexterity, elevated work test and grip test would detract from the completeness of an FCE and would limit its usability for vocational purposes. For example, work such as it was recommended for Ms Basha would include occasional functional tasks such as gripping (eg carrying files, objects, etc), forward bending (eg, counter work or picking up items from the back of shelves), crawling (eg. picking up fallen objects such as under a desk), elevated work (eg. filing or handling objects from shelves at crown level) and manual dexterity (eg. counting money, sorting small objects such as nails or pins).

I note that the IFCE report marks forward bending, elevated work and crawling as ‘physical work restrictions’, therefore the exclusion of these items from an FCE would prevent this recommendation...”

40 His Honour said that the second part of Dr Schonstein’s report set out “some unusual criticism of the various reports” which his Honour did not find “very helpful”. He concluded he was only prepared to look at the first part and that the second part was not of any assistance. His Honour also noted that the report did not refer to Dr Ellis’s second report to which I have already referred.

41 The only part of Dr Schonstein’s report which falls within the area the primary judge appears to have excluded from consideration upon which Mr Kalfas sought to rely was the following:

“Mr Middleton makes the assumption that Ms Basha’s poor performance of the left shoulder led to favouring the right shoulder leading to ‘predictable’ strain and aggravation of the right shoulder and neck. This statement is not supported by the detailed account of restrictions observed during the FCE testing as noted in the FCE form of Mr Verhagen’s FCE report, where he precisely accounts for restrictions observed during testing. For example, for the ‘elevated work’ item, it is noted that Ms Basha had ‘decreased neck and thoracic mobility’ but it is not noted that one hand was favoured over another or that there was any imbalance in the way the task performance was observed. Such observations should have been included, if seen.

The statement that Mr Middleton makes about the test items of crawl, sustained overhead activity and weight carrying activity being ‘unsuitable, unnecessary and/or irrelevant’ are not supported by industry protocol as it was in 2004 as indicated above.” (emphasis added)

42 The respondents also sought to rely upon a report from Dr Potter dated 15 July 2008. The primary judge did not accept his opinion. The respondents do not challenge that conclusion and I have not, accordingly, referred to it.

The primary judgment: liability

43 The primary judge set out substantially all of the evidence to which I have referred in the first section of his judgment. He then turned to the question of evaluating the evidence.

44 The primary judge found both the appellant and second respondent to be straightforward witnesses. His Honour considered that he did not need to resolve a factual dispute as to the number of exercises the appellant was asked to undertake at the assessment as he could dispose of the matter by accepting the number of tasks was as set out in the second respondent’s notes and report.

45 The primary judge rejected a submission by the respondents that Mr Middleton was an advocate for the appellant. He regarded Mr Middleton’s evidence as useful on the question of foreseeability, in demonstrating the knowledge a physiotherapist, and the second respondent, should have had. In this respect, he preferred Mr Middleton’s evidence to Dr Schonstein’s.

46 The primary judge then said the case was “not...difficult” once he accepted the following facts:

“...one, the plaintiff had suffered an injury as a result of work to the extent she had gone off work and she was paid compensation. Two, on 12 August 2003 she had an operation on her right shoulder. Three, on 24 August 2004, just before this examination, she had an operation on her left shoulder. On 28 August 2004, just before the examination, Dr Burke had examined her right shoulder and said it had considerably improved, movement was normal. She had no pain, the shoulder sometimes felt tired. Five, Professor Sonnabend on 27 August 2004 found a full range of pain free movements in the left shoulder. Six, the plaintiff, as directed, attended the assessment and carried out those tasks as set out in the second defendant's evidence.”

47 His Honour then noted the assessment took place just over three weeks after the surgery on the appellant’s left shoulder. He referred to the fact that the second respondent’s physical examination of the appellant disclosed the restrictions in both shoulders recorded in the second respondent’s notes. He then noted the difference between the condition of the appellant’s shoulders pre and post-assessment: few problems before and extensive pain and disability after the second day.

48 The primary judge accepted the experts’ evidence that the appellant had suffered further injury or aggravation of injury as a result of the examination. He found there was “no reason, except as a matter of convenience, that the appointment which had been booked had to be carried out”. He noted the second respondent “had a history that the plaintiff had only recently undergone operative treatment and obviously it would have been very difficult to assess the plaintiff’s fitness for work in the future at a stage so close to operative treatment.” His Honour also found that all the tests had to be carried out so a proper assessment could be made. Accordingly, the second respondent could not have omitted some of the tests. His Honour concluded:

“The defendants owe the plaintiff a duty of care. It was quite foreseeable that this type of injury could occur to the plaintiff shortly after her operation and particularly from a person who, by the use of a weakened left shoulder and aim, would be required to put strain on the right shoulder and arm to carry out these various tests. There was a simple solution to it, that is, not to carry out the tests at that time but to decline to carry them out and to have an appointment arranged at a much later time when the plaintiff's condition had settled and when she could have been properly assessed.

There was no need for tests such as crawling. When one sees the reason given for it, I have got to say, seems ridiculous. This lady, who was of some age, was crawling around the floor to assess what, I do not know. It was obvious the crawling exercise caused significant problems [sic, as in original] and there was no necessity to have her carry out all the other tests. As I have said, they could have simply been deferred to a more appropriate time.”

49 His Honour concluded that the appellant was injured as a result of the “inappropriate carrying out of these tests” and that the respondents were negligent.

Cross-appeal: liability

50 It is appropriate to deal first with the respondents’ cross–appeal on liability. They make the following complaints in that respect:

1. The primary judge erred in finding that the first and/or second cross appellants breached any duty of care relevantly owed to the cross respondent (Ground 1).

2. The primary judge failed to provide proper reasons to support a finding that the first and/or second appellants breached any duty of care relevantly owed to the cross respondent (Ground 2).

3. In finding a breach of duty of care by the first and/or second appellants, the primary judge made findings or inferences that were not available to him on the evidence or on the weight of the evidence (Ground 4).

4. The primary judge erred in finding there had been any favouring of the cross appellant's left shoulder during the assessment carried out by the second cross respondent (Ground 5).

5. The primary judge erred in accepting the cross respondent's expert as to the reasonableness/advisability or otherwise of the assessment carried out by the second cross appellant (Ground 6).

6. The primary judge failed to give any or any adequate reasons for accepting the first respondent's expert as to the reasonableness/advisability or otherwise of the assessment carried out by the second cross appellant (Ground 7).

Submissions: liability

51 Mr Kalfas submitted that at the core of the issue of breach was whether the appellant favoured her left shoulder during the crawling test, thus loading her right shoulder excessively leading to the injuries of which she subsequently complained. He submitted that in circumstances where the primary judge said he accepted the second respondent’s version of the extent of the testing which involved considerable restrictions with regard to loading the appellant’s left shoulder, the only reasonable conclusion open to the primary judge was that the second respondent had taken adequate measures with regard to the only presenting feature of the appellant’s condition and that the way the crawling test was conducted did not involve the appellant favouring her left shoulder with the consequence of loading her right shoulder.

52 While Mr Kalfas accepted that the appellant’s right shoulder was in fact injured during the assessment, he submitted that the primary judge could not (if that is what he did) reason backwards from the fact of injury to the question of the appropriateness of the second respondent’s conduct prior to and during the assessment. This was particularly so when, according to the second respondent, he observed the appellant crawling without complaining of shoulder pain and, as far as he could ascertain, without loading her right shoulder.

53 While Mr Kalfas appeared to accept that it was open to the primary judge to accept Mr Middleton’s evidence, he complained that he could not do so without adequately exposing his reasons. He also contended that Mr Middleton’s evidence that the assessment should not have been carried out at all so soon after the operation on the appellant’s left shoulder, proceeded on the mistaken assumption that the physical testing of the appellant took place for five hours over two days. He submitted that in all the circumstances to which the second respondent had regard, it was reasonable to proceed with the assessment, in particular, the crawling exercise because that did not involve excessive loading.

54 Mr Kalfas criticised Dr Conrad’s opinion as being based on Mr Middleton’s opinion which he contended his Honour ought to have rejected for the reasons I have earlier given. He also contended that Dr Ellis’ opinion could not be relied upon because its basis was not clear.

55 Mr Kalfas submitted that the primary judge did not identify the basis for his finding that the injury the appellant sustained during the assessment was foreseeable. While they accepted that, as the primary judge concluded, the simple solution not to carry out the tests so soon after the appellant’s recent shoulder operation was an option, they contended that that fact alone did not demonstrate whether or not the assessment the second respondent conducted exposed the appellant to an unreasonable risk of further injury. They further complained that the primary judge did not identify what it was about the crawling activity which rendered it inappropriate in the circumstances.

56 Next, Mr Kalfas complained that the primary judge did not identify any basis for preferring Mr Middleton’s evidence to that of Dr Schonstein and, in addition, did not explain why he preferred Mr Middleton to the second respondent and, in particular did not explain what conclusion he came to on the issue of favouring.

57 Ms S Norton of Senior Counsel, who appeared for the appellant on appeal but not at trial, with Mr S Brennan, contended that the scope of the respondents’ duty was not to carry out testing when it was inappropriate to do so and that they breached their duty in carrying out the tests too soon after the appellant’s left shoulder surgery. She submitted that instead of modifying the vocational assessment tests, the respondents should have postponed the tests entirely.

58 Ms Norton contended that the primary judge was entitled to draw the conclusion, on the basis of the medical evidence to which he referred, that the assessment was carried out at an inappropriate time and that as a result the appellant suffered an injury which would have been avoidable if the assessment had been delayed. She submitted that Mr Middleton’s opinion was supported by a substantial body of medical evidence and by the dictates of commonsense.

59 Ms Norton next observed that while the second respondent accepted some tests could not be carried out because of the appellant’s recent surgery (for example static push, front carry and left handed carry) he nevertheless pressed ahead with above shoulder activities and with crawling. She pointed out that, according to Dr Schonstein, the tests were only helpful if all of them were conducted. That evidence, she submitted, cast real doubt on the value of the second respondent performing some but not all of the tests and – I infer – also cast doubt on why he proceeded with the assessment at that stage rather than postponing it.

60 Ms Norton further submitted that the mere fact the second respondent did not observe the appellant favouring her left shoulder was not determinative of whether crawling caused the injury, especially where causation was conceded. She contended that no expert evidence was necessary to establish that crawling would place strains on a participant’s shoulder. She pointed out that the second respondent was aware the appellant should not lift weights in excess of 2kg. Having regard to his knowledge that the appellant weighed 68kg, she argued that if the appellant placed her weight equally on all four limbs (as apparently the second respondent observed), that was a loading of 17kg on each of the appellant’s shoulders.

61 Insofar as breach was concerned, Ms Norton pointed to the note in the second respondent’s report concerning the fact that it was the appellant’s “neck and shoulder mobility” which restricted her during activities such as crawling. She also contended that the advice the second respondent recorded Professor Sonnabend had given the appellant to minimise manual handling tasks could hardly be said to have been complied with when the second respondent required her to undertake vocational testing even when one accepted his estimate of the hours over which that testing had taken place.

Consideration

62 It is convenient at the outset to say something about the respondents’ reasons complaint. The primary judge was not obliged to spell out every detail of his process of reasoning, but he was obliged to expose his reasons for resolving a point critical to the contest between the parties to enable them to identify the basis of his decision and the extent to which their arguments had been understood and accepted: Yates Property Corporation Pty Limited (In Liq) v Darling Harbour Authority (1991) 24 NSWLR 156 (at 171, 182); North Sydney Council v Lygon 302 Pty Ltd (1995) 87 LGERA 435 (at 442) per Kirby ACJ; Soulemezis v Dudley (Holdings) Ltd (1987) 10 NSWLR 247 (at 270) per Mahoney JA, (at 280) per McHugh JA; Jones v Bradley [2003] NSWCA 81 (at [129]); Flannery v Halifax Estate Agencies Ltd t/as Colleys Professional Services [2000] 1 All ER 373 (at 377-378) per Henry, Laws LJJ and Hidden J. In my view the primary judge’s reasons substantially complied with these obligations, although it would have been desirable for him to have explained with some greater precision why he rejected the second respondent’s case that the precautions he took were reasonable in the circumstances. However as this Court is conducting a rehearing, and as it was not suggested this Court could not adequately review the evidence to resolve the cross-appeal, it is unnecessary to address this question further.

63 The respondents conceded at trial that they owed the appellant a duty of care. Neither counsel identified the nature or scope of that duty, although the respondents complained in their notice of cross appeal that the primary judge had erred in finding that they breached any duty of care they owed to the appellant and failed to give proper reasons for his findings in that respect.

64 Mr Kalfas accepted in the course of argument that the respondents owed the appellant a duty to exercise reasonable care and skill in the provision of professional advice and treatment, the standard of which was that of the ordinary skilled person exercising and professing to have the second respondent’s skill as a physiotherapist: Rogers v Whittaker [1992] HCA 58; (1992) 175 CLR 479 (at 483). He contended that the scope of the duty was to conduct the assessment in a manner which avoided risk of injury to the appellant’s left shoulder.

65 In my view Mr Kalfas’ contention involves too narrow a formulation of the scope of the respondents’ duty. The second respondent was conducting an assessment which required testing the appellant’s physical capacity in all respects. He admitted that it was foreseeable that during the crawling exercise her left shoulder could be favoured and thus result in an increased loading of her right shoulder. Thus it is apparent this was a risk inherent in the process he required her to undertake. In my view the scope of his duty of care was to take reasonable steps to avoid that risk eventuating: Sydney Water Corporation v Turano [2009] HCA 42; (2009) 83 ALJR 1168. (at [48]).

66 Once the scope of the respondents’ duty was identified, the question whether it had been breached had to be determined in accordance with s 5B of the Civil Liability Act 2002 (NSW), a provision remarkably absent from counsel’s submissions at trial and in this Court as well as in the primary judgment. Section 5B provides:

“(1) A person is not negligent in failing to take precautions against a risk of harm unless:

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b) the risk was not insignificant, and

(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.

(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

(a) the probability that the harm would occur if care were not taken,

(b) the likely seriousness of the harm,

(c) the burden of taking precautions to avoid the risk of harm,

(d) the social utility of the activity that creates the risk of harm.”

67 The question of whether or not the respondents discharged their duty of care, although determined after the accident, had to be assessed at the time of their allegedly tortious conduct, by looking forward to identify what a reasonable person in their position, confronted with a foreseeable risk of injury, would have done in response: Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 (at [16]) per Gleeson CJ; New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486 (at [57]) per Gummow and Hayne JJ; Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 (at [60] – [61]) per Gummow J, Hayne J (at [124]).

68 There is no controversy that the respondents were alert to the risk that the appellant could be injured during the assessment. It was clearly not an insignificant risk. The appellant advised the second respondent of Professor Sonnabend’s strictures that she should minimise manual handling. The second respondent recognised he should take some precautions. He said that in the light of Professor Sonnabend’s advice and, as I understand the evidence, his own assessment of the appellant’s condition, he adjusted the weights he required the appellant to use.

69 The primary judge’s statement that he accepted the second respondent’s evidence did not mean he could not accept Mr Middleton’s opinion. The respondents’ attack on Mr Middleton’s opinion based on the number of hours he assumed the test had occupied cannot be sustained. As is apparent from the extracts from Mr Middleton’s report I have set out, the period over which the physical testing proceeded was not critical to his opinion that the assessment was ill advised having regard to the appellant’s recent shoulder surgery.

70 Indeed Mr Middleton’s opinion as to the risk of conducting the assessment at that time corresponded with the risk the second respondent perceived prior to commencing to put the appellant through the assessment: the risk that she would favour her left arm at the expense of imposing more weight on the right arm.

71 The difference between the two lay in their opinion about what should be done. Mr Middleton said the assessment should not have been conducted at all. The second respondent said it could proceed adjusted as he saw fit to take into account the perceived risk. In my view that was not a reasonable response, especially having regard to Professor Sonnabend’s advice that the appellant should minimise weight handling, having regard to the magnitude of the consequences if the perceived risk came home. In my view, merely adjusting the weights he required the appellant to use was an inadequate response. Leaving aside the cumulative effect of requiring the appellant to use weights over several hours on two successive days, adjusting the weights did not accommodate the crawling test which involved the appellant taking her entire body weight on all four limbs and transferring her weight from one arm (shoulder) to the other as she crawled. That is how I understand Mr Middleton to have interpreted Professor Sonnabend’s advice when he said in his evidence in chief that crawling was “specifically against the surgeon’s ... protocol” and in contradistinction with “any surgeon’s post operative protocol”

72 Further, it might be recalled that the primary judge noted that the second respondent’s recollection of the assessment was “vague” and that he depended on his notes. There was an apparent disparity between the second respondent’s handwritten notes of the assessment and his report in two respects.

73 First, the notes recorded “no weights specified by Dr Sonnabend”. Assuming that can be taken literally as meaning the appellant should use no weights, it appears to have been translated in the second respondent’s report into advice “to minimise manual handling tasks”. Secondly, the notes recorded in respect of the crawling test, “C/o [complains of] discomfort in neck if trying to look forward”, whereas the report stated, “[h]er neck and shoulder mobility restricted her during tasks requiring repetitive rotation or activities such as crawling”. The second respondent was not taxed about these matters in cross-examination and I would not regard them as determinative of liability without him having been given the opportunity to explain them.

74 However on its face the second matter, in particular, suggests that the second respondent’s handwritten notes did not fully record his observations during the assessment. It seems improbable he would have set out in the report a matter he did not observe during the assessment.

75 It is not to the point, in my view, that the second respondent said he did not see the appellant favouring her left shoulder. First, it will be recalled that in his cross-examination the following exchange took place:

“Q. That’s exactly what you did, you did tests on her that necessarily involved her favouring the right arm, you know that don’t you?

A. There was not evidence that she was favouring the right arm.”

In my view it was implicit in that answer that the tests did necessarily involve the appellant favouring her arm, even if the second respondent did not observe that, or, having regard to his vague recollection of the assessment, did not recall it when he gave evidence.

76 In my view the primary judge was entitled to accept Mr Middleton’s evidence that “you couldn’t possibly crawl without favouring the shoulder that was not supposed to be loaded” (which he was permitted to repeat in re-examination) an opinion unsuccessfully, in my view, challenged in cross-examination.

77 Mr Middleton’s opinion was reinforced by Dr Conrad’s report. That report also emphasised the medical view that, independently of Mr Middleton’s opinion, (and consistently as I understand the second respondent’s handwritten note of Professor Sonnabend’s advice) the assessment should not be undertaken “so soon after surgery”. Dr Ellis’s report also said the assessment was “inappropriately timed” having regard to the recency of the shoulder surgery. Professor Sonnabend’s instructions to the appellant which she communicated to the second respondent, in my view, clearly indicated the appellant should not be required to undertake a physical assessment using weights, particularly one requiring her to support her own body weight. One would expect a reasonable physiotherapist in the second respondent’s position, on the communication of Professor Sonnabend’s instructions, to postpone the assessment.

78 Dr Schonstein’s evidence, in my view, did not assist on the issue of breach from the respondents’ point of view. She does not refer to the risk of injury the second respondent perceived to exist, makes the bald statement that he “correctly assessed the issue of weights used during weighted manual handling tasks (two kilograms or less), assumes the second respondent’s report is complete, yet does not refer to the statement that the appellant’s shoulder mobility restricted her during the crawling exercise and does not deal at all with the weight loading crawling to which the appellant’s shoulders would have been exposed. Generally Dr Schonstein’s report seems more concerned to deal with the Isernhagen FCE as a standard protocol without referring to the manner in which it might have been applied, if at all, in the circumstances the appellant’s case presented.

79 In my view the primary judge did not err in concluding that the respondents were negligent in carrying out the assessment rather than postponing it.

80 The cross-appeal, insofar as it concerns liability, should be dismissed with costs.

The appeal: quantum

81 The primary judge accepted the appellant’s evidence as to the shoulder pain she experienced, the restriction in her mobility and the general decline in her quality of life. He noted she said:

“[T]hat, from that time until now, her right shoulder has been awful, she has constant shoulder pain. At times she could not sleep. The movement of her right shoulder was not good. The left shoulder was about the same. The neck was worse. She could not do anything. Her life has been severely affected”.

82 He found that as a result of the assessment, the appellant had sustained an aggravation of her pre-existing right shoulder injury and a rotator cuff tear which had to be repaired, saying:

“The plaintiff is about sixty years of age. She had problems with her back and neck and shoulder that were caused by her work. What the defendants did was to aggravate those problems, to make them much worse and where she was settling down to a reasonable situation in life it was significantly aggravated and continues.”

83 He assessed non-economic loss on the basis of 20 per cent of a worst case which amounted to an award of $16,000: s 16, Civil Liability Act.

84 In relation to economic loss the primary judge concluded the appellant’s ability to work had been seriously affected and that she may need a further operation. His Honour was satisfied that she would lose income in the future as a result of the injury sustained in the assessment and that she would not do the work she would have been able to do.

85 Having regard to the fact that the appellant would not have been able to work for a period (which he assessed as approximately 15½ months) after the assessment in any event due to her pre-existing condition, his Honour allowed the appellant pre-judgment loss of wages for three years at $100 per week. He described this as “a partial loss of income”. He said, apparently referring to the appellant’s condition, “[t]his is an aggravation [which] is continuing”. He added: “She should have been able to go back to work, she cannot”.

86 He used the same figure of $100 to calculate future economic loss on the basis the appellant would have worked for a further four years.

87 In relation to her claim for domestic assistance, the appellant gave evidence that she required assistance from her husband after the aggravation of her injury by the assessment for 11.5 hours per week. The evidence from Dr Conrad in July 2004 prior to the assessment was that the appellant needed assistance of about six to eight hours per week, while a report by Dr Ellis in July 2007 said that she needed eight to ten hours per week. The primary judge noted that although she would have needed more assistance for a short period of time at the time of the operation after the aggravation of her injury, “if one looks at the evidence as to what she actually needed then, the aggravation had caused something in the vicinity of two hours per week”. This being less than the statutory threshold (s 15, Civil Liability Act), he awarded her no damages for domestic assistance.

Submissions: damages

88 The appellant complained that the awards for non–economic loss, past and future economic loss were inadequate and that the primary judge erred in failing to award her any sum for domestic assistance (s 15, Civil Liability Act).

89 Ms Norton submitted that in consequence of the aggravation of her pre-existing injuries, the appellant was permanently unfit for work, had a limited capacity for household tasks and was more reliant on her family. She contended that the aggravation of the appellant’s injuries occurred just when the injuries the appellant had suffered at work were settling down and she was looking forward to a reasonable situation in life. She contended that when one had regard to the appellant’s complaints of disability and pain which his Honour accepted, it was apparent that the primary judge had failed to consider the practical effects of the change in the appellant’s condition caused by the assessment.

90 As to economic loss, Ms Norton contended that the primary judge did not explain how he derived the amount of $100 per week which he ascribed to the appellant’s wage loss. She contended that the primary judge’s conclusion that, but for the assessment, the appellant would have been fit for a “significant amount of work”, but, instead, as a result of the assessment she could not go back to work, was a finding the appellant had no residual earning capacity, a finding not reflected in the $100 per week award. She submitted the appellant’s gross income as disclosed in her tax returns from 1999 to 2003 averaged about $270 per week. On the basis that that amount was slowly increasing and that that increase could be expected to continue, she pointed out that the appellant had contended at trial that the figure of $300 per week was the appropriate basis for assessing her economic loss.

91 Ms Norton next submitted that the primary judge erred in the approach he took to the appellant’s claim for gratuitous attendant care services. She contended that what his Honour ought to have done to determine whether the appellant had satisfied s 15 of the Civil Liability Act was to compare what the appellant could do before the assessment (ignoring the effects of the recent surgery) and what she could do afterwards. The only proper test of that, she argued, was the appellant’s estimation of the time needed for members of her family to carry out household tasks after the surgery. She contended that the primary judge fell into error by comparing the appellant’s estimate of the time needed in that respect with medical estimates of what was needed at the time of the appellant’s most recent pre-assessment shoulder operation.

92 Ms Norton handed the Court a schedule of damages setting out her contentions that the appellant should be awarded 30 per cent for non–economic loss (s 16, Civil Liability Act), past wage loss of $300 per week for three years ($46,800) and future economic loss at the same amount ($58,500) with superannuation on the past economic loss at 11 per cent of the net figure ($5,148). The schedule also contained a claim for domestic assistance based on the premise the appellant required 11.5 hours assistance in the past for 223 weeks ($58,983) and for a further 28 years ($210,700).

93 Mr Kalfas submitted that the Court could not review the primary judge’s assessment of non-economic loss damages unless it was satisfied his Honour had made a wholly erroneous estimate of the damage suffered. He contended that the appellant had not demonstrated that the his Honour had made any error, let alone any error of the nature of that which would attract appellate intervention. The primary judge referred to all the relevant evidence, including, he pointed out, noting that the operation which was subsequently performed on the appellant in October 2005, was “relatively minor”.

94 Mr Kalfas submitted that on a proper analysis of the medical evidence and objective testing of the appellant, the aggravation the primary judge found had resulted from the assessment had not greatly altered the appellant’s symptoms and signs from those previously manifested.

95 Insofar as economic loss was concerned, Mr Kalfas submitted that the primary judge’s figure of $100 a week was based on her having partially lost income as a result of the continuing aggravation. He contested the proposition that the appellant had been earning on average $270 a week prior to her earlier injuries and, rather, contended that the true figure was $246 per week net. He observed that the $100 the primary judge allowed was around 40 per cent of that amount. Accordingly, he argued $100 per week was an appropriate assessment by the primary judge of the partial loss of income he had concluded had flowed from the respondents’ breach.

96 Turning to damages for gratuitous attendant care services, Mr Kalfas contended that the primary judge had adopted the correct approach. He pointed to Dr Conrad’s report, noted by the primary judge, which said that in mid–2004, about ten weeks before the left shoulder decompression and the assessment, the appellant needed about six to eight hours of domestic assistance a week. In July 2008 Dr Conrad had assessed the appellant’s need for domestic assistance at eight to ten hours a week. Accordingly, he contended, the primary judge properly had regard to objective evidence pre-dating both the left shoulder surgery and the assessment and that post-dating both events and that his estimate was the best evidence of the appellant’s need. Once Dr Conrad’s June 2004 estimate of the appellant’s need for domestic assistance was deducted from his estimate of July 2008, Mr Kalfas submitted the two hours per week the primary judge found to be a “pretty fair assessment” of the appellant’s need for domestic assistance caused by the aggravation, was clearly established.

97 Mr Kalfas submitted that the appellant’s own estimate of her need for gratuitous attendant care service was not the only evidence available to guide the primary judge and that his Honour had not erred in considering the available medical evidence.

98 In reply, Ms Norton submitted that the respondents’ calculation of the appellant’s net weekly income as having been $246 per week over the period failed to take into consideration the fact that the appellant’s income would have increased over the five years prior to the trial. She pointed out that the appellants notice of assessment for the year ended 30 June 2003 showed a net weekly income of $273. Furzer Crestani Services tables showed that over the period 2003 to 2008 female wages increased by approximately 21 per cent. On that basis the appellant’s wage of $273 net per week as at 2003 would have increased to $330 net per week by the time of trial, December 2008. On that basis she submitted that the primary judge’s figure of $100 per week allowed the appellant less than one-third loss of her earning capacity both for the past and the future.

99 The appellant gave evidence that prior to the injuries which led to her ceasing work in March 2001 she was working a seven hour shift and three shifts a week, that is to say, 21 hours a week.

100 The appellant also pointed out that at the time of trial average female weekly earnings were $725 net per week. On that basis, Ms Norton submitted an allowance of $300 per week for a 21 hour week was appropriate.

Damages: non-economic loss

101 The challenge to the primary judge’s conclusion on non-economic loss must be determined in accordance with the principles explained in Wynn Tresidder Management v Barkho [2009] NSWCA 149 (per McColl JA, Tobias and Young JJA agreeing):

“110 The approach taken when an appellate court is asked to review a primary judge’s conclusion as to the severity of a plaintiff’s non-economic loss by reference to a ‘most extreme case’ was discussed in Crystal Wall Pty Ltd v Pham [2005] NSWCA 449 (at [49]) as follows:

‘49 The exercise in which the primary judge was involved in determining non-economic loss is neither scientific nor normative. While it is not wholly at large, it involves an exercise of discretion with which the Court will rarely intervene: Southgate v Waterford (1990) 21 NSWLR 427 at 440. Having regard to the nature of the exercise, a finding that a particular case is or is not ‘a most extreme case’ has been said to be not ‘readily ... susceptible of appellate review’ as ‘its resolution ... involve[s] questions of fact and degree, and matters of opinion, impression, speculation and estimation calling for the exercise of common sense and judgment’: Dell v Dalton (1991) 23 NSWLR 528 at 533 per Handley JA (with whom Kirby P and Priestley JA agreed); Rabay v Bristow [2005] NSWCA 199 at [62] – [67]. Unless it can be demonstrated that the trial judge has erred in the application of principle, in order to attract appellate review it will be necessary to show that the conclusion reached by the primary judge was manifestly erroneous: Ellis v Rantzos (t/as Rantzos Hairdressing) [2005] NSWCA 266 at [43] per Basten JA (with whom Handley and Santow JJA agreed).’

111 A like approach has been taken by the West Australian Court of Appeal: see Hammond Worthington v Da Silva [2006] WASCA 180; Den Hoedt v Barwick [2006] WASCA 196; (2006) 46 MVR 30; Insurance Commission of Western Australia v Weatherall [2007] WASCA 264”

102 I have set out the primary judge’s critical findings as to the effect of the aggravation caused by the assessment. Those findings are best set in context by referring to the underlying medical evidence which it is apparent the primary judge accepted. While his Honour referred to some of this evidence while dealing with the issue of liability, he did not re-visit it when he came to the issue of damages.

103 There is no doubt the appellant had a long history of physical problems. However, in my view the most relevant medical reports to which the primary judge ought to, and appears to have, paid most regard, are those which explain the appellant’s condition in the months prior to, and after the assessment.

104 Dr Conrad reviewed the appellant on 21 June 2004. He noted that she had “ongoing pain and stiffness in her neck and both shoulders” and that “apparently, her left shoulder is also pretty bad and she is waiting for a MRI scan result on her left shoulder and then will see Professor Sonnabend with regards to a decision as to whether surgery will be undertaken on her left shoulder.”

105 Dr Conrad reviewed the appellant again on 28 July 2008. He referred to his last review of her on 21 June 2004 and observed that since then:

“.... Her condition has substantially deteriorated. She continues to have pain and stiffness in both shoulders and the right shoulder is more affected than the left shoulder.”

106 He opined that the assessment had aggravated the appellant’s right shoulder resulting in her needing the further operation performed by Professor Sonnabend on that shoulder. In his view the appellant would continue to need conservative treatment and physiotherapy on an “as needs” basis. He thought it was difficult to see the appellant returning to any sort of meaningful work in the future observing she may need to be granted a pension. If her family was not able to assist her with the heavier part of her house and garden maintenance and housework, he thought she may need some eight to ten hours per week of home care assistance.

107 On 7 June 2004 Dr Evans noted that the appellant reported that the pain in her shoulders was “much more troublesome in the left than the right ...” and that she had “fortunately had a good result from the surgery to the right shoulder, and the left now worries her more.”

108 According to the respondent’s schedule a medical report from a Dr Burke tendered by the respondents at trial without objection recorded on 24 August 2004 that:

“She is doing exercises for both shoulders. Her most immediate problem is the left shoulder. Excessive movement causes pain. ... Her right shoulder has improved considerably since its operation. Movement is normal. However, the shoulder sometimes feels tired. There is no pain. Both upper limbs are otherwise normal.”

109 Immediately after the assessment, on 10 September 2004, as I have earlier recorded, Dr Simone reported that the assessment had caused the appellant persisting pain in her right shoulder and limitation in its function. It was Dr Simone who ultimately referred the appellant back to Professor Sonnabend who in due course performed the arthroscopy on her right shoulder in September 2005.

110 In July 2007 Dr Ellis recorded that while the appellant’s shoulders had improved since the pre-assessment surgery performed by Professor Sonnabend, the appellant still had some pains in both shoulders with her right being worse than her left. There was limitation of movement in both shoulders. He recorded that her right shoulder was worse after the assessment and her left shoulder had gradually become worse again. The appellant made what, in my view, were consistent complaints in subsequent reviews recorded by Dr Mahoney.

111 This evidence clearly supported the primary judge’s conclusion that as a result of the assessment the appellant’s pre-existing injuries and disabilities were made “much worse” and, whereas she had been “settling down to a reasonable situation in life” her problems had been “significantly aggravated” on a continuing basis.

112 However, with respect to his Honour, I cannot accept that his assessment of the severity of the appellant’s non-economic loss as 20 per cent was appropriate.

113 In House v The King [1936] HCA 40; (1936) 55 CLR 499 (at 505), Dixon, Evatt and McTiernan JJ said that an appellate court may exercise its own discretion in substitution for a discretionary decision of a judge even though the nature of the discretionary judge’s error was not discoverable, “if upon the facts it is unreasonable or plainly unjust” so that the appellate court could infer that there had been “a failure properly to exercise the discretion which the law reposes in the court of first instance.” House v The King was, of course, a judgment concerning appellate intervention in a sentence imposed in a criminal case, nevertheless it has, of course, long been accepted as applicable to appellate review of discretionary decisions generally.

114 Two days after the decision in House v The King, again in the context of sentencing, Dixon, Evatt and McTiernan JJ said in Cranssen v R [1936] HCA 42; (1936) 55 CLR 509 (at 520) that in reviewing the adequacy of a sentence, “it is not necessary that some definite or specific error should be assigned” and that “[t]he nature of the sentence itself, when considered in relation to the offence and the circumstances of the case, may be such as to afford convincing evidence that in some way the exercise of the discretion has been unsound.” Similar observations were made in Wong v R [2001] HCA 64; (2001) 207 CLR 584 (at [58]) per Gaudron, Gummow and Hayne JJ; (at [109]) per Kirby J.

115 In my view, the primary judge’s assessment that the appellant’s non-economic loss was 20 per cent of a most extreme case was manifestly erroneous. The evidence to which I have referred demonstrated the sharp contrast between the improvements the appellant was experiencing in her shoulders prior to the assessment. Her right shoulder appeared to be giving her little significant problem, and the recent operation in her left shoulder appeared to have been successful. The aggravation caused by the assessment dramatically altered that position leaving the appellant with pain which would remain with her for the rest of her life.

116 When one has regard to the medical evidence and the primary judge’s findings about the appellant’s continuing pain and disabilities, it is apparent that his exercise of his discretion to assess the severity of the appellant’s non-economic loss has been unsound in the sense to which House, Cranssen and Wong refer.

117 I would accept Ms Norton’s submission that the severity of the appellant’s non-economic loss was 30 per cent of a most extreme case, leading to an award of $103,500.

Damages: economic loss

118 It is difficult to understand the primary judge’s findings on economic loss.

119 It is apparent, in my view, that the primary judge did conclude, as Ms Norton submits, that as a result of the assessment the appellant had no residual earning capacity. In the light of that finding, his Honour’s conclusion that her economic loss was $100 net per week for the past and the future does not reflect the evidence.

120 The appellant does not challenge the primary judge’s conclusion that she would have been unable to work, in any event, for some period after the assessment, allowing for her pre-existing injuries, and seeks past wage loss only for the period of three years prior to trial. I would accept that submission and also the appellant’s submission that it was appropriate to award her $300 per week for a further four years. On the basis of the figures set out in the appellant’s schedule of damages, which the respondents did not dispute, that amounts to the following award:

Past wage loss ($300 per week for three years) $46,800

Past superannuation (11 per cent of net) $5,148

Future economic loss ($300 per week) $58,500

Future superannuation $6,435

TOTAL $116,883

Damages: section 15

121 In order to be able to claim damages for gratuitous attendant care services pursuant to s 15 of the Civil Liability Act it was necessary that the appellant establish that the need for those services arose solely because of the injury to which the damages relate, that the services would not have been provided to the appellant but for the injury and, further, that those services were to be provided for at least six hours per week for a period of least six consecutive months.

122 There was some debate in the course of argument about whether the requirement in s 15(2)(b) that the need for the damages for gratuitous attendant care should have arisen “solely because of the injury to which the damages relate” was satisfied having regard to the appellant’s pre-existing condition. However the parties accepted the proposition stated in Woolworths Ltd v Lawlor [2004] NSWCA 209 (at [28] – [30]) (per Beazley JA (Hodgson and Tobias JJA agreeing) that the Court could award such damages even where the need for the award only arose because of an increase in the plaintiff’s need for services occasioned by the injury. Woolworths was confirmed in Angel v Hawkesbury City Council [2008] NSWCA 130 (at [130]) per Beazley and Tobias JJA (Spigelman CJ, Giles and Campbell JJA agreeing), see also Westfield Shoppingtown Liverpool v Jevtich [2008] NSWCA 139 (at [22]) (per Bell JA, Hodgson and Tobias JJA agreeing). What the plaintiff must establish in those circumstances is that as a result of either injuries and disabilities caused by the defendant’s negligence, a need for gratuitous attendant care services for an additional six hours per week for at least six consecutive months arose: Woolworths (at [28] – [29]).

123 The appellant advanced an argument that the exercise of assessing her need for gratuitous care should be approached on the premise that if the aggravation had not occurred her need for such assistance would have declined as the condition of her shoulders improved. Accordingly, she contended “most” of the hours Dr Conrad said she needed for such care after the aggravation should be attributed to the respondents’ negligence. Dr Conrad’s June 2004 report was prepared at a time when the appellant had had a good result from the surgery the previous year on her right shoulder, yet it is clear that even with a good result from that procedure she still needed about six to eight hours of domestic assistance a week. After the aggravation, Dr Conrad’s evidence to which I earlier referred, established, at best, a requirement for an additional two hours a week. In my view the appellant did not establish that more than that two hours was attributable to the aggravation caused by the respondents.

124 Accordingly the appellant did not establish that as a result of the aggravation caused by the assessment, she needed an additional six hours gratuitous attendant care services per week. Dr Conrad’s reports were, as the respondents submitted, objective evidence of the appellant’s need. The primary judge preferred that evidence to the appellant’s subjective account. The appellant did not identify any error on his Honour’s part in this respect.

125 In my view this ground of appeal should be rejected.

Damages: workers compensation allowance

126 Ground 10 of the cross-appeal complained that the primary judge failed to take into account the workers compensation payment the appellant received in respect of the permanent impairment of her neck and right arm, and failed to deduct that amount from her non-economic loss. In substance this amounted to a complaint that the primary judge failed to deduct any amount from the appellant’s damages to avoid double compensation by virtue of sums she had received under s 66 and 67 of the Workers Compensation Act 1987 (NSW): see Khan v Polyzois [2006] NSWCA 59 (at [43] – [47]).

127 The problem from the cross–appellant’s point of view with this submission is that even at trial when making the worker’s compensation deduction claim, Mr Gambi accepted that he could not establish what component of the appellant’s s 67 payment for pain and suffering related to her neck or right arm. Similarly, Mr Kalfas conceded that he could not say which part of the s 66 workers compensation payment of $14,000 relating to the appelant’s neck and right arm was referable to the aggravation the respondents caused. On that basis, this claim was effectively abandoned.

Orders

128 Interest will need to be calculated on the substituted damages as appropriate. The parties should undertake that exercise.

129 I propose the following orders:

1. Cross appeal dismissed with costs.

2. Appeal allowed with costs.

3. Set aside the primary judge’s awards in respect of non-economic and economic loss.

4. Parties to file Short Minutes of Order in the Registry setting out the award to the appellant including interest as appropriate within seven days.

130 McCLELLAN CJ at CL: I agree with McColl JA.

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LAST UPDATED:
15 December 2009