Kubovic v HMS Management Pty Ltd

McCOLL JA: The appellant, Marian Kubovic, was injured in an accident on 26 January 2009, whilst he was working for the respondent, HMS Management Pty Ltd. He commenced proceedings against the respondent in the District Court of New South Wales to recover damages alleging, relevantly, that his injuries were caused by its negligence.

His Honour Judge Lakatos SC found in the appellant’s favour. Because the appellant was seeking to recover work injury damages, his claim was confined to damages for past and future loss of earnings. [1] His Honour assessed his damages at $107,951, reflecting a 20 per cent deduction for contributory negligence. [2]

The appellant appeals from his Honour’s decision. Although there are fifteen grounds of appeal, there are essentially four issues on appeal. They are, first, whether the primary judge erred in finding the appellant had been guilty of contributory negligence; secondly, whether the primary judge erred in granting the respondent leave pursuant to s 318(2) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the “1998 Act”) to rely upon and admit surveillance evidence not previously disclosed in, or served with, the pre-filing defence; thirdly, whether the appellant was denied procedural fairness in the manner the primary judge used the surveillance evidence in assessing damages; and fourthly, whether his Honour erred in assessing damages for future economic loss by way of a buffer.

For the reasons that follow, I am of the view that the appeal should be allowed and the matter should be remitted to the District Court for retrial.

Because the appellant sought to recover damages from his employer in respect of an injury allegedly caused by its negligence, his claim was governed by Chapter 7 (New Claims Procedures) of the 1998 Act. Section 318 and related provisions appear in Part 6, Division 3 of that Chapter. Those provisions intended to encourage “early identification of issues and early resolution of matters without court proceedings”. [3]

If there is a dispute as to whether the degree of permanent impairment of the injured worker resulting from an injury is sufficient for an award of damages, the claimant cannot commence court proceedings for the recovery of work injury damages and cannot serve a pre-filing statement under Division 3 unless the degree of permanent impairment has been assessed by an approved medical specialist under Part 7. [4]

There is a dispute within the meaning of s 313 if either the person on whom the claim is made has not accepted that the degree of permanent impairment of the injured worker resulting from the injury is at least 15%, or there is a dispute as to whether the degree of permanent impairment resulting from the injury is fully ascertainable. [5]

Before a claimant can commence court proceedings for the recovery of work injury damages, the claimant must serve on the defendant a “pre-filing statement” setting out such particulars of the claim and the evidence that the claimant will rely on to establish or in support of the claim as the Rules may require. [6] Within 28 days after the pre-filing statement has been served on the defendant, the defendant must respond to the pre-filing statement by, relevantly for the purposes of this case, accepting or denying liability (wholly or in part), and to the extent that the defendant does not accept liability, serving on the claimant a defence to the claim setting out such particulars of the defence and evidence that the defendant will rely on to defend the claim as the Rules may require. [7]

Section 318 of the 1998 Act provides:

Court proceedings for recovery of work injury damages cannot be commenced until the claimant has referred the claim for mediation under Division 4, Part 6 of the 1998 Act. The claim cannot be referred for mediation until at least 28 days after the pre-filing statement has been served on the defendant. Court proceedings for recovery of work injury damages cannot be commenced while the claim is the subject of mediation in the Commission. [8]

If the mediator is unable to bring the parties to agreement on the claim, he or she is to issue a certificate certifying as to the final offers of settlement made by the parties in the mediation. [9]

Section 346 of the 1998 Act provides that the regulations may make provision for or with respect to the awarding of costs to payable by a party in, or in relation to a claim for work injury damages, including court proceedings for work injury damages. A party is not entitled to an award of costs to which s 346 applies, and a court may not award such costs, except as prescribed by the regulations under the Act.

The Workers Compensation Regulation 2010 (NSW) (the “2010 Regulation”) has been made in exercise of the s 346 power.

If a claimant obtains an order or judgment on a claim that is no less favourable to the claimant than the terms of the claimant’s final offer of settlement in mediation under the 1998 Act as certified by the mediator under s 318B, the court is to order the insurer to pay the claimant’s costs on the claim assessed on a party and party basis. If a claimant obtains an order or judgment on a claim that is less favourable to the claimant than the terms of the insurer’s final offer of settlement at the mediation as duly certified or the court finds the insurer has no liability for the claim, the court is to order the claimant to pay the insurer’s costs on the claim assessed on a party and party basis. Otherwise, the parties to court proceedings for work injury damages are to bear their own costs. [10] Subdivision 2 does not apply to costs payable in or in relation to proceedings that are ancillary to proceedings on a claim for work injury damages, and a court is to award costs in such ancillary proceedings in accordance with the rules of the court. [11]

The significance of the pre-filing regime is apparent from other provisions of the 1998 Act.

The appellant was born in Slovakia. He came to Australia in March 2000. He gained Australian residence in 2005. He had a professional background in hospitality, owning a restaurant and nightclub. Upon arriving in Australia, he studied different courses including hospitality, marketing and IT.

The appellant commenced employment with the respondent as head chef of the St James Hotel in August 2006. In 2008, he moved to the respondent’s business at the Sanctuary Hotel in Kent St, Sydney. He worked more than twelve hours a day, five days a week, as well as a half day on Saturday, with Sundays off. His duties included managing staff, placing orders for goods, helping to unload trucks and much of the necessary moving and lifting that running the kitchen entailed.

The appellant’s Monday shifts commenced at 7:45 or 8 am with stock takes at the St James and Sanctuary Hotels, which would take approximately one to one and a half hours. The stock take at the Sanctuary Hotel required him to go into the cool room, which was about 2.5 m wide and 4 m in length, open all of the boxes on the shelves and record their contents on a clipboard. Every wall was lined with shelves holding vegetables and smallgoods. There was also a central set of shelves in the middle which stored boxes of meat.

According to the appellant, every Monday after his day off, the freezer and cool room would be messy with boxes of meat stacked on the floor in plastic tubs and buckets.

On Monday, 26 January 2009, the appellant commenced his duties at Sanctuary Hotel at the usual time. Although in 2006, when he started working for the respondent, two people were assigned to undertake stock take, the appellant stated that on the day of the accident time pressure was too great to wait for other staff to assist him. The appellant said that he had spoken to his supervisors about the cool room, requesting a ladder and more qualified staff to complete the tasks, but had been told to do it on his own, unaided.

Midway through the stock take the appellant attempted to move from the top of the central shelves a full box of steaks weighing approximately 25 kilograms. It was resting on top of another box. There were buckets and boxes on the floor. He reached up for the box, and pulled it from the shelf, holding it by its adhesive packaging tape. He said this required extra force, as the box had become stuck by the tape to the box below. The upper box came free suddenly. The appellant said he was unable to step backwards due to the buckets on the floor behind his feet. Instead, he fell backwards approximately 1.2 m. He landed against the wall in what he described as a bridge-like position, striking the back of his head, his neck and the top of his back. The box of steaks landed on his chest.

The appellant immediately felt a sharp pain between his shoulder blades. He dropped the box, regained his balance and stood up. He finished the stock take and the rest of the day’s work. He thought he had pulled a muscle, but the pain worsened throughout the day. He described the pain that night as bearable, and accordingly decided to go to work the following day, which he spent in constant pain around the shoulder blade area. [12]

On 28 January 2009, the appellant consulted his General Practitioner, Dr Savic-Urosevic. He asked for pain killers for what he said he thought was a pulled muscle. According to the appellant, he explained the circumstances of the incident, told the doctor that he loved his job and would not stay at home, and declined a WorkCover certificate. [13]

The appellant obtained medication and was referred for a CT scan. He mentioned the injury to the hotel manager, Geoff Tomlinson, on Wednesday. By Friday he had “excruciating pain” in his shoulders and worked for only half a day. He was advised by the operations manager, his immediate superior, Rogers Soundranayagan, to take some rest. He returned to work the following Monday. He had another person help with the stock take. He merely noted the figures. [14]

By the following Tuesday, the appellant’s symptoms had escalated. He had loss of sensation in both arms. On 4 February, he consulted Dr Savic-Urosevic again. Dr Savic-Urosevic called an ambulance because the appellant’s symptoms became worse. He was taken to St Vincent’s Hospital where he was provided with two or three Tramadol tablets and given a prescription for more. [15]

On Wednesday, the appellant attended the Sanctuary Hotel to inform Mr Soundranayagan of his pain and symptoms. He provided him with a certificate from his GP to the effect that he was unable to work. CT scans confirmed three or four fractures of his vertebrae. [16]

The following Tuesday, 10 February, the appellant took Tramadol in the morning and went to work. He went home in the early afternoon and took a further tablet before going to bed. He awoke in hospital thinking he was in Slovakia, and was informed that he had had a seizure. He was treated by Dr Sutton, who recommended an EEG and prescribed an anticonvulsant. About one week later, the appellant suffered another seizure and was admitted as an inpatient at St Vincent’s Hospital for about three days. At that point he stopped taking Tramadol. [17]

The appellant has not returned to work since 10 February 2009. His degree of “Whole Person Impairment” has been assessed at 41 per cent, which means he qualifies to claim common law damages in respect of his injuries. [18]

Pursuant to the 1998 Act, the appellant filed a pre-filing statement in December 2012 and the respondent filed a pre-filing defence on 22 March 2013. [19] An unsuccessful mediation took place on 14 May 2013.

The trial commenced on 5 March 2014. The appellant was the only witness. Both parties tendered medical reports. None of the doctors was required for cross-examination.

The plaintiff gave evidence in chief. In the course of his cross-examination, when it became apparent that the respondent was proposing to put to him material obtained by surveillance, counsel for the appellant objected on the basis that no such surveillance materials had been disclosed by the respondent in its pre-filing defence and, therefore, the respondent was not entitled to have that evidence admitted by reason of s 318(1)(d) of the 1998 Act.

The surveillance evidence consisted of a video taken of the appellant at a gym on 22 October 2013 and photographs extracted from the video. The respondent sought leave to rely upon the surveillance evidence on the basis that it was not reasonably available to it when the pre-filing defence was served and that failure to grant it leave would substantially prejudice its case. [20] The appellant did not contest the latter proposition.

As the primary judge described it in his ex tempore judgment delivered on 6 March 2014 following a voire dire on the admissibility of the surveillance evidence, the major area of contention was whether that material was “reasonably available” to the respondent when the pre-filing defence was served. [21]

Mr H Halligan of counsel, who appeared for the respondent at trial, submitted the surveillance evidence was not “reasonably available” at that time because, in substance, the time periods for which the 1998 Act provided in terms of putting on the pre-filing defence did not practically permit a defendant to procure such evidence. He also submitted it was consistent with the costs regime under the 1998 Act, which made it practical to see if the case resolved at the mediation usually held four to eight weeks after the filing of the pre-filing defence, not to obtain such evidence prior to the mediation.

Mr H Halligan also submitted that in a case where the appellant’s credit was put squarely in issue, prior disclosure of material such as the surveillance evidence would destroy the forensic advantage the respondent had at trial. He argued that the respondent would suffer extreme prejudice if it could not adduce the surveillance evidence because he argued it demonstrated the appellant had engaged in misleading conduct as to the range of damages to which he may be entitled.

The appellant opposed the admission of the surveillance evidence on the basis, in part, at least, that the respondent had pointed to nothing which had changed between the pre-filing date and October 2013 which could explain why it had not obtained and served the surveillance evidence within the pre-filing framework.

The primary judge noted in the section 318 judgment that the appellant’s “Particulars of Disabilities” in his pre-filing statement pointed to disabilities which, on his Honour’s viewing, may be contradicted by the surveillance evidence.

His Honour was informed, as appears to have been common ground, that “in the normal course once the pre-filing material has been filed and the process commences, it is not often that parties provide to each other updates which may affect the prospective litigation.” Accordingly, his Honour “considered in the circumstances that the [respondent] was entitled to assume the particulars in the pre-filing statement … would be pressed at the hearing.” For that reason his Honour accepted “it was relevant to have an updated picture of the nature and extent of the appellant’s disabilities to provide to the Court a reliable basis upon which to make any award of damages.” His Honour concluded that “in that sense, the evidence of the plaintiff’s disabilities, if any, at or approximate to the time of the hearing, was not reasonably available in early 2012.” [22]

His Honour found that as the surveillance material was “pertinent to the plaintiff’s disabilities as at the present time” it was not “readily available in 2012.” His Honour also accepted that the absence of the material would substantially prejudice the respondent’s case. Accordingly he granted leave to the respondent to adduce the surveillance evidence. [23]

It is convenient to record at this stage that the evidence the respondent adduced also included records of the appellant’s gym attendance. These records were produced pursuant to a subpoena issued on 10 September 2013 after the District Court proceedings were commenced. An order was made on 10 October 2013 granting the parties access to those documents. The appellant did not object to the admission of those records apparently on the basis that the numerous attendances they recorded were consistent with the appellant’s evidence that he attended gym to do exercises consistent with his injuries.

On 4 August 2011, a Senior Arbitrator of the Workers Compensation Commission made the following determination in relation to the appellant’s injuries:

The appellant submitted at trial that the Senior Arbitrator’s determination bound the parties, either as an issue estoppel or by reasons of res judicata, as to how he was injured and whether his epileptic condition was caused by treatment he underwent for the injury to his thoracic spine, such that the respondent could not relitigate those issues. [24]

The primary judge found that the circumstances in which the appellant alleged he was injured to which the Senior Arbitrator referred were as the appellant had described – “in other words the mechanics of the injury and the onset of symptoms.” He also noted that the Senior Arbitrator accepted that the appellant’s “thoracic fractures were consistent with the injury on 26 January 2009 and that the use of Tramadol either caused or at least contributed, to the onset of epilepsy.” [25]

The primary judge held that the Senior Arbitrator’s determination of the circumstances of the accident bound the parties by reason of issue estoppel and, accordingly, his Honour, to conclude that the accident occurred in the way described in the determination. [26] There is no challenge to that ruling.

The effect of that conclusion was that issues of negligence, present and future incapacity, contributory negligence and the effect of the accident on the appellant in terms of injury and disability remained to be determined.

The primary judge accepted a submission by counsel for the appellant that the matter was governed by provisions of the Civil Liability Act 2002 (NSW), particularly ss 5B and 5D. This was, with respect, incorrect. As the appellant’s claim was for damages pursuant to Division 3, Part 5 of the WCA, no provision of the Civil Liability Act applied. [27] Neither party suggested anything turned on this.

The parties relied upon competing expert reports as to the issue of breach of duty. The primary judge preferred the appellant’s expert, Mr Waddell, who concluded “that the [appellant] was ‘placed at risk of injury … in the circumstances described.’” [28] This was because of “the likely high and unsafe stresses to which [the appellant’s] back was likely to have been exposed as a result of falling backwards against a wall, being struck in the chest by [a] heavy carton and restraining that carton to prevent it from falling further.” The factors which contributed to that risk were “the height at which the carton was stored, the manner in which the carton and the carton beneath it were strapped causing the possibility of entanglement, the obstacles on the floor and the rapid pace at which [the appellant] had to work.” [29]

The respondent’s expert, Dr Fairfax, considered that it was the appellant’s method of moving the box and the clutter on the floor in the cool room which were the primary factors which caused the accident and that he had “significantly contributed to his own injury by not keeping the aisle clear of clutter.” [30]

The primary judge concluded that it was reasonably foreseeable by an employer that an employee under time pressure might adopt the method the appellant used of moving boxes. He found that the respondent should have taken precautions to deal with that risk including making extra people available to assist in the stocktake and providing ladders to access boxes on the top shelves of the cool room and freezer. Accordingly, his Honour concluded that the appellant had established that the respondent was negligent in the manner Mr Waddell described. [31]

However, the primary judge also concluded that the appellant was guilty of contributory negligence. This was because, as head chef, he was in control of the cool room and freezer. Further, his Honour considered that the appellant’s evidence about the pressure of work causing him to cut corners “was not a justifiable reason for not taking greater care.” Accordingly, the primary judge concluded that the appellant was partly responsible for the state of the cool room and assessed his responsibility for his injuries as 20%. [32]

Turning to damages, the primary judge identified the most significant issue as the injuries and disabilities the appellant had suffered consequent upon the accident. His Honour accepted that the appellant had sustained an injury, but did not accept the injuries were of the serious character suggested by his evidence. [33]

In this respect, his Honour concluded:

It appears the appellant had informed one of the respondent’s experts, a Mr Milazzo, of his gym attendance, although the primary judge noted that it appeared to be “a less than frank description of the level of activity he engaged in at the gym”, leaving that expert with the view that the appellant attended the gym “mainly” for yoga and Pilates classes. [34]

The primary judge described the video footage the respondent’s investigator obtained of the appellant on 22 October 2013 as showing the appellant using a piece of equipment called a Roman chair on at least 6 occasions with periods of interruptions between sets, doing sit-ups, and leg or hamstring curls. [35]

The appellant explained his activities at the gym on the basis that, in effect, prior to the accident he was extremely fit. He contended that even if he had lost 70% of his fitness, his “fitness now [was] better than [his] mates who never exercised.” The primary judge was unimpressed by that response, saying that it left him “with the clear impression that the [appellant] does now have a physical capacity to work, if he chose to do so.” [36]

All the appellant’s expert reports pre-dated the surveillance evidence the respondent adduced concerning the appellant’s activities at the gym in October 2013.

The primary judge rejected the appellant’s evidence that he had told all his health practitioners about his exercise regime, saying the medical evidence did not bear that out. His Honour also said he was unable “to accept that the advice the [appellant] claimed he received ‘to work through the pain’ was based on a full disclosure of his gym activities.” [37]

His Honour concluded in relation to the appellant’s gym activities:

The respondent tendered records from the appellant’s gym which disclosed that he had attended the gym every month in 2010 on at least 17 occasions per month and no more than 25. The pattern continued in 2011 although the regularity of his attendances decreased in 2012. Regular attendances were recorded between January and May 2013. [38]

Although the primary judge found there was “no firm evidence to conclude that [the appellant] was exercising strenuously on each of these occasions”, nevertheless he observed the appellant “was able enough to travel from his home to the gym on those occasions and with that regularity and to undertake some kind of physical exercise there.” [39]

In his Honour’s view, the frequency of the appellant’s attendances at his gym over many years, taken with the vision shown in the video, cast serious doubt upon his evidence about his levels of pain and incapacity at various times. His Honour concluded that he had “considerable difficulty in accepting and [did] not accept that at the present time, the [appellant was] in such a degree of pain as he [had] stated.” [40]

The primary judge said that the effect of his conclusion about the appellant’s credibility made it difficult to determine how serious his original injury was and over what period of time any significant physical and pain consequences had continued, questions clearly relevant to the appellant’s past economic loss. However, his Honour noted that “the Court [was] obliged to make the best judgment it could based upon the appellant’s less than credible evidence about these matters.” [41]

The appellant’s submissions concerning the severity of his disabilities consequent upon his injuries were based upon the opinions of two doctors, Dr McGroder, a Consultant Occupational Health Physician, and Dr Allnutt, a Forensic Psychiatrist.

Insofar as Dr McGroder was concerned, his Honour said:

The primary judge formed the same opinion about Dr Allnutt’s assessment that the appellant suffered from a significant psychiatric/psychological injury secondary to his physical injuries and pain. His Honour concluded that that assessment was “also suspect”. [42] As that formed the basis of Dr Allnut’s opinion that the appellant had a significant impediment to employment due to the psychiatric sequelae of his injuries, for the reasons he expressed in relation to Dr McGroder, the primary judge considered that little weight could be placed upon Dr Allnutt’s opinions. His Honour emphasised that neither conclusion reflected on the competence of the medical specialists but was “simply a function of the proposition that the plaintiff’s true position was not disclosed to them.” [43]

The appellant relied upon a document described as the “Vincents Report” concerning his past and likely future losses. He also relied on a Schedule of damages with four scenarios, the first two being based on the Vincents Report and the premise that he had suffered “total and irrevocable impairment.” In his Honour’s opinion, “neither scenario can be properly based on the plaintiff’s evidence, as unreliable as that is.” [44] The third and fourth scenarios were predicated upon an average figure of weekly earnings. His Honour rejected the scenario based upon such a precise approach because he remained “unconvinced that the [appellant was] unable to work and [had] difficulty in assessing when his fitness to work after the accident resumed”. [45]

His Honour also briefly reviewed aspects of the respondent’s medical evidence, referring to reports which indicated, in substance, that the appellant retained a capacity to work. [46]

Nevertheless the primary judge concluded that the medical evidence of both parties did not permit him to draw any firm conclusions about the appellant’s working capacity. Given that he considered the appellant was “not a reliable source of information” in this respect, his Honour said he was “left to attempt to decide when after the accident, the [appellant] became fit enough to resume at least modified duties, in order to assess the quantum of past economic loss.” He emphasised that any such judgment “must by definition lack certainty or precision.” [47]

Adopting this approach the primary judge concluded that the appellant had sufficient physical capacity to resume employment by January 2010 “if he chose to do so”. He based that conclusion on the opinion of Dr Higgs who in mid-2009 considered the appellant had a capacity for limited work, and also an assessment of the gym records for 2010 following disclosing “the [appellant’s] frequent attendance, and hence I infer an increased physical capacity for physical exercise.” [48]

Although there was no evidence as to the availability of work in the area, nor of actual salaries paid in relation to positions such as head chef or executive chef, the primary judge concluded that, had the appellant applied himself, he would have obtained such an occupation between January 2010 and the time of trial. His Honour allowed the appellant two and a half months to cover the time in which such a position could be obtained. [49]

Adopting that approach the primary judge assessed the period of the appellant’s past economic loss as 62 weeks and allowed him the average figure for weekly earnings set out in the third scenario in the Vincents Report for that period which amounted to $76,522. [50]

Insofar as future economic loss was concerned, the primary judge considered that the most he was able to do was “to predict that there may be periods in the plaintiff’s working life when restricted duties as a head chef or executive chef are unavailable.” Because it “was impossible to quantify such periods” the only way to deal with it was to award a buffer. His Honour considered that an amount of $50,000 representing approximately ten months of the appellant’s pre-injury wages was appropriate. [51]

Mr R de Meyrick, who appeared for the appellant at trial and on appeal, submitted that the primary judge erred in granting the respondent leave to rely on the surveillance video. He contended that s 318 of the 1998 Act is directed at forensic diligence. Accordingly, given the costs restrictions in work injury damages proceedings, as well as the costs consequences of parties’ offers at mediations in Part 17, Div 3 of the Workers Compensation Regulations 2010, leave to rely upon “any report or other evidence” pursuant to s 318(2) should not be granted liberally.

Mr de Meyrick submitted that the respondent failed to establish a proper basis on which the primary judge could conclude that the surveillance evidence was not “reasonably available”. He contended that the respondent was aware of the appellant’s attendances at the gym before it filed its pre-filing defence. Accordingly, its failure to commission an investigation or attendances until well after the District Court proceedings were commenced fell foul of s 318(2)(a). He argued the fact that the surveillance evidence was not created or obtained until after the pre-filing processes and mediation could not logically satisfy that provision. If it could any party could wait until after proceedings had commenced to begin forensic preparations.

Secondly, Mr de Meyrick submitted that the appellant was denied procedural fairness in the way the primary judge used the surveillance evidence.

He argued that the primary judge’s inference that the appellant had exercised for the greater period than the few moments shown on the video was flawed. This was first, because the inference was not put to the appellant by either his Honour or counsel for the respondent. Secondly, he argued that the inference was counter-intuitive, as an investigator could have been expected to film all of the appellant’s strenuous activity. Thirdly, even if the investigator had not recorded footage of other strenuous activity, he or she could have given evidence about what was seen. No such evidence was adduced.

Mr de Meyrick submitted that if a finding was to be made about the appellant’s credibility based on the surveillance evidence, the Court must not only make findings about the effect of that evidence on other evidence, but must also make findings regarding the appellant’s evidence by way of explanation of the matters depicted on the video. [52] He argued that the primary judge failed to undertake this exercise. In particular, his Honour failed to take into account that the video showed the appellant doing a limited regime of lower body exercises, whereas his most significant injury was wedge fractures to his thoracic spine. He submitted that his Honour’s rejection of the appellant’s evidence that he had advised his medical practitioners of his exercise regime because they had not referred to this in their reports failed, in a manner, to consider the perils of such conclusions discussed in Mason v Demasi. [53]

Accordingly, Mr de Meyrick submitted that the primary judge’s assessment of the appellant’s credit lost the protection usually available by reason of the advantage of observations of the witness because it was based on wrong factual findings.

Mr de Meyrick submitted that his Honour’s assessment of the appellant’s credibility insofar as his disabilities were concerned was unfairly affected in several ways: first, because his Honour incorrectly interpreted the surveillance evidence to conclude that it demonstrated the appellant had a capacity to work, inconsistent with his evidence; secondly, because his Honour used that interpretation of that evidence effectively to reject the appellant’s key medical evidence; and thirdly, because his Honour did not give the appellant an opportunity to deal with his views about the medical evidence in the light of his interpretation of the surveillance evidence.

Mr de Meyrick also submitted his Honour should not have found the appellant to have been guilty of contributory negligence. In oral submissions, Mr de Meyrick’s principal challenge to this finding was directed to its underlying premise, namely that the appellant was “in control” of the cool room.

Mr de Meyrick did not challenge the degree of contributory negligence the primary judge assessed.

Mr King of Senior Counsel, who appeared for the respondent with Mr H Halligan on appeal but was not trial, accepted that the surveillance evidence was central to the primary judge’s reasons.

As to the admissibility of the surveillance evidence, Mr King criticised the appellant’s submissions as not engaging with the language of s 318(2)(a). He submitted that the enquiry that provision addressed related to the “material concerned”, whereas the appellant’s submissions, in essence, addressed the enquiry as if it was directed “to any evidence of that type”. Once the proper scope of the enquiry was recognised, Mr King contended that the surveillance evidence clearly fell within “s 318(2)(a) such that it could not have been ‘reasonably available’ to the respondent at the time of the filing of the pre-filing defence.” Accordingly, he submitted, the appellant had not demonstrated that the primary judge had erred in granting leave to the respondent to rely upon the surveillance evidence.

Mr King submitted that although “the front end loading” procedures under the 1998 Act are designed to promote early settlement and reduce delays in matters coming on for hearing, nevertheless there was always a delay of, at times, many months or even a year between the filing of the pre-filing documents and the trial. He submitted that the s 318(2)(a) discretion should not be read narrowly so as to deprive either party of the opportunity to adduce important and relevant evidence which could not have been secured at the time the pre-filing documents were filed.

Mr King submitted that the appellant’s credibility was important at trial, given the nature of his injuries was such that if his version of them was rejected for acceptable reasons, that would carry an adverse impact for the assessment of damages. He submitted that the primary judge’s reservations about the appellant’s credibility necessarily contained an element of demeanour assessment. He contended that there was nothing to indicate his Honour misused his advantage in this respect.

Mr King submitted that the appellant’s submissions criticising the primary judge for failing to give sufficient reasons for his demeanour findings were misconceived. He argued that the primary judge properly demonstrated the gap between the appellant’s oral evidence and the histories he had given to doctors and what was shown on the surveillance video, taken in conjunction with his Honour’s assessment of the appellant’s unsatisfactory presentation in the witness box. He submitted that that was an entirely conventional approach to fact finding.

Mr King also submitted that the appellant’s submission that it was for the respondent to put the surveillance video to the appellant’s doctors was misconceived. He submitted that it was incumbent upon the appellant to discharge his onus of demonstrating a real correlation between the evidence and the histories in the medical reports which demonstrated the assumptions upon which the doctors proceeded. Once it was apparent that the surveillance video arguably called into question the reliability of the histories the appellant gave his doctors he submitted it was for the appellant to meet that by calling some viva voce medical evidence in the hope that the medical experts would say that the video did not alter their opinion.

Insofar as the appellant complained about the primary judge’s rejection of Dr McGroder’s opinion, Mr King submitted that that doctor’s report demonstrated the soundness of the primary judge’s decision and the difficulty created for the appellant by what he told Dr McGroder compared with the surveillance evidence and the records of his gym attendances. He submitted that it was clear that the history Dr McGroder recorded demonstrated the appellant had described his limitations in a fashion inconsistent with what was shown in the surveillance video.

Next, Mr King submitted that it was open to the primary judge to conclude, having regard to his doubts about the appellant’s evidence, that the case was fairly to be seen as one in which it was appropriate to award a buffer for future economic loss.

Finally, Mr King submitted that Dr Fairfax’s report supported the primary judge’s finding of contributory negligence.

The power s 318 of the 1998 Act confers to enable a party to augment pre-filing material is a power of a remedial nature, given to serve the interests of justice. [54] Although this was not debated during the course of the appeal, and it is unnecessary finally to decide, prima facie ss 318(1)(a), (b) and (c) confer a discretion on the court to grant leave in the circumstances to which each sub-section refers, subject to the limitation that the discretion must not be exercised unless the court is satisfied of the matters set out in s 318(2).

The parties did not draw the Court’s attention to any case in which there had been a comprehensive construction of s 318. To the extent that that provision has been considered, the following observations may assist.

In Strasburger Enterprises Pty Ltd trading as Quix Foodstores v Serna, [55] a question arose concerning whether the defendant was precluded from defending common law proceedings for damages insofar as liability was concerned because it had failed to respond to a pre-filing statement within the time prescribed by s 316 of the 1998 Act. Basten JA (with whom Gyles AJA and Hoeben J agreed) described the scheme created by ss 315, 316 and 318 of the 1998 as involving “potential traps and strategic decisions for both parties.” [56] After remarking about the extensive nature of the materials a prospective plaintiff was required to have prepared before serving a pre-filing statement, his Honour observed:

In Wilkinson v Perisher Blue Pty Ltd, [57] Hoeben JA (with whom Campbell and Barrett JJA agreed) considered an argument that the primary judge erred when he allowed a witness to give evidence in the employer’s case in circumstances where that evidence had not been disclosed as required by s 318(1)(d) of the 1998 Act. Hoeben JA upheld the primary judge’s interpretation of s 318(1)(d), namely that it “did not require a verbatim statement of evidence, but rather a disclosure of the nature and substance of the evidence proposed to be given.” [58] The witness’ statement was sufficient to disclose those matters. It did not deal specifically with the alternative system of work upon which the appellant relied at trial because “at the time the statement was served, that was not part of the appellant’s case.” Hoeben JA observed that “[i]n that respect, it could fairly be said that this evidence ‘was not reasonably available to the party when the pre-filing defence was served’.” [59]

In Australian Winch and Haulage Company Pty Ltd v Collins, [60] the question arose whether the plaintiff was precluded from claiming the cost of funds management as part of his damages because he had not included that claim in his amended pre-filing statement served in compliance with s 315 of the 1998 Act. That question turned in part on whether the material upon which the plaintiff relied to found the claim had been “reasonably available to the [plaintiff] when the pre-filing statement” was served. [61]

The plaintiff’s employer contended that information contained in a document which predated the amended pre-filing statement was sufficient to alert the plaintiff and his advisers prior to service of the amended pre-filing statement of the need to claim damages for the cost of funds management. The plaintiff contended that it was not until he received a report from two clinical neuropsychologists after the amended pre-filing statement was served that the need for such a claim was identified. [62] The primary judge granted the plaintiff leave to make the claim. His Honour concluded that the joint medical opinion the plaintiff relied upon “was not reasonably available” to the plaintiff “when his pre-filing statement was served.” [63] In reaching that conclusion, the primary judge appeared to assume “that the material concerned” for the purposes of s 318(2)(a) of the 1998 Act was the expert evidence as to the plaintiff’s inability to manage funds. [64]

Sackville AJA (with whom Emmett and Leeming JJA agreed) rejected the employer’s submission that the plaintiff and his advisers had material available to them prior to filing the amended pre-filing statement which would have warranted making a claim for the cost of funds management. [65] In this respect, his Honour distinguished between information which “although finding ‘some degree of organic brain damage’, did not assess or address [the plaintiff’s] capacity to manage large amounts of money” and the joint report on which the plaintiff had relied, which specifically addressed the issue of entrusting him with responsibility for managing large financial assets. [66]

Sackville AJA observed that neither party had “paid close attention in submissions to the meaning of the expression ‘material concerned’ in s 318(2)(a) of the [1998] Act.” Rather the parties proceeded on the basis that “the issue was whether the medical evidence available to the plaintiff and his advisers at the time the amended pre-filing statement was served should have caused him to claim damages for the costs of funds management at that time.” His Honour “proceeded on the same basis without considering other possible meanings of the statutory expression.” [67]

Both Wilkinson and Australian Winch underline the factual nature of the inquiry s 318(2) requires the primary judge to undertake.

In this case the controversy revolves around rather different material to that with which Australian Winch was concerned. The appellant submits that the “material concerned” was available to the respondent when the pre-filing defence was served because there was information that he attended gym both before and after the accident. The respondent relies on the specific material obtained on 22 October 2013 which not only demonstrated that the appellant attended gym but as the primary judge found, demonstrated, in his view, that he was capable of doing far more than the pre-filing materials indicated.

As will be apparent from the s 318 judgment, the primary judge identified the “material concerned” somewhat differently to the appellant. His Honour distinguished between the statement of the appellant’s disabilities in the pre-filing statement and his disabilities as disclosed in the surveillance evidence. Because the latter “may” contradict the particulars of the appellant’s disabilities as identified in his pre-filing statement, it was relevant to obtain an up-to-date picture. That is consistent with the respondent’s approach.

In my view the appellant’s characterisation of the “material concerned” for the purposes of the leave issue s 318 required the primary judge to answer cannot be accepted. The mere fact the appellant had mentioned to two doctors that he had attended gym and done exercises in a manner the primary judge concluded did not fairly describe what was depicted on the video may have put the respondent on notice of his gym attendances. It did not, however, as the primary judge concluded, address the question whether his explanation to these doctors was accurate. That question was only answered by the surveillance video.

In circumstances where the appellant’s credit was clearly in issue and in relation to which the acceptance or rejection of his account of his disabilities was likely to be critical, use of material such as the surveillance evidence is clearly relevant to enable the tribunal of fact to determine the reliability of his account. [68]

While I accept that the scheme of the pre-filing regime is intended to reduce costs and favour out of court settlements, the availability of adducing further material albeit subject to a grant of leave, demonstrates that the legislature recognises that despite that, purpose, reports or other evidence not disclosed may be relevant to the ultimate outcome. Not all elements of the forensic battleground have been abandoned. However, clearly a trial judge will be careful about testing the issues posed by an application for s 318 leave conscious of the purpose of the legislative scheme but, too, recognising the necessity to consider what is necessary to serve the interests of justice.

In my view the appellant has not demonstrated that the primary judge erred in concluding the surveillance evidence was not reasonably available to the respondent when the pre-filing defence was served. The inquiry is, as I have said, essentially factual. In this case it is apparent that his Honour regarded the surveillance evidence as providing more specific information relevant to the true extent of the appellant’s disabilities than was available at the completion of the pre-filing process. Having regard to the appellant’s realistic concession that the respondent would suffer prejudice if s 318(2)(a) was satisfied, it was in the interests of justice to permit it to adduce that evidence. [69]

It is appropriate to deal next with the appellant’s complaint about how the primary judge used the surveillance evidence. This essentially involved an allegation of denial of procedural fairness and natural justice and should be dealt with once it is found the surveillance evidence was admissible because, if correct, that conclusion “strike[s] at the validity and acceptability of the trial and its outcome.” [70] In this context, the concern of the law is to avoid practical injustice. [71] Accordingly, where a party is denied a fair trial, a new trial may be ordered unless to do so would be a futility. [72]

The influence of the surveillance evidence can fairly be described as overwhelming. On the basis of that evidence, the primary judge rejected the appellant’s account of his total inability to work, rejected his key medical evidence as to past incapacity and incapacity generally, as to the past, concluded a closed period terminating when the gym records showed the appellant attending with some regularity, and concluded that the doubts about the appellant’s condition were such that he could only award damages for future economic loss by way of a buffer.

In taking that approach his Honour, with respect, in my view failed to accord the appellant procedural fairness.

The primary judge concluded that if a medical report did not refer to the appellant’s gym attendances first, that he had not told the medical practitioner of that attendance and, secondly and more significantly, that that rendered that expert’s opinion almost worthless. The difficulties of taking that approach are well recognised and are such as to require a cautious approach. This is particularly so where the expert has not been cross-examined about such matters as the circumstances of the consultation, the manner in which the history was obtained, the period of time devoted to that exercise, and the accuracy of the recording. [73]

There is no indication the primary judge approached his analysis of the expert opinions with that degree of caution. Indeed, with respect, the fact that the appellant had disclosed his gym attendances to two experts, Dr Allnutt and Mr Milazzo, might give one pause for thought as to whether he had, in fact, disclosed it to others who for reasons not explored in evidence failed to record it. His Honour did not entertain that possibility.

Secondly, based on his conclusion that, for example, Dr McGroder had not been told about the gym attendances, the primary judge formed the opinion that Dr McGroder would change his opinion had he been so informed. The primary judge did not give the parties, particularly the appellant, the opportunity to deal with this possible conclusion.

In such circumstances, in my view his Honour denied the appellant natural justice in the sense explained in Stead v State Government Insurance Commission: [74]

As none of the experts was required for cross-examination, the primary judge was required to analyse the expert evidence in the manner explained by Ipp JA in Wiki v Atlantis Relocations (NSW) Pty Ltd. [75] That did not mean his Honour was obliged to accept evidence. It could be discounted for “good reasons”. [76]

However, in my view, his Honour did not have such “good reasons”. His Honour effectively formed his own “expert” opinion about the appellant’s medical condition based upon his observations of the surveillance video at least insofar as he concluded Dr McGroder would change his view if he too had seen it. That course was not open to his Honour. [77] Further, his Honour’s conclusion in this respect also failed to distinguish between the fact that the appellant’s physical disabilities were largely related to his upper body region, consistent with the wedge fracture of his thoracic vertebrae and the fact the surveillance video (which the Court viewed) largely demonstrated him undertaking lower body activities.

In applying the same process of reasoning to conclude Dr Allnutt would also change his opinion the primary judge fell into the same error. Further, his Honour failed to take into account that Dr Allnutt had diagnosed the appellant with a psychiatric condition. As the appellant submitted, it is problematic to assume that evidence of physical activities would affect a psychiatric diagnosis. Whether or not that was so would require expert assistance. [78]

Without notice of the use the primary judge was going to make of the surveillance evidence, it was not incumbent on the appellant to call all or any of his experts to give evidence about the effect that material might have on their opinions. Indeed, as the respondent had the surveillance video and knew it intended to use it forensically to attack the appellants’ credibility concerning the level of his disabilities, it was, in my view, incumbent upon it to challenge their opinion based on that evidence.

In my view the primary judge did not have “good reasons” to reject Dr McGroder and Dr Allnutt’s opinions. The manner in which he rejected their evidence denied the appellant a fair trial. [79]

I would add, as the appellant submitted, that the primary judge did not consider at all the fact that the appellant suffered epilepsy as a result of his reaction to the Tramadol. Dr Mellick’s evidence was that that condition would contribute to his employment difficulty. Prima facie it would not appear that the appellant’s attendance at gym said anything about the effect of epilepsy on his earning capacity.

Accordingly, in my view the primary judge’s process of fact-finding insofar as damages was concerned miscarried.

Because of this conclusion it is not appropriate to consider the appellant’s remaining grounds of appeal concerning quantum.

The appellant did not suggest that if the Court reached the view that the primary judge erred in the use of the surveillance evidence, it could not deal with the appeal in respect of the contributory negligence issue. There was no suggestion that that evidence affected his Honour’s conclusion in that respect.

The common law and enacted law as to contributory negligence applied to the award of the appellant’s damages. [80]

The issue of contributory negligence is essentially a question of fact. In considering whether there was contributory negligence by an employee in a case in which the employer has failed to provide a safe system of work, the circumstances and conditions in which the employee had to work must be taken into account. [81]

At common law, it was an essential element of establishing contributory negligence that the plaintiff’s lack of care for his or her own safety “actually contributed to the occurrence of the injury or the nature or extent of it”. [82] The culpability element in contributory negligence is concerned with a situation where the conduct of a plaintiff is a cause of the particular damage that the plaintiff has suffered. It enquires whether the plaintiff’s carelessness for his or her own interests means that to some extent the plaintiff can be blamed for the injuries he or she has suffered. [83]

To a large part, the issue concerning contributory negligence turned on whether the primary judge was correct in concluding that the appellant was “in control of the cool room and freezer”. [84]

In his evidence in chief, the appellant described his duties as head chef as “[m]anaging the staff, placing orders for all the goods, meats, everything, doing lots of physical work every day, offloading the trucks … doing all the moving, lifting, you know, moving the boxes on the shelf, stuff like that, on a daily basis.” He had to spend time in both the freezer and the cool room “moving all the boxes, holding the clipboard, holding the pen, counting every single item so it’s correct, you know for me to place order for the new week, so basically opening every box, moving the boxes”.

In my view, that evidence supports the primary judge’s finding of control. The appellant was responsible for how the boxes in the cool room were stored. In such circumstances it was open to the primary judge to conclude that placing boxes at such a height that he might have to move it in circumstances where he had not ensured the floor was clear enough to give him room to move in the event of a sudden displacement of a box he was attempting to inspect was a cause of his injuries.

I would reject the appellant’s appeal insofar as the issue of contributory negligence is concerned.

As the issue of the appellant’s disabilities involved substantial issues of credit there must be a new trial limited to quantum. [85]

In the event of being successful, the appellant sought the costs of the appeal. The primary judge made no order as to costs because, Mr de Meyrick informed the Court, the appellant had not sought a costs order. This was presumably because he had not obtained an order more favourable than his final offer at the mediation, but had obtained an order which was more favourable than the respondent’s insurer’s final offer at the mediation. [86] In the course of the hearing the Court raised the question whether cl 106 of the 2010 Regulation had the effect that there should be no order as to the costs of the appeal.

In a note provided after the hearing of the appeal, Mr de Meyrick drew the Court’s attention to Smith v Sydney West Area Health Service (No 2). [87] In that case, the Court concluded that the words “costs in relation to a claim for work injury damages, including court proceedings” in s 346 of the 1998 Act extended to proceedings in the Court of Appeal. Having regard to the fact that the claimant in Smith had not bettered her offer at the mediation, the result was that the parties were to bear their own costs of the appeal. [88]

Mr de Meyrick faintly submitted that an appeal may be “ancillary” proceedings in the sense referred to in cl 108 of the 2010 Regulation although he accepted Smith was arguably against that submission.

The submission is answered by Chubs Constructions Pty Ltd v Sam Chamma (No 2). [89] In that case the Court held that an appeal in which the orders made, including orders that a matter be remitted for rehearing, involved a final disposition of the appeal, was not an ancillary proceeding within the meaning of cl 93 of the 2003 Regulation. [90]

Accordingly, I would conclude that although the appeal should be allowed, the appellant is not entitled to the costs of the appeal.

I propose the following orders:

WARD JA: I have had the opportunity of reading the draft reasons of each of McColl JA and Adamson J.

I agree, for the reasons that McColl JA gives, that the primary judge did not err in permitting the surveillance evidence to be adduced or in his findings as to contributory negligence. However, where I disagree, with respect, is as to the conclusion that his Honour failed to accord Mr Kubovic procedural fairness by reference to the manner in which his Honour made use of the surveillance evidence. In particular, I agree with Adamson J that his Honour did not fall into error in assessing the weight to be attached to the medical reports (particularly those of Dr McGroder and Dr Allnutt) to the extent that they were based on a proposition, inconsistent with the video surveillance evidence, that Mr Kubovic’s physical activities and gym attendances were limited to activities such as yoga, pilates, light exercises and some stretching. I also agree with Adamson J that in the circumstances of this case it was appropriate for his Honour to award a buffer as he did.

Insofar as Mr Kubovic complains of a failure to accord him procedural fairness, it must have been clear to Mr Kubovic’s legal representatives from the course of the cross-examination that the video shown to Mr Kubovic at that time (T 99) was being relied upon to support the proposition (which was squarely put to Mr Kubovic and denied by him at T 106) that he had attempted deliberately to mislead the Court as to the extent of his disability and that his doctors had not been given a complete or candid history of his activities at the gym.

Mr Kubovic was cross-examined as to whether he had told his general practitioner that he was able to use the exercise equipment in the way depicted on the video and to do sit ups (T 104) and as to whether he had given all his doctors a candid history as to his ability to attend the gym performing activities similar to those shown on the video. Mr Kubovic’s evidence was that “I told everybody I do attend a gym on a regular basis but not - … - not doing lifting, not doing heavy weights” (T 105). He said that exercise was what had been suggested by the pain clinic and that the exercises he was doing were the type of exercises that the pain clinic had shown him (see T 107).

It must have been obvious from that line of questioning that there was, on the respondents’ part, a perception that there was a real inconsistency between what Mr Kubovic had told his doctors as to the kind of exercise he was undertaking and that which the surveillance evidence suggested he was able to undertake.

There was no application by Mr Kubovic to adduce oral evidence from any of his doctors to explain how, if at all, the type of activity shown in the surveillance video was consistent with what they had been told as to the level of Mr Kubovic’s physical activity. In closing submissions it was instead put to his Honour that the surveillance evidence should be compared carefully to the evidence of Mr Kubovic’s doctors “both in terms of what the medical reports say, and in terms of what the plaintiff told the [C]ourt” (T 137) to see if in truth there was any genuine inconsistency. To that extent it would appear that his Honour was being invited to form his own opinion as to the kind of activity that was depicted on the surveillance video.

What was emphasised for Mr Kubovic in closing submissions before his Honour was that (as is the case) there was only a very short amount of footage on the surveillance video and that what was shown involved no upper body work. It was submitted that the leg lifts, sit ups and leg curls shown on the video were entirely consistent with Mr Kubovic’s evidence as to his abilities or lack thereof (T 138). Reference was made to Mr Kubovic’s re-examination and to the evidence given by him that the exercises were things that the pain management clinic had told him to do and that he had discussed this with his general practitioner. Reference was made to the assessment of a consultant musculoskeletal physiotherapist, Mr Milazzo, which referred to the performance by Mr Kubovic of “exercises provided to him by the physiotherapist at the pain clinic” and to the statement in that report that Mr Kubovic “only exercises with light weights, 2.5kg, and performs yoga and pilates”. Reference was also made to a letter from a physiotherapist to Mr Kubovic’s general practitioner which made reference to a program on the “Swiss ball” and to some general mobilising exercises for his medial nerve.

True it is that caution is required before relying upon the records taken by doctors of medical histories given to them by patients (Mason v Demasi [2009] NSWCA 227). In the present case, what had to be considered was not so much as to what could be concluded from the lack of reference to particular gym activities in the doctors’ records of the medical history given by Mr Kubovic but, rather, as to the weight to be placed on medical opinions apparently made on an assumption (among others) as to the nature of Mr Kubovic’s physical activities at the gym and perhaps also as to his level of pain during or after physical activity.

While I accept that his Honour may well have erred in drawing any inference as to the length of the activities undertaken at the gym by Mr Kubovic, in circumstances where the video footage was limited and was not continuous, the difficulty as I see it for Mr Kubovic was that insofar as the medical reports were based (at least in part) on assumptions derived from the reported history that his exercise was limited to yoga, pilates, physiotherapy, light exercises or stretching, and that he found pain was increased “by any type of activity” (see in particular the report of Dr McGroder on which considerable reliance was placed by Mr Kubovic at first instance), the factual foundation for those assumptions was squarely put into doubt by the surveillance evidence.

I accept that it was not for the primary judge to form his own opinion as to Mr Kubovic’s medical condition based upon his observations of the surveillance evidence, although as noted above this is apparently what his Honour was invited to do. Neither, however, is it for this Court to do so. Whether or not the exercises depicted on the video were limited to lower bodywork does not answer the question as to what stresses they may have involved to the upper back, for example. Mr Kubovic, himself, accepted in cross-examination that in part of the video his back was arched so that his shoulders were raised off the horizontal while his feet were secured by the exercise equipment and that such exercises caused some pain (T 106.19-21). The significance of that was something that none of the doctors seems to have assessed, presumably because activity of that kind was not reported to them. Nevertheless, what the surveillance evidence does clearly show is that Mr Kubovic’s regime went beyond yoga, pilates or stretching (and, from a lay observation, would not be readily be described as physiotherapy or “light” exercise).

While I accept that it cannot be concluded (as his Honour appears to have done) that Dr McGroder or Dr Allnutt would have changed their respective assessments had they been aware of the kind of exercise shown on the video to have been engaged in by Mr Kubovic, nor can it be concluded that Drs McGroder and Allnutt would have adhered to or not modified their respective opinions had they in fact been shown the surveillance evidence or been made aware of the type of exercises it revealed. That would, as indicated in the reasons in Falasca v Morrissy 1998 and Falasca v Morrissy 1999 to which Adamson J has referred, have been a matter of mere speculation.

The significance of the surveillance evidence was thus that it cast doubt on the basis of the medical reports, as Adamson J has noted. I agree with Adamson J that it cannot be concluded that his Honour fell into error in assessing the weight that could be placed on the medical evidence in light of the surveillance evidence.

Mr Kubovic bore the onus of proving the level of his disabilities and their impact on his future earning prospects. The failure by him to establish that the opinions of Drs McGroder and Allnutt would not have been affected had those doctors been aware of the extent of his physical activities at the gym meant that the independent evidence on which he had relied was significantly undermined.

In that regard, I note that McColl JA has referred to the fact that the primary judge did not address the import of Dr Mellick as to the fact that Mr Kubovic suffered epilepsy as a result of his treatment for the workplace injury. However, as I read Dr Mellick’s reports, the conclusion that Mr Kubovic was not fit for his pre-injury occupation was attributed to his compression fractures and the persisting symptoms. The diagnosis of epilepsy, on the other hand, led Dr Mellick to conclude that Mr Kubovic was limited in relation to a number of activities including climbing ladders, being in proximity to machinery and driving vehicles, and Dr Mellick was unable to comment on the future prognosis in respect of epilepsy. Therefore the fact that Dr Mellick’s report was unaffected by any misapprehension as to the nature of the gym activities in which Mr Kubovic was engaging does not take the matter any further.

Accordingly, I agree with Adamson J that the appeal should be dismissed and there should be no order as to costs of the appeal.

ADAMSON J: I had the benefit of reading the draft reasons of McColl JA. I gratefully adopt her Honour’s summary of the factual background; the primary judgment; and the parties’ submissions.

I agree with McColl JA’s reasons with respect to the issues which her Honour has identified in [3] as the first issue (contributory negligence) and the second issue (the grant of leave to rely on surveillance evidence).

However, I have come to a different conclusion from McColl JA regarding the third issue (whether the primary judge denied procedural fairness to the appellant in the use of surveillance evidence). Accordingly, it is necessary that I also address the fourth issue (whether there was an error in awarding damages for future economic loss by way of a buffer), about which McColl JA did not need to express a view. For the reasons that follow, I consider that the appeal should be dismissed.

The third issue concerns the use and forensic effect of surveillance evidence, particularly in the context of expert opinion evidence. I propose to identify the general principles which relate to the admissibility of expert evidence and the effect on admissibility and weight where the basis of an expert’s opinion is either destroyed, or undermined, by surveillance evidence which has not been put to the expert.

In proceedings for damages for personal injury, surveillance film may be relevant on several bases, including the plaintiff’s credibility, capacity to work, need for domestic services and causation. Such film can be used to show that a plaintiff has not been frank either about a particular matter or about his or her capacity generally. The timing of the film may be at odds with a history given to a medical practitioner at a proximate time, or with the plaintiff’s evidence in chief and thereby lead the tribunal of fact to regard the plaintiff’s credibility as impugned by the film.

The potential significance of such film derives not only from its content (including what it may show about the plaintiff at a time when he or she is unaware that it is being taken) but also from the time at which it is revealed. Thus, it has been held to amount to a denial of procedural fairness to require a defendant to disclose such film in advance of a hearing, and, in particular, in advance of a plaintiff having completed his or her evidence in chief: Australian Postal Commission v Hayes at 326-329 per Wilcox J; cf. Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 31.10(2)(a).

It is of present relevance that the contents of the film may also undermine the basis on which experts have expressed opinions and therefore require the primary judge to assess the value of the opinions expressed having regard to any disparity between the facts on which an expert opinion has been based and the (incontrovertible) facts as shown in the surveillance film.

The starting point is that the factual basis for expert opinion needs to be established before evidence of the opinion can be accepted: Ramsay v Watson (1961) 108 CLR 642. The so-called “basis rule” was summarised in Cross on Evidence at [29070] as follows:

Where there is a difference between the evidence and the assumed factual basis, it is a question for the primary judge whether, and to what extent, the opinion can still be accepted: Paric v John Holland (1985) 59 ALJR 844 at 846. Although proof of the underlying basis of expert opinion evidence is a requirement for admissibility of such evidence, the question whether the basis has been proved is generally a matter for determination at the conclusion of the trial, rather than at the stage where the opinion evidence is tendered. Ramsay v Watson was, thus, an exception since in that case counsel confirmed, at the time he sought to adduce opinion evidence from a physician, that he did not intend to call the lay witnesses to prove the underlying basis of an aspect of the opinion (at 649).

Where surveillance evidence is put to the plaintiff for the first time in cross-examination and no medical expert has been privy to that evidence, there are various courses of action that can be taken. If the history given to the doctors is inconsistent with what the film depicts, there is generally a forensic imperative for the plaintiff to call the medical experts on which he or she places reliance (whose evidence in chief is required by UCPR 31.28 and 31.29 to be given by way of expert report) and adduce further evidence from them orally by asking one or more of them what effect the surveillance evidence has on their opinions.

Although this course carries with it the risk that the plaintiff’s experts will either change their opinions to the plaintiff’s detriment or, in refusing to change them, potentially diminish their own credibility by appearing partisan, if this course is not taken, the effect may be that the plaintiff’s case lacks the expert evidence required to discharge the onus of proof, since the basis of the opinions expressed in reports may be found not to have been proved.

Even if the plaintiff chooses not to call his or her experts, the defendant can require such experts for cross-examination and put the surveillance evidence to them in order to explore the effect of the evidence on their opinions. This option carries with it the risk (for the defendant) that the plaintiff’s experts will accommodate the surveillance film within the opinions earlier expressed. Moreover, a defendant may prefer not to put the film to the plaintiff’s experts, but rather to rely on the basis rule in support of the submission that the experts’ opinion is either inadmissible or ought be given little weight since it was arrived at in ignorance of what the film showed.

If either of the courses referred to above is taken (putting the film to the plaintiff’s experts in examination or cross-examination), any disparity between the foundation for the opinion expressed without the evidence and the foundation that includes such evidence is expressly addressed.

A defendant, of course, has the option to call its experts and put the surveillance evidence to them to see what difference such evidence makes to their opinions.

If there is no express evidence of the difference the surveillance evidence makes to the opinion of the plaintiff’s experts, the primary judge must decide what difference any disparity between the history given by the plaintiff and what the surveillance evidence reveals makes to the reliability (and admissibility) of the opinions expressed. A substantial disparity will make the opinion evidence inadmissible; a lesser disparity will affect its weight. It is not the case that the plaintiff’s medical evidence should simply be accepted because the defendant has not put the film to all the other doctors. Such a proposition would be inconsistent with the “basis rule” as confirmed in Ramsay v Watson.

A defendant is not required, either as a matter of principle or as a matter of fairness, to go through the process of requiring the plaintiff’s doctors to attend for cross-examination for the purpose of putting the surveillance evidence to each. Moreover, it would be wholly at odds with the principles for which ss 56, 57, 58 and 59 of the Civil Procedure Act 2005 (NSW) make provision in that it would greatly add to the cost and length of litigation of this nature. Further such a requirement would have the tendency to reverse the onus of proof which the plaintiff bears to establish a causal connection between the claimed incapacity and the tortiously sustained injury and the level of any such incapacity which is said to be productive of loss, including economic loss.

The consequences of a plaintiff’s failure to adduce oral evidence from expert witnesses where an assumption different from that on which their opinions were based emerges from the evidence at trial are illustrated by the case of Falasca v Morrissy, in which a plaintiff claimed damages in respect of a whiplash injury. The matter proceeded as an assessment of damages, liability having been admitted, before Master Connolly of the Supreme Court of the Australian Capital Territory (ACT Supreme Court). The Master concluded:

In Falasca v Morrissy [1998] ACTSC 35 (Falasca v Morrissy 1998) an appeal from the Master’s assessment of damages was dismissed because the expert opinions relied on by the appellant were not reviewed in light of the evidence revealed in the proceedings. The appellant’s experts’ opinions were based on a history, which was shown to be incorrect, that the appellant had no prior history of neck pain. The Full Court of the ACT Supreme Court (Gallop, Higgins and Crispin JJ) said:

The appeal from Falasca v Morrissy 1998 to the Full Federal Court was also dismissed: Falasca v Morrissy [1999] FCA 277 (Falasca v Morrissy 1999). The Court (Miles , Cooper, Whitlam, Matthews and Madgwick JJ) said at [17]:

In Falasca v Morrissy 1998 and Falasca v Morrissy 1999, it was held that the appellant was, effectively, required to call his experts to put the alternative history (that he had prior neck pain) since it could not be assumed that the experts’ opinions would remain unchanged in light of the alternative history. His failure to do so had the effect that the opinions could not be relied upon. Indeed, as the basis for them (that he had no prior neck pain) had been shown to be false, the opinions were ultimately inadmissible: Ramsay v Watson. The appellant’s application for special leave to appeal to the High Court was refused on 12 May 2000 on the bases that the matter did not raise any point of general principle warranting a grant of special leave and that the Court (Hayne and Callinan JJ) was not persuaded that the conclusion of the Full Court of the Federal Court of Australia was attended by doubt.

The process of putting surveillance evidence to the plaintiff in cross-examination puts a plaintiff on notice not only that his or her evidence is being challenged on the basis of the evidence but also that the expert opinions relied on by the plaintiff are challenged in so far as they rest on assumptions which are at odds with such evidence: see Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 at 26 per Hunt J. Procedural fairness (which incorporates the rule in Browne v Dunn (1893) 6 R 67) is thereby accorded.

The surveillance evidence before the primary judge depicted the appellant working out at the gym on 22 October 2013. Although the film was not very long and although the appellant’s capacity to perform the exercises depicted was not entirely inconsistent with the appellant’s case, the demonstrated capacity was, in the primary judge’s view (with which I agree), materially at odds with his evidence in chief and, of greatest relevance for present purposes, his presentation to his own experts; and the history he was recorded as having given to them. It was such as to undermine at least the reliability, if not the admissibility, of the opinions expressed in their reports.

Because the appellant placed substantial reliance on the medico-legal reports of Dr Allnutt dated 30 January 2012 and Dr McGroder dated 5 July 2012, it is necessary to address their contents as well as the circumstances in which they were brought about.

On 30 January 2012 the appellant gave the following history to Dr Allnutt, the psychiatrist to whom he was referred by his solicitors for medico-legal assessment:

In a further report of the same date in which Dr Allnutt assessed the degree of the appellant’s psychiatric impairment, he scored the appellant as Class 3 (out of 5) in respect of travel impairment on the basis of the following description:

I do not accept the respondent’s submission that “it is problematic to assume that the said footage would have anything to contribute to an analysis of a psychiatric condition”. Given the regularity of the appellant’s trips to the gym and the distance between his home and the gym, which was at Darling Harbour and required the appellant to catch public transport to go there, it was, in my view, at best a matter of speculation what effect the film would have on Dr Allnutt’s assessment of the appellant’s capacity.

The appellant’s solicitors referred him to Dr McGroder for medico-legal assessment. Dr McGroder examined him on 5 July 2012 and prepared a report on the same day.

Dr McGroder recorded the following history:

Dr McGroder also recorded the following:

At trial, in addition to the reports of Drs McGroder and Allnutt referred to above, the appellant relied on the reports of several other doctors, including treating doctors. Many such reports did not refer to exercise at all. For example, there is no mention of exercise in the reports of Drs Ball, Mellick or Higgs. The Workers Compensation Commission Medical Assessment Certificate dated 22 September 2011 prepared by Dr Burns noted that the appellant had been told by his general practitioner, Dr Savic-Urosevic, to swim backstroke to strengthen his shoulders; and also that he continued to attend Royal Prince Alfred Hospital for massage and exercise but that any benefit from these activities had ceased after the first ten weeks. Mr Caterjian, a clinical psychologist, recorded that the appellant had said that he had pain after 15 to 20 minutes of light or moderate exercise. Although Mr Osmotherly, a physiotherapist, recorded mention of regular attendance at a gym, no detail was given as to the activities engaged in there.

Thus, not a single one of the expert medical opinions relied upon by the appellant at trial was based on a foundation that included the surveillance evidence or the substance of what it revealed. The plaintiff was very much on notice that this was an issue because he was cross-examined on it. He was still in his own case, and if he wanted to fortify his position, he would have been able to call his own experts and have the film shown to them.

In these circumstances the primary judge was, in my view, correct not to accept the plaintiff’s experts’ opinions in circumstances where the appellant had not called any doctors to adduce evidence of his or her opinions in light of the surveillance evidence. There was a disparity, which could not be regarded as immaterial or trivial between, for example, the history the appellant gave to Dr McGroder and Dr Allnutt and the capacity he demonstrated on examination on the one hand and what was depicted in the surveillance evidence on the other. Theoretically, the appellant had a choice whether to call, for example, Dr McGroder and put the surveillance evidence to him. However, as a matter of practical forensic reality, he had no such choice: his only option was to call Dr McGroder because it could not, in my view, be inferred that Dr McGroder (and other experts) would not have changed his opinion in light of the surveillance evidence. The basis for the expert opinions, including Dr McGroder’s, was not made out.

I accept the respondent’s submission that, once it was apparent that the surveillance film called into question the reliability of the histories the appellant gave to the doctors, it was incumbent on the appellant to call at least one of those experts, such as Dr McGroder, and put the surveillance evidence to the expert with a view to obtaining oral evidence that the expert’s opinion was not altered, or not materially altered, by the film. Since this course was not taken, there was no soundly based expert opinion evidence in the appellant’s case.

There was, in my view, no obligation on the respondent to require the appellant’s doctors for cross-examination to put the surveillance evidence to them and no denial of procedural fairness occasioned by their not being required for that purpose. By its cross-examination of the appellant, the respondent had amply notified its challenge on the basis of the surveillance evidence, both to the appellant’s evidence and to that of his experts.

Furthermore, the surveillance film had a substantial impact on the primary judge’s assessment of the appellant’s overall credibility, although it was by no means the only matter germane to that assessment. The assessment of the appellant’s credibility was a matter which was pre-eminently within the purview of the primary judge’s advantage. I am unable to conclude that the primary judge fell into error in the assessment of the weight that could be placed either on the experts’ opinions, or on the appellant’s evidence or that his Honour otherwise misused this advantage.

The appellant’s submissions as to the inappropriateness of a buffer relied substantially on the evidence of Drs McGroder and Allnutt. For the reasons given above, I consider the primary judge was correct not to rely on these reports as the surveillance evidence had not been put to them.

It was accepted on appeal that the Civil Liability Act 2002 (NSW) did not apply to the proceedings. Accordingly, the assessment of future economic loss is governed, relevantly, by the common law, rather than by ss 12, 13 and 14 of the Act: cf. Leichhardt Municipal Council v Montgomery [2005] NSWCA 432. Thus, to the extent to which (if at all) the availability of an award by way of buffer is more constrained under the Act than under the general law, such limitations do not apply.

The relevant principles for the assessment of economic loss were identified and summarised by Heydon JA in State of New South Wales v Moss [2000] NSWCA 133; 54 NSWLR 536 at [66] – [87]. In my view, the present case is an exemplar of one in which a buffer was appropriate. In addition to the uncertainties created by the unreliability of the appellant’s evidence and the fact that his experts had not been shown the surveillance evidence, there were further uncertainties created by the appellant’s present and probable future residence in his native Slovakia and the lack of evidence of employment opportunities or earnings there.

Indeed, to calculate future economic loss in any way other than by way of buffer would be to imply that greater certainty was attainable than the evidence permitted. No error has been shown in the primary judge’s approach of assessing damages for future economic loss by way of a buffer or in his Honour’s assessment.

I understood that the respondent did not seek costs of the appeal having regard to the 2010 Regulations to which McColl JA has referred.

I propose the following orders: