Fuller v Avichem Pty Ltd t/as Adkins Building & Hardware

MACFARLAN JA: On 11 August 2009 Mr David Fuller, the appellant, sustained injuries including to his back and left shoulder as a result of lifting fibreboard sheets in the course of his employment as a hardware technician and customer service assistant at a hardware store in Broken Hill.

In proceedings in the District Court, Mr Fuller claimed damages from his employer, the respondent, on the basis that it had breached its duty of care to him.

Mr Fuller’s claim was upheld by Scotting DCJ in a judgment of 4 March 2019. His Honour rejected the respondent’s contributory negligence defence and awarded damages totalling $421,652 to Mr Fuller. It being accepted that s 151G of the Workers Compensation Act 1987 (NSW) limited the damages that Mr Fuller could obtain, his Honour awarded damages only in respect of past and future economic loss. In doing so, his Honour found that, whilst Mr Fuller was completely incapacitated for work from the date of his accident until the conclusion of the hearing in the District Court (21 November 2018), he had from that time a residual earning capacity “to work eight hours a week, being two shifts of no more than four hours”, equivalent to $200 net per week (at [151]).

Mr Fuller’s grounds of appeal are as follows:

For the reasons given below, I consider that Mr Fuller’s appeal should be upheld and his award of damages increased in the respect for which Mr Fuller contended.

Mr Fuller was 57 years of age at the time of the hearing in the District Court. He left school in 1977 after completing Year 10 at Broken Hill High School. The primary judge described his subsequent work history to June 2007 as follows:

In June 2007 Mr Fuller commenced employment at the respondent’s hardware store. His duties included stocking shelves, ordering plumbing lines, processing orders and assisting customers. As part of his job, he was required to transport stock across a road using a trolley and to lift some heavy products from low shelves.

On 11 August 2009 Mr Fuller was required to move and load approximately six medium density fibreboard sheets from a storage space into a customer’s vehicle. As he lifted the first sheet, he experienced “pain in his shoulders and middle to lower back” (at Judgment [20]). As he repeated the process with the remaining sheets, he experienced “pain in his back [which] was radiating into his right hip, buttock and calf, and he experienced pain at the top of his left shoulder” (at Judgment [21]).

After his accident, Mr Fuller underwent a number of medical procedures and attended many medical consultations. The primary judge summarised the evidence concerning his post-accident fitness for work as follows:

Considerable medical evidence was tendered at the trial. That which is relevant to the grounds of appeal is as follows:

Dr Cherry is a pain medicine specialist who assessed Mr Fuller on 8 February 2018. In his report of 13 February 2018, Dr Cherry summarised his observations of Mr Fuller’s condition as follows:

Dr Cherry did not recommend that any further surgical or other procedures, or investigations, be undertaken.

Dr Kapur is a specialist pain medicine physician. His report dated 30 April 2018 included the following opinions:

Dr Assem is a rehabilitation specialist who saw Mr Fuller on 21 September 2013 and 11 May 2018. His report of 11 May 2018 included the following observations and opinions:

Dr Young is a general practitioner who has been treating Mr Fuller regularly since May 2015 at the Glenelg Family Practice. Mr Fuller was seen at the practice once every two or three months at least until the end of 2018.

On 6 June 2018 Dr Young provided a medical “certificate of capacity” to WorkCover NSW in relation to Mr Fuller. The copy of the certificate in evidence is incomplete but it is at least clear that the following words appear in relation to Mr Fuller:

Dr Young stated in that certificate that Mr Fuller had “no current work capacity for any employment” from 6 June 2018 to 6 December 2018.

Dr Young’s report dated 26 October 2018 concluded with the following opinions:

Ms Amber Owen is a clinical psychologist who works for a company named Activ8 Mind. Her “Earnings Capacity Assessment” dated 24 August 2018 that the respondent tendered at first instance did not contain any statement of her qualifications to prepare the assessment other than a reference to her being a clinical psychologist.

In oral evidence-in-chief on the voir dire, Ms Owen said that she had been registered as a clinical psychologist for 10 years and as part of her practice she had regularly provided earning capacity assessments. She said that she had received “[o]n the job training” to enable her to prepare these assessments and that this training involved “being employed in the industry working with other psychologists and being provided with supervision in the preparation of such reports”.

She stated that her methodology first involved assessing and interviewing the person who was the subject of the report, including administering psychometric tests. She would then undertake research on the labour markets using “numerous online resources”. She said that she would look at the person’s “physical psychological capacity as well as their transferable skills, their interests and their abilities and then [make] an informed decision based on that about whether [a particular] job option would be suitable for them”.

In cross-examination on the voir dire, Ms Owen accepted that she did not practice in “job placement” but had done so in the past, her last full-time work of that type having been three years earlier. That work had involved “[w]orking for a vocational rehabilitation company and providing vocational rehabilitation support for people returning to work”.

Ms Owen’s Earnings Capacity Assessment of Mr Fuller commenced by describing the injuries that he sustained in his work accident and listing the medical reports that she had reviewed. That list included the reports to which I have referred above other than the subsequently prepared report of Dr Young of 26 October 2018. These were the most recent medical reports that were available to Ms Owen.

In her “Assessment Summary”, Ms Owen referred to Dr Kapur’s report of 30 April 2018. She did not however refer to his opinion that “there are really no effective medication options” for what Dr Kapur referred to as “a history of longstanding multisite pain” (see [13] above).

Ms Owen also referred to Dr Assem’s report of 11 May 2018 but not to Dr Assem’s opinion that “[a]lthough [Mr Fuller] could theoretically perform suitable duties, there are not realistic vocational options available, given the numerous barriers identified. For practical purposes, he can be considered to be totally and permanently incapacitated”. Nor did Ms Owen refer to Dr Assem’s opinion that there will be a “gradual progression” of Mr Fuller’s pathology that will cause “increasing symptoms and limitations” (see [14] above).

Ms Owen also referred to Dr Young’s certification of 6 June 2018 that Mr Fuller had “no current work capacity from June 6 2018 to December 6 2018” but, because it was not prepared until after Ms Owen’s report, she was not able to refer to Dr Young’s report of 26 October 2018 which referred to the possibility of Mr Fuller undertaking “a multidisciplinary pain management program” for the “purpose of helping him to manage and live with his pain and disability in a better way”. Dr Young said that this could have a “beneficial effect on his mood and well being”. That report also contained Dr Young’s opinion that Mr Fuller did not have “the physical or mental capacity for any type of work” (see [18] above).

Having described Mr Fuller’s education and employment history, Ms Owen concluded that he had a number of “transferable skills” including “[s]trong interpersonal and communication skills” and “[m]anagement of staff and business operations”.

Ms Owen then stated the results of her psychometric testing of Mr Fuller and expressed her views as to the types of work for which Mr Fuller might be suited.

In her “Vocational Options and Labour Market Analysis” Ms Owen stated six vocational options that she had identified by reference to her internet research.

The first option was “Customer Service – Contact Centre”, in relation to which Ms Owen said the following under heading “Medical Suitability”:

Ms Owen said that she had identified 48 advertised positions for work in “customer service – call centre” positions in the Adelaide area. She listed four such positions, one of which was described as “[f]ull time”, another as “[c]asual – [f]ull time hours” and two others as having “[p]art time and [f]ull time positions available”.

Ms Owen provided similar information in respect of the other options that she identified.

She made the following recommendations in her “Assessment Overview”:

In cross-examination, Ms Owen said that her recommendations “were based on Dr Young’s recommendations from 2018 which were that Mr Fuller required participation in an active multi-disciplinary pain management program to increase capacity” (emphasis added). She also emphasised that her report “was not about work capacity but about earnings capacity” and that she was not able to assess Mr Fuller’s “physical capacity”.

Mr Fuller’s counsel objected to the admission of Ms Owen’s Earning Capacity Assessment into evidence on the bases that Ms Owen was “not properly qualified” and that the report did not “contain any expertise”. The primary judge admitted the report but did not provide reasons as Mr Fuller’s counsel said that he did not require them. His Honour also admitted the voir dire evidence as evidence at the trial.

The primary judge awarded Mr Fuller $386,711 (plus loss of superannuation entitlement) in respect of past economic loss, on the bases that he was completely incapacitated for work to the date of the District Court hearing and, but for his work accident, would likely have continued in employment with the respondent (at [144]-[145]).

The primary judge awarded Mr Fuller $247,740 (plus loss of superannuation entitlement) in respect of future economic loss, on the basis that he retained a residual earning capacity to earn $200 net per week by working eight hours a week in two shifts of no more than four hours. His Honour’s reasoning was as follows:

It is convenient to deal with Ground 2 before dealing with Ground 1.

Section 79(1) of the Evidence Act 1995 (NSW) states the following three conditions for the admissibility of expert opinion evidence:

Ms Owen’s opinions as to Mr Fuller’s personality and aptitudes were in my opinion admissible because her training and practice as a clinical psychologist enabled her, first, to interview Mr Fuller and assess his responses to her questions and, secondly, to administer and interpret the results of the psychometric tests that she administered to him. By these means, based on her training, study and experience, she acquired specialised knowledge concerning Mr Fuller upon which her opinions as to his personality and work skills were based. It was therefore for good reason that Mr Fuller’s counsel told the primary judge that his objection did not extend to this aspect of Ms Owen’s report.

As I read counsel’s submissions, his objection also did not extend to Ms Owen’s assertions that the employment positions she described in general terms were advertised on the internet. Rather, the gravamen of the objection was that s 79 of the Evidence Act did not permit Ms Owen to express opinions as to what specific jobs were available that Mr Fuller would or would not be able to undertake. An example of such an opinion is Ms Owen’s statement in her report that “Mr Fuller would be able to undertake a customer service – call centre role as the role is undertaken primarily seated” (see [30] above). Another is her opinion given in relation to her “Vocational Option 2: Department Manager” that “Mr Fuller would be able to undertake a Department Manager role that required occasional light lifting and did not require overhead work or lifting from ground level”.

Ms Owen did not in my view have the expertise to enable her to express these opinions. As she recognised in cross-examination (see [34] above) she did not have the expertise to assess a client’s “physical capacity”. Nor did the evidence indicate that her training, study or experience gave her expertise in interpreting medical reports, interpreting information obtained from the internet about job positions or, by drawing on her conclusions in those two respects, in expressing opinions as to the capacity of a person to perform advertised jobs.

For these reasons, I consider that the primary judge was in error in admitting Ms Owen’s written assessment into evidence, and in relying upon it, save in the limited respects that I have identified above in [40] and [41] above.

I would therefore uphold the first aspect of Ground 2. I would however reject the second aspect which asserts that Ms Owen’s assessment was irrelevant because it only related to work available in Adelaide when, in accordance with the primary judge’s findings, but for his injury, Mr Fuller would have remained employed by the respondent in Broken Hill. Ms Owen was correct to consider job positions in Adelaide as Mr Fuller moved there after his injury and appears to intend to remain there. Where he would have been if he had not been injured was irrelevant to Ms Owen’s assessment. The question was whether in his injured state, and at his then and any future location, he would be likely to be able to obtain work.

The following principles are applicable to the determination of whether a plaintiff such as Mr Fuller has residual earning capacity:

Further, White JA stated in Dal v Chol, a defendant employer has “the evidentiary burden of adducing evidence not only of what kind of work the [plaintiff] is capable of performing, but what jobs are open to a person with such capacity” (at [9]).

Assessment in the present case of Mr Fuller’s future earning capacity required consideration of at least the following matters.

First, the expert medical evidence of Drs Kapur, Assem and Young painted a bleak picture as to Mr Fuller’s medical condition, capacity to work and prospects of improvement. Their evidence was not challenged or qualified by any other medical evidence.

In his report of 30 April 2018, Dr Kapur referred to Mr Fuller’s “longstanding multisite pain” and indicated that surgical or medication options were “extremely limited”. He suggested that Mr Fuller participate in a “multidisciplinary pain management program” but did not suggest that this would be a panacea for his medical problems. Dr Kapur described the limited purpose of such participation as to separate Mr Fuller “from the general sphere of secondary medical care with its attendant risks of over investigation and latrogenesis”.

Dr Assem’s opinion was to a similar effect. He said that “there are no realistic vocational options available” and Mr Fuller “can be considered to be totally and permanently incapacitated” (at [14] above).

Dr Assem thought that it was unlikely that Mr Fuller’s condition would improve. In fact, he suggested that Mr Fuller would experience increasing “symptoms and limitations” over time (see [14] above).

Dr Young’s report of 26 October 2018 (prepared after Ms Owen’s Earnings Capacity Assessment) painted a similarly pessimistic picture. Dr Young’s conclusion was that Mr Fuller did not have “the physical or mental capacity for any type of work” (see [18] above).

The primary judge stated that he “had regard to” the evidence of Ms Owen that Mr Fuller would be able to obtain employment but, as I have indicated above, that was, in relevant respects, inadmissible and in any event it was prepared without the benefit of Dr Young’s report of 26 October 2018 which accorded with the earlier expressed views of Drs Kapur and Assem. As well, in referring to the reports of Drs Kapur and Assem, Ms Owen did not refer to important, relevant opinions that they expressed (see [24] and [25] above).

Moreover, Ms Owen’s assessment was prepared on the basis that Mr Fuller’s participation in a pain management program would increase his earning capacity (see [34] above). Ms Owen wrongly interpreted Dr Young’s reference in her certificate of 6 June 2018 to a pain management program as one designed to increase Mr Fuller’s earning capacity. In this respect, Dr Young simply referred to the earlier report of Dr Kapur. This did not suggest that participation in the program would increase Mr Fuller’s earning capacity. Rather, Dr Kapur saw the purpose of the program to be as described in [13] above. Likewise, Dr Young’s subsequent report of 26 October 2018 did not suggest that participation in the program would increase, or indeed produce, earning capacity. Rather, it described the purpose of that participation in the way that I have quoted it in [18] above.

The primary judge must have acted on a similarly erroneous assumption as to the purpose of the pain management program because, first, he said that he relied on Ms Owen’s evidence and, secondly, he found that Mr Fuller had some residual future earning capacity notwithstanding that he found that Mr Fuller had none at the date of trial. His Honour assumed that this newly-acquired capacity would come from participation in a “structured rehabilitation program” or “education on applying for jobs” (see Judgment [152] quoted in [37] above). The former was however a reference to “the multidisciplinary pain program” which Dr Kapur referred to as a rehabilitation program (see [13] above to which the observations in [54] above are applicable). The latter was a reference to a recommendation of Ms Owen that Mr Fuller participate in vocational counselling “to develop and enhance his job seeking skills”. Ms Owen did not however provide any properly founded expert opinion to the effect that such counselling would create any earning capacity that Mr Fuller did not otherwise have.

Secondly, the practicality of Mr Fuller obtaining employment and the type of jobs that might be open to him needed to be considered in the context of the physical limitations that he had. The primary judge appears to have accepted Mr Fuller’s evidence on this topic. His Honour summarised it as follows:

Clearly, a man aged 57 (or older, as the years passed after the District Court hearing) presenting to prospective employers with these limitations on his capabilities would not be a realistic candidate for many jobs. Also relevant to prospective employers would likely be the fact that Mr Fuller had been out of the workforce for approximately 15 of the 17 years prior to the District Court hearing in 2018. As to this, he was off work from 11 November 2001 which was the date of his motor vehicle accident (see [6] above) until he was employed by the respondent in June 2007 and he did not work after the subject accident occurred on 11 August 2009.

In these circumstances, the respondent’s discharge of its onus of demonstrating that Mr Fuller was likely to be able to obtain employment in my view required evidence of job availability of much greater specificity than that contained in Ms Owen’s report.

The primary judge found that Mr Fuller was capable of working “two shifts of no more than four hours” per week and presumably his Honour was contemplating that these shifts would be separated in time and not fixed to be undertaken one after the other. Ms Owen’s assessment however predominantly referred to full-time work. In respect of her six options, she listed 19 advertised full-time positions in total but referred to only four part-time and three casual positions. Whether any of these part-time or casual positions would have allowed for work limited to “two shifts of no more than four hours” per week as contemplated by the primary judge was left by the evidence in the realm of speculation.

For these reasons, the primary judge should in my view have concluded that the respondent had not discharged its onus of demonstrating the likelihood of Mr Fuller obtaining employment in the future. As a result, his Honour should have assessed damages on the basis that Mr Fuller will remain totally incapacitated for work for the remainder of his working life and that he therefore has no residual earning capacity.

For these reasons, I would uphold Ground 1.

Mr Fuller challenges the primary judge’s finding that his damages for future economic loss should be discounted by 25% for “vicissitudes” rather than the conventional discount of 15% being made. In this respect, his Honour simply said:

A discount for vicissitudes provides for the possibility that adverse events, unrelated to a plaintiff’s accident, may occur after the trial and affect a plaintiff’s income earning capacity. The principal possibilities are sickness, accident, unemployment and industrial disputes (H Luntz, Assessment of Damages for Personal Injury and Death (4th ed, 2002) at [6.4.6]; Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485 at 497; [1995] HCA 53). In New South Wales, 15% is a conventional allowance for such vicissitudes. As Bryson JA (with the concurrence of Santow JA and Young CJ in Eq) said in FAI Allianz Insurance Ltd v Lang [2004] NSWCA 413 at [18] in relation to this discount:

In State of New South Wales v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133, Heydon JA said at [100], “[w]hile 15 per cent is the starting point, and, indeed, as the figure [is] used in most cases, usually the finishing point as well, it can be departed from in an appropriate case”.

On appeal, the respondent contended that it was not open to Mr Fuller to rely on this ground as “no point was taken in the Court below” In the District Court, Mr Fuller however provided in his Schedule of Damages for the conventional deduction of 15%. Whilst he did not reply to the respondent’s submissions contending for a 25% deduction, it would have been clear to the primary judge throughout the hearing that Mr Fuller’s position was that the conventional deduction should be made. This Court should therefore entertain this ground of appeal.

The first matter to which the primary judge referred as justification for making a greater than normal discount was “the plaintiff’s prior injury” (at [153]). This was a reference to the injury that Mr Fuller suffered in the motor vehicle accident that occurred on 11 November 2001. Whilst it had considerable impact on his life for a number of years after it occurred, there was no medical evidence to suggest that this earlier injury might have an impact on Mr Fuller’s employment after the November 2018 District Court hearing. Moreover, the primary judge made the following finding concerning Mr Fuller’s motor accident injury (at [126]):

The other matter to which the primary judge referred was Mr Fuller’s “work history” (at [153]).

Prior to his 2001 motor vehicle accident, Mr Fuller had consistent employment in a variety of different jobs. His last employment before that accident lasted for six years. As a result of the accident, he had surgery in 2003 and took two to three years to recover fully. He started to look for work again in about 2006 but did not find work until he was employed by the respondent in 2007. Mr Fuller remained in the respondent’s employ until his accident on 11 August 2009 and the primary judge found that it was likely that, but for that accident, Mr Fuller would have remained employed by the respondent until his retirement age of 67.

That employment history did not in my view suggest that Mr Fuller’s future income was likely to be affected by contingencies of any different or greater degree than normal. Certainly, he suffered the misfortune of having a motor vehicle accident which led to the disruption of his working life, and of having a period of unemployment, but his work history did not suggest that he was someone who, given the physical capacity to do so, would not have sought and retained employment in the future other than in a normal fashion. Indeed, the primary judge’s finding that, but for his 2009 accident, Mr Fuller would have been likely to remain in the respondent’s employ until he reached retirement age tends to confirm that.

In these circumstances, this Court should substitute a discount of 15% for vicissitudes for that of 25% applied by the primary judge. Although the Court is, and should be, reluctant to interfere with what is undoubtedly an evaluative, and perhaps even “impressionistic” opinion (see Chung v Anderson [2004] NSWCA 321 at [81]), the lack of detail in his Honour’s reasons on this topic renders his conclusion more amenable to appellate intervention as the precise matters that his Honour had in mind are not known.

In the Court below, Mr Fuller made a claim in respect of loss of the value of future long service leave entitlements in both his Particulars and Schedule of Damages. He claimed the value of the long service leave to which he would have become entitled under the Long Service Leave Act 1955 (NSW) if, but for his accident, he had remained in the respondent’s employment. He recognised that the amount so calculated should be discounted by 50% for vicissitudes.

The primary judge appears to have overlooked the claim as he did not address it. His finding that it was likely that, but for the accident, Mr Fuller would have remained in the respondent’s employment until his retirement however gave merit to the claim. Whilst it was of course possible that the respondent might not have continued in business or that for some other reason Mr Fuller might have ceased to be employed by it (and a discount of 50% for vicissitudes was therefore appropriate), the likely future non-accident employment found by his Honour indicated a probability that Mr Fuller would have satisfied the requirements under the Long Service Leave Act to qualify for his entitlement to long service leave.

Although the respondent complained on appeal that Mr Fuller’s senior counsel did not refer to the claim in the District Court, its inclusion in Mr Fuller’s Particulars and Schedule of Damages was sufficient to require its determination by his Honour, especially bearing in mind the small amount ($5,856) of the claim.

For the reasons given above, each of Mr Fuller’s four grounds of appeal should be upheld, with the result that his damages require recalculation. The parties should attempt to agree as to the orders that the Court should make in this respect.

I propose the following orders:

PAYNE JA: I have read the judgment of Macfarlan JA in draft and gratefully adopt his Honour’s summary of the relevant facts. I agree with the orders proposed by his Honour, but prefer to express my own reasons for joining in those orders.

It will be recalled ground 2 of the notice of appeal contained two sub-grounds:

I agree with Macfarlan JA that ground 2 (ii) must be dismissed. Ms Owen’s opinion about the availability of employment in Adelaide was both relevant and admissible as opinion evidence.

I have concluded that the primary judge did not err as alleged in ground 2 (i) in admitting the evidence of Ms Owen. Section 79 of the Evidence Act (1995) (NSW) provides, relevantly:

A failure to demonstrate that an opinion expressed by a witness is based on the witness's specialised knowledge, which knowledge is in turn based on the witnesses’ training, study or experience is a matter that goes to the admissibility of the evidence, not its weight: Dasreef Pty Limited v Hawchar (2011) 243 CLR 588; [2011] HCA 21. On the other hand, the plurality in Dasreef rejected the “basis” rule as a test for admissibility under s 79. Their Honours said:

The objection to the admissibility of Ms Owen’s report taken by the appellant at the trial was opaque. The transcript records that the objection was that Ms Owen was “not properly qualified” and secondly, the report does not “contain any expertise”. The objection was elaborated upon to mean that what Ms Owen had done was “not the application of her expertise as a clinical psychologist, to support her opinion” and “she has no expertise except in writing reports in this area.”

After hearing evidence on the voir dire directed to Ms Owen’s “specialised knowledge” and “training, study or experience” the primary judge ruled that Ms Owen’s report was admissible. The parties did not ask the primary judge to give reasons for this ruling.

In the appellant’s written submissions in this Court the essence of the complaint about admissibility was recast, relevantly, as follows:

The first aspect of the complaint takes an unduly narrow view of the bases in s 79 of the Evidence Act upon which “specialised knowledge” may be founded. Even assuming that Ms Owen’s “academic qualifications” and “the preparation of reports” of itself provided an insufficient basis for her “specialised knowledge” it was clearly demonstrated in the voir dire that Ms Owen’s specialised knowledge in her report was based on her “training” and “experience”. Ms Owen had previously worked full time for a vocational rehabilitation company in Adelaide providing vocational support for people returning to work. That is, Ms Owen demonstrated that she had extensive professional experience in Adelaide of placing workers who had been injured back into employment. For that purpose she had regularly prepared reports about her clients’ “earning capacity” for about 10 years. Ms Owen would then make an assessment of the capacity of the client and their “transferable skills, their interests and their abilities” and prepare her report accordingly. Ms Owen had produced over 50 “earning capacity assessment” reports by the method she described. It is true, as Ms Owen accepted, that she could not “assess the physical capacity” of her clients, but as I will explain below that was not fatal to the admissibility of the report. I reject the first part of the appellant’s complaint, that Ms Owen’s academic qualifications and the preparation of reports did not qualify her by reference to training, study or experience, to provide the report.

The second aspect of the appellant’s complaint should also be rejected. It was clearly demonstrated in the voir dire that in preparing the reports about her clients’ “earning capacity” for over 10 years Ms Owen regularly consulted public internet sites on which potentially relevant jobs were advertised. Ms Owen had produced over 50 “earning capacity assessment” reports by the method she described. In oral address in this Court Senior Counsel for the appellant objected to the evidence of positions advertised on the internet as “hearsay”. This was not an objection taken before the primary judge. The question was not investigated below and I would refuse leave for the matter to be ventilated in this Court. The potential for evidence to have been led relevant to this issue is obvious. I doubt, in any event, that the objection was well founded. Even if the evidence were hearsay, I would have dispensed with the rules of evidence on this topic as there can be no serious dispute that the website evidence contained advertisements for positions vacant in Adelaide at the relevant time. Senior Counsel for the appellant did not suggest any basis to think there was a genuine dispute about that matter.

I am prepared to assume that in oral address in this Court the appellant took a further point about admissibility, namely that Ms Owen’s report impermissibly addressed a topic she accepted in the voir dire was outside her “specialised knowledge” namely the physical capacity of the appellant.

As I have said, Ms Owen accepted that the question of physical capacity for work (as opposed to his earning capacity) was not a subject she was expressing her own opinion about in her report. In this regard, for the purposes of her report Ms Owen was provided with all of the available medical reports. Ms Owen in her report set out at some length the contents of those reports. Whilst perhaps it would have been preferable for Ms Owen to more clearly have expressly identified her assumptions, it is tolerably clear that Ms Owen treated the medical assessment of the appellant’s physical capacity for work as an assumption she made for the purposes of her report. In addressing that topic Ms Owen described the appellant’s “current work capacity and restrictions as per medical certificates”, making clear that the subject matter of the appellant’s current work capacity and restrictions was a matter of assumption.

In her report Ms Owen described what she had done, including the assumptions she had made about the appellant’s physical capacity for work (based on the medical reports she had been given) before describing the results of various psychometric and skills tests she administered on the appellant. Having set those matters out, Ms Owen’s report described the “vocational options and labour market analysis” for the appellant. This comprised results of internet searches about available positions, the appellant’s knowledge and skills that responded to that position, his vocational suitability (based on interviews and tests administered by Ms Owen) and medical suitability (based on assumptions she made derived from the medical reports). Ms Owen made it clear in her evidence that she had assumed that the report and recommendations of Dr Young in 2018 about the work capacity of the appellant provided that the appellant’s capacity for work would be enhanced by participation in an “active multi-disciplinary pain management program to increase his capacity”.

If the assumptions Ms Owen made about the appellant’s current work capacity and restrictions were not made good by appropriate medical evidence her report would be of little if any weight. That does not, however, mean that her report was inadmissible. Dasreef made clear that opinion evidence is not to be excluded solely because the factual bases upon which the opinion is proffered is not established by other evidence. Ms Owen made assumptions based on medical reports about the appellant’s ability to lift, to carry, to bend, to twist and to sit. Ms Owen demonstrated relevant specialised knowledge in vocational rehabilitation and the safe return to work of injured workers by her training, study or experience in that topic over many years. I would dismiss ground 2 of the appeal.

It will be recalled that the appellant’s case on ground 1 was that his Honour ought to have found that the appellant had no residual earning capacity in any labour market reasonably available to him. The primary judge concluded that:

In Dal v Chol [2018] NSWCA 219 White JA explained the evidential burden facing the respondent seeking to assert that an injured worker has a residual earning capacity despite the injuries suffered:

Specifically on the subject of residual earning capacity (in the context of a Motor Accident claim but no relevant difference arises on this question here) in Nominal Defendant v Livaja [2011] NSWCA 121 this Court, per Basten and Campbell JJA and Rothman J, held:

In this case the medical evidence was assessed by the primary judge. His Honour noted that “[t]here is very little dispute on the medical evidence”: at [130]. The primary judge made findings, not challenged on the appeal, that “[t]he doctors all agree” that the appellant is unfit for his pre-injury employment and that:

It appears that the critical medical evidence identified by the primary judge was contained in a report by the appellant’s general practitioner, Dr Young, who opined that the appellant’s injuries, disabilities and depression made him currently unfit for work. Dr Young recommended that the appellant participate in a multidisciplinary pain management program “to increase his capacity”. The appellant was referred to participate in such a program but for reasons not disclosed in the evidence had not yet participated in such a program by the time of the trial. The primary judge found that:

The primary judge’s reference to “further support in the form of a structured rehabilitation program and education on applying for jobs” may be a reference to Dr Young’s recommendation, based on a review of the appellant by a pain specialist, that the appellant “may be helped by undertaking a multidisciplinary pain management program for the purpose of helping him to manage and live with his pain and disability in a better way and certainly this could have a beneficial effect on his mood and well being.” As I have said when dealing with ground 2, the assumption underpinning Ms Owen’s report was squarely based on what Ms Owen understood to be Dr Young’s recommendation. Whilst admissible, the weight to be attached to Ms Owen’s opinion about suitability for employment was in large measure contingent upon acceptance of other evidence providing support for the assumption made by Ms Owen about the appellant’s medical capacity to perform those jobs.

The high point of the respondent’s case on the issue of residual capacity to engage in paid employment is that despite the appellant’s injuries, disabilities and depression he had been able successfully to complete tertiary studies in Business and Management since the accident. It is also correct that the jobs that Ms Owen suggested were available to the appellant required relatively limited physical ability.

It may be, had the issue been explored properly at the trial, that the evidence would have risen to the level of proving that should the appellant participate in a multi-disciplinary pain management program his capacity to work would have increased to the level found by the primary judge. The issue, however, was not adequately explored on the evidence. Quite what Dr Young had in mind about possible changes in the appellant’s capacity to work following his participation in a multidisciplinary pain management program was not explained. The evidence as a whole did not address the question of the appellant’s capacity to work, on the assumption that the multi-disciplinary pain management program had been completed. As the respondent bore the onus on this issue, that conclusion should have led the primary judge to reject the respondent’s case about residual earning capacity.

Whilst the primary judge was entitled to accept Ms Owen’s evidence that jobs of the sort she described were available in Adelaide, the assumption she made that the appellant was physically able to perform those jobs was not proven. It follows that there was not the required practical assessment of the likelihood of the appellant obtaining employment in any of the identified occupations: Livaja. I would allow ground 1 of the appeal.

In relation to ground 3, the primary judge made an allowance for vicissitudes of 25 per cent. His Honour only made only a brief specific reference to the subject of vicissitudes as follows:

In Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485 at 497-498; [1995] HCA 53 the High Court, per Dawson, Toohey, Gaudron and Gummow JJ, said:

The cases cited by the High Court for this proposition included Moran v McMahon (1985) 3 NSWLR 700 at 713-714, noting the criticism of Kirby P at 706 who said:

In New South Wales v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133, Mason P, Handley JA agreeing said:

Heydon JA at [100] said:

I agree with what Kirby P said over 30 years ago on this subject – the “conventional” allowance for vicissitudes of 15 per cent is a rule of thumb which is rarely subjected to rigorous scrutiny. I agree that it remains true that the question of “why it should be 15 per cent, regardless of the infinite variety of chances which may befall an injured party, has never been adequately debated”. Neither party set out here to argue for any fundamental reconsideration of this issue. In those circumstances I will proceed on the basis assumed by the parties that a 15 per cent discount for vicissitudes, subject to adjustment upwards and downwards in a particular case, remains generally appropriate.

I was initially attracted to the submission that the primary judge’s discretionary decision to adjust the usual discount to the award for vicissitudes upwards in this case was justified by the findings about the appellant’s time out of the paid workforce prior to his injury. Upon further consideration, however, I am persuaded that the discretion miscarried in that the appellant’s break from the paid workforce was part of a planned profitable enterprise in renovating his residential property. In the course of that enterprise the appellant also learned valuable skills which he could use in future employment. This was not a case where a greater than usual discount for vicissitudes should have been allowed. I would allow ground 3.

I agree with Macfarlan JA in relation to ground 4.

WHITE JA: In relation to ground 2 of the notice of appeal I agree with Payne JA. In relation to the other grounds I agree with Macfarlan JA and with the additional reasons of Payne JA. I agree with the orders proposed by Macfarlan JA.