Beaven v Wagner Industrial Services Pty Ltd [2017] QCA 246 [2018] 2 Qd R 542

SUPREME COURT OF QUEENSLAND CITATION: Beaven v Wagner Industrial Services Pty Ltd [2017] QCA 246 PARTIES: DAVID ALLEN BEAVEN (appellant) v WAGNER INDUSTRIAL SERVICES PTY LTD ACN 105 730 489 (respondent) FILE NO/S: Appeal No 13417 of 2016 DC No 42 of 2014 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal ORIGINATING COURT: District Court at Ipswich – [2016] QDC 299 (Richards DCJ) DELIVERED ON: 24 October 2017 DELIVERED AT: Brisbane HEARING DATE: 10 August 2017 JUDGES: Fraser and Philippides JJA and McMeekin J ORDERS: 1. Appeal dismissed. 2. The appellant to pay the respondent’s costs of the appeal. CATCHWORDS: TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – BREACH OF DUTY – where the appellant suffered a prolapsed disc in the course of employment with the respondent – where the appellant’s cause of action in the final instance was based on an alleged failure to train in basic manual handling techniques – where the appellant’s claim for damages was dismissed – where the learned trial judge found that the appellant had failed to show that his injury had been caused by any breach of duty by the employer – whether the learned trial judge erred in failing to make a finding that the respondent breached its contractual duty of care to the appellant TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – CAUSATION – where there was no adjudication of the causation issue by reference to the breach of duty – where there was no adjudication of the causation issue in accordance with s 305D and s 305E of Workers’ Compensation and Rehabilitation Act 2003 (Qld) – whether the learned trial -- 1 of 22 -- 2 judge erred in failing to find that the breach so identified caused the appellant’s injury DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – METHOD OF ASSESSMENT – PERSONAL INJURIES – where there is a complaint as to the extent of the discount applied to the award for past and future economic loss – where the learned trial judge applied a 30 per cent discount to both past and future loss components – where the discount was applied to two factors namely a degenerative back condition and the possibility that the appellant would have given up his employment to care for his ill wife – whether the discount applied was justified and appropriate in the given circumstances EVIDENCE – GENERAL PRINCIPLES – DIRECT EVIDENCE – DRAWING INFERENCES – where the learned trial judge did not make an express finding as to what training the appellant had been given – where the appellant did not give evidence in chief on the subject of his training – where there was no direct evidence of the extent of the training given to the appellant by the respondent or the full extent of the training that the appellant had received generally – where the appeal is advanced on the basis that inferences should be drawn from the statements of other witnesses about the training that they were aware of or had received from the respondent – whether such an inference should be drawn as to the training that was given and not given EVIDENCE – ADMISSIBILTY – HEARSAY – GENERALLY – ADMISSION IN EVIDENCE WITHOUT OBJECTION – where the appellant relies on a passage in the report of the ergonomist as evidence of the training – where the appeal is advanced on the basis that hearsay statements contained in the report of an expert are required to be received as evidence of their truth – whether the statement is admissible to prove the truth of its contents as so claimed Evidence Act 1977 (Qld), s 93 Uniform Civil Procedure Rules 1999 (Qld), r 428 Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 305B, s 305D, s 305E Beaven v Wagner Industrial Services Pty Ltd [2016] QDC 299, related Bromley Investments Pty Ltd v Elkington (2002) 43 ACSR 584; [2002] QSC 427, cited Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21, considered Gordon v R (1982) 41 ALR 64, cited Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134; [1979] HCA 2, considered Hunt v Australian Associated Motor Insurers Ltd [2012] QCA 183, distinguished -- 2 of 22 -- 3 Insurance Commissioner v Joyce (1948) 77 CLR 39; [1948] HCA 17, cited Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8, cited Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305, cited Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20, cited McLennan v Taylor [1966] 2 NSWR 685; (1966) 85 WN (Pt 1) (NSW) 525, cited Millar v Dickson [2002] 1 WLR 1615; [2001] UKPC D4, cited Phillips v MCG Group Pty Ltd [2013] QCA 83, cited Queensland Corrective Services Commission v Gallagher [1998] QCA 426, cited R v Clark [2005] 13 VR 75; [2005] VSCA 294, cited R v Gardner [1980] Qd R 531, cited R v Laing [2008] QCA 317, cited R v LRG (2006) 16 VR 89; [2006] VSCA 288, considered R v Ping [2006] 2 Qd R 69; [2005] QCA 472, considered R v TJW [1989] 1 Qd R 108, cited R v Tonkin [1975] Qd R 1, cited Ramsay v Watson (1961) 108 CLR 642; [1961] HCA 65, cited Ritz Hotel Ltd v Charles of the Ritz Ltd (1988) 15 NSWLR 158, followed Robert Bax & Associates v Cavenham Pty Ltd [2013] 1 Qd R 476; [2012] QCA 177, distinguished Roof & Ceiling Construction Co v SA Wigan & Co Pty Ltd [1972] QWN 14, cited Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208, cited Sinclair v Sunshine Coast Independent Living Service Inc [2016] QSC 63, distinguished Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348, cited Turner v South Australia (1982) 56 ALJR 839, cited Vozza v Tooth & Co Ltd (1964) 112 CLR 316; [1964] HCA 29, cited COUNSEL: R J Douglas QC, with S D Anderson, for the appellant G W Diehm QC for the respondent SOLICITORS: Shine Lawyers for the appellant BT Lawyers for the respondent [1] FRASER JA: I have had the advantage of reading in draft the reasons of McMeekin J. I respectfully agree with those reasons and with the orders proposed by his Honour that the appeal be dismissed with costs. [2] The questions in this appeal include a question whether an ergonomist’s report of the plaintiff’s statement about what manual handling training he received was evidence of the truth of that statement. It may not be strictly necessary to decide this question, but it raises a point of some significance in much litigation. For that reason I propose to add some additional remarks to my colleague’s detailed analysis upon this issue. -- 3 of 22 -- 4 [3] As McMeekin J has mentioned, in Robert Bax & Associates v Cavenham Pty Ltd1 Muir JA articulated the principle that, “generally speaking at least, a party who fails to object to inadmissible hearsay evidence contained in a document which is admissible as original evidence will have waived its right to limit the use to which the evidence may be put”. Whilst I respectfully agree with the decision in that case, I share McMeekin J’s doubt whether such a principle generally applies in relation to statements in expert reports of asserted facts upon which the expert’s opinion is based. [4] There may be cases in which an expert’s statement of another person’s assertion of a fact is admissible as original evidence of that fact (see, for example, Gordon v R,2 concerning some statements made to a psychiatrist), but such cases are exceptional. In most cases, an expert’s statement of a fact asserted by another person is not admissible evidence of the truth of that fact. The common law position in this respect is succinctly summarised in the High Court’s restatement in Gordon v R of the principle expressed in Ramsay v Watson:3 “… statements made to an expert witness are admissible if they are the foundation, or part of the foundation, of the expert opinion to which he testifies but that if such statements, being hearsay, are not confirmed in evidence, the expert testimony based on them is of little or no value.” Other than in exceptional cases, that authoritative statement seems to require the conclusion that whilst an expert’s statement of a fact forming a basis of the expert’s opinion is admissible, it is not to be treated as evidence of the truth of that fact. Consistently with that view, and as McMeekin J has noted, the Uniform Civil Procedure Rules 1999 (Qld) requires an expert to identify the factual bases of the expert’s opinion. Rule 428(2) provides that an expert report “must include the following information - (b) all material facts, whether written or oral, on which the report is based”. It is not to be supposed that the purpose of this rule was to provide a shortcut to the proof of a fact upon which an expert’s opinion is based. [5] With that background in mind, a record in an expert report of a fact asserted by another person upon which the expert’s opinion is based ordinarily would not be construed as involving any statement about the truth of the fact. Instead, it would be understood as the expert’s identification of a fact assumed to be true only for the purpose of the expert formulating his or her opinion. Upon that basis, it is difficult to see the need for an opposing party to make any statement to that effect, or to object to the admission in evidence of the recorded fact, in order to avoid the admission of the report being treated as evidence of the truth of that fact. There may be particular cases in which the circumstances make it prudent for a party to clarify the position, or even to take an objection, but ordinarily the mere absence of an objection should not transform an expert’s statement of a fact upon which the expert’s opinion is based into evidence of the truth of that fact. [6] There was no circumstance in this case which suggested any possible need for the defendant to object or seek any clarification of the status of the expert’s statement in his report that the plaintiff “could not recall any training session…regarding the avoidance of applying efforts at full reach”. Indeed, the circumstances in which that report was tendered confirmed what I would regard as the usual position that the expert’s reference to an assertion by another person of a fact upon which the expert’s opinion was based did not involve any statement about the truth of that asserted fact. 1 [2013] 1 Qd R 476 at [46]. 2 (1982) 41 ALR 64 (Gibbs CJ, Mason, Murphy, Aickin and Brennan JJ). 3 (1961) 108 CLR 642 at 648 – 649. -- 4 of 22 -- 5 There is first the circumstance that the contentious statement appears under a heading “Description of Incident”, and after the introductory words that for the purposes of the report “events are believed to have occurred as follows”. In that context, and as one would in any event expect, the expert’s statement of the plaintiff’s assertion about training should be understood as being no more than the identification of one of the assumptions upon which the expert’s opinion was based; it would not be construed as involving any statement about the truth of the assumed fact. [7] Other matters point in the same direction: in light of the facts in issue on the pleadings, it must have been defence counsel’s expectation that the plaintiff would be called to give evidence, including evidence of all the material circumstances upon which the expert’s opinion was based; counsel for the plaintiff tendered an agreed bundle of documents, including this expert’s report, during her opening, and counsel for the defendant stated that he objected to the admissibility of the expert’s report; in response, the plaintiff’s counsel informed the trial judge that she would not open the expert’s evidence because of the objection, and the plaintiff’s evidence was completed before the trial judge heard argument about the admissibility of the expert report. [8] I would add that, in circumstances in which the plaintiff did not rely upon the expert’s statement of the plaintiff’s assertion concerning training as evidence of the truth of that assertion at the trial, the plaintiff should not be permitted to take that point for the first time on appeal. [9] PHILIPPIDES JA: I agree with McMeekin J and with Fraser JA’s additional comments. Muir JA’s statement in Robert Bax & Associates v Cavenham Pty Ltd4 is to be understood in the context of the issue before the Court. It was not expressed to extend to the position of original documents in the form of an expert’s report, which concern a distinct category of case with well-established principles. [10] McMEEKIN J: This appeal concerns the dismissal of a claim for damages for personal injury brought by Mr Beaven against his employer, Wagner Industrial Services. It is said that the learned trial judge erred essentially in two respects: (a) Failing to make a specific finding that the respondent breached its contractual duty of care to the appellant by failing to provide training and assessment “as to the caution to be exercised in engaging in awkward posturing in employment activity”; (b) Failing to find that the breach so identified caused the appellant’s injury, there being no adjudication of the causation issue by reference to the breach of duty or in accordance with s 305D and s 305E of Workers’ Compensation and Rehabilitation Act 2003 (Qld). [11] As well there is a complaint concerning the assessment damages. Background Facts [12] The appellant was a truck driver. He suffered a prolapsed disc in his lumbar spine in the course of his employment with the respondent when he reached out to open the jammed locking mechanism of the passenger door of his assigned truck. His description of the incident was as follows: 4 [2013] 1 Qd R 476 at [46]. -- 5 of 22 -- 6 “…walked over and put the key in the – in the door of the passenger’s side of the truck, turned the key and it was – it was jammed. So I took the key out and went round to the driver’s side of the truck and unlocked it, climbed up into the cab and tried to pull the unlocking pin with my fingers. That didn’t work so I reached down under my seat and grabbed a pair of vice grips, attached them to the unlocking pin, give it a couple of tugs and when the pin came loose it gave – the vice grips came off and I fell backwards into my seat, twisted, and then carried on as normal.5 [13] The learned trial judge accepted that the appellant was honest, that the incident occurred as he described, and that his injury was caused in the incident. [14] The appellant’s cause of action in the final instance was based on an alleged failure to train him in basic manual handling techniques – not to adopt awkward postures and not to exert a force out at a distance from his body. There was evidence from a safety consultant and ergonomist that such training was required and needed to be repeated. The ergonomist said that in training a worker “you’re definitely going to talk about ‘don’t get into a very awkward posture’” and that concept being a “very fundamental principle”.6 [15] The appellant’s claim for damages was dismissed by the learned trial judge essentially on the ground that the appellant had failed to show that his injury had been caused by any breach of duty by the employer. Her Honour held: “…the difficulty in assessing whether the training was insufficient was that there was no evidence of the fault in manual handling training or what additional training would be necessary for Mr Beaven to have decided not to act in the way that he did on the day in question. As such there is no evidence, to suggest that had he had further training in relation to risk assessment that he would have acted any differently than he did on the day in question particularly given that he had no knowledge of the pre-existing vulnerability in his back.”7 Questions on the appeal [16] There are two questions on this appeal. The first concerns what training was given to the appellant. Assuming in favour of the appellant that the ergonomist’s evidence should be accepted as to what ought to have been done, was the training that he described not given to the appellant? The training is described in the concluding paragraph of the ergonomist’s report as: “manual handling training relevant to duties including basic principles such as avoiding significant lifting force at a distance from the body especially whilst twisted and bent.”8 [17] The second question is the causation issue – whether such training, assuming that it was not given and ought to have been given, would have avoided the incident. [18] One of the curiosities of the case is that the key point now agitated was not the subject of a precise pleading, was not mentioned in the statement of agreed facts and issues 5 AR 6/5 – 12. 6 AR 123/11 – 14. 7 Beaven v Wagner Industrial Services Pty Ltd [2016] QDC 299 at [44]. 8 AR 325. -- 6 of 22 -- 7 tendered, was not opened and was not the subject of direct evidence in the plaintiff’s case. The pleadings are general enough to cover the claimed breach. The appeal is advanced on the basis that inferences should be drawn from the statements of other witnesses about the training from the respondent that they had received or were aware of, or that hearsay statements contained in the report of an expert are required to be received as evidence of their truth. [19] Before turning to those questions it is useful to consider the statutory framework governing the case. Breach of Duty [20] The appellant’s cause of action is governed by the provisions of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (“WCRA”). The relevant provisions are set out in Chapter 5 Part 8. The learned trial judge did not in terms consider the provisions. Section 305B provides: “305B General principles (1) A person does not breach a duty to take precautions against a risk of injury to a worker unless— (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and (b) the risk was not insignificant; and (c) in the circumstances, a reasonable person in the position of the person would have taken the precautions. (2) In deciding whether a reasonable person would have taken precautions against a risk of injury, the court is to consider the following (among other relevant things)— (a) the probability that the injury would occur if care were not taken; (b) the likely seriousness of the injury; (c) the burden of taking precautions to avoid the risk of injury.” [21] Hence the legislation puts at the very forefront of any consideration of breach the question of the level of risk that needed to be guarded against. Her Honour did not deal with the concept presumably because neither counsel referred the judge to the relevant section. [22] It was submitted to this Court that her Honour dealt with foreseeability of the risk of injury in the following passage of her reasons: “In these circumstances, it is not unreasonable that if the passenger side door did not open from the outside, that Mr Beaven would try to open it from the inside. Mr Steele acknowledged that that would be an appropriate way to act. Again, in my view, it is not unreasonable that if there were tools within the truck that the plaintiff might try to use an appropriate tool to open the pin lock if he was unsuccessful. Given that this seemed to be a new problem, if there was some minor jamming of the pin lock then that may easily have been fixed without -- 7 of 22 -- 8 the need to put the truck into the mechanic and it would not be unreasonable for him to act in that manner.”9 [23] Given that there is no reference either to foreseeability or to injury it is difficult to construe the passage as we were urged to do. The highest that it reaches is a statement that undertaking the task of opening the jammed pin lock with an appropriate tool was, by implication, foreseeable as it was not an unreasonable course of action in the circumstances. The question of the foreseeability of the risk of injury involved is an entirely separate concept. [24] Despite my own reservations, for the purposes of the appeal I assume, as the parties appeared to have done in their written submissions, that her Honour was, or ought to have been, satisfied that the risk of injury was foreseeable in the sense mentioned in s 305B(1)(a). That is, the risk was not insignificant, and that the risk of injury was sufficiently probable and serious to justify taking the precaution suggested of providing such training. The evidence of the training [25] The learned trial judge made no express finding on what training had been given to the appellant. It would have been difficult to do so as the appellant gave no evidence on the question of his training on “basic principles such as avoiding significant lifting force at a distance from the body especially whilst twisted and bent”.10 Indeed he gave no evidence in chief on the subject of his training at all. [26] In cross examination it emerged that he had spent eight years in the Army and had received training in “how to lift things and how to move”.11 The detail of that training was not given. The appellant worked at some seven different transport companies over a 20 year period before commencing with the respondent in 2005. He had received training in the course of that employment. Again that was not explored in detail but the cross examiner put to him that the training had included securing loads, climbing on loads and strapping loads.12 [27] He accepted too that he had received some training at the respondent’s employment. Again the full extent of that training was not explored. He accepted that he had obtained a Certificate III in “Transport and Logistics Road Transport” only some five months before the subject incident and that the modules had included “follow occupational health and safety procedures” and “implement and monitor occupational health and safety procedures”.13 There is a one line reference in each of the Driver Assessment Reports to “posture” but no elucidation in the evidence as to what was discussed or taught.14 [28] A Mr Steele gave evidence in the appellant’s case. He was responsible for training the appellant at the respondent’s workplace. He had assessed the appellant on 15 to 20 occasions over five years. He explained that he had once been a regimental transport supervisor in the Army, had 15 years of experience as a trainer there, and that there was a manual handing component in the army training. His evidence included: 9 Beaven v Wagner Industrial Services Pty Ltd [2016] QDC 299 at [41]. 10 AR 325. 11 AR 39/22. 12 AR 41/25 – 26. 13 AR 42/24 – 27. 14 AR 284; AR 286; AR 288. -- 8 of 22 -- 9 “Had you had opportunity to observe Mr Beavan’s (sic) manual handling techniques?---Yeah, yep. Had you ever formed any concerns about his knowledge or technique in that regard?---No. His – his main – his main thing with – with a truck – with an agitator would be taken the chutes off with – when it comes to manual and handling. Okay. What does that involve?---Well, you – you go to the side of the truck. You have to lift the chutes off. Then you have to take them round, you’ve got to place three chutes on the end of the truck so the concrete can go down it. Okay?---That was the main manual and handling thing that we – we done on the truck.15 … I see. And you observed, when you travelled with Mr Beavan (sic) for - - -?---Yep. - - - his competency assessments, you observed him doing that: lifting these chutes?---Yeah, yeah, many a time, yep. You never had – you never observed him to do anything in breach of his manual handling obligations or what was expected of him in that regard?---No, no. If you had seen him do something that you regarded as inappropriate in terms of manual handling, what would you have done?---He would’ve been told, you know, that he’s doing something wrong. And I would’ve gone out with him again and again and again until he got it right.”16 [29] Mr Steele also gave evidence that he would train the men on risk assessments which concerned going on to other sites, but no evidence was led of what that entailed.17 [30] A Professional Driver Handbook was tendered which had been provided to the plaintiff that included a direction about risk assessment but contained no information or training with respect to avoiding awkward postures. [31] On appeal, but not at trial, reliance was placed on a passage in the report of the ergonomist which read: “In regard to manual handling training Mr Beaven could not recall any training session and no input regarding the avoidance of applying efforts at full reach nor any input in regard to stressful postures”.18 [32] At the close of the appellant’s case, that was the extent of the evidence on the point now argued. [33] The respondent called a Mr MacNamara who was the respondent’s plant manager. In his cross examination the following exchange occurred: “Mr MacNamara, you didn’t see any problem with getting into the truck and reaching across to try and open the passenger side door, did you?---No. 15 AR 71/38 – 72/2. 16 AR 72/37 – 73/2. 17 AR 67/20 – 30. 18 AR 310. -- 9 of 22 -- 10 You had never undergone a risk assessment for being in an awkward posture inside of a truck, had you?---No. You hadn’t been trained in how to consider whether forces might be different on your body and might potentially cause injury for you reaching across a truck, had you?---No. And you hadn’t participated in any training like that for drivers at Wagners, had you?---No.”19 Discussion [34] For the moment I put to one side the hearsay statement reported by the ergonomist. [35] There was no direct evidence of the extent of the training given to the appellant by the respondent. There was no direct evidence given of the full extent of the training that the appellant had received throughout what appears to have been a 30 year career which had included regular manual work of varying types. What the appellant seeks is that the Court draw an inference as to the training given and not given. I do not see how that can be done. [36] The first point is that one normally expects direct evidence to be led of such a matter from the plaintiff. Where the witness is competent and where there is every reason to expect that the witness would be in a position to give evidence about the matter, as here, a strong inference is available that the question was deliberately avoided, presumably because a truthful answer would not have assisted the appellant’s case. As Dixon J said in Insurance Commissioner v Joyce:20 “It is proper that a court should regard the failure of the plaintiff to give evidence as a matter calling for close scrutiny of the facts upon which he relies and as confirmatory of any inferences which may be drawn against him. But it does not authorize the court to substitute suspicion for inference or to reverse the burden of proof or to use intuition instead of ratiocination.” [37] That inference is even stronger where, as here, the appellant’s counsel appeared to be very much alive to the point given her cross-examination of the plant manager. [38] Jones v Dunkel21 is usually cited as the applicable authority on the drawing of inferences in the absence of evidence. There the principle in its broadest form was enunciated by Windeyer J, quoting from Wigmore on Evidence22 as follows: “The failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavourable to the party. These inferences, to be sure, cannot fairly be made except upon certain conditions; and they are also open always to explanation by circum- stances which made some other hypothesis a more natural one than the 19 AR 160/12 – 24. 20 (1948) 77 CLR 39 at 61. 21 (1959) 101 CLR 298 at 320 – 321. 22 3rd ed (1940) vol 2, s 285, p 162. -- 10 of 22 -- 11 party's fear of exposure. But the propriety of such an inference in general is not doubted.” [39] There is nothing in the facts here that explain the failure to ask the relevant questions. As Moffitt P observed in Steele v Mirror Newspapers Ltd:23 “If a party wishing to prove a particular fact relied upon seeks to do so by inference from other facts, and fails to give or call available direct evidence of the fact, and there is no sufficient explanation for the failure to call that evidence, then, there will properly be less confidence in drawing the inference in question. The failure to call the available direct evidence may weaken the inference and in some cases this may lead a trier of the facts to decline to draw the inference. Thus, if a plaintiff, capable of proving by his direct evidence that he was at a particular place or that he suffered a loss, but sits in Court while inconclusive inferential evidence is led from others, he runs the risk that, by reason of his unexplained failure to testify, the inference he seeks to have drawn will be weakened and possibly rejected.” (my emphasis) [40] The likelihood of rejection is so much the stronger where the witness does testify but avoids the issue. [41] The second point is that the training the ergonomist had in mind was described by him as “basic” and “fundamental”. Mr Steele’s evidence was that what he had observed of the appellant’s work had led him to think that he was complying with appropriate manual handling techniques. The appellant asks that an inference be drawn that despite him receiving training in manual handling from a variety of sources over the years and from an apparently competent trainer at the respondent’s workplace and despite his observed compliance with appropriate manual handling techniques he was not taught what was basic and fundamental. The obvious inference is to the opposite effect. That might serve to explain why no direct question was asked of the appellant, or indeed of the trainer. [42] The appellant submits that the respondent was also in a position to lead the evidence, if it was available, that there had been such training. That is true. It seems obvious that the respondent’s counsel was endeavouring to keep his questions reasonably vague so as not to provide evidence against his client if any might exist. But the respondent did not bear the onus. This is not a case where a party had failed to call a relevant witness. The respondent’s trainer was called, albeit by the appellant, and the appellant led the evidence that he saw fit. Nor can any comfort be drawn from the failure by the cross-examiner to put any suggestions to the appellant to the effect that he had received such training. It is hardly the purpose of cross-examination to fill in the gaps in proof in the opponent’s case. [43] There is no rule of law or practice with which I am familiar that requires an inference to be drawn against a defendant in these circumstances. Is the hearsay statement to the expert proof of the fact? [44] The appellant submitted that his statement to the ergonomist provides the missing proof. It will be recalled that the statement was: 23 [1974] 2 NSWLR 348 at 360. -- 11 of 22 -- 12 “In regard to manual handling training Mr Beaven could not recall any training session and no input regarding the avoidance of applying efforts at full reach nor any input in regard to stressful postures.” [45] One difficulty with the submission is that a statement that someone does not recall a stated event occurring is not equivalent to a statement that the event did not occur. The statement to the ergonomist was presumably made in the course of an interview with the ergonomist mentioned in the report which the report records was held on 7 January 2015. The incident occurred four years before, on 10 January 2011. So the highest that the submission reaches is that four years after the event, the appellant had no recall of the training that he had received. His statement is consistent with him not receiving the relevant training but not necessarily proof that he did not. [46] A more fundamental issue is the legal point. Is the statement admissible to prove the truth of its contents as the appellant claims? Reliance for the submission is placed on Robert Bax & Associates v Cavenham Pty Ltd,24 Hunt v Australian Associated Motor Insurers Ltd25 and Sinclair v Sunshine Coast Independent Living Service Inc26. [47] Before turning to those authorities it is necessary to note several relevant matters. [48] At the time of tender there was no intimation that the statement was to be relied on as proof of the fact. The opening made plain that the plaintiff and other lay witnesses were to be called, as they were. Nor was any submission made to the trial judge in extensive written closing submissions that the effect of the tender was as now claimed. Indeed no submission was made in the original written submissions on appeal to this effect. Rather the point was made in reply to the respondent pointing out the lack of any evidentiary basis for the crucial findings now sought. [49] The appellant now wishes to argue that the statement establishes that he did not receive the training of the type that the ergonomist says was essential. As I have said, I do not accept that as accurate. But assuming that it be so, the relevant point is that the inclusion of the statement was a necessary prerequisite to acceptance of the opinion that training of the type the ergonomist had in mind was not given. If that was an essential assumption of the expert then the inclusion of the statement was essential to the admission of the report. The rules require that the expert identify the factual underpinnings upon which he relied.27 While no objection was taken to the tender, that is perfectly explicable because the statement in the report was admissible. It was inadmissible as to its truth because it was hearsay, but it was admissible as evidence of the facts on which the expert had based his opinion. [50] In Robert Bax Muir JA held (Holmes JA (as her Honour then was) and Martin J agreeing), after a review of the authorities, that: “In Queensland the practice has been that, where a party wishes to confine the evidentiary use which may be made of a document which is admissible for a limited purpose, counsel for that party states that there is no objection to the document being admitted for that purpose or objects to the document being admitted for any other purpose… To 24 [2013] 1 Qd R 476. 25 [2012] QCA 183. 26 [2016] QSC 63. 27 Uniform Civil Procedure Rules 1999 (Qld) r 428. -- 12 of 22 -- 13 the extent that the consequences of a failure to object are determined by the operation of the doctrine of waiver, the effect of the practice in Queensland is that, generally speaking at least, a party who fails to object to inadmissible hearsay evidence contained in a document which is admissible as original evidence will have waived its right to limit the use to which the evidence may be put.”28 [51] The Court there held that a letter put into evidence without objection in an agreed bundle of documents, the bulk of which was largely non-contentious, was admitted for all purposes. The issue concerned the scope of a solicitor’s retainer. The letter was “the only document which, on the face of it, had a direct bearing” on that issue. It was held that its evidentiary importance was obvious. Counsel had made plain that he had no intention of calling the only witness who might give evidence on the issue. In those circumstances the letter was held to have probative force. [52] If the principle is as Muir JA stated, then it is subject to an important qualification recognised earlier in his Honour’s reasons. Admissibility is one thing, weight is another:29 “It has long been accepted in Queensland that the general principle in civil cases is that inadmissible evidence adduced without objection must be given the probative value the Court considers appropriate.30 In Roof & Ceiling Construction Co v SA Wigan & Co Pty Ltd, Lucas J, the other members of the Court agreeing, said:31 ‘It seems to me that it should now be regarded as settled that when in a civil case inadmissible though relevant evidence is tendered without objection, it may be given such probative value as the court thinks it is worth.’ [53] Assuming the principle to be applicable here, in the context of neither the trial judge nor the respondent being advised at the time of tender of the now claimed purpose and effect of the tender; of the respondent being entitled to assume that relevant admissible evidence would be forthcoming to support the appellant’s cause of action; and the appellant not having given evidence to support the issue, despite having every opportunity of doing so; the probative value of the statement made to the expert is, in my estimation, nil. [54] However there is to my mind a real question mark over whether the principle identified in Robert Bax extends to statements of this type in expert reports. Muir JA did not expressly assert that it did. Indeed his Honour qualified his remarks by saying “generally speaking…”. Muir JA based the principle on long standing practice in this State. That is certainly not the practice with which I am familiar in respect to the tendering of expert reports where the expert recounts the effect of his or her instructions on which the expert seeks to base their opinion. No case cited by Muir JA as authority for the principle he derived concerned statements of this type appearing in expert reports. 28 At [46]. 29 At [43]. 30 Citing R v Bryant (No 2) [1956] St R Qd 570 at 583 (FC) per Stanley J and at 588–591 per Mack J; McGregor Lowndes v Collector of Customs (1968) 11 FLR 349 at 357–359; Roof & Ceiling Construction Co v SA Wigan & Co Pty Ltd [1972] QWN 14 at 23. 31 [1972] QWN 14 at 25. -- 13 of 22 -- 14 [55] The subsequent decisions of Hunt v Australian Associated Motor Insurers Ltd32 (per Muir JA with White JA and North J agreeing) and Sinclair v Sunshine Coast Independent Living Services Inc [2016] QSC 63 (per Holmes CJ) were cited to the Court as examples of the application of the principle to the tender of expert reports. While the reliance in each case on the principle identified in Robert Bax was plainly a considered decision, in both cases the Court assumed the applicability of the principle identified in Robert Bax, in neither case was the principle considered, and in neither case was the reliance necessary. [56] Hunt involved the tender of an occupational therapist report and Sinclair of general practitioner notes. In Hunt it was not necessary to rely on the principle, as admissible evidence had been led from the plaintiff that the facts recounted in the report were accurate. In Sinclair the notes were not used to establish a fact set out in them but rather to show that there had been no report of injury recorded by the general practitioner consistent with the plaintiff’s account. The notes were original evidence of what they contained and admissible as a business record: R v TJW33. Quaere whether hearsay statements in hospital records relating to the occurrence of a complainant’s injury and which were prejudicial to the accused are admissible despite the legislative sanction in s 93 Evidence Act 1977 (Qld) of the tendering of business records in a criminal trial, and despite tender without objection: R v Laing34 at [31] per Keane JA (as his Honour then was). [57] The admissibility of evidence to which objection might have been taken has proved a vexed question. The issue here concerns the recitation of hearsay statements in expert reports. In my view they stand in a special and different category to hearsay statements in other documents. That is so because the very admissibility of the report itself, assuming it is tendered for the purpose of putting before the court the opinions contained therein, is dependent upon the identification and proof of the assumptions underlying those opinions. Where, as here, the assumptions are derived from hearsay statements where the admissibility of the report depends on the hearsay itself being proved. Given those circumstances there is no possibility, absent prior agreement, that counsel on either side of the case would proceed on the assumption that the tender was for any other purpose, and particularly would not assume that the tender was made for the purpose of proving the truth of the facts so recited. [58] The conditions of admissibility of an expert opinion is as I have described well established. In Dasreef Pty Ltd v Hawchar35 Heydon J identified one such essential condition as the “proof of assumption rule”. The majority of the Court in Dasreef did not consider the rule, but that cannot have the effect of reversing long standing authority identified in Heydon J’s reasons. Heydon J described the principle in these terms: “[66] The authorities. There is also no doubt that the proof of assumption rule exists at common law. An expert opinion is not admissible unless evidence has been, or will be, admitted, whether from the expert or from some other source, which is capable of supporting findings of fact which are sufficiently similar to the factual assumptions on which the opinion was stated to be based to render the opinion of value. There is authority for the rule in 32 [2012] QCA 183. 33 [1989] 1 Qd R 108. 34 [2008] QCA 317. 35 (2011) 243 CLR 588 at 613 – 614. -- 14 of 22 -- 15 this Court; in the Federal Court of Australia; in New South Wales; in Victoria; in Queensland; in South Australia; in Western Australia; in the Australian Capital Territory; in England; in Scotland; in New Zealand; and in Canada. The Victorian Court of Appeal (Ormiston, Vincent and Eames JJA), speaking of a proposition that an expert opinion without any evidentiary basis is inadmissible, said: ‘The situation requires no elaborate exposition of the legal principles nor is the extensive citation of authority required with respect to such a basic proposition’.” (extensive citations omitted) [59] The authorities that Heydon J collected to support his assertion that this rule applied in Queensland were: R v Tonkin36; R v Gardner37; Bromley Investments Pty Ltd v Elkington38; R v Ping39. [60] In R v Ping Chesterman J said (Williams and Jerrard JJA agreeing): “[41] One other point should be mentioned; it concerns the evidence of the psychologist, Mr Jones. His evidence was improperly admitted. That now is of no consequence because of the orders already made, but the reason for the inadmissibility should be examined in the hope that the error which led to its admission will not be repeated in other cases. [42] Mr Jones expressed his expert opinion that Mr Loncar suffered a severe stress disorder. It may be assumed that he also expressed the expert opinion that the cause of the disorder was the appellant’s violent mistreatment of the complainant. [43] Mr Jones was a properly qualified clinical psychologist. He was, relevantly, an expert whose opinion might be admitted into evidence. Before it could be accepted, however, the factual basis for the opinion had to be explained to the court. Mr Jones had to recount the facts on which he based his opinion. To do that he had to give in evidence the history he took from the complainant about his symptoms and what led up to them. Mr Jones’s rehearsal of those facts would not prove them but once he had said what he understood the facts to be on which he formed his opinion that opinion could be provisionally admitted into evidence. If the facts were proved by someone who had knowledge of them, in this case the complainant, the opinion would be admitted unconditionally. It (sic) the facts were not proved the condition on which the admission depended would be unsatisfied and the opinion could not be acted on by the tribunal of fact. [44] There is nothing new in any of this. It should be well understood by all counsel. The rules relating to the admission of expert opinion evidence were recently reviewed by Heydon JA in 36 [1975] Qd R 1 at 17. 37 [1980] Qd R 531 at 535. 38 (2002) 43 ACSR 584 at 593 [50]. 39 [2006] 2 Qd R 69 at 79 [43]. -- 15 of 22 -- 16 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at 729–742. His Honour noted (731–732): ‘The basal principle is that what an expert gives is an opinion based on facts. Because of that, the expert must either prove by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based. If other admissible evidence establishes that the matters assumed are “sufficiently like” the matters established “to render the opinion of the expert of any value”, even though they may not correspond “with complete precision”, the opinion will be admissible and material …’ [45] This has been the law for many years. In Ramsay v Watson (1961) 108 CLR 642 at 648–649 the High Court pointed out that a medical specialist ‘is ordinarily allowed to state the “history” he got from the patient’ because ‘statements made to an expert witness [are] admissible if they are the foundation, or part of the foundation, of the expert opinion …’. Such statements are not evidence of the existence of the facts recounted and ‘if the man whom the physician examined refuses to confirm in the witness box what he said in a consulting room’ the opinion will have little or no value, depending upon the facts of the case. The same rule is true for a psychiatrist: see Gordon v R (1982) 41 ALR 64. [46] This elementary rule having been overlooked, Mr Jones’s opinion was inadmissible.”40 [61] Chesterman J’s reasons at [43] were referred to with express approval by Heydon J in Dasreef. I am conscious that the proof of assumption rule applies to the admissibility of the opinions expressed and not to the report containing those opinions, but here, and usually, the two are inextricably intertwined. The report is tendered to get before the Court the opinions of the expert, the rules requiring that the evidence in chief of an expert be lead in that way and that the report set out the relevant assumptions. [62] If the principle identified in Robert Bax extends so that, upon tender of an expert report, the recitation of the facts in the report, assumed from a hearsay source, is accepted as proof of the truth of those facts recited then the proof of assumption rule is undermined and indeed discarded. The rule identified in Ramsay v Watson and applied in Ping becomes – only if objection is taken to the hearsay nature of the evidence does the party tendering the report come under an obligation to prove the basal facts. The rule in Ramsay has never been so expressed, as far as I am aware. [63] There is a further concerning feature if the application of the principle is as contended for. The assumption underlying any such tender is that the counsel tendering is in a position to prove the facts recited, or at least those essential to the opinion. If it were otherwise counsel would be deliberately putting before the court evidence that was inadmissible and which counsel knew could never become admissible. Tender in such circumstances would be tantamount to misleading the court. In such a situation it is impossible to see any waiver of a right to limit the use to which the evidence may be put. 40 My emphasis. -- 16 of 22 -- 17 [64] As well there are practical considerations all of which are against the adoption of the practice said to underlie the rule. To require that counsel take formal objection to such material every time a report is led in evidence creates needless work, consumes valuable court time without any purpose, penalises a party unfairly should counsel blunder, and potentially rewards unmeritorious cases. [65] The view that it is incumbent on counsel to object to hearsay statements rests, as I follow the authorities relied on by Muir JA, on two grounds. One is the doctrine of waiver. The other is the point identified by Callaway JA in R v LRG.41 His Honour there said concerning the reception of hearsay evidence without objection in a criminal trial: “That need not be because of the doctrine of waiver. It is because the reception of hearsay, to which no objection is taken, is an ordinary incident of a trial regularly conducted. Indeed, it would be difficult to conduct most trials without the reception of some technically inadmissible evidence.” [66] In my view neither ground provides any basis for the reception of such statements in expert reports as truth of the facts set out. As to Callaway JA’s point, it is not an “an ordinary incident of a trial regularly conducted” that such statements are admitted to prove their truth – quite to the contrary. The point is that the inclusion of such material in an expert’s report is essential to its admissibility, done for a clearly identified purpose and no other, and not inadmissible. That approach accords with the views of Gibbs J in Hughes v National Trustees Executors and Agency Co of Australasia Ltd42 where his Honour held (Mason and Aickin JJ agreeing): “There are no doubt some cases in which inadmissible evidence, having been admitted, may be treated as evidence for all purposes; for example, where one party by his conduct at the trial has led the other to believe that evidence, although hearsay, may be treated as evidence of the facts stated, and the other in reliance on that belief has refrained from adducing proper evidence, the former party is precluded from objecting to the use of the evidence to prove the facts stated. However, in general it is the duty of a judge to reach his decision on evidence that is legally admissible, and to put evidence only to those uses which the law allows. When a statement is admitted, not as evidence of its truth but simply as original evidence, the mere fact of its admission cannot enable it to be given an additional probative value which the law denies it.” [67] It is worth observing that in Robert Bax Muir JA quoted this and other passages from Gibbs J’s judgment in Hughes. There was no statement that the decision did not reflect the law applicable in Queensland. One should assume Gibbs J to be thoroughly familiar with the long standing practice that Muir JA based his decision on, his Honour being the pre-eminent counsel in Queensland over the decades encompassing and prior to the authorities cited by Muir JA. Gibbs J did not restrict his remarks to statements made by a testatrix (the evidence there concerning the testatrix’s state of mind). It may be Muir JA’s thought that the statements were distinguishable from the hearsay evidence under consideration in Robert Bax. They 41 (2006) 16 VR 89 at [13]. 42 (1979) 143 CLR 134 at 153. -- 17 of 22 -- 18 were oral not in writing. And it is not evident from the judgments (or the decision in the Court below43) whether objection was taken to the admission of the statements in question. The judgments do speak of a long standing practice to admit such statements. If there be one rule in one type of case and one in another then the question is why should the practice relied on by Muir JA extend to hearsay statements in expert reports? [68] The approach I prefer accords too with the views of Walsh J when sitting in the Full Court of the Supreme Court of New South Wales where his Honour said: “I think that a failure to object may carry more extensive consequences as to the use which can afterwards be made of the document, if it is clear that an objection would have been sustained, than such a failure would carry if the document is admissible, although only upon some limited ground or for some limited purpose. In the former case, the failure to object may more readily be taken as an assent to the full use of the document for whatever probative value it may have.”44 [69] As to the doctrine of waiver, in my respectful opinion the better view, at least concerning statements in expert reports, is that admissibility depends upon application of that doctrine as explained by McLelland J in Ritz Hotel Ltd v Charles of the Ritz Ltd45: “The application of [the] rule [against hearsay] may … be waived by the parties. Both parties must join in the waiver since a testimonial statement, properly admitted as such, is available to be used for or against either party … The tender of a statement may amount to a waiver by the tendering party of the application of the hearsay rule to that statement, and the absence of objection to the tender may amount to such a waiver by the party against whom the tender is made, but only in my view where such a waiver on each side can reasonably be inferred from the circumstances, and this will occur only where there is no other apparent explanation of the tender and the absence of objection. The most obvious instance of this is where the statement, as original evidence (that is, otherwise than as evidence of the truth of assertions in it) could not be relevant to any issue. If however the statement would be (or is tendered on the basis that it is) relevant to an issue in the proceedings as original (that is, non-testimonial) evidence, then it is not possible to infer either from the tender or the absence of objection, a waiver of the operation of the hearsay rule.” (my emphasis) [70] It should be borne in mind that the concept of waiver here is, as Lord Bingham of Cornhill said in Millar v Dickson,46 generally used “…to describe a voluntary, informed and unequivocal election by a party not to claim a right or raise an objection which it is open to that party to claim or raise”.47 In R v Clark,48 Nettle JA (as his Honour then was) suggested that, in relation to the reception of hearsay evidence, 43 Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1978] VR 257. 44 McLennan v Taylor (1966) 85 WN (Pt 1) (NSW) 525 at 528. See also the extensive review of the authorities by Samuels JA in Jones & Anor v Sutherland Shire Council [1979] 2 NSWLR 206. 45 (1988) 15 NSWLR 158 at 170; 88 ALR 217 at 231. 46 [2002] 1 WLR 1615, referred to with approval in R v McCosker [2011] 2 Qd R 138 at [10]. 47 At [31]. 48 [2005] 13 VR 75 at [61]. I quote from the summary of the decision by Peter Lyons J in R v Seymour [2012] QSC 14 at [56]. -- 18 of 22 -- 19 waiver may be constituted by the combined effect of the failure to object, and an address at the end of the case which accepted the potentially probative value of the evidence. Here there was no unequivocal election not to claim a right. And while Nettle JA’s remark responded to the exigencies of that case, and should not be taken as setting the limits on the reception of such evidence, it is worth noting that far from the respondent accepting the probative value in address, the appellant did not even claim that the statement had that probative value at trial. [71] Muir JA’s answer to this point of waiver was that the practice in Queensland was otherwise. In the context of the documents under consideration in Robert Bax there was authority supporting the existence of the practice. It may be doubted that the practice, at least when applied without qualification, conforms to the law as explained by Gibbs J in Hughes. But no authority pre-dating Robert Bax was cited in which that practice has been said to apply to hearsay statements led in evidence in expert reports, as here. As I have sought to show if the principle identified by Muir JA extends to such statements then it fundamentally undermines the condition of admissibility of the document tendered, promotes inefficiencies in the conduct of proceedings, and effectively encourages the placing before the Court of inadmissible evidence. I do not mean to say anything like that has occurred here. The justification that this approach reflects “long standing practice” seems to me to provide a very doubtful foundation for the principle. [72] In summary, I doubt the application of the principle, if it applies the evidence establishes no more than that the appellant had no relevant recollection years later, and even if the statement went to proof of the extent of the training received the statement should be given no probative force. [73] In my view there was no evidence before the Court on which a finding could be made of the training that the appellant had received, nor did the evidence provide any basis for a finding that he had not received the training the ergonomist spoke of. Causation [74] Sections 305D and 305E of the WCRA are relevant to the question of causation. Those sections provide, so far as is relevant to the issues here: “305D General principles (1) A decision that a breach of duty caused particular injury comprises the following elements— (a) the breach of duty was a necessary condition of the occurrence of the injury (factual causation); (b) it is appropriate for the scope of the liability of the person in breach to extend to the injury so caused (scope of liability). … (3) If it is relevant to deciding factual causation to decide what the worker who sustained an injury would have done if the person who was in breach of the duty had not been so in breach— (a) the matter is to be decided subjectively in the light of all relevant circumstances, subject to paragraph (b); and -- 19 of 22 -- 20 (b) any statement made by the worker after suffering the injury about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. 305E Onus of proof In deciding liability for a breach of a duty, the worker always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.” [75] The issue here concerns the factual causation question, not the scope of liability question. The onus lay on the appellant to show not only that he had not received the training that is now the focus of his claim but that he did not otherwise know of it at the relevant time. He also had to show, on the balance of probabilities, that had he received that training it would have made a difference to his actions and so avoided the relevant risk of injury.49 [76] It follows from the discussion concerning breach that if the Court cannot say with any degree of certainty what the appellant already knew then no conclusion can be drawn as to what effect any further training may have had on him. For all that the evidence shows the appellant knew the basic and fundamental points urged by the ergonomist. [77] Nor is it immediately apparent that had he received the training it would have made a difference to his actions. [78] Consideration of the risk assists in assessing the efficacy of the proposed means of meeting the risk. The injury that eventuated here appears to have occurred as a result of the falling back after the sudden giving way of the vicegrips when the locking pin unjammed. Evidently the appellant had not braced himself sufficiently to prepare for that eventuality, an eventuality that he was trying to bring about. That led to the awkward falling backwards and twisting. The fall was within the cabin of a truck (“I fell backwards into my seat”) and could only have been over a relatively short distance. The appellant had to show that the instruction and training urged would have brought to the appellant’s mind the inadvisability of doing what he did – reaching out at arms’ length to apply some level of force to a jammed pin when supported to the extent that he was by the structures within the cabin. [79] The training that the ergonomist urged as necessary was only tangentially relevant to the task at hand. It will be recalled that the ergonomist described the training going to “avoiding significant lifting force at a distance from the body especially while twisted and bent”. It was common ground that an employer could not have been expected to provide training in so particular and presumably rare a task as how to unjam a stuck locking pin of a truck door. The issue is whether the appellant would have appreciated that the risks of injury that such training alerted him to were involved here. [80] In that regard I note that the evidence is silent as to the amount of force applied by the appellant to the jammed pin. So, whether the force applied by the appellant to the 49 Queensland Corrective Services Commission v Gallagher [1998] QCA 426 at [26]–[27] (per de Jersey CJ) citing Vozza v Tooth & Co Ltd (1964) 112 CLR 316 at 319; Turner v South Australia (1982) 56 ALJR 839 at 840 per Gibbs CJ. -- 20 of 22 -- 21 locking pin would fall within the description “significant lifting force” either from his perspective or at all is a moot question. Nor was it shown that the force that was applied was so applied when the appellant would have considered his body to be “twisted and bent” within the meaning of such an instruction. Finally the injury did not occur directly from the act of “lifting”, if the use of the vicegrips could be so described, or from the posture adopted, but because of the nature of the fall – there was some twisting involved then.50 [81] The ergonomist avoided answering a direct question as to whether the training that he had urged had been found to be effective in persuading workers to avoid such postures. His response was that the training need to be repeated, preferably annually. This provides some further ground for doubting whether, assuming that the appellant was ignorant of the basics urged by the ergonomist, training of the sort urged which could have been given, consistently with good practice, perhaps up to a year before the incident, would have made any difference to his actions. [82] This is not to ignore the features of the evidence in the appellant’s favour, factors such as him being a good employee, compliant with instructions and diligent in his work. [83] A complaint is made of her Honour’s reference in her conclusion to the appellant’s lack of knowledge of the pre-existing vulnerability in his back. The appellant seeks to construe that as a misapplication of the proper test of causation. I think it evident that her Honour was merely pointing out that absent that knowledge there was no reason for the appellant to take any particular care. That was but another factor justifying the conclusion that provision of the training urged was not likely to have made any difference to his actions. [84] In my view the trial judge’s view is not shown to be wrong – “there was no evidence of the fault in manual handling training or what additional training would be necessary for Mr Beaven to have decided not to act in the way that he did on the day in question.” Quantum [85] Given my views on the liability issue there is no need to explore the quantum issues in any depth. [86] The complaint here is as to the extent of the discount applied by the learned trial judge to the award for past and future economic loss. Her Honour applied a 30 per cent discount to both past and future loss components to account for two factors – a degenerative back condition and the possibility that the appellant would have given up his employment to care for his ill wife. [87] Speaking generally a discount of an award for economic loss in the past involves different considerations to the discount appropriate for the future. Apart from anything else the past history is certain. So it is known in this case that others were available to care for the ill wife and did so from accident to trial. And it is also known that no further injury to the back was in fact sustained by the appellant. I appreciate that her Honour was required to consider the hypothetical situation of a past assuming that the subject injury had not occurred. But generally speaking the knowledge of the 50 AR 14/46; and in cross examination 35/24 – 43. -- 21 of 22 -- 22 past that has occurred can inform to some extent the discount that might be appropriate. The future is of necessity more uncertain. In the usual course one would expect those different consideration to lead to different discounts. I turn then to the specific questions here. [88] As to the need to care for the ill wife - I cannot accept that the evidence justified a significant discount for the possibility that the appellant would have given up his work to care for his wife. They were estranged, albeit on friendly terms and living under the one roof. The proposition that he would give up his work was not squarely put to the appellant to enable him to answer it and point out why the proposition may not have been likely. Nor was the proposition put to the spouse who gave evidence. A decision to give up work, and reasonably well paid work, to care for another even where there might be some marital obligation to assist is by no means certain. The fact that the appellant had helped out from time to time in the past provides scant support for the proposition. In the circumstances here the suggestion was little more than speculative. [89] The need for a substantial discount to account for the appellant’s vulnerability to injury could not be, and was not, the subject of complaint. The submission was that the discount applied was too great. The evidence here was in the usual form that there existed a degenerative condition in the spine and that this rendered the appellant vulnerable to symptoms of back pain of uncertain severity from relatively trivial incidents. What was required from the learned trial judge was an evaluation of the chance of such an event occurring, as explained in Malec v JC Hutton Pty Ltd.51 [90] Evidently the learned trial judge would have discounted for something less than 30 per cent if the care possibility was taken out of the equation. Her honour did not identify what that component might be in her thinking. [91] This case has the peculiarity that the past and future periods under consideration were of about the same length – five years. If the evidence justified discounting for the factors mentioned then the fact that similar periods of time were under consideration would provide some justification for the same discount. [92] Had the trial judge identified what discount she apportioned to the vulnerability issue I would have been reluctant to interfere with the decision. Obviously different minds can have different views on what is appropriate. In the absence of that indication, given the relatively short time frames, given the absence of any further injury between the subject incident and trial, and given my view that the likelihood of an interference to employment to care for the ill wife was no more than speculative, I would have assessed a discount of no more than 20 per cent. Conclusion [93] I would order that the appeal be dismissed with costs. 51 (1990) 169 CLR 638; see also Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 at [104] – [109] per Ipp JA; Phillips v MCG Group Pty Ltd [2013] QCA 83 at [57]. -- 22 of 22 --