Adams v Scobie

[2020] NSWDC 620

District Court

New South Wales

Medium Neutral Citation:

Adams v Scobie [2020] NSWDC 620

Hearing dates:

1 October 2020
2 October 2020
8 October 2020
9 October 2020

Date of orders:

9 October 2020

Decision date:

09 October 2020

Jurisdiction:

Civil

Before:

Montgomery DCJ

Decision:

1. Parties to email to my Associate by 9:00am on 15 October 2020, a schedule outlining complete calculation of past economic loss including entitlement to superannuation on the basis given.

2. List the matter for final orders on Friday, 16 October 2020.

Catchwords:

Damages – Assessment – Past Economic Loss – Future Economic Loss – s 126 Motor Accidents Compensation Act 1999 (NSW) – Buffer – Diminution of Earning Capacity – Future Attendant Care Services – Past and Future Medical Expenses

Legislation Cited:

Motor Accidents Compensation Act 1999 (NSW) ss 83, 84, 126

Category:

Principal judgment

Parties:

Nigel Adams (Plaintiff)

Russell James Scobie (Defendant)

Representation:

Counsel:

Mr G.Bateman (Plaintiff)

Ms J.Gumbert & Mr D.Hanna (Defendant)

Solicitors:

Robert Bryden Lawyers (Plaintiff)

Moray & Agnew Lawyers (Defendant)

File Number(s):

2020/00127460

Publication restriction:

N/A

Judgment (EX TEMPORE)

1. The plaintiff claims damages for personal injury suffered in a motor vehicle accident on 29 March 2017. His entitlement to damages is governed by the provisions of the Motor Accidents Compensation Act 1999 (hereafter referred to as the “MAC Act”). Past treatment expenses are agreed. The plaintiff makes no claim for non‑economic loss.

2. The plaintiff’s medico‑legal expert witness, Dr Bentivoglio, assessed Whole Person Impairment at 5%. The defendant’s medico‑legal expert witness, Dr Home, assessed Whole Person Impairment at 0%. They applied the AMA‑4 methodology. The common medical opinion is that the plaintiff does suffer a permanent impairment with continuing symptoms caused by the motor accident. No assessment has been issued under Pt 3.4 MAC Act.

3. The agreement as to past treatment expenses is in the amount of $14,981.31. It is agreed that the insurer is entitled to deduct a total of $12,754.43 on account of s 83 payments in the sum of $5,754.43 and s 84 payments in the sum of $7,000.

4. The plaintiff was born on 14 December 1979 and is now 40 years of age. He was educated until achieving his year 10 school certificate in 1995 at Canowindra High School. Significant detail of his work after leaving school was the subject of evidence. All of his work has been of a manual labour variety and none of it clerical or executive type work. He claims that, at the date of injury, he weighed about 130 kilograms and that at the date of trial, about 150 kilograms. That weight gain and that it has been caused by or perhaps more properly stated is, the result of reduced activity brought upon him by suffering the impairments of his injuries is corroborated in the Exhibit Q clinical notes.

5. Immediately after leaving school, he achieved a trainee position as a stores officer at Bathurst Correctional Centre and he described having sought and obtained that work as taking the opportunity to have something on his resume when seeking future employment. Between March 2003 and February 2005, he worked in Sydney in retail. His duties involved some manual work, marking of stock and serving customers. At about this time at an abattoir, he achieved the obtaining of his forklift operators’ licence. From March 2005 to June 2006, he worked with Blayne Galvanising, but this work stopped when the business shut down. Between July 2006 and September 2006, he worked as a sandblaster/spray painter assistant at Challenge Implements. This continuous period of employment after leaving school at the end of year 10 culminated in him working for nine years between November 2006 and November 2015 as a crane operator/labourer at Industrial Galvanizers.

6. It can be seen from the history of his employment to this point – that is to November 2015 – that the plaintiff had what would be properly described simply as a history of full‑time permanent employment from having left school at the end of year 10 during which he had attempted various types of work and advanced himself by obtaining his forklift operators licence, his crane drivers certification and his dogman certification.

7. Returning to Industrial Galvanizers; this was heavy work. His duties included working as a dogman, crane operator and the lifting of very heavy steel. At the time, he was living at Mount Druitt. His work with Industrial Galvanizers ended when he resigned because he suffered an extreme grief reaction resulting from the death of his father, with whom he was very close. He said that he knew he had to get back to work and between December 2015 and October 2016, he worked short term contract roles for labour hire companies whilst he “pulled himself together”.

8. The plaintiff had an acquaintance named Paul Tinker who was employed at Toyota Motor Corporation (hereinafter referred to as “Toyota”). For a long time, the plaintiff had wanted to get work there and was encouraged by Mr Tinker to do so. Following what he described as a relatively lengthy job application process, including a full medical examination and attending an interview, in November 2016, he commenced work with Toyota.

9. I comment that, on the evidence, to the time of his commencing work with Toyota, the plaintiff had but for interruption of a period of about a year or a bit less during which he suffered the extreme grief reaction on the death of his father, maintained full‑time work. Even on the death of his father, he knew that getting back to work and pulling himself together, as he put it, was the course he sought. Therefore, at the commencement of his employment with Toyota, his intention was to pursue full‑time, permanent employment with the company in the same way that he had done for the whole of his working life but for the interruption caused by the grief reaction consequent of the death of his father.

10. At the time of his commencement for work at Toyota, he had only suffered one injury which was to his lower leg. It occurred in 2013 whilst employed at Industrial Galvanizers. He was then acting as a dogman chaining a beam which rolled onto his leg. He said that he recovered over a period of about four to six months. He denied any physical disability or restriction affecting his capacity to work at the time he suffered the subject motor vehicle collision. In particular, there is no evidence of a prior history of back symptoms. I have received no submission to the contrary of the fact that he was a physically fit and able person for the performance of manual duties with the trade certifications to which I have referred at the time of the subject motor vehicle accident. Indeed, following his lower leg injury, he returned to the performance of very heavy work at Industrial Galvanizers.

11. The plaintiff described the human resources practice at Toyota to be that the company offered new workers a six month full‑time renewable contract pursuant to which the worker was paid and received the full standard benefits of a full‑time permanent worker. If the worker after the two periods under six month renewable contracts was successful, Toyota would offer a full‑time permanent contract.

12. Pursuant to those permanent Toyota contracts, there were even better and what one might call special benefits, such as the provision of a new Toyota Corolla motor car at a cost of $45 per week with free servicing and changeover at 20,000 kilometres. Below, I will again refer to the fact that the plaintiff does not put his case for assessment of future economic loss on the basis of comparable workers at Toyota, including the economic value of those benefits. For that reason, it is not necessary that I consider them further. They are, however, in my opinion, worth mentioning because at the end of the case I have to consider, according to the provisions of s 126 MAC Act, what is reasonable for future economic loss. That in turn contemplates whether that which is submitted to me by the parties is reasonable, and by that, whether the figures suggested are at the highest point or at the lowest point of possibilities.

13. Returning to his employment with Toyota, his employment duties at Toyota included picker/packing. On the ground floor of the premises, the products were heavy and included things such as starter motors and quarter panels. The plaintiff’s evidence was that basically all the parts that one would want or require to build Toyota motor cars were stored at the premises, and the heavier of those parts were on the ground floor. There was a mezzanine floor, on which the lighter products were stored. Lighter products included such things as wiring and clips.

14. Working on the ground floor, as he was prior to the motor accident, he drove a chaser vehicle which pulled a trailer, onto which the stock was placed by him. He also drove a counter-balanced forklift. He gave some descriptive evidence of forklifts, not necessarily specific to the forklift that he was driving when working with Toyota. He said that forklifts - and I understand him to have been referring to the type most commonly driven by him and most commonly seen by us all – have workloads of 1.5 to 5 tonne, and generally have three wheels. They are weighted at the back. These forklifts are counter-balanced forklifts. He described another type of forklift as a “high-reach vehicle”, which is used for working stores from high shelves. Working a high-reach forklift often requires the driver to arch his or her back to look up as it works higher shelves, unless the machine, as some do, has a camera for the operator. He described his work as Toyota as an “awesome job”. Workers were allowed three break periods per day – not the usual two.

15. The motor vehicle accident on 29 March 2017 involved significant “violence”, as it was described by him. Whilst he was stationary in his Subaru motor car at an intersection, the defendant’s Nissan Patrol cut a corner and crashed into the front section of his car. Obviously, the Nissan Patrol is a very large type of motor vehicle. The plaintiff described its wheel mounting the bonnet of his Subaru car. He said that he was thrown about in the seat. He felt shaken and shocked, but was worried about his daughter, who was a passenger in his car. The collision occurred at about 5.29am, when he was driving his daughter to a friend’s home to drop her off, for that friend to take her to school with their child. His intention had been to continue on from that place to his work at Toyota. He did not work that day. He telephoned the police, telephoned his work, and telephoned his insurer. His legs felt like jelly, he was shaking, and, as he put it, he was “a little bit” sore.

16. The day after the motor vehicle accident, the plaintiff attended work and attended his regular GP, Dr Marcus. At work, he was to perform what he called “export”. That work involved a lot of bending to put boxes in a container. He felt pain in his back and was having trouble breathing. He notified the floor supervisor pretty much straight away. He told Dr Marcus that he was struggling to breathe. He was tender to touch at the ribs. The common ground is that, in the motor vehicle accident, the plaintiff suffered rib fractures and injury to his lower lumbar back. Separate consideration of the consequence of fractures to his ribs is not necessary for the purposes of the assessment of damages in this case because the overriding and persistent impairment is the result of the low back injury. The plaintiff's ribs recovered normally.

17. The plaintiff did not recall precisely the day of his return to Toyota. When he did return to Toyota, he was performing light duties. This involved his work being restricted to working with the lighter parts on the mezzanine level. However, his work still involved significant walking and standing for long periods. His back and his legs ached. He would try to "duck off" in order to stretch and relieve some of the ache. He did this by going to the toilet to stretch, or going to places where cameras did not expose activity so he could stretch for relief.

18. The plaintiff attended Dr Marcus six times in the month following the motor vehicle accident. On each of those occasions, the consultation concerned his back injury. He was provided medical certificates for light duties. By 22 April 2017, he was limited in lifting capacity to five kilograms.

19. In May 2017, his first six month renewable contract expired and Toyota agreed to a further six month term renewable contract. This meant that on 21 November 2017, if he was to achieve full time permanent employment with Toyota, the contract would be then offered. Ultimately, he was not offered that permanent position. He conceded in cross‑examination that he cannot say definitely that Toyota would have offered him a permanent position, but he believed that Toyota would have done. As he put it to the cross‑examiner, "You can't say I wouldn't" have been offered the full time job.

20. Mr Fara, the plaintiff's Warehouse Trainer, and Mr Tinker, the plaintiff's Team Leader, being the persons responsible for his assessment toward the prospect of permanent employment, and at a level immediately below the executive level at which the decision of whether or not to offer the plaintiff a contract for permanent employment was offered, both gave evidence that the plaintiff had performed well at work; albeit, after the motor vehicle accident, his performance was noticeably slow, he remained on restricted duties, performing only the light work at the mezzanine level, and his absences increased. Mr Tinker remembered that he recommended to Toyota management that the plaintiff be retained.

21. The plaintiff was told at a separation meeting with Toyota that he had to get his injury “Sorted.” During his employment with Toyota, he had been told that he was being trained to work at the new premises being established at Kemps Creek. The plaintiff’s Workplace Trainer, Mr Fara, said that the new factory site was to be at Wetherill Park. He confirmed, however, that the plaintiff was one of the persons taken on by Toyota during 2017 with the view to train them for work at the new site, because they lived in better proximity to it than many of Toyota’s then current workers. He was a worker who was willing to move to maintain work, whether it was properly described as at the new site of Kemps Creek or Wetherill Park, in order to maintain his employment.

22. It was put to the plaintiff, by reference to a letter written by someone at Toyota to Dr Marcus, dated 10 July 2017, that his employer had concern that his behaviour when he telephoned his supervisor concerning his capacity to work conveyed the impression that he was inebriated or otherwise mentally affected. The plaintiff did not dispute that impression might have been gained. He said that Mersyndol Forte, which he was prescribed for his pain, made him drowsy, and in addition to this he experienced psychological stress. There is, indeed, support for his belief, in Dr Marcus’s letter of 28 July 2017 responding to Toyota’s inquiry. The letter is dated only two weeks after Toyota’s letter. Dr Marcus, at the time, took the plaintiff off Mersyndol Forte, despite noting “worsening back pain.” At the time, he was treating the plaintiff for back pain and psychological factors. Consequently, if Toyota took a concerned view of the plaintiff at the time for those reasons, the sequelae and circumstances caused by the motor vehicle accident may have been at least contributing to the impression the plaintiff gave.

23. As I said, the plaintiff case for economic loss is not put on the basis of net earnings, at comparable Toyota workers’ remuneration and benefits value from date of injury and into the future. The plaintiff case for economic loss is put on the basis of net earnings at 1 July 2017, approximately the date of injury. The defendant agrees that sum of $807 to be the plaintiff’s then net earnings. If the plaintiff’s case had been put on the basis of comparable earnings with Toyota workers, then it might have been necessary, in order for the plaintiff to satisfy his s 126 onus of proof, to have shown that the injury, in fact, caused him to have not been retained in the Toyota work permanently. Because the plaintiff’s case is not put on that basis, it is not necessary for him to prove that fact.

24. Mr Fara and Mr Tinker could not say why he had not been retained. The plaintiff may well be justified in holding a personal view, subjective as it might be, that he was unsuccessful because of the fact that, for 8 months prior to the separation meeting, and his being unsuccessful, he had been limited to light duties with increased time off, and that due to the impairment he suffered resulting from his injuries, he was observed to be a slower worker than he had been before. As his case is put, the significance of his history of employment with Toyota is that it shows that, but for the interruption resulting from the grief reaction following the death of his father, as at 21 November 2017, the plaintiff continued, as he had done for his whole working life, to attempt to maintain full-time permanent positions of the type of work I have described.

25. A feature which brings clarity to consideration in this case is the regularly kept medical record from the plaintiff’s attendances on his treating GP, Dr Marcus. The plaintiff conceded, as is reflected in Dr Marcus’ Workcover Certificate records for the period 24 April 2017 to 22 May 2017 – obviously a period of about one month – that Dr Marcus attributed his unfitness for work to arise from psychological causes. A tragic circumstance was reported by the plaintiff to Dr Marcus at his consultation on 24 April 2017. I adopt the courtesy shown by counsel and do not report here the detail of that event. There is no secret about it for the purposes of consideration of the assessment of damages. It appears in Exhibit Q p 66. What is important is that the plaintiff’s distress was in regard to the suffering of an immediate family member. The stressor event was of a one-off nature. His distress did not arise out of his personal lifestyle or circumstances. Finally, I would comment that the event was one of such tragedy and nature, that I would expect most reasonable persons to be caused severe distress were it to come into their life. The plaintiff did authorise Dr Marcus to inform his employer, Toyota, of the psychological stressor and its consequences. This is the letter of 28 July 2017, to which I earlier referred. It appears in Exhibit Q pages 256 to 258.

26. Dr Marcus wrote to Toyota referring to the lumbar spine injury and his contact with Toyota’s “return‑to‑work co‑ordinator” about Toyota having found suitable duties for the plaintiff while, as it was hoped, his back recovered. The letter reported that, with the ongoing guidance of the plaintiff’s physiotherapist, progress was being made with his injury, and the plaintiff was attending work with modified duties. After referring to the time off in relation to the specific tragic family stressor, Dr Marcus wrote to Toyota summarising the position as follows:

“Personal and family stressors have likely contributed to a worsening of his back pain and complicating issues further is that his CTP insurance company refused to release funds for physiotherapy for several weeks but we have had confirmation today that they will start paying for his physiotherapy. To help the plaintiff with his back pain, we have tried a variety of medications to help him recover. Some of these medications are likely to cause drowsiness but they have all been ceased now. The plaintiff is just on regular anti‑inflammatories which should not affect his mental state. I reviewed the plaintiff in my rooms today and I am satisfied that his mental health is stable and poses no risk to himself or his colleagues at work.”

27. Dr Marcus’ letter corroborates drowsiness caused by medication at the time of the Toyota letter (referred to above) mentioning concerns because of the impression gained when the plaintiff was on the phone to his supervisor talking about capacity to work, that he was inebriated. It was not put to the plaintiff that he had or has a substance or alcohol use problem. In his report, Dr Marcus assessed the plaintiff as not fit to drive safely from his home to Toyota because of his back pain. The plaintiff did continue to suffer back pain in the period through which he took stress leave from his work at Toyota.

28. Between 15 May and 29 May 2017, Dr Marcus continued to certify the plaintiff to work with a lifting restriction of 5 kilograms. On 23 May 2017, Dr Marcus recommended the plaintiff try returning to full‑time duties subject to ongoing review. On 2 June 2017, the lifting restriction was increased to 10 kilograms. On 13 June 2017, to 12 kilograms. On 4 October 2018, Dr Marcus recommended lifting capacity to 20 kilograms. I will come to the clinical notes of Dr Marcus in some detail as I must.

29. Exhibit 4 is a schedule in a simple fashion listing certificates specifying work restriction and stating the certificates’ recorded cause, such as “Back,” or “Illness,” or “Psychological.” Exhibit 4 does not record the whole of the literature explaining the plaintiff’s incapacity. Given the view the defendant has taken in submissions to the plaintiff’s past economic loss and future economic loss, it is required that Exhibit Q, objective clinical records, be referred to in order to add to the picture not fully exposed by the limited Exhibit 4. Within that, there are indeed periods where the plaintiff was certified to try normal duties. On the whole of the evidence, it was always on a “See how you go” basis.

30. On the whole of the evidence, the plaintiff has a chronic low lumbar back impairment, and, whereas for him the incapacity is real and ongoing, for another person radiological findings not unlike his may cause, in the circumstances of their suffering, lesser or greater impairment. I accept the plaintiff’s description of his impairment: it is corroborated extensively by not just the evidence of Messrs Tinker and Fara of the eight months post‑injury, but by his persistent attempts to regain employment after not being offered full‑time, and permanent employment at Toyota on 21 November 2017.

31. A period of approximately one year between his separation from Toyota and about 8 October 2018 deserves particular comment, and I will come to that. More recently, on 21 February 2020 a medical certificate by Dr Roman limited his lifting recommendation to 15 kilograms. It is not necessary to be precise as to periods between the date of the motor vehicle accident and the present when the plaintiff worked full duties, very restricted duties, or was unfit to work at all. His impairment continued and he worked to his medically advised limitations. He was cross‑examined substantially on the history of medical certificates, mostly those of Dr Marcus, directed to his work capacity from time to time. There are approximately 60 such certificates relied on by the defendant, in Exhibit 4, between 30 March 2017 and the present. They confirm periods away from work due to illness, rather than specifically due to his injuries received in the motor vehicle accident, from time to time. They also identify certificates for unfitness for work, in which the doctor recorded the reason as “Psychological.” The plaintiff agreed that relationship problems caused detriment to his functional capacity for a period post‑injury. However, it can be seen from the objective evidence of Exhibit Q, to which I will come, that the plaintiff’s repeated answer that psychological factors were only part of the picture, and that, even when he went to the doctor for referral to the psychologist, his global limiting situation involved back pain and was mixed with circumstances where he was not coping whilst in back pain, is borne out by that objective evidence.

Judgment coNTINUED (EX TEMPORE)

32. In September 2017, Associate Professor Sheridan, treating neurosurgeon, consulted with the plaintiff on referral from Dr Marcus. In his reports dated 29 September 2017 and 4 December 2017, Associate Professor Sheridan observed that the plaintiff suffered persisting pain, a disc bulge at several levels and desiccation of the L5/S1 disc, as well as inflammatory changes at that level of his spine, which were consistent with his injury and his complaints of ongoing pain. Associate Professor Sheridan advised the plaintiff that surgical treatment was not appropriate but that he needed ongoing physiotherapy, a supervised exercise and rehabilitation program and that he would benefit from guidance by an exercise physiologist as well. Dr Sheridan included these remarks in his 4 December 2017 report, Exhibit J, to Dr Marcus. In his earlier report of 29 September 2017 to Dr Marcus, Exhibit H, he stated:

“As you know, he was involved in a motor vehicle accident earlier on this year. Since that time, he has had persisting low back pain. He has no neurological symptoms. The pain limits is day to day activities. He has had trouble getting back to work. He has done some physiotherapy, but his pain is not getting better. He is limited with sitting, standing, walking and any physical chores. He is otherwise well and had nothing like this before. He is managing it at the moment with some Mersyndol Forte.

He had a CT scan which shows some mild disc bulging at several levels consistent with his injury. I suspect he has a significant soft tissue injury as well. He will get better with time. He needs a physiotherapy supervised exercise program and hydrotherapy…he should be able to get back into his normal day to day activities and I have reassured him that while a physical and exercise program may be uncomfortable, it will not make him worse. I have organised for him to have an MRI scan.”

33. It was on 4 December 2017 that Associate Professor Sheridan reported the MRI scan to show L5/S1 disc desiccation. I accept the plaintiff’s evidence given orally that he understood Associate Professor Sheridan’s advice to him to be that his recuperation would be a long process and that there was a possibility that he would carry his disability with him for life.

34. I now go to Exhibit Q with particular focus on the medical clinical records for the period which, despite the scarcity of oral evidence concerning it on the transcript, is a matter of some significance in the dispute between the parties.

35. That period commenced with the plaintiff leaving Toyota from 21 November 2017 and until he recommenced casual contracted work through labour hire agencies from about 8 October 2018. At Exhibit Q, p 273, the plaintiff’s treating psychologist, Ms Cuk, had written to Dr Marcus. Her letter is dated 27 November 2017. Therefore, it is at about the time of the plaintiff having been assessed by Dr Sheridan. She wrote:

“Mr Adams has completed a further four sessions of psychological intervention. Pre and post measures on the DASS indicate a slight increase in his level of distress. This is due to adverse symptoms with his motor vehicle accident issues. I have recommended, and Mr Adams agrees, his treatment continue after obtaining approval from his CTP insurer as his issues directly relate to his motor vehicle accident.”

36. On 19 December 2017 at Exhibit Q, p 274, Dr Marcus wrote to Ms Cuk, stating:

“Thank you for seeing Nigel Adams for review after his car accident. He has a CTP claim at present. He is anxious and depressed as a cascade from his accident due to loss of work, financial hardship and pain. Your opinion is appreciated.”

37. I comment that the “cascade” description fits with the plaintiff’s oral evidence in which he described that in the environment of pain, life’s problems including difficulty with supporting the household and attending work become one big unit. On 19 December 2017, Dr Marcus recorded a medical summary which, because it is not a pure certificate directed to an employer assessing fitness for work, is one of the clinical records which are very relevant to consideration of this case and do not appear in the Exhibit 4 schedule of work fitness certificates.

38. At Exhibit Q, page 275, on 19 December 2017, Dr Marcus recorded the plaintiff's medical conditions as, "Chronic back pain - known to Dr Sheridan; early emphysema, and anxiety and depression - known to Ms Cuk". In fact, Exhibit Q includes referrals by Dr Marcus to Ms Cuk on 19 December 2017; 12 April 2018; and 20 April 2018. It is so obvious from Ms Cuk’s 19 December 2017 note, that the plaintiff had already attended 4 consultations by then.

39. At Exhibit Q, page 276, is Dr Marcus' CentreLink Medical Certificate dated 21 February 2018, in which he recorded the primary condition which impacts on the patient's capacity to work or study as “back pain”, date of onset “29 March 2017”, being the motor accident. Past treatment was noted to include ongoing physiotherapy, hydrotherapy. Stated planned treatment included awaiting further neurosurgical review and occupational physician review. The plaintiff was certified unfit for “work or study” from 31 January 2018 to 21 April 2018.

40. The certificate included that the plaintiff was currently unfit to undertake his usual work, and that the plaintiff could not do any other work for 8 hours or more per week. To the lay observer, the certificate indicates that in February 2018, the treating GP, Dr Marcus, considered the back condition suffered by the plaintiff to be significantly impairing, and in terms of medical treatment, significant. In relation to my observation of medical treatment, I refer to contemplation of referral for neurosurgical review and occupational physician review.

41. During that period of unfitness for work, on 12 April 2018, Dr Marcus wrote to Dr Anthony Johnson in relation to the plaintiff's sleeping difficulties, requesting a sleep study assessment. He commented that the plaintiff's body habitus was likely the biggest contributing factor; Exhibit Q, page 277. As I have said, the medical notes include the plaintiff acquiring at least 30 kilograms consequent of less activity in his life, caused by the motor vehicle accident. Also on 12 April 2018, Dr Marcus provided a medical certificate, directed “to whom it may concern” and commenting that the plaintiff suffered from anxiety and depression, "and it is likely that his CTP claim secondary to his back injury has been a contributing factor to his mental health"; Exhibit Q, page 364. Again, within the period of certified unfitness for any work, on 20 April 2018, Dr Marcus wrote to Ms Cuk in the following terms: “Thank you for seeing Nigel Adams for Anxiety and Depression as a result of his car injury as you are aware as per our discussions.” Exhibit Q, page 278.

42. On 15 June 2018, Dr Marcus completed another CentreLink Medical Certificate. It included the condition impacting the plaintiff’s capacity as “acute, exacerbation of back pain”, again stated, the date of onset as that of the motor accident. He certified the plaintiff unfit from 21 June 2018 for three months to 20 September 2018 during which period he was not able to undertake his usual work and could not do any other work for 8 hours per week. Exhibit Q, page 279.

43. Within this period, on 29 June 2018, Dr Marcus provided another medical certificate, again like other documents in Exhibit Q, it not being a fitness certificate directed to an employer, it is not included in the Exhibit 4 schedule. He wrote of the plaintiff who had been reviewed by him that day: “He has had at least 30 kilograms weight gain since the accident. This is mainly due to his back pain and inability to do effective exercise to lose weight.” Exhibit Q, page 280.

44. Another medical certificate was provided by Dr Marcus on 17 August 2018 concerning his review of the plaintiff that day. In it, he stated:

“I am happy for him to resume work with the following restrictions:

1. No lifting greater than ten kilograms on a repetitive basis;

2. Repetitive bending, twisting and squatting”.

45. Of course, number 2 means the plaintiff is not to perform repetitive bending, twisting and squatting. Worldly experience indicates that for a manual worker, a restriction of lifting repetitively to ten kilograms without bending repeatedly, twisting and squatting is a significant impairment in the competitive labour market upon the person seeking employment. Exhibit Q, page 281.

46. Just before the plaintiff resumed work through labour hire companies commencing on about 10 October 2018, on 4 October 2018, a medical certificate by Dr Marcus commenting on a review of the plaintiff in his rooms that day stated:

“I am happy for him to resume work. I am happy for him to lift up to 20 kilograms.”

47. The plaintiff’s oral evidence concerning the periods for which he was off work on certificates identified in the defendant’s schedule, Exhibit 4, where the reason is stated as “psychological” included his description of stressors as a combination of income stress, drowsiness from medication, lack of sleep, pain, domestic relationship friction, consequent of his “home” contribution resulting from his impairment physically and pain. I observe this to be consistent with the Exhibit Q literature passing between Dr Marcus and Ms Cuk to which I have referred.

48. I observe that Dr Marcus’ observation of the weight gain in the order of 30 kilograms is also consistent with the plaintiff’s oral evidence. He has suffered the added effect of sleep disturbance for which Dr Marcus referred him to specialist assessment as noted in Exhibit Q to which I have referred. That Dr Marcus attributed that weight gain to the changes in activity levels in the plaintiff’s life resulting from his injuries. This is of assistance in this case because it relieves the risk of distraction of obesity from the assessment. Indeed, on 22 May 2020, Dr Marcus recorded in his consultation notes that the plaintiff gained nearly ten kilograms in the prior six months or so. Exhibit Q, page 374.

49. I observe that at no place in the clinical notes is there reference to the plaintiff being recalcitrant in performance of his home exercises or in his compliance with medical advice. It was not put to him during cross‑examination that he was. Dr Marcus’ ten certificates in Exhibit Q for this period of 22 November 2017 to 8 October 2018 show the plaintiff’s regular attendances for medical assistance and this supports significantly his claim for impairment in the period caused by his motor vehicle accident.

50. The plaintiff’s oral evidence of this one year period ‑ as I have said ‑ was sparse, both in chief and in cross-examination. At transcript 20, during evidence‑in‑chief, in a stream of questions directed by his chronology, Exhibit C, he was merely asked whether for the period he was off work until October 2018, which he said was correct. At page 20.25, the evidence was:

“Q.   …that you were off work, is that right?

A.

   Correct.

Q.

   And then you went to an employment agency, Workforce?

A.

   Correct.

Q.

   Did you obtain jobs there?

A.   Yes, yes.”

51. The question asking the plaintiff’s status of being “off work”, to which he answered in the affirmative, was understood by me to be to mean, in worker parlance, “certified off work”, or “off work because of injury”. I raised this with counsel during closing submissions, and my interpretation or understanding was not opposed. It is as I understood the plaintiff when he spoke that evidence.

52. In cross-examination, between transcript 61, line 25 and transcript 63, line 48, the plaintiff was being asked questions about pages 2 and 3 of Exhibit 4. Those pages list a collection of Dr Marcus medical fitness for work certificates between May 2017 and 4 October 2018.

53. The plaintiff read the list of certificates on pages 2 and 3, and at 61.35 answered that he did “what he asked me to do. When I was sore, I went and saw him, made an appointment. I did what I did, and exactly how I felt.”

54. At 61.47, the plaintiff said that he was having problems, and went and saw Dr Marcus about his back problems. He conceded that he was getting sick as well, and that he saw Dr Marcus every time he could, and made appointments and “told him exactly what the problems were”.

55. At 62.01, counsel for the defence informed the plaintiff of acceptance of back problems with a question in the form:

“Q.   So no doubt, there were back problems during that time and the medical certificates?”

56. To which the plaintiff answered in the affirmative, and then it was fairly put to him that the certificates reflected that; to which the plaintiff answered in the affirmative. The plaintiff referred to his psychological situation, and confirmed that he took that to his doctor, that he went to Dr Marcus when he was dealing with a cold, dealing with a sore back and when more than one thing was “going on”. He said: “But like any man I get sick and I try to work through it…”.

57. At 62.25, he gave the following evidence which accords with my acceptance of what he described as back pain caused environment with life’s stressors confronting him as one “big unit”.

58. At 62.25, his evidence was:

“Q.   Were you seeing your psychologist during that time?

A.   I may have, but I’m not 100 per cent. Like, physically - I’ve seen my GP, doctors, Home and everything a lot, so I’m not 100 per cent on dates.”

59. I note the transcript has a capital h for Home, and there is a Dr Home in the proceedings who indeed was seeing the plaintiff in the period, but I think that might be unfair to the defendant. My understanding, when he said “Home”, was in accordance with his evidence elsewhere of what I’ve described as the environment in which he was dealing with back pain.

60. At page 63, lines 5 to 20, the plaintiff, in his candid and open manner of giving evidence, including concessions against interest, gave the following evidence:

“Q.   The period that we’ve been discussing between when you left Toyota and when you started work again in October 2018 – Might I say, one of them?”

61. It was a question about his psychological state as a factor of him not working in that period.

62. At transcript 63.38‑48, the fitness certificate by Dr Marcus dated 4 October 2018, certifying lifting restrictions being increased to 20 kilograms - to which I have referred - was the subject of a question to which the plaintiff answered, “Yes. The doctor said try and gave a go. And, like, I’ll do. I go - I go have a crack, and when it became problems for me, I went to my GP, as like I meant to.” He gave evidence in that passage of lifting causing “A lot for back pain, so obviously I was having trouble with it.” The limit was not varied again until February 2020.

63. That evidence is to be read in the context of the literature to which I have referred from Exhibit Q. In my opinion, it is to be understood as candid and frank evidence. I accept that the plaintiff was willing to give it “a crack”. He had been advised a year before that surgery was not appropriate. He was receiving conservative treatment, and the environment of him not working was causing him stress such that it was a factor for which he was receiving psychological treatment which he was receiving.

64. However, it is the plaintiff’s onus to prove, on the balance of probabilities, that there was an economic loss, and the measure of the economic loss resulting from the accident-caused impairment during the period 22 November 2017 to about 8 October 2018.

65. Unlike for other periods, such as, indeed, from October 2018 to the present, there is no evidence of the plaintiff applying to labour hire companies or searching the web labour placement sites, or otherwise activity engaged in by him to obtain what employment he might have been able to do during that period. Now this observation obviously is to be taken in the context, and to the measure of, Dr Marcus’ certificates and the literature from Exhibit Q to which I have referred. But on the whole of the evidence, the plaintiff hasn’t shown, on the balance of probabilities, that for the whole of the period, he was so unfit for work that he couldn’t get some work that was available to him.

61. There is no doubt, from the evidence to which I have taken these reasons, particularly from Exhibit Q, that the motor vehicle accident caused impairment was the substantial cause for him not working during that period, and for the substantial part of the period the evidence is strongly positive of an inference that he was generally unfit as a result. But doing the best I can with the imprecision of the evidence and for the reasons which I have given, I propose to allow only 85% of the plaintiff’s economic loss claimed for the period 22 November 2017 to 8 October 2018.

62. Overall, examination-in-chief and in cross-examination on the objective and the available medical record showed the plaintiff was a witness willing to concede readily periods off work due to illness and an external psychological stressor, which for a period spanning 24 April 2017 to 22 May 2017 partially contributed to his absences from work. The medical records show that the plaintiff was a person who continued to attend his doctor toward achieving the work which he was able to perform for the whole of the period from the date of the motor accident until the present, save for that period of 1 month and the period from 22 November 2017 to 8 October 2018 in accordance with my above reasons.

63. Throughout he has suffered difficulty standing for long periods of over 60 to 90 minutes and/or sitting for long periods of over 60 to 75 minutes. Excessive walking, standing or sitting caused his back and legs to ache. He has not tried walking up a long flight of stairs. He is obviously a very heavy man. However, before his injury, he was able to run and play soccer with children. He can no longer do that. Not surprisingly, his weight has increased. Common sense indicates that a man of his 150-kilogram weight would have difficulty walking multiple flights of stairs just because of his weight.

64. But he is not to be burdened in his claim for damages on account of weight gain caused by his less active lifestyle in turn resulting from his injuries. He is able to crouch for 4 to 5 minutes and can kneel, but would not be able to maintain that posture for a period such as 45 minutes. He suffers pain when maintaining forward leaning postures. He feels pain when he twists his torso whilst seated. In my opinion, those self-estimates by the plaintiff are consistent with the medical literature albeit not entirely consistent with the medico-legal opinion of Dr Home to which I will come.

65. He has undergone periods of physiotherapy and physiologist-supervised exercise in a gymnasium. This was available to him when rehabilitation was paid for by the insurer, but has not been available to him recently. Physiotherapy provided short-term relief. When fully supervised exercise was available to him, it included hydrotherapy and the use of gym equipment. Since that ceased, he continues to do his best with employing the stretches and exercises he was taught, at home, twice per day.

66. But he does not have a swimming pool, weights, a gym ball or the other things which the supervised rehabilitation program employed. The plaintiff has difficulty tying his shoes and twisting to wipe his bottom at the toilet. He is stiff in the mornings and has to get up earlier to achieve his tasks because he is slower. Since the accident, he has been unable to perform his gardening duties. The house has two lawns. One approximately 30 metres square and the other, 15 metres square. He has found that he cannot push a lawnmower or operate a whipper snipper. He described the land as slightly sloping. Accepting the weight of lawnmowers, grass catchers, the bending involved to operate them and the twisting motion and weight of operation of whipper snippers, I consider this evidence to be reasonable.

67. It takes a little over an hour for the lawns to be maintained. Since his injury, this has been done by the sons of his partner Mel. They are now 18 and 20 years of age. He had difficulty leaning over the change table to attend nappies for his son and now, to look after his 3 year‑old son. He has difficulty leaning over the kitchen sink to handwash the dishes, but he can do this to a limited extent. He does not own a dishwasher. He cannot chase or play with his 3 year‑old son as he did with his other children. His inability to assist with household chores, as he did pre‑injury, has caused friction in his relationship with his partner, Mel.

68. For exercise, he walks some of the time, and takes his three‑year‑old son in a pram to walk around the local dog park at other times. In order to do that, his step‑son places his 3 year‑old son in the stroller. I accept the plaintiff's evidence that if he was able to afford it, he would pay for his lawns to be mowed. Obviously, his step‑sons will not be there forever to do it. They are adults. The parties agreed with my suggestion that a reasonable allowance for commercial lawn mowing services would be 15 hours per annum.

69. The plaintiff's evidence of his attempts to regain employment included, during cross‑examination, his ready concession of certificates for work fitness on occasions of increased lifting capacity to normal duties. I accept his evidence that he tried to increase his work performance. He said that he gave it “a crack”. I have referred to that evidence, and again, I accept it. When cross‑examined in relation to the medical certificate of Dr Marcus dated 27 February 2019, which provided, "I am happy for him to resume normal duties with no restrictions", the plaintiff responded that he was willing to, "Give it a go". I note that the immediately preceding medical certificates of Dr Marcus on 9 February, 21 February, and 25 February 2019 each declared the plaintiff was unfit for work due to back pain. This man is no malingerer.

70. The evidence of Mr Fara and of Mr Tinker, whose roles with Toyota were specifically to observe and assess his work performance over about eight months following his injury, strongly corroborate the plaintiff's evidence that he made an effort to maintain employment. Other than the letter from Toyota to Dr Marcus in July 2017 referred to above, the only negative comment in the extensive work‑based literature in evidence in the case and which was put to the plaintiff was that when working at AWX as a spray painter in 2016, someone recorded a comment that he, "Is our have a chat".

71. The plaintiff did not deny that he was a "friendly" person with the other workers, but said that speed of work coming to him did not meet his capacity to spray paint it. He was ahead of the rate of production. No one told him that his being friendly with other workers was a concern. In particular, bearing in mind Mr Fara's description of the plaintiff as a fast worker whose pace of work slowed after the injury, the plaintiff's description of self in relation to that comment and his ability to have processed work is entirely acceptable.

72. Commencing October 2018, the plaintiff has pursued work within his restrictions. He has done this by retaining work placement agencies. In addition, he searches on the web at sites such as Seek and Indeed. When challenged at his statement that he must have been registered with 80% of workplace agencies, off the top of his head he was able to give the name of several other agencies. I will come to this passage of evidence (T84.20). Because – albeit selected from the body of evidence, it is typical of what I consider to be an accurate portrayal of his commitment to find employment for which he is suited.

73. He has also been with the CentreLink service JobActive, through which a caseworker has been attempting to find suitable jobs for him. Through that service alone he has applied for six to eight jobs. He has declared the work and pay which he has received to Centrelink. He was on Newstart, but was transferred to JobSeeker with everybody else.

74. The plaintiff conceded that he was ill for two months between 2 November 2018 and 8 January 2019, which caused him to be unavailable to work and which illness was not related to his injury.

75. He described suitable work for him as a job with the, "right balance", of time on a forklift, sitting, and time off the forklift with light manual work. Having listened to his evidence-in-chief and through a very fair and thorough cross‑examination, I am convinced of the view that he was truthful in his evidence when describing his capacity and incapacity, including his capacity to maintain substantial periods sitting on a counterbalanced forklift and successfully operating it for work, so long as he is not required to perform heavy manual lifting. He tolerates the pain whilst doing that, beyond 60 to 90 minutes.

76. He was able to give, in his evidence of a work placement between 30 May and 9 August of this year at Direct Freight Express, a real example of where he could maintain up to four and a half hours working the forklift so long as he could “duck off” to stretch. I accept his statement, for instance, that he cannot do work where he is required to get off the forklift and move a 25‑kilogram article.

77. I accept his evidence that in his many acceptances of work through the placement agencies, he has experienced the measures of his true residual work capacity and limitations. I accept that in his commitment to fulfil those job placements he, as he described it, “ducks off” by going to the bathroom, walking to find a supervisor to ask a question, or taking short relief in places where work site cameras are not focussed. In these periods, he achieves relief from stiffness and pain by stretching and moving.

78. He stated the obvious about the obtaining of casual work through work placement agencies including that as soon as there is a slowdown, as a casual employee, he is first to be put off. This literally will occur by receipt of a text informing him not to come to work that day or the next day. The agencies will regularly ask of work restrictions and often require a medical certificate of fitness. The plaintiff’s physical limitations plainly disadvantage him in the labour market in which he has participated throughout life.

79. Indeed, the observation to be made on the evidence of his continuing attempts to find work and finding work since October 2018, is that the very number of the jobs, the shortness of the periods of employment and the periods of unemployment show the very insecurity, economically, of his earning position and also his personal commendable commitment to work.

80. His chronology, Exhibit C, lists most of his work placements, but not all. The plaintiff’s evidence of his persistent searching for suitable employment, has not permitted him to avoid substantial interruptions by periods of unemployment. Some features of his work history in regard to which I comment for the purpose of their significance in the assessment of future economic loss are the following:

1. Between 24 October 2018 and 3 November 2018, he worked at Kruegar Trailers. In that business, they manufactured trailers. He was a forklift driver and was also performing light mechanical tasks, fixing the registration plates to the trailers which had been manufactured. He achieved full‑time hours but unfortunately, paint fumes, dust and the chemical environment from the manufacturing aggravated his illness.

2. There is no expert assessment or detailed description otherwise in the evidence of the note of emphysema to which I referred in Exhibit Q. I therefore make no more of it.

3. In March 2019, whilst working with CSR, Villawood, he accepted the job on what he called the “lie” that it was 75% forklift driving and 25% labour, when in fact, those ratios were reversed and he was required to tie‑up large bales of soundproofing material, which tasks included having to handle and put together armfuls of soundproofing material. This required bending, leaning over and being on his feet for extended periods. He lasted only one and a half weeks because of back pain.

4. Between early July 2019 and early September that year, he worked at Coca‑Cola. I will come to the transcript of this work because it is a useful reference to actual evidence in the hearing from which an understanding of his capacity and incapacity can be obtained. He drove a counterbalanced forklift which included devices permitting him to drive it without having to leave it. The sitting was too long and he had to “duck off” to the toilet or where cameras were not focused in order to stretch and relieve the stiffness and pain. Nevertheless, he remained in the job for two months. And would have, as I understand the evidence, continued but for a worker who drove a truck as part of his operations, going on leave and Coca‑Cola required a worker with a MR licence. I understand an MR licence to be a truck licence. The plaintiff did not have one.

At transcript 21.35 to 22.09, he gave evidence in chief of this work at Coca‑Cola. He obtained it through a labour hire company. He said the counterbalanced forklift “had everything…They had the computers on the forklift. They had the RF scanner, so you did not have to ‑ have to get off the forklift at all. You scanned from the seat, everything. But yet again, sitting for too long, I had to either duck off to the toilet, or you know, go down the back from the cameras, stretch, stand. Obviously, having my stiffness and my aches and my soreness on my back for sitting too long”.

The plaintiff said he was able to cope with the stints on the forklift, albeit working with that discomfort. At transcript 21.46, he gave the following description of his capacity, which I accept as credible evidence and as consistent with the overwhelming medical literature:

"I can cope and I can find ways to cope with that job, but the thing is, there's only so many counterbalance jobs in this world, and some of them do involve - they say contains manual lifting, 25 kilos and stuff. So they want you to get off and lift stuff throughout the day as well, just not sit on. To find sitting on counterbalance work itself is very hard to get. They want some sort of physical labour with the job. Either help unload containers and stuff, and I can't do that. My back will not handle that for hours on end."

I extract from cross‑examination, at 73.28, the plaintiff’s description of the forklift work as loading Coca‑Cola and Pepsi bottles onto trucks that were supplying the vending machines on railway stations. When it was put to him that it was full‑time hours, he correctly answered, "No, the hours were up and down". I say correctly, because Exhibit R plainly shows the variety of hours worked per week as varying between a minimum of 8.5, for which he was paid $250, and a maximum of 42, for which he was paid $1,100.

Still in regard to the work at Coca‑Cola, he gave the following evidence at 74.14‑41:

"Q.   So was it only ever a three-month term that you were going to be there for?"

[I interposed that the cross-examiner was incorrect. Exhibit R shows the period to have been for two months.]

“A.   No. Like I said, they could need - with labour hire, it's casual. So they ring up, they need you. If a company needs you for three days, three days' work is all you get. If a company needs you for - might need you for two months, so you get two months' work. But as soon as it slows down, they can say, 'See you later', tomorrow. They don't have to give you any notice. No nothing. They ring the agency, the agency will text or ring me and say, 'They don't need you anymore. We'll keep you posted if we find something else'. That's how labour hire works. It's - it's no guaranty of permanent jobs or anything.

Q.   I see.

A.   It's casual.

Q.   While you had that job for those three months, it's a job that you were able to cope with well, wasn't it?

A.   Yes.

Q.   And when you ceased that employment, it was because the employer decided that they no longer needed you. Is that right?

A.   I was told they didn't need me, and also to - the job that I had, they wanted the guy that used to - because I don't have an MR truck licence. The guy - there was a guy there that used to back the trucks up for me, and obviously I'd take the pallets and load them up once I scanned them and stuff. He was going on holidays. They - I got rung up. I worked that Friday. They rung me up and basically said, 'They want somebody with an MR licence now'. And I didn't have one. So they - they - they went to obviously employment agency and found someone with an MR licence."

I have, at least twice in these reasons, referred to the plaintiff as a person who on the evidence has satisfied me that he, but for his injury, would have continued to seek permanent employment. This evidence given by him, displaying as it does his dissatisfaction with the unavoidable features of casual work obtained through an employment agency, is consistent with his want for permanent employment. In my view, the evidence is strongly supportive that the plaintiff's claims for economic loss should be considered on that basis. To the extent that the defendant has put that the plaintiff was a person who was satisfied with or would have chosen to work casual under the labour hire agency arrangement, I reject it.

5. In September to October 2019, he worked as a labourer for a truck parts company, but that work ended when he was criticised for being too slow. This evidence was particularly ringing bells of course, to remind us of Mr Fara's description of how the plaintiff's work had slowed following the motor vehicle accident and his injury.

From late February 2020 to early March 2020, a period of approximately two weeks, the plaintiff performed forklift work at Auburn which he obtained through Hoban Labour Hire Services. He earned a high of $851 and a low of $582 per week. Indeed, the plaintiff gave evidence against interest when it was put to him that the earnings were $800 per week. He answered, “It was more.” The work ended when he became ill and went off to be tested for COVID‑19 virus.

6. In March 2020, the plaintiff turned up for work through an agency called AWX, but was turned away on‑site when the boss said that he had told AWX they had to terminate the existing worker before employing the next worker. The plaintiff was paid for four hours because it was the agency’s error. On that occasion, he did not even get to step into the warehouse.

Between about 30 May 2020 and 9 August 2020, he worked counterbalanced forklift driving at Direct Freight Express. This work was four to four‑and‑a‑half hours per day, five days per week, only. His maximum weekly pay was $652 and his minimum was $278. These were the total hours offered and he worked them. The plaintiff could cope with it because it was only forklift driving. Nevertheless, over the time seated, he suffered aching in his back and legs. As with all work, he “ducked off” and in this job, this included taking the opportunity to fill the gas bottle to the forklift even when it did not require refilling. Again, these breaks permitted him the opportunity to stretch.

86. Since 9 August, the plaintiff has remained unemployed. The wages figures I have referred to above are taken from Exhibit R. They are net. The plaintiff’s chronology, Exhibit C, adopted by him in evidence as correct after deletion of the date 19 December 2019 on page 4 includes the plaintiff’s history of employment from leaving school, and after year 10, in 1995 to the present.

87. On 7 September 2020, Dr Marcus issued a Centrelink medical certificate for the month until 7 October 2020 (the commencement of this hearing). The certificate identified the cause for incapacity as “temporary exacerbation of a permanent condition”, and again, the date of onset as that of the motor vehicle accident. It listed the symptoms as “ongoing restriction of back movements, flare‑up of back pain, mental health”. It is Exhibit A.

88. In other words, there is a substantial body of evidence of the plaintiff’s work history, work capacity and medical state in this case. For work, it spans 25 years and for his health it comfortably spans the period from injury. There are no pre‑existing conditions causing disability as I have mentioned. The detailed evidence of the plaintiff’s medically assessed impairment and fitness for work and his attempts to achieve work bring me to the following observations:

1. He was a frank witness who gave credible evidence without exaggeration and was willing to make appropriate concessions, most particularly in regard to the involvement of psychological issues contributing to his overall state during assessment of fitness to work at various points in time;

2. He has remained committed to obtaining gainful employment within his limitations, as understood by him, over the whole of the period from injury to hearing and has performed the employment which became available to him. On this point, I am mindful of a passage of his evidence in cross‑examination in which he was challenged for having said that he was probably registered with 80% of the employment placement agencies (T84.20). In response to the challenge, he named off the top of his head, under the stress of giving evidence in a court room, a substantial number of agencies. He said not all of them have even presented him with work. He also was readily able to identify the websites which he searches. His evidence was convincing. He is persistent in that searching. He described the experience which I find entirely acceptable and real, that he might see a description of work which reads as suitable and the website he is looking at identifies to him that 50 persons have looked. The competition is real and his achievements of work, given his impairment, are in my view acceptable as reasonable exploitation of his residual capacity;

3. Between leaving Toyota on 21 November 2017 and October 2018, the cause of the plaintiff not working was predominantly his back pain albeit he suffered psychological effect. I accept his description of those two elements combined to diminish his functionality for work as if “one big unit” because his back pain led him and does lead him to being off work and diminishes his ability to cope with family problems. In an environment where whilst tolerating pain, which at times is excruciating, he has the added worry of supporting his family through getting work and of being rejected. In addition to this and understandably and through no fault of his own, there can be friction in the home because of his slowness at performing domestic duties that he previously performed efficiently and because he performs lighter duties whereas previously he did more. He described himself at one stage as a new age man. Of course, there is no such thing but his evidence displayed a convincing familiarity with domestic tasks and I accept that he can no longer contribute in the home as he did do.

In particular, he is no longer able to actively play with children as he did before injury. He lives with the ongoing fear that he might suffer back spasm. I accept that particularly in the period of 22 November 2017 to 8 October 2018, he had feelings of uselessness. The evidence does satisfy me on the balance of probabilities, for reasons which I have given that he is entitled to the economic loss which I have assessed on the imprecise evidence as it is at 85% for that past period, calculated on Exhibit R, rates.

4. I accept that when the plaintiff finds suitable work on the job vacancy websites, he is left to compete in the labour market for the position and his experience of websites which show how many people have viewed the placement shows that it is very competitive. His field of suitable work is narrowed.

5. By about November 2018 as reported by Dr Homes and conceded by the plaintiff, he felt a little bit improved through the physiotherapy and the supervised exercise program under the insurers rehabilitation plan and provision. However, that provision has ceased, and I remain firmly of the view that the plaintiff has not exaggerated his impairments. In about August 2020, he underwent CT guided cortisone injection to his back on referral from Dr Marcus, Exhibit B. On the whole of the evidence, I find that the plaintiff has been compliant with medical direction and pursued reasonably his recuperation.

6. The plaintiff’s back stiffness and difficulty with twisting and bending have slowed him down in movements required domestically and at work. A helpful piece of evidence in this regard was the observation of it by Mr Fara to which I have referred. Mr Fara said that seeing the plaintiff now outside the courtroom showed him to walk differently. It was plain from Mr Fara’s evidence that he was shocked at his observation of the plaintiff, having not seen him over two years. His reaction included the expression “to see him now, I’m thinking whoa, you know, like there’s a lot of change”, transcript 160, line 20.

7. The whole of the evidence compels the confidentially drawn conclusion that the plaintiff has since leaving school been a person who pursued employment and suffered some periods of interruption of that pursuit when psychologically affected by extreme life stresses including during 2016 when his work was intermittent because of an extreme grief reaction to the death of his father and for the period of about one month in April/May 2017 when a family domestic stressor of an external nature and tragic character weighed upon him. The plaintiff is a good worker who prior to his injury maintained heavy manual work and who has long term maintained forklift driving work. The evidence of Mr Fara and Mr Tinker respectively confirms that prior to his injury, he was considered a very competent and efficient worker and that even after his injury, he met or exceeded Key Performance Indicators even though he had slowed and was performing light duties.

8. I accept the plaintiff’s evidence that when standing for long periods or walking for long periods, he is required to rest because of pain. Mr Fara and Tinker observed this at Toyota. Mr Fara said that he would see the plaintiff have to sit on a chair for a couple of minutes, but he would also see the plaintiff get back to work. This was when the plaintiff was performing the very light mezzanine floor duties.

9. The plaintiff’s earning capacity is further diminished by his injury because he suffers coughing or sneezing which can bring on severe flare ups of back pain. Dr Marcus’ clinical notes corroborate this. Dr Home observed this. The plaintiff said that for some period when Dr Marcus certified the cause of his being unfit for work as “illness”, this included to some extent that aggravation of back symptoms. The exception to this is the period 2‑13 November 2018 when his illness was rhinitis for which he had to be off work regardless of back pain.

89. The plaintiff does not make a claim for gratuitous domestic services assistance. Nevertheless, his description of his attempts to perform household duties which I have included in these reasons assists determination of this case because they well describe the practical limitations of his physical capacity resulting from his injury. The plaintiff does perform light washing duties. He explained that they have a ten kilogram washing machine which comes to about his chest height so he does not bend into it. He handles the clothing in small bundles and is able to hang them out proceeding slower than normal in that way. His partner, Mel, does get upset with him because he works such small loads. She is at home most of the time because she only works during the High School Certificate examinations each year. She attends to supervise students during those exams. The plaintiff does light house work, but cannot vacuum. I note that Dr Home only referred to “spot vacuuming”.

90. Even when doing the dishwashing by hand – there is no dishwashing machine – he has a kitchen stool available so that, if he suffers back pain from bending forward, he can change position by sitting on the stool, and if he needs to do, he takes a break.

91. Mel does most of the housework, but before his injury, the plaintiff cooked, did all of the gardening, mowed the lawns, performing what he considers a significant share of clothes washing, and was able to attend to the children, including playing games with them. He is unable to participate in any of those activities now as he previously did. In regard to cooking, he said that he is quite able to take bottles of pasta sauce from the cupboard and make a spaghetti bolognese for the family.

92. I accept his evidence that during Winter, his pain and stiffness is worse. In June 2020, he was taking Mersyndol Forte twice per day because his pain was particularly bad. He takes anti-inflammatory Mobic on a regular basis. Both of these medications are prescribed by Dr Marcus.

93. The plaintiff relied on the medico‑legal reports of Dr Bentivoglio, orthopaedic surgeon, 20 April 2018 (Exhibit D) and 17 July 2019 (Exhibit E).

94. The history obtained by Dr Bentivoglio of treatment and rehabilitation meets with the plaintiff’s evidence in the hearing. At the time of the first report, the plaintiff was receiving fortnightly physiotherapy and acupuncture, as well as hydrotherapy as advised by Associate Professor Sheridan. He found limited benefit from that treatment. Associate Professor Sheridan had left it to the plaintiff to return, in the event his symptoms worsened. There was no treatment within his neurosurgical speciality which was appropriate. Since stopping work on 21 November 2017, the plaintiff’s symptoms had not improved. Importantly, the plaintiff did not have any pre-existing problem with his back.

95. On 22 September 2017, one week before the plaintiff attended upon Associate Professor Sheridan at the referral from GP Dr Marcus, the insurer for the defendant obtained a medicolegal report from Dr Home, consultant in occupational medicine. The report is date 5 October 2017. All of Dr Home’s reports are contained in Exhibit 1. Dr Home reported that the treating physiotherapist’s records found half normal range of flexion and extension, and slight reduction in left lateral flexion, with a complaint of numbness in the foot, with straight leg raising on the right. At the time of Dr Home’s report, the plaintiff was attending physiotherapy 3 times per week, and was also performing his core strengthening exercises and stretches at his home. He was taking Mersyndol DayStrength, 2‑3 per day, and Mersyndol Forte, twice weekly at night to help him sleep, because of his pain. He took Mobic, anti-inflammatory medication, daily. Dr Home reported the plaintiff’s report of back pain as of average intensity 5/10, increasing to 6/10 with prolonged sitting and bending. Further, the pain was exacerbated with coughing and sneezing. Dr Home recorded that the plaintiff assessed his sitting tolerance at 50 minutes, and he experienced discomfort when bending forward at the waist, as well as difficulty when dressing in socks and shoes. The plaintiff reported that he was able to lift and carry very light weight, but avoided heavier lifting. Dr Home reported, in his examination assessment, the following description of the plaintiff’s mobility:

“There is prominent pain behaviour in his movements in the examination room, with frequent sighing and hyperventilation…forward active motion is performed very cautiously. There was marked restriction of active motion with flexion to reach fingertips to the mid‑thigh, extension only 5^o, right and left lateral flexion no more than 5^o. Straight left raise was performed to 40^o bilaterally, limited to tight hamstrings. Deep tendon reflexes, power and sensation in the lower limbs were preserved.”

96. Dr Home observed two positive simulation tests reflecting a psychological component to the presentation of physical disability. In Dr Home’s opinion, the underlying degenerative change in the plaintiff’s spine was consistent with his then age of 37 years, and the motor vehicle accident had rendered his discopathy symptomatic. At the date of that report, and opinion, the plaintiff had not undergone the MRI or the bone scan commented upon by Associate Professor Sheridan. In Dr Home’s opinion, it was probable that psychological and social factors were confounding the plaintiff’s physical distress. Dr Home did not foresee any likelihood that the plaintiff would be unable to perform light domestic chores, such as food preparation, cooking, bench height cleaning, placing dishes in a dishwasher, placing clothes in a washing machine, hanging washing on a rack, or managing spot vacuuming.

97. Dr Home found the plaintiff fit to continue light duties, with a 10 kilogram lift restriction between shoulder and knee, and a 5 kilogram restriction from below knee height away from the body. Plainly, those limiting restrictions are both consistent with the history given by the plaintiff of his working post-injury at Toyota. They, indeed, describe a very significant limitation for a 37 year old male. Dr Home assessed the lumbar spinal injuries to be not stabilised.

98. The MRI obtained through Associate Professor Sheridan showed disc desiccation at L5/S1 of his lumbar spine, together with annular fissures at L4/5 and L5/S1 levels. There was disc bulging at L4/L5.

99. In April 2018, lower back pain was present most of the time, and fluctuating in severity, made worse with activity, and remaining in one position for extended time. Sitting and standing positions equally caused discomfort. Walking helped. Albeit pain radiated down both limbs, back pain troubled the plaintiff more. With the rehabilitation provided by the insurer at the time, there had been slight improvement in his back symptoms over the prior two months.

100. Dr Bentivoglio, in his 20 April 2018 report, diagnosed the damage to the plaintiff’s lumbar spine shown in the MRI to have been caused by the motor accident. His prognosis was that the plaintiff would continue to experience low back pain problems in the future, because of the weakness at the lower two levels of his lumbar spine. He said the appropriate treatment was an exercise program to maintain core muscle strength. Dr Bentivoglio observed restrictions, not much different to those recorded by a physiotherapist 7 months before and reported on by Dr Home.

101. On 6 November 2018, the plaintiff again attended Dr Home for medico‑legal assessment. The report is of that date. On that occasion, the plaintiff was continuing with a physiotherapist-supervised exercise program which had commenced on 27 July 2018 wherein he attended a gymnasium twice per week for an hour and 20 minutes, each session. He continued his home exercise program. Dr Home reported improvement in the plaintiff’s complaints such that the lower back pain was present half of the day occurring intermittently with activity and with coughing. The then described pain intensity was 2‑3/10. Dr Home confirmed that the plaintiff’s chest injury which had involved fractured ribs was fully recovered. He reported that the plaintiff’s then sitting tolerance was up to 2 hours with a similar tolerance of driving and normal tolerance for walking. There was no disability for crouching or kneeling. He recorded that the plaintiff avoided repetitive bending and heavy lifting from ground level, but that he was able to perform stair climbing and to lift weights up to 10 kilograms in the gymnasium. At home, the plaintiff was performing cooking, dishwashing and bench‑height cleaning. As had been the case since injury, the plaintiff’s partner’s sons continued to mow and maintain his lawns. Dr Home recorded the plaintiff’s weight at 151 kilograms.

102. This was an increase of 5 kilograms from the weight recorded by Dr Bentivoglio on 20 April 2018.

103. Dr Home recorded that the plaintiff’s obesity caused lumbar lordosis, that forward flexion and extension were limited and each performed to three quarters of the normal range. Straight leg raising was performed to 60^o bilaterally. Dr Home advised the defendant that the plaintiff’s lower back pain was consistent with the motor vehicle accident having caused a soft tissue injury to the lumbar spine, superimposed upon underlying degenerative change. He considered the ongoing physiotherapy supervised gym/pool was reasonable and arose from the effects of the motor accident. He assessed the plaintiff did not require formal assistance with domestic chores at the time. Further, that up to a period prognosised as 3 months post‑report (which would end in February 2019), the plaintiff did require formal domestic assistance with heavy chores.

104. Most importantly, Dr Home assessed the plaintiff as at November 2018 to be fit to perform his pre-injury duties as a spare parts packer/forklift driver. Specifically, he said there was no requirement for alternative duties. Dr Home reported, however, that the plaintiff did have a permanent impairment.

105. I do not prefer Dr Home’s November 2018 assessment of the plaintiff’s fitness over the weight of the other evidence to which I have referred. I prefer Dr Bentivoglio’s assessment because of its consistency with that evidence. This includes my acceptance of the plaintiff as a witness who gave credible evidence.

106. At the MyHealth Medical Centre, on 1 April 2019, the plaintiff’s physical and functional capacity for work was assessed as follows:

“Floor to waist – 12.5 kilograms; waist to waist carrying ‑ 2 metres; waist to shoulder close to body – 12.5 kilograms; waist to shoulder away from the body – 12.5 kilograms; waist to head, 12.5 kilogram; stairs – 25; pushing ‑ 15 kilograms.”

107. In his report dated 17 July 2019, Exhibit E, Dr Bentivoglio reported that the only ongoing treatment the plaintiff was receiving was his performing his exercise program, but that the plaintiff did not feel as though it was making a great deal of difference to his symptoms then. What he recorded is consistent with the plaintiff’s oral evidence that he was no longer seeing Associate Professor Sheridan and understood that no further medical treatment was planned for him other than as through Dr Marcus.

108. At the time of Dr Bentivolgio’s reoprt, the plaintiff was employed at Coca Cola. Dr Bentivoglio recorded that the plaintiff’s report to him of that work, which I find to be consistent with his oral evidence, included that:

“90% of the work is doing forklift driving, which is light in nature. He copes with these work activities despite having ongoing symptoms. There is about 10% of his duties that are labouring duties, which he does not cope with all that well. He is currently working 32 to 35 hours per week.”

109. Dr Bentivoglio recorded the plaintiff’s reported symptoms as much the same way as he had done 15 months before, in his first report. The plaintiff told him that the low back pain was suffered about two thirds of the time. I note that the examination report shows that between April 2018 and July 2019, the plaintiff’s weight had reduced from 146 kilograms to 140 kilograms. His range of movement present in his lumbar spine had improved from half normal range to two thirds. Straight leg raising had improved from 30^o to 45^o. Once again, there was no localised motor, sensory or reflex abnormalities that the doctor could detect in the plaintiff’s lower limbs and no muscle wasting was observed.

110. In his prognosis, Dr Bentivoglio advised that in the absence of nerve root irritation or compression, there was no benefit to be gained from an aggressive form of treatment and the plaintiff was to continue with his home exercise-based program. Dr Bentivoglio diagnosed, “permanent weakness at the lower two levels of his lumbar spine that will continue to cause him intermittent symptoms present in his back indefinitely.” His prognosis was expressed as “guarded”.

111. In regard to fitness for work, Dr Bentivoglio assessed the plaintiff as follows:

“As long as Mr Adams continued (sic) doing light duties at work, he should be capable of continuing working. He is not fit for heavy manual work activities and needs to avoid bending and twisting movements of his back. Currently, he is coping working 32 to 35 hours per week predominantly as a forklift driver.”

112. This assessment meets with the plaintiff’s oral evidence of his work, at the time, with consistency.

113. Dr Bentivoglio recommended two hours of domestic assistance per week on account of gardening maintenance and household duties which the plaintiff performed prior to his injury. However, I note the plaintiff claims only for future commercial assistance with gardening.

112. Very recent medical assessments show that the plaintiff’s continuing state of impairment has displayed no significant change. The most recent assessment indeed comes from the defendant’s medico‑legal expert, Dr Holmes, and it will be recalled that Dr Holmes unlike Drs Bentivoglio and Associate Professor Sheridan found only a soft tissue injury imposed on a degenerative state of lower spine which was consistent for a man of the plaintiff’s age. That said, all doctors agreed that the plaintiff suffers permanent impairment and continuing symptoms.

113. On 30 June 2020, only three months before the hearing of this case, the plaintiff attended again on Dr Holmes. Again, his report is contained in Exhibit 1. Dr Holmes was briefed by the defendant’s solicitors with the reports of Dr Bentivoglio dated 20 April 2018 and 17 July 2019 to which I have referred. The plaintiff continued to take Mersyndol Forte twice at night and intermittent use of Mobic, anti‑inflammatory medication at the rate of one tablet three times per week, according to the report. Also, it is recorded that the plaintiff was taking Somac for reflux. Consistent with the plaintiff’s evidence at trial, it is recorded that he was undertaking home exercise as prescribed by the physiotherapist and walking for approximately 30 to 45 minutes twice or three times per week. Dr Holmes’ assessment followed closely behind the plaintiff having had the benefit of five physiotherapy treatments, to which he was referred by Dr Marcus. In his oral evidence, the plaintiff said that this was the limit of his Medicare funded, physiotherapy entitlement for the present.

114. The plaintiff’s complaints recorded by Dr Holmes are consistent with those given in his oral evidence of his present state. They include, intermittent low back pain, more predominant in the morning and eased by application of heat and by stretching exercises. Symptoms take 15 to 20 minutes to ease. That the intermittent back pain is experienced throughout the day and for about half a day. It is of average intensity, reported by the plaintiff as 5‑6/10. But the pain is sometimes more severe. Pain is exacerbated with coughing and sneezing. Pain moves from the right side of the lower back to the buttock and intermittently into the lateral aspect of the proximal right thigh. Of his functional impairment, which obviously is the important issue for consideration here; Dr Holmes recorded comfortable sitting tolerance and standing tolerance of 60 to 90 minutes respectively with mild restriction of deep forward bending at the waist. The plaintiff told him that he could crouch and kneel and climb stairs in a normal fashion. Sleep was disrupted on occasion due to back pain. The plaintiff was able to lift and carry 15 kilograms. He was independent in self-care. The doctor reported the plaintiff’s domestic limitations and activities as they were described by the plaintiff in his oral evidence.

115. On this most recent occasion of all medical assessments, Dr Home observed on examination: spinal flexion to three quarters normal range, extension to half normal range, mild dysmetria in lumber extension motion, straight leg raising to 30 degrees bilaterally when seated, but 60 degrees bilaterally “in a long sitting position.” In his diagnosis, Dr Home agreed that imaging demonstrated underlying L4/5 and L5/degenerative change with disc desiccation and small annular fissures. He commented: “It is probable that the accident has rendered these findings symptomatic”. He continued with his diagnosis of soft tissue injury superimposed on underlying degenerative changes.

116. My overall observation of the medico‑legal opinion read with the reports of Associate Professor Sheridan is that, unlike the opinions of Dr Bentivoglio and Associate Professor Sheridan, I am not clear in understanding whether or not Dr Home found the disc desiccation to be consistent with the injury. Those other doctors reported that it was.

117. It is now 3‑and‑a‑half years, approximately, since the injury. The plaintiff’s present state should be taken as likely to be permanent for the purposes of all heads of damages to be assessed.

118. I now deal with past economic loss. I have the benefit of the parties written submissions dated 7 October 2020 which have been marked for identification. In para 23 of the plaintiff’s submission in regard to past economic loss, the figure of net earnings in the sum of $807, as from 1 July 2017, is the basis for calculation. The plaintiff continued with this figure for purposes of calculation of future economic loss also. The defendant agrees with the figure of $807 net per week as earnings that the plaintiff would have received had he continued to work but for his injury in full-time employment.

119. That which I have already reasoned, causes me to reject the underlying premise of the defendant’s submission on past economic loss. At para 25 of the written submission, the defendant put:

“The evidence shows that the plaintiff is able to earn about the same or more than his pre-accident earnings when working full-time hours through labour hire companies.”

122. Such a proposition ignores, of course, that the plaintiff is not fit to work full‑time hours, does not achieve full time employment, does suffer significant periods of unemployment, is paid more per hour as a casual than he was as a permanent which distorts the proposition, and, overall made a substantial loss in earnings.

123. Paragraph 27 of the defendant’s submission calculates the plaintiff’s total earnings between October 2018 and August 2020 in the sum of $44,039.20, being an average of approximately $465 net per week. That is, of course, for the period when the plaintiff was with persistence and commendable application pursuing such opportunities for casual work through labour hire companies as was available to him. It calculates suffering a loss at the difference between $807 and $465 net per week. Accordingly, on the defendant’s calculation, the loss would be $342 per week net.

124. At para 23 of his submissions, the plaintiff calculation of the loss per week is $450 net. The difference between the defendant and plaintiff calculations of weekly loss may be attributable to the fact that the plaintiff’s submission calculated the loss for the whole of the period from injury, whereas the defendant has calculated the loss as that occurring whilst the plaintiff has been exploiting his residual capacity in work through labour hire companies.

125. I have determined, in relation to some short periods to which I will come, and then the period of about a year after leaving Toyota, that the plaintiff is not entitled to damages on the basis of full earnings lost.

126. On that basis, it is the plaintiff’s figure over the whole of the period which is to be employed for the calculation of past economic loss. Accordingly, damages for past economic loss, for the periods during which the plaintiff is entitled to recover, should be calculated at the rate of $450 per week net.

127. The plaintiff is to recover, within that period, nothing for the period 24 April 2017 to 22 May 2017, during which he would not have likely worked because of his psychological reaction to the external stressor, even had he not been injured. The plaintiff is to recover nothing for the period 2 November 2018 to 8 January 2019, during which he was sick for unrelated causes. He is to recover 85% of his loss for the period 22 November 2017 to 8 October 2018. If there is doubt as to rates of earnings, then the rates recorded in Exhibit R are to be employed.

128. The plaintiff is entitled to superannuation on past economic loss at the rate of 11%.

129. I direct the parties, in relation to past economic loss, to perform the calculations and to deliver, by email, to my associate, agreed calculation of past loss on or before 15 October 2020. In the event that there is disagreement as to the calculation, the parties are to each deliver their schedule, and the matter will be listed before me in the following week to reach a final determination.

130. For the whole of the period that he was actually employed by Toyota, he is to receive no damages.

131. I turn now to future economic loss. S 126 MACA provides that assessment of the plaintiff’s damages for future economic loss requires that I be satisfied that the assumptions about future earning capacity, or other events on which I base the award, accord with what I find to be the plaintiff’s most likely futures circumstances but for the injury; and I am to state my adjustment made in my assessment of damages by reference to the percentage possibility that the events concerned might have occurred but for the injury.

132. In this case, there is clear evidence of the difference between the plaintiff’s earning at the date of injury, and his earnings between then and the hearing. I have referred to it, and as it is exposed in the parties’ written submissions. I have determined that it is most likely that the plaintiff’s impairment for earning, in other words, the quantity and quality of his diminished earning capacity will continue permanently because I accept that the plaintiff pursued earnings with reasonable, indeed, commendable commitment since his injury.

133. I find it most likely that the difference, were circumstances to remain precisely as they are today, would be the measure upon which his future loss should be calculated. He continues to receive appropriate medical treatment and historically is shown to be someone wise enough to do so. This is a condition which would promote a continuum of the present earnings differential and as it can be seen to have applied since October 2018.

134. However, each party has helpfully put forward their submissions on a buffer basis. Neither has promoted the evidence permits a precise calculation made on the basis of what might occur in the future, relevant to what the plaintiff’s ongoing loss, will be. In particular, the plaintiff has in his working life achieved qualifications including dogman, forklift operator and crane driver. There is no reason why, as a nearly 41 year‑old, he would not be able to retrain in order to increase his competitiveness in the labour market.

135. A piece of the evidence which exemplified this, in bringing it to my mind, was that concerning his employment at Coca‑Cola and to a lesser extent that involved in the Kruegar trailer manufacturing. He plainly would have continued with the employment at Coca‑Cola but being a casual who on a change of circumstance was put off. That change of circumstance was that when the man who drove the truck was to go on holidays, the plaintiff could not continue in the work because he did not have an MR licence. Nothing in the evidence causes me to understand that the plaintiff given his ability to drive a forklift would not be able to obtain an MR licence.

136. This does not mean I am finding that as a prescription of what his further work would be but it shows a possibility to my mind as to the sort of thing that he could do by retraining to improve his opportunity in the future.

137. He gave evidence that he was able to cope with the work at Kruegar, trailer manufacturing, but for the chemical environment. This evidence excites to my thinking the possibility that he might find employment in the future like that, which was predominantly forklift driving, with very light manual work fixing registration plates to trailers. He can cope with such work so long as it is not in a chemical environment, causing him illness.

138. These are two illustrations. In this case, what there is not is an expert vocational assessment report by either party, of the plaintiff’s opportunity in the workplace including what other types of jobs he might be able to do and what he would earn in them whilst exploiting his residual capacity. There is no doubt that the presentation of a 41 year old man of year 10 education with permanent back impairment which for 3‑and‑a‑half years has most often been assessed at a limited lifting capacity of between ten and 20 kilograms, albeit sometimes less and sometimes more, suffers a major impairment that is a major disadvantage to his competitiveness in the workplace. It puts beyond question that he suffers major diminution of earning capacity. But for the requirement of most likely future circumstances and future adjustment under section 126, I accept the parties’ approach that precision is not available and that a lump sum or buffer award is the appropriate way to proceed.

139. In paragraph 24 of the plaintiff’s written submissions, the plaintiff’s oral submissions, the plaintiff’s most up‑to‑date statement of particulars, as well as the plaintiff’s schedule of damages at the commencement of the trial, it is simply put that a figure of around $300 per week into the future is modest given the rate of income loss in the past to which I have referred. In none of those statements of his claim has the plaintiff separately sought a superannuation provision. I understand the plaintiff to be using $300 per week as a ballpark indicator for reckoning, according to the principles of section 126 and the future circumstance options and possibilities to which I have referred for the purposes of assessment. $300 per week at the agreed calculator at 783 would amount to $234,900. After 15% discount for vicissitudes which the plaintiff employed, it comes to just under $200,000.

140. The defendant’s submission is that a nominal figure of $50,000 for future economic loss is the appropriate sum. It is plain from my reasons that I have taken a very different view of the value of the plaintiff's case from as it has been put in submissions by the defendant.

141. Doing the best that I can with this imprecise evidence as to future loss, I bear in mind that the plaintiff may, as he experiences the great variety of placements in the labour market, perhaps with some recertification or retraining, or by trying different duties than those of a forklift driver, find duties suitable to him and achieve full‑time employment. It is a possibility that he will. In my opinion, the appropriate buffer including superannuation for future diminution of earning pursuant to section 126 MACA is $180,000.

142. I should add that the plaintiff put that it is generally recognised future earnings are calculated to 67 years of age. The defendant, in view very reasonably, put that's not always the case with persons who perform heavy labouring work. That said, the defendant was the one to put, as I have contemplated in achieving the assessment to which I just came, that there are opportunities for the plaintiff to reinvent himself by training and certification to which, if he were an aging manual labourer would limit the aging effect on his capacities. I have considered those submissions in achieving the assessment to which I came.

143. That brings me to the claim for future treatment expenses. Past treatment expenses are agreed in the sum of $14,981.35. The defendant insurer is to have the benefit of section 83 payments in the sum of $5,754.43, and section 84 payments in the sum of $7,000. Obviously, over three and a half years, the more intensive and therefore more expensive early period of the plaintiff's treatment following injury has come to that figure.

144. Dr Home recognises, and with respect it's common in the evidence, that the plaintiff will continue to require medication. On that which is before me, the medication includes at least Mersyndol Daily Strength, Mersyndol Forte, and Mobic. It is reasonable on the evidence that the plaintiff will visit his GP at least a little more frequently than he would have done but for his injury. It is characteristic of injuries of his type, and consistent with the history recognised by all of the medical literature and on his oral evidence, that there will be periods of flare‑up, and in those periods he may require some physiotherapy. Indeed, there may be occasion for him, because of his injury, to be referred for specialist review. No party has directed me to precise evidence on these items.

145. The plaintiff has, in their schedule of damages, affixed figures by specific calculation. At the end of the case, both parties invited me to proceed by a lump‑sum buffer. The defendant puts it at $3,000; defendant's submission paragraph 13. The plaintiff did not specify a figure in its written submission seeking a buffer; paragraph 25. In my opinion, an appropriate buffer is $9,000.

146. As for future commercially obtained garden work, I was surprised at the defendant submissions made orally at the end of the case, particularly as they appeared to differ from the written submission of counsel who had conduct of the trial at her paragraph 44. The plaintiff again put it on the basis of a buffer. It is agreed that 15 hours per year for mowing lawns is reasonable. That is the only item for which this head of damage is pressed.

147. At paragraph 44, defence counsel who had the conduct of the trial helpfully set out a calculation of 15 hours per week at a rate of $40 per hour, applying the appropriate multiplier and arriving at the figure of $10,824, which after 15% for vicissitudes would come to the figure of $9,200. The oral submission was that despite it being put that way and that the parties were speaking without evidence as to precisely what the lawn mowing would cost; the written submission of counsel with the conduct of the trial, was too generous for the plaintiff because it awarded the money upfront instead of discounting it for delay which might occur if the plaintiff’s partners son’s of 18 and 20 years of age continue to provide lawn mowing.

148. When I put to counsel who appeared for oral submissions at the close of the case for the defendant, that $40 a week seemed pretty conservative and that higher rates have been seen in cases, there was no contrary comment. The actual evidence in the case is that the plaintiff said that if he was compensated for lawn mowing, he would pay for it. He was never asked for instance whether or not he had to struggle to get the boys to mow the lawn. He wasn’t asked whether it caused him embarrassment that they mowed the lawn. The whole subject was not the focus of any degree of attack or precision in the course of the hearing. I allow a buffer for future commercial attendant care in the sum of $9,200.

ORDERS

149. I make orders as follows

1. Parties to email to my Associate by 9:00am on 15 October 2020, a schedule outlining complete calculation of past economic loss including entitlement to superannuation on the basis given.

2. List the matter for final orders on Friday, 16 October 2020.

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Decision last updated: 19 October 2020