Alan Lloyd Garvie v Rodney William Bulmer

[2015] NSWDC 200

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Alan Lloyd Garvie v Rodney William Bulmer [2015] NSWDC 200
Hearing dates:	26-28 August 2015
Decision date:	11 September 2015
Jurisdiction:	Civil
Before:	Mahony SC DCJ
Decision:	Verdict and judgment for the plaintiff. For Orders see [132]
Catchwords:	Assessment of damages
Legislation Cited:	Motor Accidents Compensation Act 1999 (NSW) ss 3, 126 and 131
Cases Cited:	Knight v Government Insurance Office of New South Wales [1995] NSWCA 246 McConachie (t/as Willancorah Pastoral Co) v Pack [2004] NSWCA 148 Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1 Miller v Galderisi [2009] NSWCA 353 Varga v Galea [2011] NSWCA 76
Category:	Principal judgment
Parties:	Alan Lloyd Garvie (Plaintiff) Rodney William Bulmer (Defendant)
Representation:	Counsel: A Stone (Plaintiff) C Allan (Defendant)   Solicitors: Maurice Blackburn Lawyers (Plaintiff) Grant Galvin, Hall & Wilcox (Defendant)
File Number(s):	2014/23931
Publication restriction:	Nil

Judgment

The plaintiff’s claim

1. The plaintiff claims damages for injuries suffered by him in a traffic accident on 20 April 2010. In the early hours of the morning, the plaintiff was driving a semi-trailer with a B-Double tanker in a northerly direction on the Hume Highway, just south of Woomargama in the State of New South Wales, when a similar vehicle being driven by the defendant, passed onto the incorrect side of the road and collided with the plaintiff’s vehicle, causing it to leave the road and roll onto the passenger side. It was a heavy impact and the plaintiff suffered serious injuries as outlined below.

2. The defendant admitted liability for the plaintiff’s injuries and the hearing proceeded as an assessment of damages on 26, 27 and 28 August 2015.

3. The plaintiff had suffered previous injuries, principally to his lower back, right knee and right shoulder, and had undergone surgical procedures to his knee and shoulder between 2006 and 2008. He had returned to work as an interstate tanker driver approximately 12 months prior to the subject accident with work restrictions limiting him to lifting no more than 10kg, and not lifting above shoulder height. This meant that he had restrictions in loading and unloading, and carrying out mechanical repairs which mainly involved changing tyres. He was otherwise able to carry out the duties of an interstate tanker driver.

4. The plaintiff claimed the following heads of damage: non-economic loss, treatment and future treatment expenses, past wage loss and future economic loss, together with past and future losses of superannuation entitlements. He also makes a claim for gratuitous domestic care and assistance provided to him following the accident, and paid domestic assistance into the future.

5. The dispute between the parties concerned the ongoing effect of the plaintiff’s pre-accident injuries and their treatment upon him, and the impact of any ongoing disability of those injuries on the assessment of each of the heads of damages referred to above.

6. It was not in dispute that the plaintiff was entitled to damages for non-economic loss, having been assessed by a review panel pursuant to the Medical Assessment Service (‘MAS’) process as having a whole person impairment (‘WPI’) of 19 per cent, and thereby satisfying the threshold in s 131 of the Motor Accidents Compensation Act 1999 (NSW) (‘MACA’).

The plaintiff’s evidence

7. The following summary contains my findings of fact in this matter unless otherwise indicated. The plaintiff was born on 2 May 1949 and was 61 years of age at the date of the accident on 20 April 2010. He married his wife Juanita in 1970 and they had two children. In 1972, he commenced full-time employment as a truck driver and had worked as a truck driver ever since. In 1983, that employment was with Knight’s Tankers; however this company was bought out by McColl’s Transport, by whom he was employed at the time of the subject accident.

8. The plaintiff gave evidence that he had suffered a number of injuries at work. In 1991, he suffered lower back pain after being jolted whilst driving a truck. He also had some pain in his neck with tingling in his right index finger.

9. In October 1992, the plaintiff suffered an injury to his back whilst adjusting a valve in the seat of a truck. He suffered lower back sciatica pain as a result of that incident and was off work for five weeks. Subsequently, there were a number of aggravations to that injury which caused him to take short periods of time off work. He did receive occasional chiropractic treatment in relation to his back.

10. In October 1995, he aggravated his back whilst lifting a pump at work. Again, he suffered a further aggravation to his back pain whilst loading a truck and had a short period of time off work.

11. In 2005, he sustained an injury causing him pain in the lower back when he went down a step between the shower room and change room at the premises he was using for his work. He had chiropractic treatment, and the pain settled within a short period of time.

12. On 8 February 2006, the plaintiff was loading oil onto a tanker by a work practice which involved him holding a spring valve open by using his right arm above shoulder height. He suffered a muscular injury to his right upper back and right shoulder as a result of having to hold the spring valve down during a loading operation that took between three and four hours, with his right arm reaching over his head. He returned to work after a short period of time off, but experienced problems with his right shoulder thereafter and was referred by his GP to a Dr Hunt, orthopaedic surgeon. On 14 August 2006, an x-ray of his cervical spine, chest and thoracic spine, showed degenerative changes at C5/6 and C6/7 levels, and a compression fracture at T8.

13. On 15 November 2007, the plaintiff was driving to an appointment with Dr Hunt at Swan Hill when he was involved in a motor vehicle accident and suffered an injury to his right knee together with lacerations of his arms. He then consulted Dr Hunt in relation to his knee and underwent a right knee arthroscopy by Dr Hunt on 20 March 2008. He enjoyed some improvement of the condition of his right knee after that procedure; however he continued to experience some symptoms in the knee up to the time of the subject accident in April 2010. Following that accident, the plaintiff underwent further surgery on his right knee on 15 December 2010, and his knee improved. He was having no problems with his knee at the time of trial. A claim had been made against the Transport Accident Commission in Victoria in respect of that accident, and no claim was made by the plaintiff for any injury or sequelae to his right knee arising out of the subject accident.

14. On 3 March 2008, the plaintiff consulted Dr Simon Holland in relation to the posterior right shoulder pain he was suffering as a result of the accident on 8 February 2006. It was noted that the plaintiff at that time “avoids reaching overhead”, and he was referred for an MRI. Prior to undergoing his right knee arthroscopy on 20 March 2008, the plaintiff was diagnosed with a right shoulder rotator cuff tear, and osteoarthritis of the acromioclavicular joint.

15. Dr Holland performed a right shoulder arthroscopic subacromial decompression procedure on 1 August 2008. He was thereafter issued a number of worker’s compensation medical certificates in respect of his rotator cuff tear.

16. On 13 October 2008, the plaintiff was certified fit for modified duties being general light office work. He had physiotherapy treatment and returned to work three to four months after the surgery. He worked normal hours, but had a restriction on lifting.

17. In April 2009, the plaintiff was certified fit for modified duties as a truck driver. The restrictions were not to load, and not to carry out any mechanical work on the truck. The only mechanical work required was to change tyres when required. Thereafter he called his base to arrange for a tyre supplier, or the company workshop manager to change a tyre if required.

18. The plaintiff gave evidence that just prior to the subject accident in April 2010, his right shoulder had been “getting better all the time”, and he had no restriction in the performance of his duty, nor was there any restriction in what he was doing at work because of his prior neck injury. The defendant disputed this evidence.

19. The plaintiff gave evidence that his working week as an interstate tanker driver would usually start at Swan Hill where he lived. He would load his vehicle on Friday at either Adelaide or Melbourne, and then drive to Swan Hill for the weekend. His working week would commence either on Sunday night or Monday morning from Swan Hill. His work would involve delivering bulk liquids which would be delivered in Adelaide, Sydney or country NSW. The prime mover had a sleeper cab and the plaintiff would live in it, carrying out ablutions at depots or road stops during the week.

20. The plaintiff’s work involved some loading and unloading from the top of the tanker, and he would be required to climb the ladder at the rear of the tanker to open vents during the loading process.

21. The plaintiff stated that he loved his work driving tanker trucks. He gave the following evidence:

“Q. Was it a job that you wanted to continue doing?

A. Yes.

Q. In 2010 you were aged 61 and you had just had a shoulder operation. You had been paid workers compensation. Why did you get back to work.

A. Loved the job. Couldn’t wait to get back to work; worked very hard to get that shoulder, with the help of Jordan Bourke, working well before it should have to get back to work.

Q. In terms of retirement, I think you’ve checked recently, how much have you got in superannuation at the moment.

A. Not enough.

Q. Can you remember a figure?

A. Somewhere around $180,000, maybe $200,000.

Q. What were your plans coming into 2010 about your superannuation and when you might retire?

A. The way I was feeling, I was looking at around 70 and topping up my super with salary sacrifice and giving myself a very large nest egg for retirement or if I felt good and everything was going right, ease down the work load and maybe work a little bit longer.”

22. The plaintiff gave evidence that each Christmas and January period, he would take a holiday, usually travelling overseas.

23. In the early hours of 20 April 2010, he was hauling a B-Double tanker towards Oberon on the Hume Highway. There were road works south of Woomargama for which he reduced his speed, when a vehicle travelling in the opposite direction travelled onto the incorrect side of the road which impacted with the driver’s side of his vehicle. Photographs tendered in the plaintiff’s case (Ex C), demonstrated an impact just to the rear of the driver’s door on the prime mover and to the side of the two tankers. The plaintiff’s vehicle left the road and rolled onto the passenger side.

24. The plaintiff was taken by ambulance to Wagga Wagga Base Hospital and admitted with a right shoulder degloving injury. Two days later he was transferred to Swan Hill Hospital, and on 7 May 2010, he was admitted to St Vincent’s Hospital in Melbourne. He underwent a debridement of his right arm and a split thickness skin graft from his right thigh. He was discharged from hospital on 12 May 2010, into the care of his local medical officer. Thereafter he was treated by way of analgesic medications, physiotherapy and a number of procedures to remove foreign bodies (i.e. glass) from his right upper limb.

25. On 27 September 2010, the plaintiff was treated at the Melbourne Whiplash Centre for severe neck pain and restriction of movement in rotation and lateral flexion. He was referred for a course of physiotherapy and ultimately on 21 October 2010, he was certified fit for modified office duties until 18 November 2010.

26. Following the motor vehicle accident, the plaintiff continued to have problems with his right knee and was ultimately admitted to Epworth Hospital in Melbourne for a right knee arthroscopy, a re-section of a medial meniscus tear and a chondroplasty of the medial femoral condyle by Dr Hunt. He took some time to convalesce following that operation, which was successful and makes no claim in respect to his right knee arising out of the motor vehicle accident.

27. Exhibit D was a bundle of photographs showing the injuries suffered to the plaintiff’s right upper forearm and shoulder, the gross deformity of the scarring and also the donor site.

28. In February 2011, the plaintiff’s employer provided modified duties for him working on a computer at his home. The plaintiff could not sit for too long doing that work, which gave him headaches. Those modified duties ceased after a few months and thereafter he was not offered any other employment by his employer.

29. In 2012, the plaintiff completed a Certificate III in Occupational Health & Safety at the Sunraysia Institute of TAFE (Ex E). He tried to find employment in Swan Hill, but was unsuccessful. The plaintiff gave evidence that he would like to be working, but could not find work at Swan Hill. He stopped receiving workers compensation payments at age 65 and thereafter was placed on a disability pension. He said that he never intended to go on a pension and that if he was fit enough to work he would be back driving tankers interstate.

30. The plaintiff gave evidence that he became very moody as a result of his injuries. His neck was painful every day, but the pain went up depending on the medication that he took and what activities he engaged in. When asked to demonstrate what mobility he had in his right shoulder, the plaintiff was able to lift his right arm to a point level with this shoulder joint.

31. The plaintiff was asked about an examination he attended with a Dr Richard Sekel, arranged by the defendant. Dr Richard Sekel had annexed to his report, photographs of the plaintiff with his arm extended well above shoulder height. The plaintiff gave the following evidence:

“Q. Did you move your arm into those positions just by yourself?

A. No.

Q. Did you get some help?

A. Yes.

Q. Who from?

A. Dr Sekel.

Q. Did those positions represent what was comfortable for you or something else?

A. No, it wasn’t comfortable.

Q. What was it?

A. Painful.

Q. Did he say anything to you at the time that he was moving your arm into those positions?

A. If I recall, “you should be able to get it higher than that”, at which stage he got his hands and moved it up a bit higher and took a photograph.

Q. Did you suffer any consequences of him having done that in the days and weeks that followed?

A. Yes.

Q. What were they?

A. Pain in right shoulder, neck pain.

Q. Did you tell him at the time that it was hurting?

A. Yes.

Q. Did he make any response?

A. Not that I recall.

Q. Was that something you experienced at any of the other medical appointments that you went to with various doctors in relation to this case?

A. No.

Q. Do you think that the movement shown by him in those photographs barely reflects what you do on a normal day to day basis?

A. No.”

32. The plaintiff gave evidence that he would be unable to return to interstate tanker driving as he would be a hazard on the road. He had also been unable to return to any of his recreational activities of shooting, fishing or playing cricket with his grandchildren. He was right hand dominant and was restricted in a lot of activities.

33. The plaintiff gave evidence that his intimate relationship with his wife had been affected. He gave the following evidence:

“Q. Subsequent to this accident, have sexual relations with your wife decreased?

A. Yes.

Q. By that I mean they had become less frequent?

A. Yes.

Q. Why?

A. Pain.

Q. Given how your shoulder is does it have the strength to do a push up?

A. No.

Q. Does that in turn mean that it is difficult to have sex with your wife in the standard missionary position?

A. Yes.

Q. Are you able to bear the weight of your body during sexual intercourse?

A. No.

Q. Does that in turn mean that it tends to be something that you avoid?

A. Yes.

Q. And has that led to any strains in your relationship?

A. Yes.

Q. How do you feel about that?

A. Not good.

Q. Can you expand on that answer a little bit more please?

A. I would like to be more sexually active.”

34. The plaintiff gave evidence that he felt “downgraded” as a husband and provider for his family. His injuries made him feel inadequate and he was unable to carry out maintenance on the house.

35. Prior to the accident, the plaintiff gave evidence that he had done the majority of the lawn mowing, gardening and outdoor household maintenance.

36. As a result of the injury to his right shoulder, the plaintiff suffered interrupted sleep whenever he rolled onto his right hand side. He said that he was very self-conscious about the scarring on his right shoulder and would wear clothing to cover it. His right hand strength had diminished and he had a lifting restriction placed on him.

37. The plaintiff gave evidence that he required assistance from his wife with showering and dressing, following the accident. For a period of time following his discharge from hospital, his wounds bled onto the sheets which required his wife to wash the sheets each time. That was every second day for three or four months and continued for six months. He also required assistance with his personal care including cutting his toenails and opening jars. The plaintiff is unable to assist with spring cleaning of the house or moving heavy furniture.

38. The plaintiff gave evidence that he was able to mow the front and back lawns and do the edges in three hours (“four at the most”) prior to the accident. He could now do the front lawn one day and the back the next, if he was feeling up to it. Mowing the lawn caused him pain and if he could afford to pay someone else to do it, he would. Other garden maintenance included, pruning the trees and weeding the garden beds.

39. In cross-examination, the plaintiff gave evidence that he sometimes stayed in motels whilst working, and that his employer purchased fuel for the truck. He paid for meals and was given an allowance to cover meals and incidentals.

40. The plaintiff was cross-examined on his 2009 Income Tax Return (Ex 1.10, 487) which revealed that his gross income was $72,250.00 and for that year he had claimed work related expenses of $6,734. That amount was made up of legitimate deductions which he had provided receipts to his accountant for.

41. The plaintiff was cross-examined about his pre-accident injuries and it was suggested to him that on 15 November 2007, when he was involved in a motor vehicle accident where his car hit a kangaroo, that he not only injured his right knee, but also his neck and back. The plaintiff disagreed. He did agree that at that time he was still having treatment in relation to his right shoulder. He had a month off following that car accident.

42. The plaintiff was certified unfit for his full duties at work from 15 February 2008 to 10 June 2008. In March 2008, he underwent a right knee arthroscopy by Dr Hunt, but he did return to work before that surgery. Following that surgery, he returned to work on 11 June 2008. It was put to the plaintiff that his right knee injury had not recovered at the time of the subject motor vehicle accident in 2010, with which he disagreed. He said he was continuing to have symptoms in the right knee “to a certain extent”, but that he was still able to work. He also underwent a right shoulder operation performed by Dr Holland on 1 August 2008. He agreed that he suffered continuing symptoms in his right shoulder up until the time of the subject accident in April 2010.

43. The plaintiff had physiotherapy on his right shoulder following the surgery. By April 2009, he was able to go back to work and he continued to have physiotherapy for his shoulder on an irregular basis.

44. When the plaintiff returned to work he was on modified duties that meant he was not allowed to do any loading or any mechanical work on the trucks. He agreed that at the time of the motor vehicle accident he was suffering from right knee pain and also working under modified duties pursuant to a WorkCover certificate. The plaintiff agreed that on 19 April 2010, the day before the accident, he had physiotherapy treatment and also attended the Swan Hill medical centre. It was put to him that he was complaining to the medical centre of pain in the right knee which he denied, saying that he just went there for an ongoing certificate. He said that he needed the certificate to keep working. He did not recall telling the physiotherapist on that day that he was “very tight over the previous 5 days with increased time in the truck”.

34. The plaintiff did not agree with the proposition that his physical condition had been gradually deteriorating up until the time of the motor vehicle accident. He said that his right shoulder got better all the time after he went back to work and agreed that it never got to 100 per cent saying it was “99”, meaning that it was 99 per cent.

35. The plaintiff agreed that the first time he mentioned to his local GP that he was suffering from neck pain, headaches and shoulder pain following the accident, was on 30 August 2010, approximately four months after the accident. However, he said the neck pain was there from the day of the accident, whereas the headaches came on after the accident. It was put to him that there was a four month delay before the onset of headaches; however he said he was on heavy medication during that time.

36. In respect of the examination by Dr Richard Sekel, the plaintiff was questioned as follows:

“Q. What did he do? He asked you to move your arm and you moved it as far as you went?

A. Yes.

Q. Then what did he do?

A. He told me that I should be able to move it further than that, he got his hand on my elbow and pushed it up a little bit further.

Q. How did the photograph come to be?

A. He took it.

Q. So he stepped away from you at that point.

A. Yes.

Q. And went back and took a photograph?

A. Yes.

Q. Of you still holding your arm above your shoulder?

A. Yes.

Q. Why didn’t you move your arm back down once he stopped took his arm away?

A. Because he asked me to, to leave it up there while he took a photo.

Q. Were you in pain?

A. Yes.

Q. You see, what I want to suggest to you is that all of your movements during the examination by Dr Sekel were done purely within your own control?

A. No.

Q. There was no physical input by the doctor whatsoever?

A. No.

Q. Do you agree with that?

A. No.

Q. So when the doctor says that the examination was conducted without physical input by the examiner, you say the doctor is wrong?

A. Yes.

Q. What I want to suggest to you is that that’s just not true. What do you say about that?

A. I suggest you’re wrong.”

48. In respect of the plaintiff’s evidence of looking for other work, he agreed that he would be able to carry out light driving work.

49. The plaintiff was challenged about his evidence that he intended to work to age 70. He agreed that his right knee was not better by the time of the accident and that he required surgery six months after the accident. It was put to the plaintiff that at the time of the accident, he had not got himself into a position where he was free of symptoms in various parts of his body to which he replied, “I would say I was getting better all the time”. The plaintiff was then asked:

“Q. Do you know any of the other employees of McColl’s Transport? You’d been there for a long period of time so I take it you know a number of the other truck drivers?

A. Yes.

Q. How many would you say are up to the age of 70?

A. I would say quite a number.

Q. How many?

A. Without looking of the records of who is there, I would say I could probably name at least 10.

Q. Do you know 10 persons who are the age of 70 who are working for McColl’s Transport?

A. Yes, I would say so.

Q. Doing the long haul travel that you do?

A. Yes.”

50. It was common ground that after the accident, the plaintiff was certified as fit for modified duties involving a three hour driving limit with rest breaks, and lifting no more than 10kg.

51. The plaintiff made appropriate concessions that following his right shoulder surgery in 2008, he had assistance from his wife with bathing, dressing and cutting his toenails. He did not agree with the proposition that prior to the motor vehicle accident in April 2010, his shoulder in terms of pain and range of motion, had not got back to normal. However, he did concede that the WorkCover medical certificates certified him fit for modified duties only. The plaintiff also conceded that he had been told by his treating doctors that his shoulder would never be 100 per cent. He did not agree with the proposition that he had overstated his physical condition at the time of the motor vehicle accident.

52. The plaintiff denied that he had been able to shower on his own since four months after the accident. Rather, he gave evidence that he required assistance every second day depending on the degree of pain in his shoulder.

53. The plaintiff denied being perfectly capable of cutting his own toenails. He was asked:

“Q. What prevents you from doing your own toenails?

A. It is a lot easier for my wife to do them because if I do them and have a slip in that position I am going to take more toenail than I want and probably end up with bleeding toes and toenails that are going to grow at an obscene angle.”

54. When asked about the time it took him to mow the lawn, the plaintiff gave evidence that a contract lawnmower has a larger machine and could therefore cut the lawn in less time. He did not agree that it was an overstatement that he took three to four hours to mow his lawns.

55. The plaintiff last had physiotherapy treatment on 1 April 2015. The reason for him not continuing treatment in recent months was that he could not afford it. The workers compensation insurer had stopped payment for chiropractic treatment.

56. In re-examination, the plaintiff clarified that a reference by Dr Hunt in the various reports to him suffering injury to his left knee was an error. He clarified that he normally gave his accountant receipts for meals that he had purchased whilst on the road. Further, he gave evidence of an Australian Taxation Office (‘ATO’) ruling each year for interstate drivers as to the treatment of allowances for tax purposes (Ex K).

57. The plaintiff also gave evidence that he had been unable to find any light driving courier work, and had received no assistance from the defendant’s insurer in finding such work.

Mrs Juanita Garvie

58. The plaintiff’s wife Juanita Garvie gave evidence corroborating that the plaintiff loved his work and notwithstanding that he had suffered injuries to his right knee and shoulder, for which he had required surgery, he had been looking forward to returning to work. Following the second operation on his knee in December 2010, the plaintiff had made no further complaint about his knees.

59. Mrs Garvie described her husband as always being in a good mood. On weekends he would do lawns, weeding and maintenance and immediately prior to the accident in 2010, she denied that he had any restrictions because of his shoulder. She corroborated his evidence as to the physiotherapy treatment and gave evidence that the plaintiff did not want to retire, and that she did not want him to retire, at any time close to the April 2010 accident.

60. Mrs Garvie corroborated the plaintiff’s evidence as to their active intimate relationship and the effect of the plaintiff’s injuries on that. She described him as looking “shocking” after mowing a section of the lawn, and said that he would come in and sit down for an hour or two hours, and take pain relief. He would then finish the lawn the next day.

61. Mrs Garvie gave the following evidence about Dr Richard Sekel’s examination of the plaintiff, which she attended:

“Q. Was there a period during that examination where your husband was asked to demonstrate how he could move his right arm.

A. Yes.

Q. Tell us what happened during that part of the examination?

A. Dr Sekel put his arm up and my husband said “that’s as far as it’ll go” and he said “I think you can get it up a bit further than that” and he just put it right up.

Q. When he said “he put it right up” who is the he you are referring to?

A. Dr Sekel, Dr Sekel put it right up in the air and took a photo and said ‘now you can put it down.

Q. Subsequent to that appointment did your husband say anything to you about how his right arm was feeling?

A. He suffered for about 2 or 3 weeks afterwards with neck pain and headaches.

Q. Was the position to which Dr Sekel moved his right arm one that you normally observe your husband to move his right arm to in the course of his day to day activities?

A. No.”

62. Mrs Garvie was cross-examined as to Dr Richard Sekel’s examination. She stated that Dr Richard Sekel put the plaintiff’s arm up to shoulder height and was asked:

“Q. So is it the case that your husband did not move his arm on his own at all during that examination?

A. No, Dr Sekel just kept pushing and pushing it.

Q. So there was no movement that your husband did without some assistance from Dr Sekel, is that your evidence?

A. No, he just put it up he pushed it and that’s all I can remember.

Q. I want to suggest to you that’s just not correct. That Dr Sekel in fact asked your husband to move his arm on his own without any assistance from the doctor at all?

A. I can’t remember, all I can remember is Dr Sekel pushing his arm up.

Q. In fact your husband did move his arm in the position in which he was photographed without any assistance from the doctor at all?

A. No Dr Sekel assisted in him, in doing it then took the photo and told him to leave his arm up there like that and I wasn’t very happy with it.

Q. Is it clear from that photograph that no one is holding his arm up in that position in that photograph, isn’t it?

A. Yes, but Dr Sekel put the, his arm up there like that then told him to hold it and he took the photo.”

The defendant’s evidence

63. The only oral evidence called by the defendant was that of Ms Dawn Piebenga, occupational therapist, who was required for cross-examination by the plaintiff and Dr Richard Sekel, who gave evidence on the Voir Dire in respect of his qualifications. Dr Richard Sekel was then cross-examined on his report dated 12 November 2014, which was admitted over objection and in respect of the factual issue as to whether he had assisted the plaintiff during his examination to elevate his right arm above shoulder height for the purpose of Dr Richard Sekel taking photographs of it. The significance of those photographs is that the range of movement demonstrated by them was far in excess of the previous clinical testing of the range of movement of the plaintiff’s right shoulder. The resolution of that factual issue therefore, became relevant to two issues: first, the credit of the plaintiff, and secondly, the ongoing sequelae suffered by the plaintiff from the injuries that were occasioned to him in the motor vehicle accident. The evidence of Ms Piebenga, and that of Dr Richard Sekel, are dealt with below.

The plaintiff’s medical evidence

64. The plaintiff’s medical evidence (Ex F1-46) established that he suffered a right lateral shoulder wound measuring 10cm x 10cm together with bilateral knee lacerations. The medical evidence established that he had undergone a right knee arthroscopy on 20 March 2008 by Dr Hunt, and on 1 August 2008, underwent a right shoulder arthroscopic subacromial decompression.

65. The plaintiff’s shoulder injury as depicted in the photographs in Ex D was diagnosed by Dr M Stapleton, plastic and hand surgeon, as being a condition constituting “significant disfigurement from skin loss and skin lacerations together with a soft tissue injury involving his right shoulder joint. As a result he has a significant disfigurement and a reduced range of right shoulder joint movement”.

66. Dr P Endrey-Walder, general surgeon, reviewed the plaintiff’s hospital and medical records and opined that he had suffered extensive soft tissue injuries to the lateral aspect of the right shoulder and arm and soft tissue strain to the neck in the motor vehicle accident. Dr Endrey-Walder was of the opinion that he needed help and assistance with some of the heavier duty household related chores, and that that related not only to the restriction in the range of movement of the right shoulder, but also to the plaintiff’s diminished capacity in maintaining his dominant arm above shoulder level for any length of time. Thus, he had difficulties with repair and maintenance work and gardening.

67. Dr Endrey-Walder was of the opinion that the most effective rehabilitation for the plaintiff was reinstating his physiotherapy treatment on a fortnightly basis (that is $70 per session). He should also continue to consult his family physician each month ($80) and that if and when he saw a neurosurgeon ($300), an MRI of the cervical spine and of the right shoulder would be requested ($1000 in total).

68. Dr Endrey-Walder commented on the photograph taken by Dr Richard Sekel. He showed it to the plaintiff who said that the doctor “pushed me, and I paid for it with much pain over the next 2 to 3 weeks”.

69. Dr Endrey-Walder assessed the plaintiff as being 18 per cent WPI.

70. The plaintiff was assessed for his care needs by Ms Marie Stevens, occupational therapist, whose report dated 6 January 2015, became Ex F46. This will be referred to below, together with Ms Piebenga’s reports. Ms Stevens was not cross-examined by the defendant.

71. Also tendered in the plaintiff’s case were reports from the MAS. Mr H Pry had assessed the plaintiff in respect of his right upper arm and shoulder wounding and his right thigh donor site as being eight per cent WPI. The same injuries were assessed at nine per cent WPI by Mr A J Buzzard.

72. A review panel assessed the plaintiff as suffering 5 per cent WPI in respect of his cervical spine, and 7 per cent WPI in respect of his right shoulder injury, and a total percentage WPI of 12 per cent.

73. Assessor, Mr Ian Cameron, on 28 April 2014 assessed a WPI of 19 per cent, on a Combined Certificate which included the wound to the right upper arm and shoulder, and the donor site on the plaintiff’s right thigh.

The defendant’s medical evidence

74. The defendant relied upon medical evidence contained in Ex 1 (Ex 1.1-1.9) and Exs 2, 3 and 4. None of the doctors, except for Dr Richard Sekel, were required for cross-examination. Dr Richard Sekel’s evidence is referred to below.

75. Dr Robert Breit examined the plaintiff on 2 September 2013. At that time, the plaintiff complained of neck pain, worse on the right than the left, radiating into the trapezius and the top of the scapular. He also suffered headaches which affected his eyesight. The plaintiff had restricted range of neck movement with pain radiating down the right arm and had restriction of movement of the arm overhead.

76. Dr Breit described Mr Garvie as presenting in a very “straight forward manner, with no maximisation or inconsistency”. He diagnosed cervico-brachial pain, with non-verifiable radiculopathy. Dr Breit was of the opinion that Mr Garvie did not do any house work by habit and for the first year he needed to get someone to mow the lawn and also to prune the trees on an annual basis. He was considered fit for full-time work duties but not in the role of interstate transport driver. He assessed the plaintiff at 14 per cent WPI.

77. The defendant relied on reports from Dr Peter Battlay which had been provided by the workers compensation insurer. The first report dated 15 September 1999, concerns the onset of back pain at work in October 1998. The second report dated 18 March 2003, updates the previous report and describes the plaintiff as a “pleasant, cheerful and co-operative middle age man, in no obvious discomfort”. Dr Battlay was of the opinion that the plaintiff was “pulling his weight, performing his full pre-injury duties,” and recommended that he maintain chiropractic treatment in respect of his lower back.

78. The defendant also relied on a report of Professor V Marshall dated 29 December 2008, concerning an injury the plaintiff suffered to his right shoulder on 8 February 2006. At that time, the plaintiff had enjoyed gradual improvement in his shoulder condition since an operation on 1 August 2008, but had not as yet been able to return to work. Professor Marshall was of the opinion that he would resume full-time pre-injury duties by early February 2009 and was likely to be left with significant partial-permanent impairment of the right shoulder and mid-back.

79. Exhibit 2 was a report of Dr M Baldwin, dated 3 September 2013. Dr Baldwin is a plastic and reconstructive surgeon, who opined that the plaintiff was embarrassed by his significant scarring and that his domestic chores were now limited to mowing the lawn. He assessed the plaintiff at seven per cent WPI.

80. Exhibits 3 and 4 were two reports from Mr R White, consultant surgeon, dated 1 June 2012 and 9 December 2013, respectively. Mr White’s opinion was confined to the plaintiff’s lower back condition which he opined was age-related degenerative change. He went on to state:

“The worker claims an injury as a result of the incident in 1998, resulting in permanent damage from which there is long-term pain. I am unable to confirm or deny that in the absence of imaging before and after that incident.”

81. The two reports were of very limited utility in determining any issue before me.

The evidence of Dr Richard Sekel

82. Dr Richard Sekel provided a report dated 12 November 2014, following an examination of the plaintiff on that day. His qualifications were recorded in that report as “MB BS FAA DEP CIME Dip OHSM”. A Voir Dire was held on the question of Dr Richard Sekel’s qualifications, which established that he was qualified as a medical practitioner in 1969 and had thereafter received a diploma in occupational health safety management some 30 years ago from a private college. It was not a specialist qualification. He was also a fellow of the American Board of Independent Medical Examiners. That required attendances at conferences and seminars for two days every three years, followed by an exam. Dr Richard Sekel had also trained as a MAS assessor under the Motor Accidents Assessment Service, and had worked as an assessor between 2000 and 2008. Thereafter, the MAS employed specialist medical practitioners only in that role.

83. In cross-examination, Dr Richard Sekel gave evidence that he had not been involved in active orthopaedic surgery at all in the last 20 years and that he had no current patients, but that 90 per cent of his work for the last two decades had been medico-legal report writing. Whilst there was now a specialist college in relation to the practice of occupational medicine, he was not a member of that faculty as it required a four year formal post-graduate degree course.

84. Following the Voir Dire, Dr Richard Sekel’s report was admitted over objection as to his qualifications. Dr Richard Sekel set out the history of Mr Garvie’s previous injury, the injuries sustained in the accident and his subsequent treatment. He set out the residual symptoms suffered by the plaintiff as follows:

• “An ache in the right shoulder with extremes of abduction, forward flexion, internal rotation and backward extension.

• A localised ache in the right suprascapular region (pointing to a localised point just lateral to the right base of the neck), that is intermittent, mostly if he attempts to rotate his neck through a significant range to the left.

• Cosmetically somewhat unpleasant scar on the lateral surface of his right upper arm, although it is now covered with normal-appearing skin.”

85. Dr Richard Sekel recorded the following findings on physical examination:

“All movements performed in the physical examination were active, i.e. performed under the voluntary control of the examinee, without physical input by the examiner.

He was a right-handed 65 year old man who moved freely and was in no apparent distress. He appeared to be genuine in his responses.”

86. Dr Richard Sekel was of the opinion that it was reasonable that the plaintiff was certified as totally unfit for work for four months from 20 April 2010, until 30 August 2010. He opined that by 20 October 2010, he would have been fit to upgrade his hours of modified work as being fit for eight hours work per day, five days a week, of a relatively sedentary nature, but not fit for truck driving. By 20 January 2011, in Dr Richard Sekel’s opinion, the plaintiff would have been fit for his previous work as an interstate tanker driver. His level of earning capacity therefore had returned to its pre-existing level by 20 January 2011.

86. Dr Richard Sekel was also of the opinion that approximately six months after the subject accident, the plaintiff’s function would have returned to the level where he could undertake gardening and lawn mowing, and that the injury suffered by him had not resulted in a need for increased domestic assistance beyond that period. Dr Richard Sekel assessed the plaintiff as being two per cent WPI with regards to range of motion of the right shoulder based on his pre-existing shoulder injury and photos enclosed with his report which showed the plaintiff having much better ranges of active right shoulder movement than he had demonstrated to the MAS assessors. It is that range of movement of the right arm which became the factual issue between the parties.

Issues to be determined

88. The following were the issues identified by the parties in their submissions to be determined:

1. The credit of the plaintiff.

2. The factual issue raised by Dr Richard Sekel’s report.

3. In respect of the assessment of damages, the competing schedules of damage relied on by the parties are set out below. Leaving aside the assessment of non-economic loss, the principal issues in respect of that assessment were as follows:

1. The starting point for assessing the plaintiff’s earning capacity as at the time of the accident.

2. The residual earning capacity for the purpose of calculating future earning loss.

3. Whether the plaintiff has crossed the threshold for an award of damages for past gratuitous care, and if so, for what period he satisfied that threshold.

4. Whether the plaintiff is entitled to one or three hours paid domestic care into the future.

5. The extent to which the plaintiff will require future treatment.

Determination – the plaintiff’s credit

89. The defendant submitted that the plaintiff was evasive in his evidence concerning the deductions he claimed in his 2009 tax return and matters incidental to that, which were the subject of cross-examination (see [40] above). In cross-examination, he was asked whether meals that he bought on the road would include part of the receipts that he would give to the accountant, to which he answered “No”. In re-examination he gave an inconsistent answer when asked:

“Q: Do you normally give your accountant receipts in relation to meals whilst you’re on the road?

A: Yes.”

90. It was on that basis that the defendant submitted that the court would need to consider all of the plaintiff’s evidence with some caution unless it was supported by other objective material.

91. I do not accept the defendant’s submission. The plaintiff gave his evidence in a straightforward and unaffected manner. He made appropriate concessions, and rather than being evasive, he answered the questions directly in relation to his taxation affairs. It was clear that he relied heavily on his accountant, and the two taxation determinations, TD 2009/15 and TR 2004/6, tendered on his behalf (Ex K) supported his evidence as to the tax ruling by which his allowances were treated. I was impressed with the plaintiff, and find that he was a witness of truth.

92. Similarly, Mrs Garvie was a witness of truth, who did not overstate the plaintiff’s incapacity, and whose credit was not impugned at all in cross-examination. In respect of the factual issue involving the examination by Dr Richard Sekel, the defendant’s case was put to her as set out in [62] above. That evidence essentially corroborates the plaintiff’s evidence on that issue, namely, that Dr Richard Sekel did assist the plaintiff in elevating his right arm above shoulder height.

The factual issue – Dr Richard Sekel’s examination

93. As set out above, Dr Richard Sekel reported that all movements performed in his physical examination by the plaintiff were active, namely, performed under the voluntary control of the plaintiff without physical input by the examiner.

94. Dr Richard Sekel gave evidence that he had an independent recollection of the examination, and that he did not assist the plaintiff at all in moving his arm so as to allow Dr Richard Sekel to take the photographs attached to his report. When asked how long the plaintiff kept his arm in that position while he took the photograph, his evidence was:

“A: Well, I took it with my simple iphone. It needs to be set up. I actually recall that I hadn’t – I don’t recall that I was going to take photographs, but when I saw the significant range of motion, and realised that it was so different to the measurements recorded by various MAS assessors, including review panellists, I took the very unusual step for me, step of taking out my phone and setting it up, in camera etc, so therefore – that was the long answer. The short answer is I’m guessing at least 30 seconds, probably 60 seconds.”

95. Dr Richard Sekel was cross-examined and said that his recollection was based on the significant differences from multiple review panellists and the MAS assessors, that the plaintiff’s scar was “noteworthy”, and “it was not so long ago”. He could not recall the appointments of the people who he saw either before, or after the plaintiff.

96. Dr Richard Sekel agreed that the sentence, “All movements performed in the physical examination were active, i.e. performed under the voluntary control of the examinee, without physical input by the examiner” (see [85] above) was a formulaic sentence found in all of his reports.

97. Dr Richard Sekel agreed that his MAS training gave him an understanding of procedural fairness which involved drawing to the attention of the examinee anything unusual about which he was to make an adverse comment, and to give the examinee an opportunity to reply. He agreed that he did not extend such an opportunity to the plaintiff on this occasion; however he disagreed completely with the suggestion that he physically put his hands on the plaintiff and elevated his arm upwards.

98. Dr Richard Sekel agreed that the photographs of the vehicles involved in the collision (Ex C), were consistent with “the sort of accident that has at least the capacity to cause injury to someone’s neck” and “the sort of collision that has capacity to render previously asymptomatic or mildly symptomatic neck symptoms more symptomatic”. It was also an incident consistent with the causing of internal damage within a shoulder joint and aggravating pre-existing asymptomatic or mildly symptomatic internal damage within a shoulder.

99. Dr Richard Sekel accepted that he had reported the plaintiff as being genuine in his responses of physical examination, but not that he was genuine in his claim for an increased level of pain in his shoulder.

100. Dr Richard Sekel gave evidence that he was of the opinion that the plaintiff was on painkilling medication at the time of the accident, but that he relied on WorkCover certificates for that opinion. He conceded that the plaintiff would have required very strong pain medication for his degloving injury for a number of months following the accident, but he said such pain medication would not be required at the time of trial. He also referred to the plaintiff’s knee injury as being permanent and chronic. However, he conceded that he did not conduct any physical examination of the plaintiff’s right knee. Finally, Dr Richard Sekel conceded that the great majority of his work was for the insurer and it was a rarity for him to be asked to do a medico-legal report for a plaintiff.

101. The defendant submitted that if the court were to accept the evidence of the plaintiff and Mrs Garvie, it would need to completely reject the evidence of Dr Richard Sekel, and that the court would have to find that Dr Richard Sekel did in fact move the plaintiff’s arm, contrary to his own evidence. It was submitted that it was implausible that Dr Richard Sekel would lie about something so significant as the manner of the examination of the plaintiff, and that the court would accept his explanation why he took the photograph, namely, because the range of movement was so completely inconsistent with previous examinations. If the court accepted Dr Richard Sekel’s evidence, it could not be said that the plaintiff and his wife are mistaken about what took place, and the court could only conclude that the plaintiff and his wife lied about what occurred during that examination.

102. I do not accept that submission. I do not find that the plaintiff and Mrs Garvie lied about what occurred during the examination of the plaintiff by Dr Richard Sekel. That finding does not mean that I completely reject the evidence of Dr Richard Sekel. However, I do find that Dr Richard Sekel was not correct in his recollection of the examination for the following reasons. First, the relevant sentence recording the so-called “active movements” of the plaintiff was formulaic and Dr Richard Sekel conceded that it appeared in most of his reports. Secondly, the reasons given by Dr Richard Sekel for such a precise recollection are somewhat implausible. His notice was brought to the issue for the first time one day before he gave evidence and he was relying on his report to refresh his memory. No notes were produced of the examination. Nor did he extend procedural fairness to the plaintiff by explaining to him the purpose of the photographs. Further, Dr Richard Sekel was incorrect in his statement that the plaintiff was on painkiller medication at the time of the accident, relying on the WorkCover certificates. They did not support that contention at all.

103. I therefore prefer the evidence of the plaintiff, corroborated to the extent that it was by his wife, as to the manner in which the physical examination was conducted and the photographs of the plaintiff taken. I also accept the plaintiff’s evidence as to the effect of that physical examination on him.

Damages

104. The plaintiff’s schedule of damages, which was marked for identification as MFI 2, set out the following claim:

General Damages	$275,000.00
Past Out of Pocket Expenses (agreed)	$60,206.00
Future Treatment Expenses (cushion)	$30,000.00
Past Economic Loss (based on weekly net wage of $1,265.00 + 2% CPI annual increases)	$365,082.00
Past Superannuation (at 11% on 90% thereof)	$36,143.00
Fox v Wood (agreed)	$24,454.00
Future Economic Loss (1396 x 189.6 to age 70 less 15%)	$224,979.00
Future Superannuation (at 14% on 90%)	$28,347.00
Past Care – 6 hours per week @ $25 per hour x 52 weeks	$7,800.00
Future Care – 3 hours per week @ $50 per hour x 666.4	$99,960.00
Total	$1,115,970.00

105. The defendant’s schedule of damages, which was marked for identification as MFI 3, comprised the following:

Non-Economic Loss	$130,000.00
Past Out of Pocket Expenses (agreed)	$60,206.00
Future Treatment Expenses (cushion)	$20,000.00
Past Economic Loss	$189,360.00
Future Economic Loss	Nil
Superannuation	$20,830.00
Fox v Wood	$24,454.00
Past Domestic Assistance	$3,900.00
Future Domestic Assistance	$26,650.00
Total	$475,406.00

Non-economic loss

106. There was no dispute by the defendant that the plaintiff had been involved in a serious accident and sustained severe injuries in that accident. He was, however, aged 66 years, and the defendant submitted that whatever problems the plaintiff had at the time of the accident, he certainly aggravated them and effectively lost his job as a result of the further injuries sustained in the accident.

107. “Non-economic loss” is defined in s 3 of the MACA to mean any one or more of the following:

1. pain and suffering, and

2. loss of amenities of life, and

3. loss of expectation of life, and

4. disfigurement.

108. The injuries sustained by the plaintiff were serious, resulting in significant disfigurement by the scarring to his right upper limb and the pain and suffering involved in undergoing a skin graft procedure, including the donor site, the loss of his enjoyment of recreational activities such as fishing and physical involvement with his grandchildren. I find that the injury involved an aggravation to the plaintiff’s pre-existing shoulder injury, which had largely resolved.

109. I also find that the plaintiff suffered a soft tissue injury to his neck in the accident. Whilst there is little controversy in relation to the medical evidence, with the exception of Dr Richard Sekel, I prefer the evidence relied on by the plaintiff and particularly that of Dr Stapleton and Dr Endrey-Walder as being consistent with the history of the plaintiff’s injuries and treatment, and balanced in their specialist opinions. Dr Richard Sekel’s opinions as to the plaintiff’s injuries, and their effect on him, are entirely against the weight of all other medical evidence, including that of the MAS assessors. I therefore do not accept his evidence.

110. I also find that the plaintiff’s symptoms have endured and I reject Dr Richard Sekel’s opinion (at [86] above) that he was fit to return to his work as a tanker driver as at 20 January 2011.

111. I have had regard to the Court of Appeal decision in Varga v Galea [2011] NSWCA 76, where McColl JA (Beazley JA, as she then was, and Handley AJA agreeing) held at [73] that age was only one of the numerous matters the court takes into account in the assessment of non-economic loss. I have also had regard to the impairment to the plaintiff’s intimate sexual relationship with his wife, notwithstanding the very general evidence given on that subject by both the plaintiff and his wife, and its effect on the plaintiff in accordance with Knight v Government Insurance Office of New South Wales [1995] NSWCA 246.

112. Having regard to all of the evidence, I assess the plaintiff’s non-economic loss at $175,000.00.

Past wage loss

113. The plaintiff advocated a net weekly loss of $1,265.00. That amount included the plaintiff’s allowances for being on the road, which were also subject to deduction in his annual income tax returns in accordance with the ATO rulings. Without that allowance, the net weekly payment at the time of the accident was $1,133.00.

114. The defendant advocated a net wage loss of $900 per week, based on the plaintiff’s tax returns for the period of June 2005 to June 2012. Past wage loss was to be calculated from the date of accident, 20 April 2010, to the date of the plaintiff’s 65th birthday, 2 May 2014. The defendant also advocated a deduction of 20 per cent for vicissitudes on past wage loss, having regard to the impact of the plaintiff’s pre-accident injuries and the work restrictions that were placed on him as a result of those injuries. I do not accept those submissions.

115. I find that the plaintiff was fully incapacitated for work as a result of the injuries he sustained in the subject motor vehicle accident. I further find that the appropriate indicator for his net weekly loss was, at the time of the accident, his earnings less the weekly allowance, or $1,133.00. I am not prepared to apply the CPI annual index to that sum, given the stable nature of the plaintiff’s past earning history. Nor am I prepared to discount it by 20 per cent for vicissitudes, when the only vicissitude that eventuated during that period was the plaintiff’s knee surgery in December 2010, for which the plaintiff has made an appropriate allowance of $1,000. I therefore calculate the plaintiff’s past economic loss for the period 21/4/2010 to 11/9/2015 as follows:

1. $1133 x 281 weeks =    $318,373

2. Less deduction        $1,000

3. Total:          $317,373

116. I award past superannuation losses at 11 per cent, namely $34,910.00.

Future economic loss

117. The defendant has advocated that the court would not accept the plaintiff’s evidence that he intended to work to age 70 or beyond. Given the plaintiff’s pre‑accident medical history, it was submitted that the plaintiff would have retired at age 65 and therefore no allowance should be made for future economic loss. In the alternative, the defendant submitted that if the court finds the plaintiff would have worked to age 70, a greater deduction for vicissitudes should be made in the order of 45 per cent. I do not accept those submissions.

118. The plaintiff had an impressive working history and a long history of employment with the one employer, over a period of 20 years. On each occasion when he suffered an injury, either at work or otherwise, he was assiduous in his rehabilitation and returned to work within the minimum period of time. So too following his right knee surgery on 20 March 2008, and his right shoulder surgery on 1 August 2008. He had returned to full-time work as an interstate tanker driver in April 2009, albeit with restrictions, but was still able to carry out the duties of an interstate tanker driver, except for changing tyres. I accept the plaintiff’s evidence that he loved that work, and that he intended to work to age 70 so as to properly provide for his retirement. I find that the plaintiff therefore, has suffered a diminution of his earning capacity which is, or may be productive of financial loss – see Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1.

119. Section 126 of the MACA provides as follows:

“126 Future Economic Loss – Claimant’s prospects and adjustments

(1) A court cannot make an award of damages for future economic loss unless a claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant’s most likely future circumstances but for the injury.

(2) When a court determines the amount of any such award of damages it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events concerned might have occurred but for the injury.

(3) If a court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which the damages were adjusted.”

120. I am satisfied that the following assumptions about the plaintiff’s future earning capacity accord with the plaintiff’s most likely future circumstances but for the injury sustained by him. They are:

1. The plaintiff would have remained working as an interstate tanker driver to age 70.

2. Given the plaintiff’s pre-accident medical history, and the restrictions placed on his work capacity up to the time of the accident, he would have continued to work with those restrictions.

3. The plaintiff would have, and did, require further revision surgery on his right knee which took place in December 2010. That injury of itself requires no additional discount by way of increased vicissitudes due to the success of the surgery.

4. I accept the plaintiff’s evidence to the effect that his employer employs a number of other interstate truck drivers who are aged 70 years or more. It is therefore likely that he would have continued to work with the same employer by whom he had been employed for a period of over 20 years. In those circumstances, there is no basis upon which the deduction for vicissitudes should be increased so as to reflect other than the normal contingencies of employment.

5. His net weekly income would have increased in line with the CPI over the next four years.

121. I further find that the plaintiff has a residual earning capacity. He is clearly fit for light driving work where he would be able to take regular breaks. I assess that capacity at approximating 25 per cent. The plaintiff agreed that he could do light work, and whilst the evidence established that he has been unsuccessful to date in finding such work in Swan Hill, I find that given his strong work ethic, the plaintiff probably would eventually do so. I therefore assess the plaintiff’s residual earning capacity at $300 net per week, and his loss into the future at $900 net per week. I assess his future economic loss as follows:

$900 x 189.6 less 15% = $145,044.00.

122. I award loss of future superannuation entitlements, assessed at 11.61 per cent, of $16,840.00.

Past domestic gratuitous assistance

123. The defendant submitted that the plaintiff has not passed the thresholds for an award for past domestic gratuitous assistance. The plaintiff did not press that claim beyond a period of 12 months following the accident. The evidence of the assistance required by the plaintiff was assistance with bathing, dressing, laundry (particularly of sheets which became blood soaked as a result of his wounds), cutting his toenails, assistance with transport to various medical appointments and the like. In McConachie (t/as Willancorah Pastoral Co) v Pack [2004] NSWCA 148, the Court of Appeal held that precision is impossible in this assessment and the question is largely one of impression. What is required is an examination of the whole of the relevant evidence of the plaintiff, his wife and the medical evidence. The medical evidence on behalf of the plaintiff supports such assistance for heavier duty household related chores (see Dr Endrey-Walder) and has been assessed by Ms Marie Stevens, occupational therapist, as requiring 21 hours per week during the first 3 weeks, and thereafter, 10 hours per week until August 2010 and diminishing thereafter to a current level of 3 hours per week.

124. Ms D Piebenga, occupational therapist, assessed the plaintiff on behalf of the defendant. She provided a report dated 15 June 2015, following an assessment on 21 May 2015. Ms Piebenga was of the opinion that the plaintiff required assistance for a period of 17.5 weeks following the accident and therefore did not pass the threshold for an award for damages pursuant to s 141B(3) of the MACA. She supported a claim for future assistance with lawn mowing, pruning and home maintenance of a total of 36 hours per annum.

125. Ms Piebenga was required for cross-examination. It was put to Ms Piebenga that she had chosen to highlight that the plaintiff was seeking active treatment for previous injuries and that his GP estimated his level of impairment pre‑accident at 10 per cent. She did not agree that she had emphasised his degree of pre-existing disability and downplayed his active role at work immediately prior to the accident. She also agreed that she had referred to Dr Richard Sekel’s finding of no causative relationship to the plaintiff’s neck injury with the subject accident, without referring to three other doctors and the review panel who did not agree with Dr Richard Sekel.

126. Ms Piebenga was challenged as to various observations set out in her report. Her evidence did not assist in resolution of the question as to whether the plaintiff had passed the threshold of six hours per week for six months.

127. Having regard to all of the evidence, I am satisfied that the plaintiff has satisfied that threshold and I therefore allow the plaintiff’s claim of 6 hours per week for 52 weeks at $25 an hour, the sum of $7,800.00.

Future paid care

128. The dispute in respect of future paid care was a claim by the plaintiff of three hours per week at $50 per hour, and an allowance by the defendant of one hour per week at $40 per hour. There was no dispute that the need for such assistance was required on a paid basis – see Miller v Galderisi [2009] NSWCA 353 at [18].

129. There was also no real dispute that the plaintiff does require assistance with heavier household chores, gardening, pruning and home maintenance. The claim for three hours per week is reasonable, and I allow it at $40 per hour. There was no dispute between the parties as to the multiplier to be applied and therefore I allow the sum of $79,968.00 for this head of damages.

Future treatment expenses

130. The plaintiff claimed as a cushion the sum of $30,000.00 for future treatment. The defendant assessed that claim at $20,000.00. Both approaches involve a lump sum because precise arithmetic calculation is not possible. The plaintiff will require regular attendance on his local medical officer, physiotherapy and chiropractic treatment, and review from time to time by a neurosurgeon as recommended by Dr Endrey-Walder. Doing the best I can, I award the sum of $25,000.00 for this head of damages.

Summary of damages

131. I therefore assess the plaintiff’s damages as follows:

Non-Economic Loss	$175,000.00
Past Treatment Expenses	$60,206.00
Future Treatment Expenses (cushion)	$25,000.00
Past Economic Loss	$317,373.00
Past Superannuation	$34,910.00
Fox v Wood (as agreed)	$24,454.00
Future Economic Loss	$145,044.00
Loss of Future Superannuation Entitlements	$16,840.00
Past Care	$7,800.00
Future Care	$79,968.00
Total	$886,595.00

Orders

132. I make the following orders:

1. Verdict and judgment in favour of the plaintiff against the defendant in the sum of $886,595.00.

2. The defendant is to pay the plaintiff’s costs of the proceedings.

3. The exhibits are to be returned forthwith.

4. I grant liberty to the parties to apply on seven days’ notice, by way of Notice of Motion, for any special costs order that is sought.

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Amendments

26 October 2015 - Dr Sekel amended to read Dr Richard Sekel

Decision last updated: 26 October 2015