Baker v Kolmar - [2017] ACTSC 335

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Baker v Kolmar
Citation:	[2017] ACTSC 335
Hearing Dates:	16, 17, 18 October 2017
DecisionDate:	10 November 2017
Before:	Mossop J
Decision:	See [159]
Catchwords:	CIVIL LAW – PERSONAL INJURY – Motor-vehicle accident – two accidents – assessment of damages – apportionment between defendants in two accidents the subject of separate proceedings – chronic-pain disorder – turns on own facts
Legislation Cited:	Civil Law (Wrongs) Act 2002 (ACT), ss 21, 100 Court Procedures Rules 2006 (ACT) Road Transport (Third Party Insurance) Act 1999 (ACT), s 151(4)
Cases Cited:	Pryce v Dunlap (No 2) [2016] ACTSC 353
Parties:	Jamie Scott Baker (Plaintiff) Leonie Kolmar (First Defendant in SC 99 of 2014) Insurance Australia Limited trading as NRMA Insurance (ACN 000 016 722) (Second Defendant in SC 99 of 2014) Gurpreet Singh (First Defendant in SC 63 of 2017) AAI Limited trading as AAMI Insurance (ABN 48 005 297 807) (Second Defendant in SC 63 of 2017)
Representation:	Counsel A Black SC and D Crowe (Plaintiff) A Muller (First and Second Defendant in SC 99 of 2014) M Nesbeth (First and Second Defendant in SC 63 of 2017)
Solicitors Maliganis Edwards Johnson (Plaintiff) Moray & Agnew Lawyers (First and Second Defendant in SC 99 of 2014) Curwoods Lawyers (First and Second Defendant in SC 63 of 2017)
File Numbers:	SC 99 of 2014 SC 63 of 2017

MOSSOP J:

Introduction

In proceedings SC 99 of 2014 the plaintiff has claimed damages arising out of a rear end collision that occurred on 15 February 2011. In proceedings SC 63 of 2017 the plaintiff has claimed damages arising out of a rear-end collision that occurred on 28 August 2015. The defendants and compulsory third-party insurers are different in each proceeding. In both proceedings negligence is admitted. In both proceedings there is no allegation of contributory negligence. The proceedings were heard together. Because the proceedings are separate proceedings and the defendants in each set of proceedings are not joined as defendants or third parties in the other set of proceedings no notices under s 21 of the Civil Law (Wrongs) Act 2002 (ACT) (‘CLW’) have been filed.

In these reasons I will refer to the accident that occurred on 15 February 2011 as the first accident and the defendants in proceedings SC 99 of 2014 as the first-accident defendants. I will refer to the accident that occurred on 28 August 2015 as the second accident and that the defendants in proceedings SC 63 of 2017 as the second-accident defendants.

The accidents

The first accident occurred on 15 February 2011. The plaintiff was driving a Holden Commodore which was stationary at a roundabout at the intersection of Erindale Drive and Ashley Drive, Gowrie, when his vehicle was hit from behind by the vehicle driven by the first defendant in proceedings SC 99 of 2014. Immediately prior to being struck, the plaintiff’s car was at an angle because he had just changed lanes. He had been required to change lanes because one of the lanes on the road had been closed to traffic. At the time of impact his head was turned to the left as he was speaking to his son who was in the front passenger seat.

The plaintiff’s vehicle was not badly damaged. The car that struck him was extensively damaged and was not able to be driven from the scene. The plaintiff drove his son home and then went to the Canberra Hospital.

The second accident occurred on 28 August 2015. The plaintiff was driving on Canberra Avenue past Manuka Oval. He had stopped at the traffic lights at the intersection with Captain Cook Drive and was struck from behind by another car which was driven by the first defendant in proceedings SC 63 of 2017. The plaintiff understands that he went to a petrol station and then subsequently to the Canberra Hospital although he has very limited recollection of the accident or what happened afterwards.

The plaintiff before the accidents

The plaintiff was born in 1970. He went to school in Albury and completed Year 12. He commenced a Bachelor of Science degree at the Australian National University. While undertaking his degree he worked part-time as a medical researcher, including at the John Curtin School of Medical Research. After he completed his science degree he worked at the University of Canberra and the John Curtin School of Medical Research as a molecular immunologist. While doing so, he studied for a degree in nursing which he completed in 1997.

After completing his nursing degree he started working at the Commonwealth Scientific and Industrial Research Organisation (‘CSIRO’) in the area of molecular biology. He worked at the CSIRO up until 2001. During the period 1999 to 2001 he was treated by his general practitioner for stress-related conditions which resulted from conflict with his supervisor at work. He was prescribed Prozac and Effexor and found those medications helpful so that by 2001 he was not experiencing any stress-related symptoms. He made a Comcare claim which was settled.

In 2001 he left the CSIRO and started working for the Department of Health and Ageing on a contract basis. After that he was employed by the Australian Hepatitis Council on a full-time basis as a research policy officer. He also did some casual work as a nurse at the Canberra Hospital and other establishments.

In 2003 he joined the Australian Public Service on an ongoing basis as an officer in the Department of Education Science and Training. He was a policy officer in the science area. In 2005 he moved to the Department of Broadband, Communications and the Digital Economy (‘Department of Communications’).

In 2008 he attended his general practitioner complaining of pain in the thoracic spine and in his neck. This did not cause him to lose any time at work and he experienced symptoms for about one month. After a workplace assessment and the replacement of his chair, his neck settled down and there were no further issues.

Entries in the general practitioner’s records indicate that he complained of pain in his right hip in June 2009 which had existed for several months.

In the 12 months leading up to the first motor-vehicle accident he may have suffered some back pain or neck pain but it was only ever minor.

Notwithstanding that he had joined the Australian Public Service in a policy role, he continued to do nursing work in addition to that employment. He did that in order to supplement the family’s income, working as a nurse in a surgical theatre up until 2008. He had decided to look again for suitable paid employment as a nurse before Christmas 2010 and intended to continue after school holidays ended at the beginning of 2011.

The plaintiff and his wife have three children. His wife was employed part time. One of his children had a disability to which reference will be made later in these reasons.

The plaintiff also did some computer-repair work on a small-scale contract basis for which he received some income.

The plaintiff played piano and guitar. Prior to the accident in February 2011 he provided guitar lessons. He had also played in a band from time to time.

After the first accident

Immediately after the first accident he felt pain the middle of his back. By the time that he went to the Canberra Hospital his cervical, thoracic and lumbar spine was causing him discomfort.

At the hospital he was examined and given a medical certificate for a week. He saw a general practitioner on 17 February 2011 and was complaining of cervical, thoracic and right lumbar pain as well as shooting-pain down his right leg and paraesthesia in the leg. He saw his usual general practitioner, Dr Strelnikow, on 23 February 2011 and was still struggling with pain. He did not have a lot of mobility and he was not able to walk for very long. He subsequently found his return to work on a part-time basis quite difficult. He saw his general practitioner again and was referred for physiotherapy. In March 2011 he was prescribed Lyrica, Panadol Osteo and Endone. By the end of March 2011 he was reporting that the physiotherapist was recommending a pain management assessment. He continued with physiotherapy.

He commenced a gradual return to work in early April. By May 2011 his hours had increased to six hours per day, four days per week. The plaintiff had difficulties with sitting and being able to do the volume of work that he was required to. He found it difficult to concentrate and he perceived that this work was made more difficult by his use of Lyrica because it slowed his cognition. He started doing some work from home at about this time. He would go to work on Monday and Tuesday, work from home on a Wednesday and then go back to work on either a Thursday or Friday. He was referred to Dr Eaton, a pain specialist, in July 2011. He continued to experience pain in his thoracic spine which varied only a little. His low back was not as badly affected and the pain would increase and decrease depending upon the amount of movement. At this time he was experiencing pain in his right leg. He did not have any symptoms in his left leg.

He saw Dr Eaton on a number of occasions and these occasions are described in Dr Eaton’s reports which are referred to below. He was initially referred to Dr Eaton because of an episode when he passed out, fell down in his driveway and was found by his neighbours. This was understood to be a side-effect of Lyrica and as a consequence he changed drugs from Lyrica to Epilim, which he has been using since that time. His use of Epilim was originally continuous but is now cyclical so that he spends three months using it followed by two months off.

In January 2012 his work hours were changed again so that he was working a total of 33 hours per week (four days of seven and a half hours plus three hours on a Wednesday). He still did two day’s work from home.

He was referred to Dr Chan at the Canberra Hospital for some treatment in relation to pain management and Dr Chan commenced the cyclical use of Epilim as well as making some recommendations in relation to the use of antidepressants. By the middle of August 2012 he continued to have a very severe pain in his neck, right arm and leg, and occasional problems with his left side. He had developed a quite significant limp by this stage and found that he became nauseous when he did too much, particularly when he drove. He was only able to drive for 20 to 30 minutes at a time. Even when driving to work he would have to stop and vomit at the side of the road. He also obtained assistance from a neurological physiotherapist who introduced him to the use of a laser device on his neck. He obtained further treatment from another allied health professional with the use of a laser which reduced his neck pain. He subsequently purchased and commenced using a laser device at home.

In 2013 he started to do some guitar teaching again but discontinued it a year later. This was something which he enjoyed but he found that he could not cope with it.

He continued working four and a half days a week up until the second accident in August 2015. During the period up to the second accident he was maximising his efforts at work at the expense of his participation in domestic life. He would usually just come home and go to bed. He adopted this course because he needed to pay for his medical treatment as well as supporting his family. He said: “All I wanted to do was work and provide for my family but that meant I had to basically give up family life in order to provide for them”.

By August 2014 he had started having episodes of impaired consciousness. This happened on a few occasions in 2014 and 2015. On one occasion he was admitted to hospital and the history records that he had had three previous occasions of impaired consciousness in the weeks leading up to his admission.

By December 2014 when the plaintiff saw Mr Tom Sutton his psychological condition had deteriorated to the point where he was having suicidal ideation. This is recorded in more detail in Mr Sutton’s report which is referred to below. He was prescribed Escitalopram which he continues to take.

In February–March 2015 he engaged in a pain management program called the “Jump Program” which is targeted at a range of means of managing pain, the use of medication and physical strategies such as pacing and daily schedules.

After the second accident

After the second accident occurred the plaintiff ended up at the Canberra Hospital but has no recollection of how he got there or the route that he took. He was off work for four weeks following the accident. He had a significant increase in pain when compared to his condition prior to the accident, particularly on the left side where he had continuous pain whereas previously he had only had pain on that side on isolated occasions. His general practitioner commenced him on further medication, Palexia.

In October 2015 his son Scott, who suffered from a genetic disorder, was involved in a skateboarding accident and suffered significant head injuries leading to further cognitive impairment. Scott was hospitalised in Sydney for 10 weeks. The family moved to Sydney to be with him during that period. Scott had previously been diagnosed with a pituitary tumour. Upon discharge from hospital he exhibited further challenging behaviours and has required increased levels of care since then. This has included the use of external carers provided through New South Wales Health.

The plaintiff continued to see a variety of doctors for medicolegal purposes and his condition between 2015 and 2017 is described in detail in the reports they prepared. By mid-2016 he had increased his work hours to 30 hours per week. However he found that very difficult because of the levels of pain and discomfort that he suffered. In early 2017 his work hours were reduced to 28 hours per week. In August 2017 his employer, the Department of Communications, had him assessed by Dr Wilkins, a consultant occupational physician, who recommended that his work hours be limited to 24 hours per week. He continued working at that level up until the hearing. He works six hours a day with Wednesday off. On occasions, when his condition requires it, he works from home.

Both the plaintiff and his wife gave evidence that because of his pain condition and his sensitivity to touch there is no physical intimacy between them. His condition has also affected the ordinary pleasures of joint recreational activities with his wife. The plaintiff gave evidence that his condition has also affected his relationship with his children. He described himself as becoming “a detached father” because he has very little opportunity to interact with them given his condition when he comes home from work. It has also eliminated his capacity to engage in activities with them like going to the beach, going fishing, using his boat and other outdoor activities.

Assessment of the plaintiff’s evidence

The defendants in both proceedings made submissions to the effect that the evidence of the plaintiff should be treated with caution as a consequence of some of the answers that he gave. I found the plaintiff’s evidence to be generally reliable. He was clearly an intelligent witness who took care to answer only the questions that were asked. As a consequence, at some points in his cross examination he appeared to be rather unforthcoming. That, however, was a consequence of the adversarial process rather than reflecting a lack of reliability on the part of the plaintiff. I did not consider that the manner in which he gave evidence reflected adversely upon his credibility and the findings set out above are largely based upon his evidence.

Medical evidence

Dr Strelnikow 24 June 2013

Dr Mark Strelnikow, the plaintiff’s general practitioner reported to his solicitors on 24 June 2013. He recorded that his diagnosis was of extensive soft tissue injury to the cervical/thoracic/lumbar spine and that as a result of this he had developed a chronic pain syndrome. He expressed the view that Mr Baker’s injuries were a direct result of the motor vehicle accident of 15 February 2011. He did not give oral evidence.

Dr Chan 14 August 2013

Dr Keith Chan, a staff specialist in rehabilitation medicine at the Canberra Hospital reported to the plaintiff’s solicitors on 14 August 2013. He described the investigations and treatment that the plaintiff received between July 2012 and June 2013. He recorded that in that period the plaintiff continued to have pain and reduced function and that it was probable that he will continue to have chronic pain to some degree. He did not give oral evidence.

Dr Eaton 2011-2015

Dr Garth Eaton an occupational physician associated with the Canberra Injury Management Centre saw the plaintiff upon a referral from his general practitioner in 2011. He reported to the general practitioner on 14 July 2011, 14 August 2011, 18 September 2011, 26 November 2011, 10 February 2012, 17 March 2012, 25 April 2012, 1 June 2012, 29 March 2014, 6 July 2014, 6 October 2014 and 8 January 2015. The reports to the general practitioner document the plaintiff’s progress or lack of progress over that period. The reports disclose some variation in his condition over time. From 2012 the plaintiff is reported to be working around four and a half days per week but doing so at significant cost to his physical and mental health and to his relationship with his family. A further theme of the correspondence is the limit on the plaintiff’s financial ability to obtain optimal treatment for his condition.

Dr Paul 28 November 2013

Dr Matthew Paul, a consultant occupational physician reported to the NRMA on 28 November 2013. Dr Paul concluded:

In terms of the diagnosis, it is difficult to say what is causing his symptoms and the clinical findings. I believe he is suffering from a chronic pain disorder following probably musculoskeletal strains or sprains in the accident. Reportedly he stated he was asymptomatic prior to the accident.

The doctor recorded that he required further assessment and investigation to determine the cause of his pain. He did not give oral evidence.

Dr Champion 8 July 2014

Dr David Champion, a pain specialist, reported to the solicitors for the plaintiff on July 2014. He had available to him the report of Dr Paul dated 28 November 2013 and accepted the report was reasonable although he thought that the prognosis was “over optimistic”. As part of the history taken, Dr Champion recorded that the plaintiff may have a possible history of migraine which was important because it was a risk factor for adverse pain and psychological outcomes or experiences. He recorded a very detailed history including reproducing an additional statement of the history provided in writing by the plaintiff after the consultation. He recorded that during the presentation of the history he wondered whether Mr Baker was “overly focussed on his losses and predicament and whether the severity of his post-accident condition could really be as bad as he reported,” but Dr Champion added that when he examined him “the revealed findings were highly explanatory”. Later in his report he said:

I see many individuals with multilevel cervical, thoracic and lumbar spinal pain disorder after rear-end collisions but it is rare to have such severe neurobiological indications of central disorder of somatosensory processing. I consider that he is in the top 5% or 10% of post-traumatic injury-related pain and dysfunction for a rear-end collision.

His diagnosis was in summary “post-traumatic multilevel cervical, thoracic and lumbosacral spinal pain disorder with disordered peripheral and central somatosensory processing in his right hemibody, and associated with motor dysfunction”.

He recommended treatment by a multidisciplinary pain service. So far as future prognosis was concerned he said:

The most likely prognosis in the foreseeable future is more of the same with a slight trend to improvement (but an ever present risk of exacerbation on various kinds of provocation), and further improvement if he were able to participate in a comprehensive pain management program at a high level of expertise. He would not be expected to recover well and probably not even adequately from this injury given its chronicity, severity and nature.

Mr Sutton 15 December 2014

Mr Tom Sutton, a psychologist, reported to the solicitors for the plaintiff on 15 December 2014. He performed a psychometric assessment in the form of the Personality Assessment Inventory (PAI). He recorded that the results of this assessment were “worrying” because his levels of depression and suicidal ideation were extreme. He said:

I rarely see this level of mood disorder. It is more worrying given his defensive personality style: this usually minimises the severity levels, meaning that the disturbance may be even more severe than I am seeing.

He advised the general practitioner that his level of depression required urgent psychiatric cover, that he needed “aggressive management” and that psychological treatments on their own would not be sufficient.

Following the assessment by Mr Sutton he saw the plaintiff again on a further eight occasions up until 22 February 2016.

Associate Professor Boyce 27 January 2015

Associate Professor Geoffrey Boyce reported to the solicitors for the NRMA on 27 January 2015. Associate Professor Boyce did not accept that the plaintiff’s disabilities were consistent with the accident described. In answer to specific questions posed by the solicitors he said:

2. Whether the plaintiff’s injuries and disabilities are consistent with the accident as described.
In my opinion, they are not. They are well out of proportion for any soft tissue injury of this type. For instance, the Occupational Disability Guidelines give a mid-range return to work for a manual worker of 7 to 10 days. They should be able to lift with their knees bent up to 12 kg 15 times per hour. Similarly, for a grade 3 type whiplash he should have been off work on the best practice guidelines for five days. There was no evidence of radiculopathy seen on any of the x-rays done either at the time of the injury or subsequently.
3. Diagnosis.
This man claims to have severe lumbar and cervical pain. He complains of an antalgic gait. However, in my opinion, there is an exaggerated response to what I would regard as a minor soft tissue injury.

Associate Professor Boyce 31 May 2015

Associate Professor Boyce reviewed the plaintiff and reported to the solicitors for the NRMA on 31 May 2015. At that stage he had been provided with the additional documentation including the first reports of Dr Paul and Dr Champion. In this report Associate Professor Boyce appears to have accepted that the plaintiff did continue to suffer genuine disabilities. He said:

Mr Baker complains of further pain in his spine. He does have decrease in sensation on the right side of his body which does not seem to correlate with any anatomic weakness. There is a vague blurring of the optic discs which may have nothing to do with any trauma but should be the subject of an MRI scan of his brain (awaiting at the Canberra Hospital).

In answer to a question as to whether the second motor-vehicle accident aggravated his condition he said:

Yes. He has aggravated the soft tissue injuries to his neck, thoracic and lumbar spine.
He complains of blackouts which have not been further investigated neurologically with electroencephalography and an MRI scan of his brain and whole spine.

He was asked to comment as to whether the plaintiff will be fit for work in the future and said:

Mr Baker is fit at the present time working five hours per day, four days per week and four hours on a Wednesday and, in my opinion, he is currently fit to continue this.

He gave a restricted prognosis and said that he would need to see the result of the MRI scans that he suggested should be carried out. Associate Professor Boyce did not give oral evidence.

Mr Sutton 15 March 2016

Mr Sutton again reported to the plaintiff’s solicitors on 15 March 2016. He reported that the psychometric evidence from two assessment periods indicated an absence of somatisation, malingering or deliberate exaggeration of any medical emotional or cognitive issue. He recorded that his clinically severe depression was not as severe as when he had first seen the plaintiff although it continued to be present and required ongoing medication and treatment. He reported that on formal assessments the plaintiff was “still able to reason at a very high level and memory functioning is intact” however pain, fatigue and medication will cause transient disruptions to cognition. He recorded that the plaintiff had “an exceptionally high psychological defensive structure”. He expressed the opinion that the plaintiff’s depression was likely to be permanent if his pain was not alleviated. He suggested 20 to 30 sessions of psychological treatment over the next 12 months. He reported in detail on the outcomes of his psychometric assessments. Included in those detailed results was recorded the fact that in testing in February 2016 the plaintiff had failed in his performance of validity tests in relation to memory but then performed exceptionally well on the substantive memory and other cognitive tests. For example, he was within the 99^th percentile on one subtest of fluid intelligence. He recorded, having regard to the outcomes of his testing, that “[t]here is no evidence for conscious exaggeration or malingering of his condition.” Further there was no evidence of somatisation.

Dr Paul 18 April 2016

Dr Paul reviewed the plaintiff and reported to the solicitors for the NRMA on 18 April 2016. His assessment at that stage was that:

At the time of my last assessment he had neck pain radiating up into his head associated with headaches and dizziness. He also had radiation of the pain into his right upper limb associated with numbness and some tingling. He also had pain in his lower back radiating primarily into his right lower limb. He stated that his symptoms remained essentially the same up until his second accident when they appeared to have deteriorated significantly with increased pain and reduced tolerance of activity.
Of concern there appear to be a wide range of other symptoms which are unexplained including reported blackouts which have occurred as of March 2015 and he stated there have been at least five episodes including hospital admissions associated with these. They appear to be unexplained. He stated that since the second accident he has had daily blackouts and his wife has apparently found him unarousable in bed on multiple occasions.

Dr Paul was “very concerned” about the plaintiff and suggested that he:

requires a significant workup and possibly even inpatient admission so that he gets full attention, further investigation to rule out any serious causes of his widespread cluster of symptoms.
Any further assessment should be multidisciplinary and should include a neurologist, pain specialist and psychiatrist given the widespread cluster of symptoms.

He expressed his diagnosis as follows:

Diagnosis is a chronic pain disorder secondary to soft tissue injury as a result of the accident in February 2011 which appears to have been aggravated by the accident in August 2015 but I am worried that there is an underlying serious neurological condition contributing to his symptoms and signs.

So far as Associate Professor Boyce’s report was concerned he said:

There appears to be general agreement amongst be assessing doctors that Mr Baker has developed a chronic pain syndrome.
The only report which appears to be in disagreement is Dr Boyce‘s and I do not understand the reasoning behind Dr Boyce’s assessment that he suffered a soft tissue injury and the rest of his symptoms are unexplainable. He appears not to have diagnosed a chronic pain disorder resulting from a soft tissue disorder.

Dr Eaton 30 April 2016

Dr Eaton reported again to the plaintiff’s solicitors on 30 April 2016. His diagnosis was:

a)     Chronic widespread pain suggestive of neuropathic origin.
b)     Whiplash Associated Disorder spine. Musculoligamentous strain.
c)     Cervical disc protrusion at C3/4 on the right. Probable C4 (right) nerve root impingement.
d)     Associated symptoms of post traumatic anxiety and depression.

He was asked by the solicitors for his opinion as to the causal relationship between the complaints and the first and second motor-vehicle accidents. He said:

Diagnosis of the injuries sustained in the First MVA is indicated above. The first motor vehicle accident on 15 February 2011 contributed significantly to the development of Mr Baker’s current condition, both directly and consequentially. This is likely to have contributed 60-70% to Mr Baker’s complaints, his symptoms and my clinical findings.
…
[The Second MVA] aggravated the previous symptoms described and is likely to have been responsible for 30-40% of Mr Baker’s complaints, symptoms and my clinical findings. The diagnosis is expanded with the involvement of the left side of the body in the Second MVA. The symptoms were due to aggravation of the previous whiplash injury with the additional symptoms occurring from the Second MVA as described in the body of the report above.

In relation to the impact of the second motor-vehicle accident on the plaintiff’s capacity for work he said:

The Second MVA acutely aggravated Mr Baker’s condition but also resulted in left sided symptoms as described. This had a significant impact on Mr Baker’s capacity for day to day activities including work. However after three weeks off Mr Baker continued working albeit with greater difficulty. The apportionment of contribution is the same as indicated above.

Dr Champion 28 May 2016

Dr Champion provided a further report to the solicitors for the plaintiff on 28 May 2016. Since he last saw Dr Champion the plaintiff had been involved in the second accident. Once again Dr Champion took a detailed history of the period since the previous consultation and the period after the second motor-vehicle accident. The examination of the plaintiff was summarised by Dr Champion as follows:

(Altogether [it] is quite a severe and widespread disorder of somatosensory processing which must be very difficult to cope with on a day to day basis. One does not often see such extensive and widespread somatosensory test abnormalities and I am very confident that these are genuine responses).

During the course of the consultation Dr Champion succeeded in having the plaintiff enter the state of disturbed consciousness which he had reported. He did so in a manner which his wife, who was also in attendance, recorded was typical. Dr Champion observed the episode with the assistance of a neurologist and pain physician. His tentative conclusion was that the plaintiff suffered from a sleep disorder and needed to be evaluated by a sleep medicine physician.

Dr Champion reviewed the reports that were available to him. He was somewhat critical of the report of Associate Professor Boyce dated 27 January 2015.

He maintained his diagnosis recorded in his report of 8 July 2014. He said that the second motor-vehicle accident on 28 August 2015 aggravated the spinal pain disorders including the right sided sensorimotor features and added further to the left-sided symptoms and signs. As to the contribution of the two accidents to the plaintiff’s condition he said:

My assessment of the relative contributions of the first and second MVAs are generally consistent with those of Dr Eaton, although I would have stated 70% for the first MVA and 30% for the second MVA. The second MVA might not have caused very much disturbance had it not been for the sensitised nociception and psychological consequence of the first MVA.

Dr Champion continued his recommendation of inpatient admission for a pain management program including assessment of his sleep disorder. He considered that the management which he proposed might cost in excess of $20,000 “in the next year or two”. So far as prognosis for the future was concerned he said: “The longer term prognosis is looking concerning. I am sure that he could be significantly improved and there would be some improvement over time, but it will surely only be partial.”

Dr McMahon 14 July 2016

Dr John McMahon, clinical psychologist, reported to the solicitors for the NRMA on 14 July 2016. As part of his testing he administered the Test of Memory Malingering (TOMM) and the plaintiff’s pattern of responding was consistent with adequate effort. He also administered the Minnesota Multiphasic Personality Inventory-2 (MMPI-2). He recorded that there was some evidence of “impression management” on the MMPI-2. His diagnosis was:

Given the evidence of impression management on the MMPI-2 the diagnostic process is complicated. On the face of it there would appear to be the presence of significant personality disorder that would underpin a Somatization Disorder or a Chronic Pain Disorder Associated with Both Psychological Factors and a General Medical Condition. He reported previous neurotic adjustment to stressors including that he had developed a depressive disorder in response to workplace stressors. I would conclude that there was a likely resurgence of depressive symptoms 18-months after his injury and secondary to his familial situation, and this would constitute an Adjustment Disorder With Depressed Mood. He reported driving anxiety after the subject 2011 accident consistent with Mild Specific Phobia, Driving which was further aggravated by the second accident.

He was asked whether the plaintiff has exhibited “an expected reaction” to the injuries sustained in the accident and answered:

No, there appears to be a significant psychological magnifications of the injuries sustained in the motor vehicle accident. On the basis of his MMPI-2 profile and general presentation, this would involve the magnification of pain and fatigue by the physical expression of psychological distress to the myriad stressors that occupy the context of his life including his accidents and the administrative consequences and his family situation.

Dr Smith 31 January 2017

Dr Anthony Smith, an orthopaedic surgeon, reported to the solicitors for AAMI on 31 January 2017. He could find no clinical abnormality apart from early osteoarthritic change in both his knees. He said:

In today’s assessment Mr Baker exhibited elements of abnormal illness behaviour.
Mr Baker’s behaviour indicates the presence of a psychiatric condition, which is outside my area of expertise.
There is in my opinion, no orthopaedic reason for him to be unable to work in his usual occupation on a full time basis. It is in my opinion [sic] there is no requirement for any orthopaedic treatment along the lines of physiotherapy and hydrotherapy. I do not think his medications are likely providing him with any benefit.

Dr Smith did not give oral evidence.

Dr McGrath 29 June 2017

Dr David McGrath an occupational and musculoskeletal physician reported to the solicitors for AAMI on 29 June 2017. He concluded:

It is probable Mr Baker has a combination of minor musculoskeletal injury, psychiatric illness and metabolic disorder.
It is difficult to explain his presentation from any of the inputs in isolation.

Dr McGrath did not give oral evidence.

Dr Eaton 30 June 2017

Dr Eaton reported again to the solicitors for the plaintiff on 30 June 2017. The plaintiff reported to him that his condition had fluctuated and he had continued to limp and needed to use a walking stick. He also reported that in November 2016 he had lost all use of his left arm. His report outlines in detail the extent of the plaintiff’s disabilities as reported to him. His diagnosis was:

Initial Whiplash associated disorder of the spine and associated musculoligamentous strain.
Cervical disc protrusion at C3/4 on the right with probable C4 (right) nerve root irritation/impingement. Possible left-sided cervical nerve root impingement/radiculopathy.
Chronic widespread pain due to central sensitisation of nociception.
Associated symptoms of post traumatic anxiety and depression.

Dr Eaton repeated his recommendation of an intensive residential pain‑management program. He recorded that his prognosis remained guarded and that “Mr Baker will continue to experience a level of chronic pain and dysfunction indefinitely. The extended period of time that he has suffered with chronic pain and dysfunction is a strong predictor of an indefinite chronic pain disorder”.

Dr Champion 18 July 2017

The plaintiff was examined again by Dr Champion who reported to his solicitors on 18 July 2017. The plaintiff reported that he felt that he had not improved over the last 12 months but that the episodic “passing out” was less frequent, having reduced from three or four times per week down to two or three times per week. Dr Champion’s diagnosis was that his originally diagnosed condition had continued with some worsening. He said that the condition was a consequence primarily of the first motor-vehicle accident with some aggravation and extension particularly of the left-sided symptoms caused by the second motor-vehicle accident. He said:

It will be asked how real is his claimed pain and impairment of function. I am very confident that it is real and genuine. Inevitably, there has to be some psychological influences but my assessment again did not reveal major psychological reactions and apparent influences, no more than any one experiencing such pain phenomena would experience.

While the doctor was now cautious about the utility of the ADAPT pain management program at the Royal North Shore Hospital he recommended that he be reviewed by the pain teams there. So far as his prognosis was concerned Dr Champion said:

In view of the lack of any trend towards resolution of symptoms, the expectation in the long‑term is more of the same. There might be a gradual trend towards a reduction of symptoms but he will remain at high risk of aggravation on minor or moderate biomechanical or psychological provocation. I expect that, unless there is unexpected improvement in the natural history or therapeutic development, it will be very difficult for Mr Baker to sustain work. Most people with conditions like his would not be working.
You have asked for treatment costs, but those are difficult to estimate. I suggest that one way of doing this is to total the medical and related costs over the last 12 months and project those several years into the future. There might well be additional costs depending on what recommendations are made from a highly specialised pain management service.

Dr McMahon 2 August 2017

Dr McMahon reported again to the solicitors for the NRMA on 2 August 2017. As part of his examination Dr McMahon administered the TOMM test. He recorded his pattern of responding as being inconsistent with adequate effort and consistent with efforts to appear overly symptomatic. He also administered the “21-item Test” which is a test of memory malingering and the plaintiff’s pattern of responding was in the “suspicious” range. Finally he administered the Structured Inventory of Malingered Symptomatology (SIMS) test. The result of that test led him to suspect that the plaintiff was not responding genuinely. He therefore concluded that he was engaging in “feigning spectrum behaviour” and he was precluded from a current diagnosis. As a consequence he said:

Given the pattern of performance on the Standardized Testing, I cannot conclude on the presence or absence of any current psychological injury or disability. With regard to general medical conditions or disorders I defer to the opinion of suitably qualified medical specialists.

Mr Sutton 14 August 2017

Mr Sutton prepared a third report for the solicitors for the plaintiff dated 14 August 2017. Mr Sutton had the benefit of the report of Dr McMahon dated 14 July 2016. Mr Sutton summarised the test results and conclusions as well as providing a detailed explanation of the individual components of the psychometric testing that he performed. He recorded:

The psychometric evidence from the three assessment periods (2015, 2016 and 2017) indicate an absence of Somatisation, malingering or deliberate exaggeration of any medical, emotional or cognitive issue when compared with healthy Community samples, Clinical norms, patients with chronic pain and also in his case, to Defensive subjects.
(footnotes omitted)

So far as the nature of his reporting was concerned he said:

He is consistently defensive on any form of emotional assessment given: he is minimising problems and down playing any emotional issues and problematic personal characteristics which may be present. This is a personality style and not a deliberate or “effortful” attempt to distort.

Mr Sutton reported that the plaintiff remained severely depressed with high levels of suicidal ideation. He remained of the view that there has been decompensation within his usual personality defences. He said:

There is no simple explanation of his current emotional state: it is not a Conversion syndrome, simple Somatisation, nor due to his son’s difficulties or family “stress”, or malingering. It is not an Adjustment Disorder or any other superficial DSM diagnostic term.

He expressed the view that with increased stress the plaintiff could decompensate further and that he was unsuitable for psychological treatment because of his defensive personality. He said that the plaintiff’s pain experiences in his motor-vehicle accidents of 2011 and 2015 have been “an instigating cause” of his decompensation.

Dr Allen 29 August 2017

Dr Martin Allen, a consultant psychiatrist, reported to the solicitors for AAMI on 29 August 2017. Included in his diagnosis and opinion was the following:

Based on the history provided to me from a psychological perspective, Mr Baker who denies any pre-existing psychiatric problems has developed a major depressive disorder, a somatic symptom disorder and a conversion disorder as a result of the first accident in 2011. There was a mild exacerbation in all of these conditions following the accident in August 2015. His depressive disorder is characterised by low mood, low energy, appetite disturbance, sleep disturbance, a reduced level of enjoyment in life, social withdrawal and intermittent suicidal ideation. Somatic symptom disorder is characterised by the fact that he has numerous somatic symptoms which are distressing and disrupting for him. His beliefs appear to be excessive based on the comments of the other providers who have difficulties to place the origin of some of his somatic symptoms. He has significant level of concern, which is understandable, about his symptoms and much of his time as per the DSM criteria has been devoted to these symptoms and concerns over years.
The symptoms have been continuously present for a long period of time now and this illness can be characterised as severe. …
Mr Baker’s needs are complex in regard to his psychiatric care. In addition, all of his providers must be in communication and working in a collaborative fashion to help maximise his gains going forward. I would recommend that he continues to see a psychologist ideally with specific experience in the management of chronic pain and conversion disorders.

So far as his prognosis was concerned he said:

Unfortunately given the chronic nature as is illustrated in Mr Baker’s history and in the supplied documents, I believe Mr Baker will continue to suffer from a depressive disorder as well as somatic symptom disorder and conversion symptoms in the long term. Even with treatment, I do not see resolution as being likely of these symptoms. There is the potential for some stability to develop in them. In particular, it would be useful if his conversion disorder was addressed to a degree where he was not collapsing several times a week, which would also eliminate the potential for this to occur whilst driving.

Dr Allen did not give oral evidence.

Dr Wilkins 21 August 2017

Dr Peter Wilkins, a consultant occupational physician, reported to the plaintiff’s employer, the Department of Communications, on a 21 August 2017. After recording his history and the results of his physical examination Dr Wilkins recorded his diagnosis as follows:

His condition is best summarised as a posttraumatic multilevel cervical, thoracic and lumbosacral pain disorder with clinical indications of disorder peripheral and central somatosensory processing mainly in his right hemibody, with associated motor dysfunction principally affecting his right lower limb.

Dr Wilkins was asked whether the plaintiff’s medical condition would impact on his ability to undertake the role of an officer at the “EL1” level. Dr Wilkins said:

Having reviewed the contents of the document [which described the work required at an EL 1 level], in my opinion he remains capable of these functions, but not on a full-time basis. I do not anticipate that he will recover sufficiently to allow him to resume these functions on a full‑time basis.
In my opinion, the most appropriate management by the Department would be to grant Mr Baker a partial invalidity pension, requiring him to work no more than 24 hours per week, also allow him to undertake additional duties from home, attending the office no more than two days per week.

So far as the prospect of rehabilitation was concerned he said:

He is undertaking treatment. There is no realistic possibility of rehabilitation to return him to his pre-injury status. At best, a gradual decline in function over future years should be expected.

Dr Wilkins did not give oral evidence.

Oral evidence of Dr Champion, Dr Eaton, Mr Sutton and Dr McMahon

Dr Champion gave oral evidence and was cross examined. His evidence remained consistent with the evidence in his written reports. In relation to treatment expenses in the future he said “one would hope that by five [years] he’d be on minimal cost, minimum drug therapy, but it won’t necessarily happen. … Yes I think it’s likely that he will require significant pharmacotherapy over five years and possibly longer”.

So far as his attribution of the plaintiff’s condition as between the two accidents he said:

It’s not possible to add up a whole lot of sums to arrive at an answer, so there has to be a degree of intuition and impression on this, so in other words it’s quite subjective.
… He was already badly affected by the first accident. That conferred … a high degree of vulnerability to bad outcomes from the second accident. Both in terms of pain-related disability and psychology. There was new pathology determined after the second motor vehicle accident, including the disc lesion at [C7, T1]. There was extension of the pain and somatosensory test findings. More to the left side of his body than had been (indistinct) to recognised. There was report of significant worsening of pain and disability. He needed initial time off and I think I mentioned the somatosensory test findings extended and had become more severe and really impressive. If he’d not had the first accident, he probably would have had significant pain and disability and some pathology from the second accident, but the first one, he considers dominant, I consider dominant and a percentage of 70 to 30 was about the best and fairest assessment I could make.

Dr Eaton’s oral evidence did not add significantly to what he said in his medical reports. In relation to the pain management program known as the ADAPT program he said that the longer a person does not have appropriate treatment the more likely the outcome will not be as good as in other cases. Nevertheless he thought that there were a whole range of things that people could learn to make life more liveable and as a consequence such a program would still be worthwhile. He said “the longer the period of time since the initial injury and the establishment of chronic pain, the less likely success”.

Mr Sutton and Dr McMahon gave evidence concurrently. The subject matter of the oral evidence largely related to the content of Dr McMahon’s second report in which he identified the plaintiff as demonstrating feigning spectrum behaviour. Mr Sutton explained that the TOMM test was a predictive test which was on its own irrelevant. He said that it would indicate that the results of a memory test were not valid and hence you needed to have a memory test. He explained that in 2016 although the plaintiff had failed in the TOMM test he then administered a comprehensive battery of memory tests and the TOMM test predicted incorrectly because the plaintiff in fact performed exceptionally well on the memory test. As a consequence the TOMM test gave a false positive. He said that in a series of 411 patients of his he had had 14 who had done poorly on the TOMM test but exceptionally well on memory tests. He described the SIMS test as a screening test but he did not use the SIMS test and hence did not know whether the authors of the test recommended proceeding to more comprehensive tests if the result of the test was in the “suspicious range” as it had been in relation to the plaintiff. He explained that on the 2016 results of Dr McMahon on the MMPI test there were no signs of exaggeration, malingering or feigning. He did not agree with Dr McMahon’s conclusion that the plaintiff was exhibiting feigning spectrum behaviour. Rather he agreed with Dr Allen to the extent to which his opinion was consistent with a general somatising condition which, by definition is unconscious. He said:

What I would say is that I know for certain that he is not malingering or feigning. What I don’t know for certain is what he actually suffers from. My hypothesis would be that it is a combination of some physical ailment and the somatic psychological components built around that.

He also gave evidence about the plaintiff’s defensive personality style which would lead to underreporting on the psychometric testing. He also explained that although in 2016 he thought that 20 or 30 further treatment sessions might be useful he was less confident that it would be because the plaintiff was not a suitable candidate for psychotherapy.

Dr McMahon said that having administered the tests that he did and having obtained the outcomes that he did would mean that on “any test subsequently administered, the results would be called into question”. He said that he had previously been of the opinion that there were psychological contributory factors to his pain position but in his final report he could not tell. The transcript continued:

So your ultimate view, following your 2017 examination and the tests that you carried out is you don’t know if there is something wrong with him or not?---Put simply, yes.

Findings

Before the first accident the plaintiff was able to work full-time, had a normal family life, had a serious musical hobby which he pursued with a friend, taught guitar to students and operated a small-scale computer-support business.

After the first accident he suffered thoracic and neck pain extending into both arms and subsequently low-back and right-leg pain. He developed a chronic-pain condition which varied over time that was intrusive and disabling. Notwithstanding that condition he was able to increase his work hours up to almost full time (33 hours per week) and maintain it at that level until the second accident. He did this despite continuing to suffer pain, but at the expense of his home life. He would need to rest upon getting home from work and could only participate to a limited extent in family life. His ability to assist with domestic tasks was substantially reduced from a reasonably even division of domestic labour to a position where his wife bore almost all of the load.

The second accident lead to a significant worsening in his condition. He had four weeks off work. He suffered an increase in pain on his left side, having constant pain where it had previously only been intermittent. Although he managed to increase his working hours to 28 hours per week that led to a further reduction in his capacity to function outside work. He would come home and sleep. The pain and disability that he suffers has significant consequences for his day to day living. He suffers at least moderate pain all the time. He has disturbed sleep. He can only proceed slowly with self-care activities. He is limited in his work capacity. He can only tolerate driving for short distances. He is able to do few recreational activities. He suffers pain when lifting even light objects. He is only able to walk a short distance even with a walking stick. He suffers increased pain when standing.

There was ultimately little dispute within the principal medical evidence. There was agreement that he suffered from a chronic pain condition although the description of his condition varied. It was appropriately described by Dr Champion and Dr Wilkins as: a post-traumatic multilevel cervical, thoracic and lumbosacral spinal pain disorder with disordered peripheral and central somatosensory processing in his right hemibody, with associated motor dysfunction. It was caused by the first accident and aggravated by the second accident. I do not consider that the recent report of Dr McMahon proves any conscious feigning on the part of the plaintiff. That is because it is indicated by only one of the five psychological assessments performed and the most recent results simply lead Dr McMahon to a conclusion that he did not know what was wrong with the plaintiff. To the extent to which there was conflict between the evidence of Dr McMahon and that of Mr Sutton as to whether the plaintiff was consciously feigning in his psychometric testing I prefer the evidence of Mr Sutton because I accept the evidence about the limitations on the utility of the TOMM test in the absence of substantive memory testing, I consider that Mr Sutton made a better attempt to understand and explain the complexities of the plaintiff’s unusual condition and Mr Sutton’s evidence was consistent with that of Dr Allen.

The plaintiff had suffered occasions of impaired consciousness prior to the second accident. After the second accident these increased. These are a result of a sleep disorder but the precise nature of that disorder is not disclosed by the evidence. However it is more likely than not that the occurrence of the sleep disorder arises directly or indirectly out of his pain condition and the increase in frequency is because of the worsening of his pain condition.

Following the report of Dr Wilkins in August 2017 his employer required him to reduce his working hours to 24 hours per week and he is likely to continue at that level for the foreseeable future.

The prognosis for the future is uncertain. Because he has suffered from the pain condition for so long there is a real prospect that it will remain with him permanently. He will not be able to return to his pre-accident level of employment. He has not had the benefit of a residential multidisciplinary pain-management program. There is some prospect that that will assist him to improve his condition. If it does then it is likely that any such improvement will be over years. As a consequence there is some prospect that he will be able to reduce his reliance upon pain medication. However there is also the prospect that his condition will be worsened by some minor accident or provocation and that his condition will gradually decline over time.

Apportionment

There are two separate sets of proceedings and the defendants have not been joined as third parties for the purposes of the filing of notices seeking contribution or indemnity. It is therefore not a case in which any party has sought to invoke s 21 of the CLW Act which permits an apportionment on a just and equitable basis.

There are some heads of damage in relation to which damages may be awarded against the first-accident defendants or second-accident defendants because the damage is clearly associated with those defendants. Most obviously in this category is the damage suffered by the plaintiff between the first accident and the second accident which must be attributed to the first-accident defendants. However some heads of damage after the second accident are more difficult to allocate other than on the basis of some general apportionment of liability. Where such a general apportionment is involved the position of the parties in final submissions as to the appropriate apportionment of liability to the first-accident defendants and the second-accident defendants was as follows:

(a)First-accident defendants: 50:50
(b)Plaintiff: 70:30
(c)Second-accident defendants: 80:20.

The basis for the submission made by the first-accident defendants was that not only had the second accident increased the level of pain and discomfort suffered by the plaintiff but it had also disrupted the plaintiff’s long term maintenance of almost full‑time hours.

The plaintiff’s suggested apportionment was based upon the apportionment suggested by Dr Champion (see [60] and [85] above). It was also supported by the 60–70:30–40 apportionment suggested by Dr Eaton ([55] above).

The second-accident defendants’ apportionment was put forward on the basis that there was little change in his domestic contribution before and after the second accident, that the first accident had a far greater effect on the relationship with his wife and that, although he was off work for a period following the second accident, he did get back to almost pre-second-accident injury levels.

Having regard to the nature of the injuries suffered the effects of the accidents are clearly intertwined and any apportionment difficult. In my view where apportionment is necessary it is best done on the basis of the medical opinion even though that opinion does not disclose clearly the physiological basis for the apportionment. For that reason I adopt the apportionment suggested by the plaintiff namely 70 per cent to the first-accident defendants and 30 per cent to the second-accident defendants. I have not accepted that that the trajectory of improvement suggested by the first-accident defendants was clear enough to warrant a departure from the apportionment suggested by Dr Champion and Dr Eaton. The plaintiff’s significant workload between 2012 and 2015 was carried out at the expense of his ordinary domestic life and only because it was compelled by his financial circumstances. Nor have I accepted the submissions of the second-accident defendants which are inconsistent with the medical evidence. Recognising the uncertainties in any apportionment I do not consider the factors pointed to by the second‑accident defendants are matters which would warrant a departure from the assessments made by Dr Champion and Dr Eaton, each of whom saw the plaintiff on multiple occasions and had the benefit of detailed histories that they took at the time.

Non-economic loss

The plaintiff contended that an award of general damages of $195,000 properly reflected the plaintiff’s loss. Counsel for the plaintiff contended that it should be apportioned $125,000 in relation to the first accident and $70,000 in relation to the second accident. The defendants in each proceedings based their respective submissions upon a total award of damages of $140,000.

The plaintiff was, prior to the first accident, energetic enough to work in two different areas, a public-service policy job as well as working as a nurse. He taught guitar and had a modest computer-support-based business. He played in a band. He had a family life. The accidents have led to a long-term chronic-pain condition likely to continue into the indefinite future with an uncertain prognosis. He has persisted with work but at the expense of his personal life. His condition makes him substantially less able to cope with other challenges in his life, namely the brain injury and disabilities of his son. In my view the appropriate award is $190,000. It should be allocated evenly as between the past and the future. This is because, notwithstanding that the period since the first accident is only six and a half years and the plaintiff’s pain and disability may continue well beyond that period into the future, it is likely that his capacity to cope with his condition will improve. It also recognises that the period since the accident was when the loss of his previous life will have been most keenly felt and hence had the greatest psychological impact upon him.

So far as apportionment between the first-accident defendants and the second-accident defendants, this is a category of damages in which a general apportionment is appropriate. Taking account of the fact that in the period between the first and second accidents the sole cause of the plaintiff’s suffering was the first accident it is appropriate to make an apportionment of 85:15 as between first and second accidents. So far as the future is concerned it is appropriate to allocate damages 70: 30 between the first and second accidents.

This leads to an award of general damages as follows:

(a)First-accident defendants:
(i)Past $80,750;
(ii)Future $66,500;
(iii)Total $147,250.

(b)Second-accident defendants:
(iv)Past $14,250;
(v)Future: $28,500;
(vi)Total $42,750.

Interest on the past component is:

(a)First-accident defendants: $10,901;
(b)Second-accident defendants: $629;
(c)Total $11,530.

Past out-of-pocket expenses

The parties have agreed:

(a)total medical expenses excluding travel to the date of the second accident were at $25,778.58 ($4550.29 being paid by the plaintiff himself);
(b)travel expenses up to the date of the second accident are $4392.68;
(c)total medical expenses since the date of the second accident were $5826.75 ($3052.35 paid by the plaintiff himself)
(d)travel expenses incurred after the second accident were $1740.88.

Damages may be assessed by a combination of specific attribution to an accident and a general apportionment as follows.

In relation to the first-accident defendants the damages are all expenses up to the second accident, namely $30,171.26 ($25,778.58 medical plus $4392.68 travel) plus 70 per cent of the expenses since the second accident, namely $5297.34 (0.7 x ($5826.75 medical + $1740.88 travel). This gives a total of $35,469.

In relation to the second-accident defendants the damages are 30 per cent of the expenses since the second accident, namely $2,270 (30 per cent x ($5,826.75 medical + $1740.88 travel))

Interest on the amounts paid by the plaintiff himself (including travel expenses) calculated in accordance with Court Procedures Rules 2006 (ACT) rates are as follows:

(a)First-accident defendants: $2971
(b)Second-accident defendants: $91

Future out-of-pocket expenses

In final submissions the plaintiff articulated the components of future out-of‑pocket expenses as including medication, GP consultations, a buffer for psychological treatment, physiotherapy, a buffer for a multidisciplinary pain‑management program and a buffer for replacement of his home laser‑therapy machine, specialist appointments, diagnostic tests and imaging. The first-accident defendants and the second-accident defendants accepted only some of these elements of the claim. I will deal with these individually.

Multidisciplinary pain-program: The plaintiff contended that an award of $15,000 was appropriate to cover costs of a pain‑management program. The first‑accident defendants accepted this figure. The evidence of Dr Champion as at 2016 was that over the following year or two of appropriate treatment, which he considered should include multidisciplinary pain‑management as an inpatient, might exceed $20,000. I consider the claimed amount of $15,000 for the cost of a multidisciplinary pain‑program is a reasonable figure having regard to the extent and nature of the plaintiff’s condition and the real need for multidisciplinary involvement.

Psychological treatment: The plaintiff proposed a buffer of $5000 for psychological treatment. The first-accident defendants accepted a higher amount of $10,000. The second-accident defendants contended for a buffer of $10,000 to cover their liability for all future out‑of‑pocket expenses. I consider that a $5,000 buffer is a reasonable and modest award within the context of the other elements of damages that will be awarded for future out‑of‑pocket expenses. While it would be easy with such a condition for a much greater amount to be spent on such treatment, the extreme defensiveness of the plaintiff identified by Mr Sutton reduces the likelihood that the plaintiff will rely extensively on such treatment and hence warrants the modest award contended for by the plaintiff.

Physiotherapy: The plaintiff gave evidence that he continues to have, and to benefit from, physiotherapy. His evidence was that it cost between $93 and $112 per session. Although he did give evidence that at an early stage he received physiotherapy treatment weekly, he did not give evidence of how often he currently receives this treatment. The medical records show that he had been receiving physiotherapy about once a month on average since mid-2016. The plaintiff contended for an award for weekly physiotherapy over a period of 5 years. I accept that the need for physiotherapy is likely to continue into the future. Although there was some evidence from Dr Champion about how long medication might be required I consider that the prognosis is such that it cannot be said that physiotherapy will continue at that rate for that period. It is certainly likely that, if not financially constrained, the plaintiff’s use of physiotherapy would increase. It is therefore possible to say that a buffer equivalent to fortnightly physiotherapy over that period is appropriate in the light of the prognosis and its uncertainties. I will make the award at the approximate midpoint between the rates per physiotherapy session ($103) equivalent to fortnightly treatment for five years. This gives an award of $12,494 ($51.50/week, multiplier 242.6).

GP treatment: The plaintiff contended for an amount equivalent to $7 per week for the rest of his life. This is the equivalent of an average of just over four GP visits per year which is less than his current level of attendence. Such an award for the balance of the plaintiffs expected life would be $8338 ($7/week, multiplier 1191.2). Although there are uncertainties about his prognosis, balancing the various possibilities, this is a reasonable sum for such expenses and I award it.

Medication: The plaintiff claimed medication at $35 per week. There was no evidence directed to the costs of the drugs that the plaintiff takes. He is currently prescribed Palexia, Escitalopram and Epilim. His average weekly expenditure in the two years since the second accident was approximately $56 although how this amount was apportioned between drugs and other expenses was not clear. There was evidence from Dr Champion that there was some prospect of him being able to cease taking drugs within five years. At $35 per week the damages for the balance of his life expectancy would be $41,692. For a period of five years would be $8491. Given the lack of precision in the evidence I will award a buffer of $15,000.

The plaintiff also claimed a buffer of $20,000 for the replacement of his home laser‑therapy machine, specialist appointments and diagnostic tests and imaging. The evidence of cost and the likely need for replacement was insufficient to support an award in relation to the home laser‑therapy machine. There is likely to be a need for specialist appointments as well as diagnostic imaging. Having regard to the likely chronicity of his condition and the uncertainties as to how it will affect him and the treatment that he will require a buffer of $10,000 is appropriate.

This gives a total of $65,832 ($15,000, $5,000, $12,494, $8,338, $15,000, $10,000).

The amount should be apportioned between the defendants on a 70:30 basis which gives:

(a)First-accident defendants: $46,082;
(b)Second-accident defendants: $19,750.

Past wage loss

The parties agreed that the difference between what would have been the plaintiff’s income up until the date of the second accident had the first accident not occurred and the amount that he actually earned was $21,678. The parties also agreed that the loss of income from the date of the second accident up until the end of the hearing was $26,310.

Where the circumstances do not compel allocation only to the first-accident defendants it is appropriate to apportion damages on a 70:30 basis.

The damages awarded against the first-accident defendants will be:

(a)The whole of the loss after the first accident up to the second accident, $21,678; and
(b)70 per cent of the loss since the second accident namely $18,417 (0.7 x $26,310).

This gives a total of $40,095.

The damages awarded against the second-accident defendants will be 30% of the loss since the second accident namely $7,893.

Interest on these amounts calculated at Court Procedures Rules rates is $7803 for the first-accident defendants and $1169 for the second-accident defendants.

Past loss of recreational leave credits

The plaintiff claimed damages for the loss of leave credits. That was said to arise because in order to facilitate working part-time whilst at the same time maximising his income the plaintiff had used some of his recreational or other leave on a regular basis so as to reduce his overall work hours. This was particularised in some detail in the statement of particulars and different categories of leave were described in those particulars namely: “Annual leave”, “Personal leave”, “Recreation leave”, “Other leave”.

However there was only the most general reference to the manner in which leave was used in the evidence of the plaintiff’s supervisor Mr Hiscutt who said that when the plaintiff transferred to the Department of Communications he may have been “on the books” as a full-time employee but “he had quite a bit of leave which he dipped into”.

Although the claim was particularised at an amount in excess of $70,000, in final submissions the plaintiff submitted that personal or sick leave should be disregarded and an amount of $20,000 should be awarded to take account the use of leave prior to the second accident and an amount of $15,000 should be awarded for the period since the second accident. The amount contended for by the plaintiff for the period since the second accident was said to be discounted to take account of those periods of leave attributable to his son Scott’s hospitalisation.

While this is a claim which might have been available had more detailed evidence been led, the generality of the evidence given and the lack of documentary evidence that would permit quantification of the loss is such that it is not possible to make a finding on the balance of probabilities about the extent of leave taken and that the leave was taken for a purpose which would permit it to be recovered as damages and not for another purpose. For these reasons no amount is awarded in relation to this aspect of the plaintiff’s claim.

Future loss of earning capacity

The parties have agreed that the plaintiff’s current full-time income (at the EL 1.3 level is $1594 net per week, that his current salary working 24 hours per week is $1097 net per week and hence that the difference is $497 net per week.

The plaintiff’s submissions were based upon the proposition that a loss at this level would continue until the age of 67. The plaintiff submitted that having regard to the medical evidence the starting point was that the plaintiff’s level of disability would continue for that period and that having regard to his attitude to work demonstrated by his conduct prior to the first accident damages should be assessed on the basis that but for the accidents he would have worked until that age.

On the other hand, the first-accident defendants submitted that future economic loss should be assessed over a period of five years having regard to the evidence of Dr Champion that his medication needs would be appropriately assessed over that period. The second-accident defendants submitted that future loss of income should be assessed by way of a buffer.

There was no evidence given by the plaintiff of his intentions in relation to how long he was likely to work had the accidents not occurred. Similarly, although he was a Commonwealth public servant, there was no evidence about his superannuation scheme and whether or not there were incentives that might exist to retire at a particular age prior to the age when he would become able to access the age pension. Because of this, the position is that it is possible to say with a high degree of certainty that, in the absence of the accidents, he would have retired between the age of 54 years and 11 months and 67 years. However it is much more difficult to assess when within that period he was likely to have retired if the accidents had not occurred. On the one hand it can be said that he has demonstrated in the period before and after the accidents that he has been a motivated worker. He is also someone who would have had significant financial and caring responsibilities because of the various medical conditions of his son. On the other hand, the evidence also discloses that he is clearly someone who has taken pleasure in activities outside of work and hence someone who, if financial circumstances permitted, may have retired at a relatively young age in order to pursue those interests. Having regard to these competing factors and the absence of direct evidence of intention or sufficient evidence of the plaintiff’s financial circumstances I consider it appropriate to assess damages on the basis that he would have, but for the accidents, retired at the midpoint of the range of ages during which he would almost certainly have retired, namely at the age of 61. This is a period of 13 years and 10 months.

I have earlier recognised the uncertainties about his prognosis. The possibilities of improvement and of deterioration are appropriately accommodated by making the award of damages until he is expected to reach retirement age described above.

Therefore the future of loss of income without adjustment for vicissitudes is $294,473 (multiplier 592.5 times $497). With a 15 per cent deduction for vicissitudes this gives an amount of $250,302.

The plaintiff also claimed a buffer to take account of the possibility that he may suffer a further reduction in or total loss of working hours and had a reduced ability to compete on the open labour market. The report of Dr Wilkins both contemplated and recommended a partial invalidity retirement that would have the effect of confining the plaintiff’s working hours to his current level of 24 hours per week. There was no evidence to explain the financial consequences of that course being adopted and whether any payment made to the plaintiff as a result of that partial retirement would be received for the purpose of replacing the earning capacity that he had lost: see Pryce v Dunlap (No 2) [2016] ACTSC 353 at [68]–[69]. Further, there was no evidence apart from the report of Dr Wilkins that would indicate what the likelihood of such a course actually being adopted was.

Insofaras the submission was based on the prospect of further decline in the plaintiff’s work capacity there is clearly some prospect that that may be the case. On the other hand, although the current medical evidence (such as that of Dr Champion and Dr Eaton) recognises the difficulty of rehabilitation having regard to the severity and duration of the plaintiff’s condition, there is at least some prospect that with properly funded rehabilitation the plaintiff will be able to recover some additional work capacity. Overall, in the light of the pessimistic prognosis the evidence is more in favour of recognising some prospect for deterioration. So far as the possibility of partial retirement is concerned the evidence is not sufficient to justify the awarding of an additional amount of damages to take account of this possibility. The buffer that will be awarded is $20,000. This has been calculated on the basis that it approximates a 50 per cent chance of a loss of four hours per week between five and 10 years in the future (4hrs x $46/hr x 50% x multiplier of 209.2). However the method of calculation should not obscure the fact that it is in fact a buffer recognising a variety of imponderables.

This brings the total for loss of wages in the future to $270,302.

Apportioning this on the basis of 70:30 gives an award as follows:

(a)First-accident defendants: $189,211;
(b)Second-accident defendants: $81,091.

Superannuation

Loss of superannuation was claimed in relation to the future but not the past.

The use of a rate of superannuation of 17 per cent of the net wage loss was uncontroversial. This was based upon a superannuation entitlement of 15.4 per cent of gross salary. Having regard to the manner in which the buffer has been assessed it is appropriate to make an award of superannuation on the basis of the total future loss of wages. This gives a figure of $45,951.

With a 70:30 allocation this gives awards of damages as follows:

(a)First-accident defendants: $32,166;
(b)Second-accident defendants: $13,785.

Griffiths v Kerkemeyer and s 100 damages

The plaintiff relied upon the occupational therapist report prepared by Freyr Patterson for the solicitors acting for the NRMA. That report assessed the requirements for care following the first and second accidents up until the date of the report (other than a period of six weeks following the second accident) at 10.5 hours per week. In the six weeks following the second accident, because the plaintiff received six weeks of paid domestic assistance, the additional requirement for care was 8.5 hours per week.

The report of Ms Patterson assessed the need for future domestic assistance at 10.5 hours per week.

The report of Ms Patterson disclosed personal and domestic care costs ranging from $40 per hour through to $101 per hour and suggested an average figure of $46 per hour. The parties agreed that the appropriate rate for past and future care was $35 per hour.

The other evidence relevant to the assessment of past and future Griffiths v Kerkemeyer damages or damages under s 100 of the CLW Act ‘was that of the plaintiff and his wife.

Marilyn Baker gave evidence that in the first few months after the first accident she provided 10 to 12 hours of care and domestic assistance. Thereafter up to the second accident she gave between four and five hours. After the second accident the plaintiff “couldn’t do anything” but she now had to do “10 to 10 and a half hours a week of his stuff”.

The plaintiff’s evidence was to the effect that prior to the first accident the plaintiff had overall participated equally in domestic tasks. That changed following the first accident. The plaintiff did significantly less and was often unable to do anything. His wife picked up those duties which she could. The plaintiff estimated that his wife probably did 10 additional hours as a consequence of his injuries.

Consistently with the evidence of the above witnesses I will award damages as follows. Following the first accident I will award damages for 12 weeks’ time at 11 hours per week, which equals 132 hours. For the next 224 weeks I will allow five hours per week. This equals 1120 hours. In reaching this figure I have preferred the evidence of Ms Baker to the estimate of Ms Patterson. The total is $43,820 (1252 hours at $35 per hour) which is entirely the responsibility of the first-accident defendants.

Following the second accident there have been 115 weeks requiring Mrs Baker’s assistance for 10.5 hours per week, namely 1208 hours. I will deduct from this eight weeks at 10.5 hours per week, totalling 84 hours for the period when the family relocated to Sydney because the plaintiff’s son was in hospital. He was in Sydney for a total of two and a half months. The reduction for a period of eight weeks is to take account of the fact that normal household duties are likely to have been suspended at least for a portion of the period. This gives a total of $39,340 (1124 hours at $35 per hour). Allocating this 70:30 gives an award of $27,538 against the first-accident defendants and $11,802 against the second-accident defendants.

Interest on these amounts is as follows:

First-accident defendants:

(a)$12,814 in relation to the damages arising after the first accident but before the second accident.
(b)$1,746 in relation to their share of the damages arising after the second accident.
(c)Total $14,560

Second-accident defendants in relation to their share of the damages arising after the second accident: $748.

In relation to the future there is clearly uncertainty as to the plaintiff’s prognosis and hence the appropriate award under this head.

An award based upon a need for care continuing at 10.5 hours for the rest of the plaintiff’s expected life is $437,693 (10.5 hrs x $35/hr x multiplier 1191). The plaintiff suggested taking into account the possibility of the plaintiff requiring care in any event by making an award for 30 years as opposed to his life expectancy and increasing vicissitudes to 20 per cent. I consider that a more appropriate award is one for a period equivalent to the period until his anticipated retirement date which for the purposes of calculation has been set at 61 years of age or 13.8 years’ time. That gives a figure of $217,744 (10.5 x $35 x multiplier 592.5). There are clearly many uncertainties as to how his condition may change and how he may require domestic assistance in the future. Aligning the award of damages with his notional retirement age gives some weight to the proposition that from that point he will be devoting less of his effort to paid work and will be better able to accommodate domestic work as well as the prospect that in the longer term he would in any event have required domestic assistance. Recognising that in a case like this there are many uncertainties with such an award, because this method of assessing his likely future loss takes into account the consequences of his retirement and what in any event would have been the effects of old age, I consider that this method better reflects the likely loss than a method based upon a discount from an award of damages for substantially the balance of the plaintiff’s expected life.

As between the defendants on a 70:30 apportionment this gives:

(a)First-accident defendants: $152,421
(b)Second-accident defendants: $65,323

Summary

My findings in relation to damages are summarised in the following table:

Total First-accident defendants Second-accident defendants

General damages $190,000 $147,250 $42,750

Interest on past general damages $11,530 $10,901 $629

Past out-of-pocket expenses $37,739 $35,469 $2270

Interest on past out-of-pocket expenses $3,062 $2,971 $91

Future out-of-pocket expenses $65,832 $46,082 $19,750

Past wage loss $47,988 $40,095 $7,893

Interest on past wage loss $8,972 $7,803 $1169

Future loss of earning capacity $270,302
$189,211
$81,091

Future loss of superannuation $45,951 $32,166 $13,785

Past Griffiths v Kerkemeyer / s 100 $83,160 $71,358 $11,802

Interest on past Griffiths v Kerkemeyer / s 100 $15,308 $14,560 $748

Future Griffiths v Kerkemeyer/s 100 $217,744 $152,421 $65,323

TOTAL $997,588.00 $750,287.00 $247,301.00

Orders

Section 151(4) of the Road Transport (Third Party Insurance) Act 1999 (ACT) requires that judgments be entered against the second defendant in each proceedings. The orders of the Court are:

In proceedings SC 99 of 2014:

1. Judgment be entered against the second defendant in the sum of $750,287.

2. The usual order as to interest.

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

4. Order 3 does not take effect for 14 days and if, within that period any party notifies my associate that the party wishes to be heard in relation to costs, does not take effect until further order.

In proceedings SC 63 of 2017:

1. Judgment be entered against the second defendant in the sum of $247,301.

2. The usual order as to interest.

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

4. Order 3 does not take effect for 14 days and if, within that period any party notifies my associate that the party wishes to be heard in relation to costs, does not take effect until further order.

I certify that the preceding one hundred and sixty [160] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date: 10 November 2017

Total	First-accident defendants	Second-accident defendants
General damages	$190,000	$147,250	$42,750
Interest on past general damages	$11,530	$10,901	$629
Past out-of-pocket expenses	$37,739	$35,469	$2270
Interest on past out-of-pocket expenses	$3,062	$2,971	$91
Future out-of-pocket expenses	$65,832	$46,082	$19,750
Past wage loss	$47,988	$40,095	$7,893
Interest on past wage loss	$8,972	$7,803	$1169
Future loss of earning capacity	$270,302	$189,211	$81,091
Future loss of superannuation	$45,951	$32,166	$13,785
Past Griffiths v Kerkemeyer / s 100	$83,160	$71,358	$11,802
Interest on past Griffiths v Kerkemeyer / s 100	$15,308	$14,560	$748
Future Griffiths v Kerkemeyer/s 100	$217,744	$152,421	$65,323
TOTAL	$997,588.00	$750,287.00	$247,301.00