Baker v North [No 2]

[2020] WADC 6

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   BAKER -v- NORTH [No 2] [2020] WADC 6

CORAM:   O'NEAL DCJ

HEARD:   2-9 SEPTEMBER & 18-20 NOVEMBER 2019

DELIVERED          :   17 JANUARY 2020

FILE NO/S:   CIV 2678 of 2015

BETWEEN:   JOHN WAYNE BAKER

Plaintiff

AND

JENNIFER PATRICIA NORTH

Defendant

Catchwords:

Negligence - Motor vehicle accident - Assessment of damages

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943 (WA), s 3C and s 3D

Result:

Damages assessed

Representation:

Counsel:

Plaintiff	:	Mr A Gunasekera
Defendant	:	Mr C Rimmer

Solicitors:

Plaintiff	:	Peninsula Personal Injury Lawyers
Defendant	:	Sparke Helmore Lawyers

Case(s) referred to in decision(s):

Baker v North [2017] WADC 64

Cleary v Insurance Commission of Western Australia [2019] WADC 29

CSR Ltd v Eddy (2005) 226 CLR 1; [2005] HCA 64

O'NEAL DCJ:

1. Introduction

1. On 11 October 2012 the plaintiff was injured when he hit a curb and came off his motorcycle (the accident).  The plaintiff suffered a moderately serious injury to his left shoulder as a result.

2. The issue of liability for the accident was determined after trial by his Honour Judge Staude: Baker v North [2017] WADC 64.

3. Staude J apportioned liability 70:30 in favour of the defendant.  In reaching the conclusions that he did about liability, Staude J rejected the evidence of the plaintiff, and accepted the evidence of a third party witness and the defendant.  Unusually, his Honour's rejection of the plaintiff's evidence about the accident was urged by the plaintiff's then counsel, who characterised the plaintiff's evidence as 'unreliable' and 'obviously incorrect': Baker v North at [36] and [37].

4. This matter now comes before the court for the determination of issues of damages, based on the apportionment of liability made by Staude J.

1. Issues

1. The plaintiff is now 58 years old.  Since 2012 he has been employed as a Transit Officer by the Public Transit Authority (PTA).  The accident occurred just months after the plaintiff took up that employment.

2. Within half an hour of the accident the plaintiff was admitted to the Rockingham General Hospital Emergency Department.  He was diagnosed with a complete acromioclavicular joint disruption, that is, a seriously dislocated shoulder (the shoulder injury).  The plaintiff has had surgery on several occasions to deal with the shoulder injury. The first surgery was complicated by post-operative infection.  The last surgery was in April 2015, to relieve a degree of impingement in the shoulder joint. On two occasions he has had cortisone injections into the shoulder in response to his ongoing complaints of pain and disability.

3. In 2015 the plaintiff developed carpal tunnel symptoms in his left hand.  In February 2016 he underwent 'left hand open carpal tunnel release'.  The plaintiff attributes the carpal tunnel symptoms in his left hand to the shoulder injury, or alternatively the shoulder surgery.

4. For periods of time following the accident and each of the surgeries (except the carpal tunnel release) and injection treatments, the plaintiff was unable to work.  He claims those lost earnings as past loss of income.

5. In addition, the plaintiff says that the shoulder injury has left him with chronic pain and residual disability in his left shoulder, which has meant he has been unable to take advantage of lucrative opportunities to regularly work overtime shifts.  He claims those lost shifts as past loss of income. The amount claimed is based on the loss of one shift per fortnight from 28 February 2013 to 12 August 2013, 21 August 2013 to 24 April 2015, 9 August 2015 to 8 November 2017, and 15 November 2017 to 17 February 2019.

6. The plaintiff's case is that since the accident he has been unable to properly carry out his duties as a Transit Officer, by reason of a residual disability in his shoulder resulting from the shoulder injury.  That has resulted not only in the loss of overtime shifts, but has lead the plaintiff, as of 18 February 2019, to change his employment status with the PTA to part-time, reducing his regular hours of work by half: 40 hours per fortnight. The particulars of damages relied on at trial claim the loss of one half of the plaintiff's regular hours, and all the overtime assumed to have been lost, from 18 February 2019 until the conclusion of the trial.

7. A claim for future economic loss is advanced on the basis that, although he is unable to properly carry out his duties, the plaintiff will nonetheless continue to work part‑time, without overtime, until retirement at age 67.

8. The particulars of damages advanced at trial made no allowance for a number of matters that were plain obstacles to the damages sought.  The plaintiff was absent from work on a number of occasions for regular paid annual leave, and for a substantial period of time for a work related injury for which he received workers' compensation.  The plaintiff owns a lawn mowing business which has generated and will generate profits. No account was taken of these matters in the plaintiff's claim, until it was raised in the course of closing submissions.

9. General damages are also claimed.  The plaintiff says that limitation of movement, and pain and discomfort in his left shoulder, have prevented him from engaging in most recreational and social activities, and cost him other amenities of life.

10. The statement of claim also alleges that the plaintiff suffered 'psychological symptoms' as a result of the shoulder injury, in particular, anxiety. To the extent that this issue was developed at trial, any such problems appear to have been transitory.  It is readily encompassed by the claim for general damages for pain, suffering and loss of amenities of life.

11. Gratuitous services that were provided to the plaintiff during his recoveries from treatment and at other times are another head of damage claimed. The particulars of loss advanced on the plaintiff's behalf claim more than $90,000 for this head of damages, at least until the trial concluded. That included one hour per day from 7 June 2015 until trial. The particulars of that loss have since been amended to limit the gratuitous services claimed to a period ending one week after the plaintiff's last cortisone injection - 14 November 2017. That was despite the plaintiff's evidence that these injections brought him no relief.

12. The defendant accepts that the plaintiff experienced some significant problems in his left shoulder as a result of the accident and the shoulder injury.  The extent and duration of pain, discomfort, and disability that the plaintiff claims is disputed, along with the extent of gratuitous services said to be necessary.

13. In particular, the case for the defendant is that, while the plaintiff lost earnings because of the accident, the shoulder injury, and the treatment of his shoulder, he has exaggerated the extent of any residual problem with his shoulder, and has been and remains fit to carry out the duties of a Transit Officer, and to work overtime, if available.

1. Background

1. The plaintiff was born in November 1961.  He completed Year 10 at school and then did an apprenticeship as a boilermaker first class welder.

2. He completed his apprenticeship in 1982 and then worked for the same company for the next 18 or 20 years, rising to the level of supervisor.

3. The plaintiff's real ambition however was to join the WA Police Service.  He was prevented from doing so for a time by a height restriction.  That height restriction was removed in 1996.  The plaintiff applied to and then joined the service on 8 April 1996. He served in the Police Service for just over 16 years, rising to the rank of senior constable.

4. In the last years of his Police Service the plaintiff worked at the WA Police Southern Rail Unit at Rockingham.  That unit had a close connection with the PTA.

5. The plaintiff left the Police Service in May 2012 and took a position as a Transit Officer with the PTA.

6. The plaintiff gave evidence that the only reason he left the Police Service to join the PTA was money.  That is, while the hourly rates that Transit Officers received were relatively low compared to the Police Service, the penalty rates that applied for Saturdays, Sundays and public holidays, and the opportunities for overtime work, made the Transit Officer job more financially attractive.

7. The plaintiff gave evidence that at the time he left the Police Service he was physically fit and that there was no reason, other than money, for his decision to leave.  As I will describe later, evidence emerged in cross-examination that pointed to other reasons for his decision.

8. The plaintiff began working as a Transit Officer on 28 May 2012.  Initially he underwent training that lasted between five and six weeks.  His overall training period was reduced however because the PTA recognised aspects of his police training.

9. He was required to become familiar with railway and PTA specific laws, and to undertake defensive training.  The defensive training for Transit Officers is apparently different to that given to police officers.  The training for Transit Officers, I was told, emphasised holds and restraints.  I will refer to the nature of this training in more detail later in these reasons.

10. When his training was completed the plaintiff was assigned to the Armadale line.  Although he has worked on all of the lines operated by the PTA, the evidence-in-chief emphasised the time the plaintiff spent on the Armadale line.

11. The different lines operated by the PTA have different reputations for the amount of antisocial behaviour likely to be encountered on their trains.  The Armadale line, the plaintiff said, was one of the rougher lines, with the greatest incidence of physical encounters with passengers. Since May 2016 however the plaintiff has worked on the Mandurah line. There are still occasions when it is necessary to physically restrain a passenger, although the state of the evidence does not allow me to determine how often that occurs.

12. The work of Transit Officers is organised into three main types of duties: train riding, station duties, and Delta vehicle duties.  The plaintiff said that over the years on the Armadale line and currently, 70% of his work involved train riding, 25% station duties, and 5% Delta vehicle duties.

13. Train riding duties, as the name suggests, involves riding on trains as they move from station to station along the line.  Pairs of Transit Officers walk up and down the train three times between the start and end of the line, checking on the passengers.

14. The first time that the officers walk the length of the train they check tickets.  A small handheld device, like a card reader, can be used to check 'SmartRider' passes to make sure that passengers have tagged on appropriately.  Paper tickets are examined.

15. Otherwise, the Transit Officers are involved in customer service and law enforcement as they walk the length of the train.  The officers are present to deal with any antisocial behaviour and, of course, to deal with infringements such as failing to produce a valid ticket.

16. 'Station duties' involve working at particular stations for the duration of a shift, usually from 2.45 pm onwards.  Transit Officers on station duties are detailed to those stations that have reputations for incidents of antisocial behaviour.  They conduct security patrols of the carparks looking for damaged vehicles, and security patrols of platforms.

17. Transit Officers on station duties greet trains as they arrive and escort customers off the property.  That is, they are present on the platform as a train arrives, they watch passengers alight from the train, then walk behind them to the carpark or other areas from which passengers disperse.  These officers are present to deal with, among other things, law enforcement for any antisocial behaviour.

18. 'Delta vehicle duties' involve officers in pairs operating from police‑style security vans.  They begin their shift by travelling to stations where other officers need access to personal protective equipment including, for example, pepper spray.  The Delta duty officers unlock the security boxes at those stations to allow the officers on station duties access to the protective equipment.

19. Delta duty officers also travel to unmanned stations and conduct temporary station duties for trains arriving at unmanned stations.

20. Finally, Delta duty officers and their vehicle are available for emergency response.  If an incident arises at a particular station, the officers at that station are able to call on the Delta duty officers for assistance.  Typically that would occur when law enforcement duties become physical, as in the case of the assault of a Transit Officer.

21. The plaintiff began his duties as a Transit Officer on the Armadale line in the week of 5 - 12 July 2012.  Less than three months later he had the accident.

1. The plaintiff's medical history

1. Quite apart from the accident that is at the heart of this action, the plaintiff has an unfortunate history of accidents and injuries.

2. In April 2016 the plaintiff gave a history of prior injuries to Dr Andrew Harper who was reviewing him at the request of the plaintiff's solicitors. I have taken this history from a report of Dr Harper that was tendered into evidence. It is reasonably consistent with histories that the plaintiff gave to other doctors who were engaged for purposes related to this litigation. The consistent theme of these histories was that any other injury the plaintiff had ever suffered had completely resolved, and it was only the shoulder injury that prevented the plaintiff from working more and running 10 km ‑ 20 km several times a week.

3. At some point in the past the plaintiff fractured his right hand, requiring a surgical repair.  At age 17 the plaintiff had a motorcycle accident which left him with abrasions but no significant injury.  The plaintiff had two car accidents that apparently did not cause injury.  While the plaintiff was an apprentice boilermaker he injured his right leg badly enough to result in a workers' compensation claim, after what was described as a 'short period' of lost time.  The plaintiff also injured his right patella playing squash and required arthroscopic surgery.

4. The plaintiff told Dr Harper that, prior to the accident, his health was 'brilliant', and this last knee problem 'did not cause a problem until 17 January 2015, when he had a meniscal tear after being assaulted at work.  This incident also caused a whiplash injury and an 'injury to teeth'.  That history with respect to the plaintiff's right knee, and his health generally, is not correct. It omits some significant knee problems that the plaintiff had prior to the accident.

5. A similar history, with similar omissions, was given by the plaintiff to another reviewing doctor, Dr Mattes, who was told by the plaintiff 'I have always been in good health'.

6. In August 2010 the plaintiff was getting into a police car at work when he twisted his left knee sufficiently that he 'felt' a loud crunch in the knee.  In September of that year he had a partial meniscectomy and chondroplasty to repair the left knee.

7. By 29 October 2010 the left knee was improving but, according to medical records tendered at trial, the plaintiff reported 'now having secondary pain in the right knee'.

8. The left knee continued to improve and the right knee continued to deteriorate.  In December 2010 the plaintiff had a lateral release and a partial lateral meniscectomy in his right knee.

9. At the end of January 2011 the plaintiff was still off work and, in addition to his knee problem, he was reporting 'some lower back pain and stiffness and some right hip pain'.  About this time, the plaintiff returned to work for the Police Service, on office duties for four hours a day.  By mid-February of that year he was allowed to increase to six hours a day, four days a week, on office duties.

10. On 11 March 2011 he reported that his knee was improving, and he was managing eight hours of office duties per day, but experiencing 'pain at the end of shifts'.  The plaintiff's condition continued to improve with physiotherapy and light exercise. By 1 July 2011 he was certified fit for regular duties.

11. The plaintiff therefore suffered for a year with problems in both knees about five years prior to his interview by Dr Harper, four years prior to his assault at work with the PTA, and up until just 15 months prior to the accident.  The problems were so serious that they kept him off work for months, and required surgery to both knees.  The plaintiff accepted in cross-examination that he had not told Dr Harper of these matters. He said, in effect, that he did not remember them until reminded in cross‑examination.

12. In July 2011 the plaintiff returned to work with the Police Service.  About that time however, or shortly after, he separated from his de facto partner.  It appears that he had custody of two young children, who were still living with him at the time of the accident.

13. In early 2012 something occurred that led to someone (not, the plaintiff said, his former de facto) obtaining a violence restraining order against the plaintiff.  That order prevented him from taking part in operational police duties.  Among other things, he was required to surrender his service weapon.

14. From about mid-February the plaintiff was either stood down, or placed, or went on extended sick leave from the Police Service.  While the plaintiff was in fact on paid sick leave, the state of the evidence does not allow me to readily determine why that was.

15. Although he was eventually able to carry out office based duties, contemporaneous file notes show that the plaintiff was not enthusiastic about that.

16. On 26 April 2012 the plaintiff resigned from the Police Service.  He advised someone who was apparently a civilian counsellor or personnel manager working with the Police Service that:

    … he resigned today.  Went into work - but didn't feel good about being there at all.  Feels much better having made the decision to resign and knows it's the right thing for him.  Didn't want to waste my time and wanted to call me to let me know.  Thanked me for calling.  He's looking forward to getting on with his life.

17. That was the context in which the plaintiff left the Police Service to join the PTA.

18. On 11 October 2012 the plaintiff was involved in the accident.  Staude J accepted the defendant's evidence that she stopped her car in an intersection, signalling a right hand turn, then slightly straightened her car in the roadway while giving way to an oncoming vehicle: Baker v North, at [38] - [39]. The plaintiff was riding his Harley Davidson motorcycle behind the defendant, approaching the intersection. The plaintiff lost control of his motorcycle while trying to avoid running into the back of the defendant's car. He locked the rear wheel and went up on the curb. He was thrown over the motorcycle handlebars and landed heavily on his left shoulder. Although he was in considerable pain he never lost consciousness and, with some assistance, he managed to get the motorcycle upright again.

19. Following the accident the plaintiff, with some difficulty, rode his motor cycle the 400 m ‑ 500 m home.  When he got home he then drove his manual transmission ute to Rockingham General Hospital (RGH) and presented himself in the Emergency Department.  His left shoulder, he observed, seemed to be hanging a couple of inches lower than was right, and he knew that something was wrong.

20. When he was finally seen by a medical practitioner, his left arm was put in a sling, and he was given some pain killers and sent home.

21. Ms Tracey Whidgington was a work colleague employed by the PTA.  Just prior to the accident the plaintiff's relationship with Ms Whidgington was becoming a romantic relationship.  On learning of the accident Ms Whidgington came to the hospital and invited the plaintiff to stay at her house.

22. Arrangements were made for the plaintiff's two youngest children to stay with their mother, and Ms Whidgington arranged for the plaintiff to be taken to her house.  In the weeks that followed she provided care for him, first at her house, and then at his.

1. The damage to the plaintiff's left shoulder was a 'complete acromioclavicular joint disruption'.  On 23 October 2012 he underwent the first surgery for his shoulder.  The shoulder was repaired with a clavicle hook and screws to hold it in place. This surgery required an overnight admission at RGH.

2. Unfortunately, following this first surgery, the plaintiff developed an infection.  The infection required several courses of antibiotic treatment.

3. The clavicle hook and screws remained in the plaintiff's shoulder until 22 January 2013.  On that day the plaintiff was admitted to RGH to have them removed.

4. This second surgery was day surgery.  The plaintiff was discharged in the afternoon following his surgery, with his left shoulder and arm once again in a sling.

5. The plaintiff said in evidence that after about two months he returned to work.  In his evidence he said he was still in pain, but because his savings had been depleted it was necessary for him to return to work.

6. In the course of his evidence the plaintiff made several references like this to his straitened financial circumstances, caused by the accident and his relationship breakdown. This first instance of his 'crying poor' does not sit well with other evidence, such as that while his first Harley Davidson motorcycle was repaired (at a cost of $8,000 according to what the plaintiff told at least one doctor), the plaintiff bought himself another, new, Harley Davidson motorcycle in 2013. His tax returns also show that between July 2013 and 30 June 2014 he spent more than $17,000 on equipment for his lawn mowing business.

7. Based on the plaintiff's payslips, he was off work from 11 October 2012 until 21 February 2013, a total of 19 weeks.

8. Because the accident did not involve a work place injury, no 'return to work' programme with light duties was provided by the PTA.  The plaintiff began working 10 hr ‑ 12½ hour shifts.  He did however change the area of his service from the Armadale line to the Fremantle line, which he said was much quieter.  That is, there was less need for him to physically intervene with antisocial passengers.

9. On 21 January 2013 the plaintiff was assessed as fit for duty, meeting all medical criteria of his job. A letter dated 5 February 2013 from the RGH orthopaedic registrar to the plaintiff's general practitioner (GP) recorded that the plaintiff was then 'pain-free, with no signs of wound infection and a range of motion equal to the contralateral (uninjured) side'. The available records show that the plaintiff returned to work on 22 February 2013, exactly one month after his second surgery.

10. He subsequently began to complain of pain in his shoulder.  He described this as constant pain that increased when he was required to lift his left arm above shoulder height.  He said that following his work shifts his pain never went away, he was exhausted, and could not sleep properly.  The pain in his shoulder, he said, interfered with the way he would ordinarily lie to sleep, and the pain woke him up.  Prior to the accident, he said, he had no difficulty sleeping.

11. Following his complaints of pain to his GP, Dr Ash Kariya, the plaintiff was sent for an X-ray and ultrasound scan.  That revealed 'sub acromial bursitis and bursal impingement'.  There was an ultrasound guided injection of cortisone into the shoulder joint on 13 August 2013. The plaintiff's particulars of loss claim a week's lost wages from 12 August 2013 for this injection. The records from the plaintiff's employer show three days leave, from 14 ‑16 August, for 'illness'. Despite that, the defendant accepts that an award of damages may be made to cover one week's lost wages following this and a second such injection in November 2017.

12. On 16 March 2014 the plaintiff had an MRI of his left shoulder because of concern about a possible cuff tear.  The MRI apparently revealed what was described as a 'thin partial thickness low grade (> 25%) tear at the junction of posterior distal supraspinatus and anterior infraspinatus'.

13. The plaintiff continued to complain to his GP of shoulder symptoms and on 7 October 2014 his GP referred him to Mr Alex O'Beirne, an orthopaedic surgeon.

14. Mr O'Beirne concluded that the plaintiff was suffering from acromioclavicular joint arthropathy, secondary to the AC joint injury.

15. The plaintiff suffered another workplace injury on 17 January 2015.  He was punched in the face in the course of his duties, and suffered injuries to his face and right knee. He saw his GP, Dr Kariya, on 19 January 2015. The plaintiff had abrasions on his nose, lip and left elbow. He was also complaining of right knee pain. The plaintiff said that his right knee was injured when he fell over after the assault. Dr Kariya noted 'R knee pain- slight effusion-pain on medial joint stress- ligament injury- ?meniscal'.

16. On 24 April 2015, on Mr O'Beirne's recommendation, the plaintiff underwent a left shoulder arthroscopy, acromioplasty, and excision of the distal clavicle.

17. The plaintiff took annual leave in the period from 24 April to 9 May 2015, and long service leave from 10 May to 8 August 2015.

18. On 14 May 2015 Dr Kariya saw the plaintiff and noted that he had 'good benefit post-surgery' but recorded his ongoing complaints about knee pain.

19. Mr O'Beirne had predicted that following the shoulder surgery it would be 6 ‑ 12 weeks before the plaintiff could return to work. Mr O'Beirne reviewed the plaintiff on 3 June 2015 and reported to Dr Kariya:

    I reviewed John today.  He is now six weeks post-surgery to his left shoulder and he is very happy with the result.  The wounds have healed nicely, he now has a full range of motion and he is essentially pain free.  The altered sensation, or carpal tunnel like symptoms, in his left hand have essentially resolved, he has only had two episodes since surgery. 

    I am happy for him to proceed with surgery to his right knee and I am happy for him to return to full duties when he is ready.  I have cautioned him that he will not reach maximal recovery until he is six months post-surgery. 

20. In July 2015, three months after the last shoulder surgery, the plaintiff had surgery on his right knee for the injury arising from the assault.

21. The plaintiff attended his GP on 6 August 2015. Dr Kariya noted that the plaintiff's shoulder was 'much improved post-surgery' with less pain and a full range of motion, although the plaintiff was still complaining of pain at the end of the range of flexion and abduction. Around this time the plaintiff began complaining of numbness in the fingers of his left hand.

22. Because the knee injury was a workplace injury, the plaintiff came back to the PTA on a return to work programme in mid-August 2015.

23. Mr O'Beirne reviewed the plaintiff again on 27 August 2015.  He reported to Dr Kariya:

    I reviewed John today.  He is now three months post left shoulder surgery and he is doing very well.  He reports that he still has an ongoing dull ache but it is not really concerning him and he is not requiring any analgesics.  He has a full range of movement and he has increasing strength.  He is one month post right knee surgery which is steadily improving.

    His main concern with his left hand now is numbness and pins and needles in the thumb, index and middle fingers and a pain that radiates up into his shoulder.  He has a positive Tinel's and a positive Phalen's test, he has normal light touch sensation test. 

    Clinically, he has carpal tunnel syndrome and I would recommend he have a nerve conduction study …

24. Mr O'Beirne saw the plaintiff again on 14 January 2016.  So far as the plaintiff's shoulder was concerned, Mr O'Beirne reported:

    He is over six months post left shoulder surgery and he is very happy with the result. 

25. The plaintiff was however continuing to complain of left hand symptoms indicative of carpal tunnel syndrome.  After being advised about the treatment options and risks, the plaintiff decided that he would undergo an open carpal tunnel release. 

26. By February 2016 however the plaintiff was again complaining of symptoms in his left upper arm.  On 5 February 2016 Dr Kariya recorded the fact that although the plaintiff then appeared to have full flexion and abduction in the left shoulder, he was complaining of pain at the end of the range of flexion and abduction.  Dr Kariya reported restricted extension and ongoing pain and tingling down the plaintiff's left arm.

27. On 10 February 2016 Mr O'Beirne carried out an open hand carpal tunnel release on the plaintiff's left hand.

28. The following month Dr Kariya again recorded the plaintiff's shoulder complaints to similar effect, adding 'worse after prolonged usage'.  Two weeks later, at another GP visit, the plaintiff was complaining of not only pain in his shoulder but pain in a wrist. Dr Kariya's notes do not say which wrist.

29. From that time, the plaintiff has attended his GP almost every month, always complaining about shoulder pain, and occasionally complaining that the pain was worsening.

30. Mr O'Beirne reviewed the plaintiff again on 23 March 2016.  Mr O'Beirne reported to Dr Kariya:

    I reviewed John today.  He is now six weeks post left hand open carpal tunnel release and he is doing very well.  All of his symptoms have resolved and he is very happy with the result.  He has some minor tenderness over the wound. 

    Unfortunately, his right hand is worsening and he has a positive Tinel's and a positive Phalen's test.  At some stage I believe he will need this attended to.

    I have not organised to see him again but if he has any problems or if the right hand worsens I have asked him to contact me. 

31. On 19 September 2017 Dr Kariya recorded the plaintiff complaining of 'ongoing shoulder symptoms - flare up of shoulder symptoms after repeated usage at work - no specific incident …'.

32. On 29 September 2017 the plaintiff was sent for a further MRI which was said to show 'mild bursal surface fraying and tendinosis of the supraspinatus tendon' and '… a small glenohumeral joint effusion'.

33. On 8 November 2017 the plaintiff underwent a further ultrasound‑guided cortisone injection into his left subacromial bursa.  Later that month Dr Kariya records the plaintiff saying that he continued to have pain with limited benefit from the injection.  The following month he complained that his pain was getting worse.

34. The plaintiff has had a number of medical reviews for the purpose of this litigation.  I will refer to those later in these reasons.  The plaintiff was however last reviewed by Mr O'Beirne, the treating surgeon, on 27 June 2019.  Mr O'Beirne's report to Dr Kariya includes a summary of Mr O'Beirne's involvement as well as current observations:

    In the early post-operative phase he reported his left shoulder being pain free but he developed increasing problems of carpal tunnel with his left hand and query common extensor origin tendinopathy in his left elbow.  He underwent further surgery on 10^th February 2016 in the form of a carpal tunnel release, which resolved all the numbness and pins and needles and carpal tunnel symptoms in his hand and the symptoms in his elbow.  However, he has slowly redeveloped pain in his left shoulder. 

    On review today, John is a fit healthy gentleman, he has two well healed incisions over his left shoulder, he is maximally tender over the AC joint, he has a positive Tinel's sign over the AC joint in line with the original incision, he reports altered sensation on the lateral aspect of his shoulder, lateral to the original scar and he has pain throughout the posterior triangle of his neck, predominantly along the upper trapezius muscles on palpation. 

    Clinically, he has no muscle wasting around the shoulder and he has a full range of motion, however he does have a painful arc, he has negative provocative tests for AC joint arthropathy and he has negative provocative tests for rotator cuff injury, he has a stable joint and he has a stable acromioclavicular joint. 

    I have referred him for a follow up nerve conduction study to assess the results of the carpal tunnel release and a follow up MRI scan to assess the left shoulder joint.  I will review him with these results and I will keep you informed. 

1. The plaintiff's complaints of disability

1. Immediately following the accident, the shoulder injury was undoubtedly painful and disabling.  That would have been particularly the case with the infection that followed the original surgery.  The plaintiff's case however is that, with the possible exception of a period of time immediately following the surgery carried out by Mr O'Beirne, the plaintiff has experienced constant pain in his shoulder, made worse by use.  When his shoulder was 'down' he experienced constant pain', but when elevated there is 'lots of pain'.

2. Later in these reasons when I refer to the medical evidence I will describe some of the specific claims that the plaintiff has made of weakness and limitation in his left arm and shoulder.  For now, I will set out the way in which the plaintiff's case about disability was advanced at trial.

3. The plaintiff's case was opened on the basis that the issue that was preventing him from taking advantage of overtime opportunities was the need to keep his left shoulder constantly elevated while carrying out train riding duties.  His right hand was required to hold the ticket inspection machine ('or smurf' or 'green frog'):

   … and his left hand to hold onto the grab strap whilst the train was in motion, if coming to a stop … transit officers ride the rails eight times - eight to twelve times in the course of one particular shift.  And with every ride they are required to do three runs up and down the train.  So you are constantly needing to keep that left shoulder elevated for a period of between 10 to 12.5 hours.

4. In his evidence-in-chief the plaintiff did complain about the aggravation of his shoulder as a result of having to use hanging straps for support while the train was in motion.  In the course of the trial various photographs were tendered by consent, including some illustrating the plaintiff's discomfort.  One in particular shows the plaintiff standing with just the tips of the fingers of his left hand touching the handle of an overhead strap.  This alone, the photograph suggests, was enough to provoke a look of considerable distress on the plaintiff's face.

5. Meaning no disrespect, it is apparent that while the plaintiff is very sturdily built, he is not a tall man.  He has to stretch to hold onto a hanging strap.

6. I have no doubt that the plaintiff would very frequently have to support himself while a train was in motion, in particular when it was coming to a stop.  Given that the plaintiff gave evidence about the need to write infringement notices for people who were unable to produce valid tickets, I do not accept that train riding duties mean that the plaintiff has to hang on or brace himself for the full 10 hours of a shift.  This particular complaint about the claimed problem caused by the left shoulder does however raise a couple of rather obvious issues.

7. The first arises from the fact the plaintiff would not be the only person riding metropolitan trains who had difficulty hanging onto an overhead strap.  That explains why there are other handholds provided in the train cars for which photographs were provided.  Some run from floor to ceiling, while others begin at about ankle height.  In some cars handholds are provided on seatbacks. The first obvious question then is, if the plaintiff's shoulder problem was aggravated by elevating his left arm above chest height, why not hold on at waist height?

8. This first question seems to have been anticipated by the plaintiff's evidence.  According to the plaintiff, even grabbing onto one of these other handholds, if available, was a problem because having to brace oneself was 'quite stressful on your joints'.

9. In any event, or so the plaintiff told me, these other handholds were becoming few and far between.  On older cars with conventional seating, that is, rows of pairs of seats, handholds were available on the seatbacks.  On the new cars, however there is bench seating that runs lengthwise on both sides of the car, and here, the plaintiff said, the vertical pole handholds were now 2½ m  ‑ 3 m apart.  I do not accept that evidence.  The photographs tendered into evidence show vertical pole supports available at intervals of at least every three seats.  In other words, the gap is more like one and half metres or less.

10. Strangely, while the plaintiff's case was opened on the basis that he was obliged to used his left hand to hold onto the grab strap while the train was in motion, the plaintiff gave this evidence-in-chief:

    Did you use a grab strap in the course of your work prior to your motor vehicle accident? --- yes, I did.

    Ok and after the motor vehicle accident, were you able to continue to use the grab strap? --- not with my left arm.

    Ok.  And what did you use instead of a grab - grab strap? --- I would use the solid vertical bars of a - arm - like I was saying about the seats, if they had the seat grab on that, I would use that or I would use the doorways.  I just try and stand at the doorways.

11. The problem however was that, 'when using the pole, when you have a sudden take off or a sudden brake, just this impact either way, it jars your bones'.

12. The next obvious question that arises from this particular complaint is, why not hold on with the right hand?  The ticket reading device functions by scanning a passenger's ticket.  It would require very little dexterity to extend the device at waist height and push the button while the passenger continued to hold their own ticket.  I asked the plaintiff, 'is that something that you would be capable of doing with your left hand?'  To this he answered 'I'm just right hand dominant.  But - it - guess it's possible but I just don't - I'm right hand dominant - its - doesn't feel comfortable doing it.  It just doesn't …'.  The plaintiff was then asked 'is it possible that you could check people's tickets with the smurf in your left hand?'  To this he answered 'I guess anything's possible, sir, yes, I - I could, I've just never thought of it, being right hand dominant'.

13. Apparently it was possible, because video surveillance evidence shows the plaintiff frequently using his left hand in his lawn mowing business with considerable dexterity.

14. The plaintiff also gave this evidence:

    … I have this constant pain there, but if I raise my hand past a certain height - I could no longer hold onto the straps on the train for probably more than 20 seconds, so I don't even bother holding onto the straps.

    So how did you - I mean, but you just have been able to at least once or twice grab a hold of it.  How did you do that? … I would eventually just learn to use my right hand as well, or just - I'd end up putting my ticketing machine away in my pocket.  I'd use my right hand …

15. In addition to this problem of having to hold on with his left hand (or not), the plaintiff also gave evidence that he was effectively unable to carry out the 'law enforcement' parts of his duties when it became necessary to 'go hands on'.  That is, when it was necessary to use physical force to restrain someone.  Related to this issue, the plaintiff said that he was effectively unable to properly complete his annual defensive training refresher courses. To get through that, the plaintiff said, he would have to take up to six Panadol Forte a day.

16. I will refer to the evidence of defensive training later in these reasons.  For present purposes I will simply observe that the plaintiff has successfully completed his defensive training every year of his employment with the PTA, and has been regularly medically assessed and found unconditionally fit for his job.

17. The claimed disability is not functionally limited to the plaintiff's left shoulder.  According to his evidence, the shoulder injury has also stopped him from running.

18. Prior to the accident, the plaintiff said:

    I used to run up to 10 - between 10 to 20 kilometres a day and I do that at least two to three times a week.  My shoulder - because my arm doesn't gait properly - then puts pressure onto my hips.  And by having pressure on my hips I'm in too much pain.  I can't run from it. …

    So if you were to go running now, where would you experience symptoms?

    --- I would experience that - the pain in my arm and on the opposite side in my hip.

    And you say that the - hip pain arises because of what? ---

    I believe it's from my injury to my left shoulder … because I never had that issue beforehand.  I also can't do push ups anymore.

1. In fact, this is not the first time the plaintiff has complained of disabling right hip pain. That was also the case in January 2011, following the surgery to his right knee.

1. The plaintiff's employment and hours of work

The PTA and overtime

1. The plaintiff claims that because of the shoulder injury, since the accident, he has been unable to work overtime.

2. 'Normal hours' for a Transit Officer are 40 hours per week, or perhaps more accurately, 80 hours per fortnight.  This typically consists of eight 10 hour shifts.  However, as the plaintiff's pay records and other evidence showed, some shifts may run longer than 10 hours particularly on Fridays and Saturdays.  Train riding duties were always 10 hour shifts, but station duties could mean a minimum of 11 hours or 12 hours particularly on a Friday and Saturday. 

3. Hours worked on Saturdays attracted a 50% penalty.  Hours worked on Sundays and holidays attracted a 100% penalty.  That is, these hours were paid at double time.

4. The normal hours anticipated were four shifts per week.  The evidence as to the frequency with which the plaintiff worked these shifts was contradictory.  The plaintiff's case was opened on the basis that at the end of a 40 hour week as a Transit Officer, the pain in his shoulder was such that he was prevented from taking on overtime shifts.  It was apparent that the doctors the plaintiff spoke to were left with the impression the plaintiff was working just 40 hours per week for the PTA.

5. The plaintiff accepted that in September 2018 he told one of the reviewing doctors, Mr Tony Robinson (an orthopaedic surgeon) that he was working 40 hours per week. In cross-examination the plaintiff explained that what he meant was that he was working 'on average' 40 hours per week.

6. The reality was that rosters appeared to be set on the basis of fortnightly cycles.  Within that fortnight there could be four consecutive shifts with breaks in between, or six or seven or even (on one occasion) eight consecutive shifts.  Barring any overtime shifts there tended to be six days of leave in a fortnightly period.  It is the fact however that, contrary to what some of the doctors appear to have been led to believe, it was not uncommon for the plaintiff to work six or seven shifts in a row as a Transit Officer. 

7. Apart from the tendering into evidence of all of the plaintiff's payslips, I was given little assistance as to the number of overtime shifts worked by the plaintiff at any time in his employment by the PTA.  To complicate matters further, it was not apparent that the plaintiff actually understood the coding of his payslips.  He sought to draw a distinction between overtime hours and shifts that were mandated by operational requirements and 'voluntary' overtime shifts.

8. The plaintiff's case was that he should be compensated in damages on the basis of one extra 'optional' overtime shift per fortnight.  That was based on the proposition that he inevitably would have applied for an overtime shift for every Monday and Tuesday that he was not working.  The logic of this position was called into question when the plaintiff conceded that, even prior to the accident, he was not receiving or working an overtime shift every week.

9. Another Transit Officer, Timothy Somerville, was called by the plaintiff.  Mr Somerville started working for the PTA in 2009.  In addition to being employed as a Transit Officer he is the 'rostering representative' for Transit Officers for the Mandurah line. 

10. That role means that Mr Somerville acts as an intermediary between the rostering clerks and Transit Officers on the Mandurah line whenever there is any dispute about rostering issues, including the allocation of overtime.  Mr Somerville gave evidence that back in 2012 there were greater opportunities for officers to work overtime.  Staff numbers were much lower.

11. Overtime is allocated first to Transit Officers who have worked the least amount of overtime.  When a draft of new Transit Officers joins the PTA they are normally in the best position to receive available overtime if they ask for it.  There was no evidence before me, based on the plaintiff's actual hours worked, including overtime (whether 'voluntary' or 'operational'), as to the likelihood that the plaintiff would have been allowed further overtime, if he had asked for it. This gap in the evidence cannot be overcome, as the plaintiff's counsel urged, by simply applying a discount for 'contingencies'.

12. Two or three years ago there was a large influx of new staff and the availability of overtime shifts consequently reduced.  Mr Somerville said that he himself requests an overtime shift for every day that he has off, regardless of the day of the week.  In other words, of the six off days in a fortnight roster he asks for an overtime shift for each of those six days.  In the last two to three years on average he has received two overtime shifts per month. 

13. In his re-examination, the plaintiff asserted that had he been physically able to do so, he would have asked for the 'easier' shifts on Mondays and Tuesdays, for every week since the accident in effect.  Given that the plaintiff was often rostered to work the 'harder' (and more lucrative) Friday and Saturday shifts and 'double time' shifts on Sundays, Mondays and Tuesdays were largely what was left.

14. The plaintiff's claim for his lost overtime shifts does not properly reflect the real element of chance in actually getting a shift, never mind the many weeks that he was unavailable to work for reasons unrelated to the accident. 

The plaintiff's lawn mowing business

1. In addition to his regular employment as a Police Officer and more recently as a Transit Officer, the plaintiff has for many years operated a lawn mowing business.  It appears that the business began as long ago as 2006, according to what he told at least one doctor.  That business has provided reasonable annual gross profits of somewhere between $12,000 and $16,000 a year, for a number of years.  In the last 18 months to 2 years however, the gross profits of that business appear to have trebled.  There is a fair degree of unnecessary uncertainty about all these figures.  There is also good reason to conclude that the net profit figures declared in more recent times do not represent the true picture.

2. In his evidence-in-chief the plaintiff told me that, following the accident and after each of his surgeries, he had to give up his lawn mowing business for up to months at a time.  That loss would equate to thousands of dollars, or so it would appear.  It is difficult however to be confident about a great deal connected to the plaintiff's lawn mowing business.

3. In his particulars of loss, the plaintiff has claimed out of pocket expenses totalling just $220.36.  This total is comprised of a number of items such as $13.95 spent at the chemist on 8 November 2012.  The plaintiff seeks a global figure of $2,000 for travel expenses arising from the accident.  As far as I can tell, a claim for lost profit or income from the lawn mowing business would easily exceed these modest claims.  Despite that, no claim has ever been made for loss connected with the lawn mowing business.

4. Contrary to submissions made on his behalf, the fact of the plaintiff's involvement in the lawn mowing business appears to have only emerged slowly over the history of this litigation. I was asked to accept that the plaintiff 'has always stated that he is able to operate a lawn mower' and that 'the plaintiff has always been forthcoming about his gardening business'. I do not accept those submissions, and not only because the defendant was compelled to apply for specific discovery of the records of that business, shortly before trial.

5. The plaintiff has regularly attended on Dr Alex Kariya, his GP, since about 2003.  From the time of the accident and in connection with the plaintiff's workplace assault injuries, the plaintiff has frequently attended on Dr Kariya.  The subject of the plaintiff's ability to carry out his work for the PTA is the subject of some of Dr Kariya's notes.  There is no mention in the notes of a lawn mowing business.

6. Dr Kariya provided reports to the plaintiff's solicitors in July 2013 and April 2016.  In those reports he observed that 'gardening causes an increase' in the plaintiff's shoulder symptoms.  In July 2018 Dr Kariya advised that the plaintiff was 'restricted in carrying out gardening and lawn mowing'.  Dr Kariya observed that, if the plaintiff's pain made his work for the PTA untenable, then the plaintiff 'may require vocational rehabilitation'.  Given that by this time the plaintiff's lawn mowing business had virtually trebled in size, the unqualified suggestion of a need for vocational rehabilitation seems odd.

7. The first indication that Dr Kariya had any knowledge of the plaintiff's lawn mowing business comes in a letter of 21 August 2019, which I will refer to later in these reasons. 

8. The plaintiff was reviewed by Dr Andrew Harper, an occupational physician, at the request of the plaintiff's solicitors.  That review took place on 21 April 2016 and Dr Harper wrote his report the same day.  In support of the submissions as to the plaintiff's candour in speaking about his lawn mowing business, the plaintiff's counsel reminded me that in this report Dr Harper said, among other things,

   He is able to operate a lawnmower as his hands are relatively low on the controls but the turning is aggravated and cannot be tolerated for any length of time.

9. In this same report, though not referred to in the plaintiff's submissions, Dr Harper records the plaintiff saying, 'he is unable to do lawn mowing because of his shoulder'. That statement is false, as was shown by the records that the plaintiff finally produced part way through the trial. At the time that the plaintiff told Dr Harper that he was 'unable to do lawn mowing', the plaintiff's own records show his regular attendance on his lawn mowing customers. The plaintiff's declared business income from lawn mowing for the year ended 30 June 2016 was $17,370.

10. In a subsequent report dated 2 July 2019 Dr Harper describes the plaintiff's situation in this way:

    He also has his lawn mowing business which he has equipped with self‑propelled machinery.  He says that provided he is able to keep his arms below waist level and avoid elevation of the left shoulder he is able to continue operating the lawn mower and whipper snipper.  He avoids using the hedger whenever possible.  He explains that the harness for the whipper snipper takes the weight of the machine.  His symptoms have been aggravated he will postpone a client for a few days until his symptoms resolve.  He now does his lawn mowing on Mondays, doing up to 7 hours.  On occasions he does some lawn mowing on Tuesdays.  Twisting or grabbing anything too high aggravates the shoulder.

11. In respect of 'activities of daily living' Dr Harper also reported that the plaintiff could drive a manual vehicle and:

    … motorbike riding is limited to 30 minutes.  When walking he does not swing the left arm.  Difficulty turning a lawn mower has been largely eliminated with the use of a self-propelled lawn mower.  He now has a housecleaner once a week.  In general he avoids nearly all over‑head activities.

12. The plaintiff saw Mr Tony Robinson, the orthopaedic surgeon, for a review on 11 September 2017. This appears to be the first time that the plaintiff told any doctor about his lawn mowing business. In Mr Robinson's report of that same date to the plaintiff's solicitors, he said:

    Mr Baker can mow the lawns.

    In fact the patient has a commercial lawn mowing business which he carries out for 7 - 8 hours a week.  He pushes self-propelled lawn mowers.

    Mr Baker feels that he may have to leave work as a Transit Guard and increase his hours working as a lawn mowing person.

    Unfortunately, at home the patient has problems carrying out gardening.  As a result his son does extra gardening duties for one hour every two months.

13. In a subsequent letter dated 4 September 2018, Mr Robinson advised the plaintiff's solicitors:

    The patient can mow his lawns.  He has a self-propelled lawn mower which he uses to mow his lawns.

    Mr Baker also points out that he has a commercial lawn mowing business in which he mows approximately one day a week.  The hours during this day can vary from 8 - 10 hours depending on the season.

    The patient cannot carry out any gardening.

    As a result his son who is 14 years old does extra gardening duties for six hours per week.

14. Putting aside the startling increase in the son's domestic gardening duties, the fact is that on the date of this last letter Mr Baker's lawn mowing business had substantially increased in volume from its original one day per week.  The plaintiff did not reveal to any of the various doctors he saw from March of 2018 that he was working as much as three days a week at his lawn mowing business.

15. In his evidence-in-chief, the plaintiff said that he began his lawn mowing business in about 2006, while he was still a serving police officer.  He said that it was, '… originally to be a mental release from being in the police … It was a great way of just de-stressing'.

16. In several respects, the lawn mowing business does not appear to have been a model of fiscal regularity.

17. The plaintiff said that when he started the business he was doing, 'Two hours a week-maybe', for 'two to three houses in that time'.  He said that he was charging between $40 and $50 per house, depending on the size of the property.  When asked how he was getting paid, the plaintiff said 'it would go into my bank, I had a business bank account, I set it all up, it would go into my bank.  Some people do pay cash'.

18. The plaintiff said that by the time of the accident in 2012 he was averaging 'about an eight-hour day of mowing … one day a week'.  As might be expected, the work encompassed mowing and edging and all of the work associated with cutting a lawn.

19. The plaintiff's evidence was that of that average eight hours, two of the hours involved travel from job to job, for approximately 8 ‑ 10 lawns.  At that time he said he was still charging $50 for most lawns.

20. His evidence about the lawn mowing round was often hard to follow.  Initially he referred to an average eight hours per week, and an average number of jobs per week.  That was subsequently qualified by a variation between the summer growing season and the winter dormant season.  The days of the week when the plaintiff would work at this job were seemingly variable depending on the day that the customer wanted the job done.  The plaintiff was clear however that, after the accident, he was unable to work at his lawn mowing round.  He said 'I actually pretty much let that part go for those initial months'.  He was asked when he restarted lawn mowing after the accident and he said:

    That's a really good question, when I actually restarted doing it.  I can't - I'm not 100 per cent sure, but I think it was after I got cleared to go back to work from my shoulder, it was within probably a month or two from there, if - around that there.

    Q:  So early 2013? --- Yeah.

    Q:  Early to mid-2013? --- Yeah.

21. Even after the plaintiff was able to return to his lawn mowing, he said, 'I didn't have a lot of customers, so I was only doing a few hours'.

22. It never became clear how long it took to build the business back up to where it was.  Nor was it ever particularly clear why it was necessary for the plaintiff to rely on his memory in evidence-in-chief for matters that, it might be thought, should have been the subject of financial records necessarily retained for tax purposes.

23. There was however some difficulty with the records maintained for tax purposes.  For example, although the plaintiff gave evidence that for the tax year ending 2012 he had earned somewhere between $12,000 and $17,000, that income was nowhere to be seen in his tax return for that financial year.  Despite that, when asked whether it was the case that he did not declare that income for the 2011/2012 financial year, the plaintiff answered 'no'.  Given the absence of any reference to that income in the tax return for that year, the plaintiff's answer made no sense.  Things did not improve with further questioning about the tax return:

    Q:  … it's pretty clear, isn't it?  It asks you for your gross income, and it's got zero? --- That's correct.  But if you make under a certain amount you don't have to declare it.  But I do all this through an accountant, I might add.

24. The cross-examination continued:

    Q:  … can I suggest to you, Mr Baker, that you ought to have actually declared that you earned somewhere between $12 and $17,000 in income from the lawn mowing business, and also, your expenses? --- I had an accountant.  I declared everything to my accountant.

25. It might be thought from these answers that somehow, in the plaintiff's mind, 'declaring' his earnings to his tax agent or accountant was effectively the same thing as 'declaring' them for tax purposes.  The position became less clear however later in the cross-examination, when the plaintiff suddenly volunteered this unresponsive answer to questions about expenses claimed in his 2014 tax return, where he had finally begun to declare the lawn mowing income:

    Q:  And then your expenses are set out there as well under BPI expense? --- Yes.  Can I just add something that might be noted - needs to be known by the court what it is.  My tax before, when I was in a relationship with my de facto was that the business was in her name.  That's why - that's the only other reason because I declared everything to the accountant.

26. The position became still more complicated.  It appears that from the time that the plaintiff commenced his lawn mowing round in 2006 until 2013 he did not declare the income from that business as his income for tax purposes.  That is despite the fact that it was plain from the plaintiff's evidence that the income was earned almost entirely from his personal exertion. The business has always been carried on as a proprietorship.

27. Having first told me that the income received from the business was paid, '… into my bank, I had a business bank account.  I set it all up.  It would go into my bank …', the plaintiff then told me that the income did not appear in his tax return because, 'she (his de facto partner) had the business in her name …'.  I asked him:

    Q:  Why was it being done that way? --- It was just the business thing.  It was to reduce your tax liability, I think is the term they use.  I'm not too sure, but it's obviously to not pay as much tax.

28. The plaintiff told me that he saw nothing wrong with dealing with the income in this way.

29. In re-examination the plaintiff was asked why he did not disclose earnings from the lawn mowing business in his 2012 return. His explanation was that the business was in his ex-partner's name and 'she did all the tax returns for that'.  That does not explain the omission.  The answer makes no sense.

30. It made less sense still when some further cross-examination took place following questions I asked for clarification.

31. The plaintiff was cross-examined with respect to his 2009 income tax return, which did not declare any income from the lawn mowing business.  This was at a time when he claimed that the income was being attributed to his de facto spouse 'because the business was in her name'.

32. One question in the plaintiff's 2009 tax return asks for 'spouse details'.  In the entry where the plaintiff was asked to set out his 'spouse's taxable income', he has said that his spouse had no taxable income. 

33. The plaintiff could not explain this omission, particularly because,

    I definitely did tax returns … I did a tax return for Tracey's [his de facto partner] as well … We went in together and I took them all in and we did all of them together.

34. While the plaintiff sought to fix his tax agent or accountant with responsibility for any omission or error in the plaintiff's tax returns, that person was not called to give evidence.

35. The plaintiff was asked in his examination-in-chief whether there was any relationship between the increasing size of his lawn mowing business and his decision, on 17 February 2019, to reduce his hours working for the PTA.  He denied that there was any relationship.

1. He was asked how many hours per week, as at 17 February 2019, he was spending on his lawn mowing business.  He answered, 'between one to maybe two days, one and a half to two days.  Because the times - sometimes you'd be home by lunchtime'.

2. The doctors who have reviewed the plaintiff since March 2018 up to the date of trial all appeared to have been lead to believe that the plaintiff worked one day a week at his lawn mowing business.

3. In cross-examination it was pointed out to the plaintiff that, based on his own evidence, his business had effectively tripled in size in the previous 18 months.  He accepted that.  There was little choice given, among other things that his own tax returns showed an increase in gross income from $16,375 in 2018 to $45,820 in 2019.  It was put to him that that must mean that, instead of working 6 - 8 hours one day a week, his business had become more like 6 - 8 hours, three days per week.  To this he answered, 'some weeks it'll be up to two days, possibly more, two and a half, but never more than three days'.

4. There was no need for the plaintiff to guess about these matters, either in examination-in-chief or cross-examination, because he recorded his work appointments in an Excel spreadsheet.  The first time that the plaintiff's counsel apparently learned about those records however was in the course of the plaintiff's evidence. Despite specific discovery having been sought before trial for records of the lawn mowing business, the spreadsheets were not discovered until the trial resumed after finishing part heard. 

5. Despite the significant increase in the volume of the plaintiff's lawn mowing business, it has traded at a significant loss over the last several years, at least according to the tax records that were available.  The reasons for those claimed losses do not reflect credit on the plaintiff.

6. An issue that arose in some of the medical reports that were filed was the question of the plaintiff's ability to drive a motor vehicle or drive without pain.  Various medical reports refer to the plaintiff having difficulty in that respect but gaining some relief from the use of 'cruise control'.  It emerged in the plaintiff's evidence that the truck that he was driving for his lawn mowing business was a moderate sized, manual transmission Kia K2700.

7. The plaintiff gave evidence that he purchased the Kia truck:

   … about 18 months, maybe 2 years ago.  The truck has a five-speed manual transmission. 

8. I asked the plaintiff whether, when he was buying a truck, it was open to him to get one with an automatic transmission.  To this he answered 'couldn't afford them'. 

9. That is, the plaintiff said that he could not afford '… anything in my price range at that time, I couldn't find an automatic.  I was just happy to get one that was in reasonable condition'.  That was despite the fact that in the last year for which a return was filed the business was turning over something in excess of $45,000, a truck was being depreciated, and its maintenance and expenses were covered by the business.  The plaintiff said:

   As was brought up earlier I have my separation and that was through a different situation, but I had to borrow to the absolute max to pay out my ex-partner and I was made quite well aware that I was not entitled or able to borrow any more money'.

10. The plaintiff told me that he paid cash for the K2700 truck, that is, he did not borrow.  He said he thought he paid $8,000 - $8,500 for this used vehicle, and then replaced the engine. That is, he himself removed and replaced the engine in the truck.

11. Earlier in the plaintiff's evidence his tax returns had been tendered as exhibits.  From the return for the year ending 30 June 2017 it did appear that the plaintiff had bought a new truck. It was not however an $8,500 Kia K2700.  Rather, according to the tax return it was a Nissan Navara '100%'.  In the depreciation schedule attached to the tax return the 'adjusted opening pool balance' for this vehicle was $51,000. The full purchase price was more like $57,000, before trade-in. Depreciation, claimed at 30%, reduced his taxable income by $15,300.  In the 2018 return the adjusted opening pool balance was then $35,700.  Depreciation at 30% was claimed in the amount of $10,710. In the 2019 return the running pool balance was $24,990.  Depreciation at 30% in the amount of $7,497 was claimed.  The result of this was that the plaintiff's lawn mowing business had very significant losses, carried forward in the 2017 and 2018 years.  For that reason, despite the fact that the plaintiff showed a total business income of close to $46,000 for the year ending 2019 there was still a net loss from the business of $31,395.

12. The difficulty with this was that the vehicle that the plaintiff used in his business was not the Nissan Navara, but the Kia K2700.

13. It will be recalled that the departure point for this issue was simply a question as to why the plaintiff did not buy an automatic transmission vehicle for his lawn mowing business, given the constant pain in his left shoulder, aggravated by jarring.  In cross-examination it emerged that the Nissan Navara was in fact the vehicle the plaintiff used privately.  His evidence about the timing of his purchases of the two vehicles and his restoration of the Kia was confused and unpersuasive.  So too was his claim that there had been at least some business use for the Nissan.

14. The surveillance videos that became part of the evidence at trial show the plaintiff driving only the Kia.  Given the evidence at trial, on the face of the plaintiff's income tax records it appears that he has dishonestly concealed taxable income, falsely claimed exclusive business use for the Nissan Navara, and profited from the deduction that he then received.

15. In his closing address, plaintiff's counsel did not seek to persuade me that it was wrong to characterise the plaintiff's accounting for his business as dishonest. To the contrary, I was told that a reasonable inference available here was that the plaintiff had not sought to recover losses in his lawn mowing business from the shoulder injury because he had previously concealed that income from the taxation authorities, and he was, in effect, stuck with that dishonesty. The submission however was that I could conclude that, although he was dishonest in these dealings, I could nonetheless find that he was honest in his testimony about the disability caused by the shoulder injury.

16. A submission that was filed on behalf of the plaintiff (although in fact included as part of the last version of the particulars of loss) sought to persuade me that the lawn mowing income did not mitigate the plaintiff's damages, because the business, 'made a loss even with an adjusted depreciation schedule'. The amended schedule provided used a depreciation figure of 15% rather than the actual 30%. The argument was in effect that even if the plaintiff had only falsely claimed 15% (rather than 30%) depreciation for a vehicle that was not used in his business as he claimed, the accounts would still show a loss. With respect, that seems to me to miss the point.

Video surveillance of the lawn mowing business

1. The manner in which the plaintiff conducts his lawn mowing business is captured on a number of pieces of covert surveillance video footage commissioned by the defendant.  The video footage, which became an exhibit at trial was taken on 3, 11 and 17 September 2018 and on 15 and 16 April 2018.  All of this footage was obtained after the plaintiff's lawn mowing business had significantly expanded. It must be borne in mind however, that the video surveillance captured just a small portion of the activities that the plaintiff would have been repeatedly performing, over the course of day, for two or three days a week.

2. In all of the videos the plaintiff can be seen working from a mid-sized commercial Kia tray-back truck and box trailer.  It is not apparent whether the sides or tailgate of the truck open or drop.  The sides of the truck however appear to be at the level of the plaintiff's chest.  There are some side compartments just behind the cab of the truck where it appears that some equipment like grass catchers for the mowers are carried.  On one occasion, on 15 April, the plaintiff can be seen working on a large whipper snipper, with both hands at chest height, while the machine appears to be balanced on the side of the tray. Afterwards he swings the whipper snipper onto and into the tray, initiating the lift with his left arm. Otherwise it appears that the tray of the truck is used primarily for receiving grass clippings. The plaintiff can be seen tipping and shaking a grass catcher full of clippings into the tray with both hands, for example on 11 September.

3. The large box trailer that is towed contains most of the machinery and equipment used, including a pair of reel mowers and a rotary mower, edgers, a whipper snipper and a blower, all powered by petrol engines.  The equipment all appears to be heavy commercial machinery that has been well used.

4. The interior of the trailer is accessed through a large dropdown rear ramp and a hatch that closes down over the ramp.  Both of these run the full width of the back of the trailer, with the hatch appearing to be equipped with gas struts at both ends.  Consequently, only a relatively modest force is needed to propel the hatch upwards.  Conversely a degree of force is required to pull the hatch and gas struts down to the closed position, using a rope attached for that purpose.

5. The rear ramp is secured with latches on either side of the trailer.  It drops down to allow machinery to be rolled in and out of the trailer.  

6. The work ethic demonstrated by the plaintiff in each of the videos is impressive.  With the exception of one passage, where the plaintiff can be seen engaged in a lengthy and reasonably animated conversation with a bearded man (presumably a customer), the plaintiff is brisk and businesslike in his work.

7. The footage for 15 April 2019 seems to be fairly representative.  While I have watched the footage several times to ensure accuracy, most of the following descriptions come from the summaries of one of the reviewing doctors, Dr Mattes.

8. The footage this day begins at about 7.21 am with the plaintiff carrying out a job at one location.  By 7.38 am that job is completed and the plaintiff is climbing into the driver's seat of his truck.  Just 13 minutes later he is seen arriving at another location and pulling a witch's hat out of the back of the trailer, with his left hand.  Using both hands, he pushes the hatch of the trailer open upwards.  Once the trailer is open he immediately puts on a harness to support the weight of the large commercial whipper snipper that he uses.  When placing the harness on he raises his left arm up, bent at the elbow, with his hand behind his head to slip it through the opening of the harness.  The movement is fluid and unrestricted.  He then puts acoustic earmuffs on, using both hands over his head.  He pulls a lawn edger out of the trailer and, while steadying the machine with his left hand he rapidly pulls the starter cord with his right hand.  He then moves off, pushing the edger with both hands. At 7.54 am he puts the edger back into the trailer and pulls out a roller mower.  Using both hands, he pushes down on the handle of the mower, walking it backwards down the ramp.  Resting his left hand on the mower handle, he leans forward with his right hand to pull the starter cord and then walks off to get the metal grass catcher, with both hands, and puts it on the mower.

9. At 7.55 am he can be seen reaching down with his left hand, flexing his left shoulder at about 90 degrees, while adjusting something on the top of the mower with his left hand.  He runs the mower around the lawn, using both arms pushing down to turn the mower at the end of a run.  While these mowers may propel themselves forward, it is in a straight line. The force of the upper body, in particular from the shoulders, is required to turn the mower. At 8.02 am he returns to the trailer to get the petrol powered blower.  This blower, which is seen on a number of occasions in the surveillance videos, is stored at the very front of the trailer behind some other equipment.  The plaintiff can be seen reaching from the back of the trailer and grasping the handle of the blower with his left hand, extracting it from amidst the other equipment like a sword, and lifting it above head height with his left hand, while steadying the blower part with his right hand.  By 8.04 am he is returning the blower and mower into the back of the trailer.  He then reaches up with both hands to grab the rope to pull it (hand over hand) and bring the hatch down.

10. The plaintiff can frequently be seen using either both hands and arms or just his left hand and arm to do a number of weight bearing tasks in a wide range of positions.  There is nothing in his movements that suggests any inhibition by pain or otherwise.  To the contrary his movements are fluid and apparently unrestricted. 

11. The full extent of the plaintiff's range of movement and weight‑carrying capacity demonstrated in the video is thoroughly described in the reports of Dr Mattes, which became exhibits at trial. I asked counsel for the plaintiff to advise me of any quibble that he had with Dr Mattes' descriptions.  None were forthcoming.

1. The medical evidence

1. There was a considerable volume of medical evidence at trial.  Much of it has already been referred to. It came both from doctors who had treated the plaintiff and some who had only reviewed him for the purpose of these proceedings.

2. Another source of medical evidence came from the routine and triggered health assessments that the plaintiff was required to undergo in order to maintain his employment with the PTA.  These documents were tendered into evidence.  None of the doctors who carried out the reviews and prepared the reports were required to give evidence.

Dr Kariya

1. The plaintiff has attended at the Rockingham City Family Practice for almost two decades.  Dr Ash Kariya has been his GP since 2003.  Dr Kariya was called to give evidence in the plaintiff's case. 

2. Dr Kariya's evidence-in-chief consisted almost entirely of the tendering of three reports that he prepared at the request of the plaintiff's solicitors, as well as the medical certificates he provided to the plaintiff from time-to-time, and his clinical notes from 2000 - 2019.  There were more than 50 pages of clinical notes. 

3. In the period from 19 September 2000 to 14 April 2009 there are just 12 attendances by the plaintiff.  The notes of those attendances occupy just two of the 50 pages.  The very second entry for 12 April 2000 shows that the plaintiff attended then because of a problem with his right knee, which was diagnosed as right knee arthritis.  The plaintiff was prescribed codeine on 19 September and 22 September 2000.  Between that date and 17 July 2009, on about nine occasions, the plaintiff was prescribed medication such as Naprosyn, Naproxen or Voltaren. 

4. On 17 May 2010 the plaintiff was again prescribed Voltaren when he attended complaining of pain in his right lower hamstring after running.  At a subsequent attendance on 12 May 2010 the notes record that the plaintiff's hamstrings were improving but 'still has pain - unable to run/chase people'.  Again Voltaren was prescribed.  On 13 August 2010 the plaintiff attended on Dr Kariya complaining of pain and swelling in his left knee after feeling a 'loud crunch' while he was getting into a patrol car.  The next six pages of notes are taken up with repeated attendances for various knee problems.

5. The date of the injury to the left knee was 6 August 2010.  At an attendance on 24 August 2010, after the plaintiff had been referred for an MRI of his left knee, the GP recorded he was 'still having ongoing pain and swelling right knee'.  In due course there was partial meniscectomy and chondroplasty to the left knee on 7 September 2010 and then, by December 2010, a lateral release and partial lateral meniscectomy of the right knee.

6. These injuries took many months to settle.  It was 17 June 2011 before Dr Kariya's notes record 'all symptoms settled'.  In the intervening time however, the notes record other issues like pain and swelling after prolonged standing, and on 28 January 2011 'still having some lower back pain and stiffness and right hip pain …'.

7. Just two weeks after Dr Kariya has recorded 'all symptoms settled', there then follows a series of 11 appointments up to 11 May 2012 where the plaintiff was reporting high levels of stress as a consequence of the break-up of the relationship with his de-facto partner.

8. Following the accident, the plaintiff attended on Dr Kariya on 17 October 2012.  The plaintiff was understandably complaining about pain and swelling over his AC joint.  The record of the plaintiff's subsequent sometimes monthly attendances show gradual improvement in the plaintiff's range of flexion and abduction, and the plaintiff's complaints of 'reduced strength and worsening of his shoulder symptoms and pain in cold weather'.  As Dr Kariya accepted in the course of his cross-examination, there is no objective reason for the weather to make any difference to the plaintiff's symptoms.

9. The notes record several discussions with the plaintiff about his work and consistently record that the plaintiff is 'able to work but is having pain including pain during and at the end of the shifts'. 

10. As a result of the workplace assault on 17 January 2015, the plaintiff attended on Dr Kariya about 30 times to 22 January 2016.  There were sometimes two or even three attendances per month dealing with the plaintiff's complaints about his ongoing knee symptoms, and pain and stiffness.

11. Following Mr O'Beirne's surgery on the plaintiff's left shoulder, Dr Kariya recorded on 11 December 2015 'left shoulder much improved post-surgery - full range of movement shoulder' although it also appears that the plaintiff was complaining of at least slight pain at the full limits of flexion and abduction. 

12. Dr Kariya's three reports are as notable for what does not appear in them as for what he actually reports.  For example, despite the fact that there seems to have been fairly regular discussions with the plaintiff about his work duties Dr Kariya appears unaware, until after July 2018, of the fact that the plaintiff also has a lawn mowing business.  There is no mention of the plaintiff's inability to carry on that business, at any time. There is no mention of any issue or difficulty about undertaking overtime work for the PTA until Dr Kariya's report of 15 July 2018. What is then recorded is, 'due to his ongoing left shoulder symptoms Mr Baker does not carry out any paid overtime duties'. 

13. Dr Kariya's reports consistently repeat the plaintiff's claimed inability to undertake 'certain activities such as vacuuming, making beds or moving furniture …' or '… gardening, lawn mowing and do it yourself activities', without an increase in his left shoulder symptoms.  Dr Kariya recorded that he was 'restricted in carrying out these activities'. 

14. In Dr Kariya's report of 15 July 2018 he considers what the position might be if the plaintiff's symptoms should worsen and 'he is unable to carry out the inherent duties of a Transit Officer …'.  It appears that even at this stage Dr Kariya was unaware that the plaintiff had a side business which, by this time, was occupying two to three days per week. 

15. On 15 August 2019 the plaintiff's solicitors sent Dr Kariya a letter asking him for his opinion with respect to a number of questions that they posed.  Among other things they asked 'is my client fit to undertake his duties on his part-time lawn mowing round?  If so, what modifications are required?  How many hours per week is my client capable of performing this work'.

16. Dr Kariya's letter in reply, dated 21 August 2019, contains his first reference to the lawn mowing business.  He says:

    Mr Baker has had a part-time lawn mowing round since 2006.  On average Mr Baker carries out these lawn mowing duties for 6 to  8 hours per week depending on the season.  Mr Baker has advised that he has invested in commercial lawn mower and whipper snappers [sic], and as such there is limited lifting and he has his harnesses … the equipment is loaded/unloaded using ramps.  Mr Baker has advised that his lawn mowing round does not involve any work above chest/shoulder height. 

    Since approximately March 2019 his son works with him and assists in the part-time lawn mowing round.  Mr Baker has also advised that due to the reduction in his income from reducing his hours as a transit officer for the Public Transit Authority he is obliged to continue his part-time lawn mowing round for financial reasons.

1. Dr Kariya was obviously under a number of misapprehensions in reaching the conclusions set out in the paragraph above.  By the time that he wrote this last letter the plaintiff was not working '6 - 8 hours per week'.  That was the position back in early 2018 when it appears that Dr Kariya had no knowledge of the lawn mowing business.  By this time, that is August 2019, the plaintiff's lawn mowing business, on his own evidence, had trebled.  Far from it being the case that '… due to the reduction in his income from reducing his hours as a Transit Officer from the PTA he is obliged to continue his part-time lawn mowing round for financial reasons', the increase in his lawn mowing business preceded the reduction in his PTA hours by about a year.  It is difficult to see how he possibly could have maintained the lawn mowing round at that scale while working full-time regular hours for the PTA.

2. Dr Kariya reported his clinical observations from 21 August 2019, as follows:

   He continues to experience ongoing and significant shoulder pain.  He described ongoing and constant pain and aching of his left shoulder with some days being worse than others.  The pain was particularly worse after repeated usage at work and in the cold weather.

   On examination he had pain and restricted range of motion of his shoulder with active flexion to 160 degrees and abduction to 160 degrees with significant pain on attempted further passive movement.  There was also tightness of the left sternal mastoid and trapezius muscle …'

3. Dr Kariya was provided with copies of the discs of video surveillance. The plaintiff's solicitors asked some leading questions of Dr Kariya, and offered arguments to support the desired answer:

   Do the filmed activities and observations contained in the reports cause you to change any of the opinions arrived at following your medical - legal consultations given that our client had demonstrated a work capacity?  If yes / no, please provide your detailed reasons.

   Do you agree that the film contained on the discs (and the material contained in the surveillance reports) do not establish that my client is fit to undertake his full pre-injury duties as a transit officer beyond what he has been working since February 2019 when he reduced to part time hours?  Please provide your detailed reasons.

4. While some latitude may be allowed with expert witnesses, the form of these questions diminishes the value of the answers given.  In Dr Kariya's case he offered, among other things, these answers:

   2.The activities observed were lawn mowing, using a blower, whipper snipper (with a harness) using an edger, loading a lawn mower into a van, pulling starter coed ([sic] - cord?) of blower, carrying the catcher of the lawn mower.

   …

   The activities observed would be consistent with Mr Baker's stated job of a part time lawn mowing round which he carries out for 6 - 8 hours per week.

   3.The surveillance films were approximately 60 minutes and 50 minutes respectively.

   4.The filmed activities and observations do not change my opinions as per my last medical - legal report dated 21 August 2019.

   Mr Baker has stated that he has had a part time lawn mowing round since 2006 which he carries out for 6 - 8 hours per week, and that since approximately March 2019 his son works with him and assists in the part time lawn mowing round.

   Mr Baker does not carry out any prolonged lifting or loaded activities, and there are no loaded or repetitive activities with his left arm above shoulder height.

   The activities observed are materially different to the activities required as Transit Officer particularly in dealing with conflicts, or any physical restraining, or arresting of customers, or mandatory training courses such as defensive training courses, and batons and handcuffs.  Training courses, all of which are integral part of the duties as a Transit Officer.

   5.In my opinion the material contained in the films do not establish that Mr Baker is fit to undertake fulltime pre-injury duties as a Transit Officer working overtime.

5. It will be observed that the emphasis in this last report has changed from:

   There is limited lifting and he uses harnesses when using the whipper snappers … his lawn mowing round does not involve any work above chest / shoulder height (August 2018)

   to:

   … does not carry out any prolonged lifting or loaded activities, and there are no loaded or repetitive activities with his left arm above shoulder height.

6. Dr Kariya's summary of the 110 minutes of video is no more than a single sentence. It does not reflect careful observation. It is not correct that the plaintiff's lawn mowing round 'does not involve any work above chest/shoulder height'. Nor is it correct that there are 'no loaded activities' with the left arm above shoulder height.

7. In cross-examination Dr Kariya was shown some of the surveillance videos that were taken.  Having again looked at the surveillance videos, Dr Kariya accepted that all of the activities the plaintiff was engaging in with his arms below chest height showed no discernible difference in strength between his arms.  He accepted that, while the plaintiff had previously said that he was incapable of doing things such as vacuuming or lawn mowing 'but they increased his pain', based on what appears in the videos, the plaintiff's activities do not appear to be restricted by any pain at all. 

8. Dr Kariya confirmed in his evidence (as his reports suggest) that he understood that the plaintiff was working a maximum of 40 hours per week.  He was unaware that the plaintiff would sometimes work as many as six or seven 10 hour shifts in a row.  He was unaware of the true amount of work involved in the plaintiff's lawn mowing round.

9. With respect, Dr Kariya's observations of the video surveillance were superficial.  Given the length of time that he has been in a therapeutic role towards the plaintiff, his diffidence towards the contradictions between what the plaintiff had described as his limitations and what can be seen in the surveillance videos is perhaps understandable.

Alexander O'Beirne

1. Mr O'Beirne was called by the plaintiff.  His evidence‑in‑chief consisted solely of the tendering of Mr O'Beirne's records, including correspondence between him and Dr Kariya with respect to the 2015 shoulder surgery and the subsequent carpal tunnel release.

2. With respect to the left shoulder surgery Mr O'Beirne's reports suggest that even at six months post the shoulder surgery the surgical result was seemingly a very positive one.  It was only in the further review of 27 June 2019 that Mr O'Beirne learned about the plaintiff's subsequent and increasing complaints, apart from the carpal tunnel syndrome issue.

3. In cross-examination, Mr O'Beirne agreed that the clinical examination of the plaintiff's shoulder in June 2019 did not suggest any inability or restriction in the use of the left shoulder given the absence of muscle wasting, the full range of motion and negative provocative tests for rotator cuff injury.

4. Mr O'Beirne was also asked about the plaintiff's presentation with carpal tunnel syndrome issues, in both the left and then the right hands.  He said that the most common cause of carpal tunnel syndrome is swelling or inflammation around the tendons and that there were multiple things that could cause swelling, including arthritis, activity and work, heat and trauma.  Any activities where someone repetitively uses their hands, for example, gripping a lawnmower, could cause swelling of the lining around the tendons.

Anthony Robinson

1. Anthony Robinson, an orthopaedic surgeon, gave evidence in the plaintiff's case.  Mr Robinson reviewed the plaintiff on several occasions at the request of the plaintiff's solicitors.  The reports that he then prepared became exhibits at trial.

2. Apart from summarising the history of medical treatment that the plaintiff had received, and setting out his observations of the range of shoulder movement demonstrated by the plaintiff from time-to-time, Mr Robinson's reports largely consist of the repetition of the plaintiff's complaints and his statements about his work capacity.  In Mr Robinson's reports, the plaintiff's complaints and statements became Mr Robinson's opinion.  That is because, as Mr Robinson said about the subjects of his reports, 'it's what they are saying, so you have accept what they are saying'.  That view led Mr Robinson to uncritically accept almost whatever the plaintiff told him about his shoulder problems. Unfortunately, Mr Robinson was positively misled about the plaintiff's true work capacity.

3. In Mr Robinson's report of 11 September 2017, he records the plaintiff's statements that the plaintiff avoided:

   •lifting and 'felt that he could not lift more than 1.5kgs';

   •that because of pain in his shoulder the plaintiff was careful to avoid physical confrontation as a Transit Officer;

   •that the plaintiff could mow lawns and may have to increase his hours workings as a lawn mowing person, but, 'at home' has problems carrying out gardening;

   •the plaintiff was unable to lift a 16-month-old baby due to pain in his shoulder;

   •driving was not a problem 'provided that the plaintiff used cruise control'; and

   •the plaintiff would probably have to retire 'prematurely' from work as a Transit Officer due to the possibility of having to physically restrain someone.

4. In his evidence, Mr Robinson was not able to articulate how the use of cruise control could in anyway bear on the plaintiff's shoulder problem or mitigate some issue arising because of it.  It also became obvious that Mr Robinson was unaware that the plaintiff drove a manual transmission truck for the purposes of his lawn mowing business. 

5. With respect to the question of the plaintiff having to 'retire prematurely', no evidence was ever offered as to the average age of retirement for Transit Officers.  Given the obvious risks of physical confrontation with drunk and drug affected passengers, the job of a Transit Officer does not seem particularly suitable for older people. 

6. In this first report Mr Robinson records, without comment, the plaintiff's claims that to cope with his pain he is taking the occasional oxycodone or tramadol tablet, but four to five Naprosan (also known as Naproxen) tablets weekly and  six to eight Panadol Osteo tablets per day. In cross‑examination Mr Robinson accepted that this intake of Panadol, if true, could properly be described as an 'incredible' amount of medication, and contrary to medical recommendation because of the risk of liver damage.

7. Fortunately, based on the records of drugs prescribed to the plaintiff, the claimed amount of medication taken was grossly overstated. Dr Kariya's records also show that on 7 August 2017, just prior to the appointment with Mr Robinson, Dr Kariya saw the plaintiff and recommended that he 'restart' Naproxen and Panadol Osteo, for the pain in his right knee. On 19 September 2017 the plaintiff returned to Dr Kariya complaining of 'ongoing shoulder symptoms- flare up of shoulder symptoms- after repeated usage at work- no specific incident'. At this appointment for the shoulder Dr Kariya recommends 'restart naproxen/Panadol Osteo' and prescribes Panadeine Forte.

8. Mr Robinson saw the plaintiff again on 4 September 2018 and provided a further report of the same day.  He records the plaintiff saying that 'his shoulder is slightly worse for no apparent reason'. And, despite a further steroid injection in November in the previous year and attendances on a physiotherapist every three to four weeks, 'the patient states that his left shoulder pain has slightly worsened since I saw him 11 months ago'.  It will be recalled that, at that time, the plaintiff felt that he was unable to lift more than 1.5 kg.  Mr Robinson records:

   •He has a commercial lawn mowing business in which he mows approximately one day a week.  The hours during this day can vary from eight to 10 hours depending on the season;

   •The patient cannot carry out any gardening - as a result his son who is 14 years old does extra gardening duties for six hours a week;

   •Mr Baker cannot kick a soccer ball with his son due to the left shoulder pain;

   •Mr Baker has had to hire cleaners to clean the house once a week.  They are there for two to four hours a week.  They mainly carry out mopping and vacuuming activities;

   •The patient still owns his Harley Davidson motorbike.  However he does not ride the motorbike due to his left shoulder pain;

   •It is my understanding Mr Baker was only able to work his normal hours which are 40 hours a week; and

   •I have already mentioned the patient's intermittent incapacity for work.  Mr Baker points out that he is thinking of working part-time which is 20 hours a week due to the persistent and increasing left shoulder pain.

9. Mr Robinson's third review of the plaintiff took place on 18 June 2019.  By that time of course the plaintiff had reduced his regular hours with the PTA to half time and, unknown to Mr Robinson, was carrying on his expanded lawn mowing business for two to three days a week.

10. On this occasion Mr Robinson reports that in the intervening nine months the plaintiff:

    [H]as remained the same.  Mr Baker has had to decrease his work hours from 80 hours a fortnight to 40 hours a fortnight.  He has had to do this because of the pain in his left shoulder.  It has allowed him to continue with his work … at present Mr Baker is complaining of constant pain in the top region of the left shoulder.

11. Addressing the issue of the function of the plaintiff's left shoulder Mr Robinson records:

    [T]he patient can use a self-propelled lawn mower when mowing his lawns.  In fact Mr Baker is working one day a week as a commercial lawn mower.  His son helps him with this form of work activity from the point of view of lifting any heavy loads.  In regards of the garden [T]he patient can only kill the weeds with sprays.  He has not been able to return to any above shoulder level work which includes pruning.  Mr Baker points out that his 15 year old son does extra gardening duties for six hours a week. 

12. Once again, Mr Robinson records that 'the patient cannot play any ball sports with his children'.  As to the two grandchildren, now 2 years old and 3 years old 'Mr Baker can only lift and carry either child for 60 seconds.  The patient then has to put them down because of weakness and pain in his left shoulder'.

13. With respect to driving Mr Robinson reports:

    [T]he patient can drive a car but favours his right hand … Mr Baker can only ride his Harley Davidson motorbike for 30 minutes and occasionally up to one hour.

14. Based on everything that the plaintiff told him Mr Robinson opines:

    the extent of the injuries is moderate … the patient's current work capacity is 40 hours a fortnight.  He has been forced to decrease his hours by 50% due to his left shoulder pain.  I believe Mr Baker's future work capacity involves working 40 hours a fortnight which is part time hours.  The plaintiff was unfit to engage in overtime work with the Public Transport Authority from the date of his accident.  He's been having trouble working his normal 80 hours a fortnight.  He has now had to decrease his hours to 40 hours a fortnight.  Thus Mr Baker is unfit to work any overtime as he cannot work his normal 80 hours a fortnight.

15. Once again, Mr Robinson offers his views about the lawn mowing business, based on what the plaintiff has told him:

    the patient is fit to carry out his duties as a part time lawn mower person.  He has a self-propelled lawn mower.  Furthermore, he gets help from his son when working on this one day a week.  Finally, Mr Baker does not have any problems carrying out lifting below the level of the waist.  This is in keeping with the patient's left shoulder condition. 

16. Shortly after this review Mr Robinson was asked to comment on some surveillance video that had by then been received.  This video went for approximately 10 minutes.

17. I refer to the video surveillance evidence in greater detail elsewhere in these reasons, but even this 10-minute portion of the video shows Mr Baker enthusiastically going about his lawn-cutting work, using both arms and demonstrating what appears to be a normal and pain free range of motion in his left arm. 

18. The letter of instructions that Mr Robinson received from the plaintiff's lawyers, together with his first instalment of video asked Mr Robinson to direct his mind to consider:

    do you agree that the material contained in the films materials contained in the surveillance report do not establish that my client is fit to undertake his full pre-injury duties as a transit officer working overtime hours?  If yes/no, please provide your detailed reasons.    

19. To this leading question Mr Robinson answered:

    I agree that the film contained in the disks and the material contained in the surveillance reports do not establish that the patient is fit to undertake his full pre-injury duties as a transit officer working overtime hours. 

    Mr Baker is working 20 hours a week.

    I do not think that the activities seen in the surveillance film provide any evidence that he can work full time or overtime hours as a transit officer. 

20. Another instalment of video was provided to Mr Robinson on 12 July 2019.  This time Mr Robinson spent 'approximately 60 minutes assessing the surveillance film'.

21. Once again, the plaintiff can be seen briskly carrying out his lawn mowing work, using both arms, seemingly pain free.

22. On 25 July 2019, in answer to the questions posed by the plaintiff's solicitors, Mr Robinson described his observations of what could be seen in the video and then provided these answers:

    The film activities in my observations does not change any of my opinions arrived at following my medico-legal report.  The patient stated that he was working as a commercial lawnmower for one day a week. 

    He avoids any pruning.  Any activity that was done above shoulder level is in keeping with the range of movement that I saw during Mr Baker's recent medic-legal assessment.  Furthermore the movement did not involve any lifting or loaded activities. 

    The material contained in the films does (emphasis added) establish that Mr Baker is fit to undertake his full pre-injury duties as a transit officer but not working overtime. 

    The patient is not seen carrying out any heavier repetitive activities with his left arm above shoulder level.  In other words there is no evidence that Mr Baker's lawn mowing duties makes him fit for overtime work as a transit officer.

23. It might be observed that, using the same logic as set out in Mr Robinson's last reported sentence, there is no evidence that Mr Baker's lawn mowing duties make him fit for his full pre-injury duties as a Transit Officer, 'apart from overtime'.  By the same token it is difficult to reconcile Mr Robinson's statement that watching the film 'does not change any of my opinions arrived at following my medico‑legal report', when he has plainly reversed himself with respect to the plaintiff's abilities to work the assumed 40 hours per week as a Transit Officer. 

24. By a letter from the plaintiff's solicitors dated 16 August 2019 Mr Robinson was provided with still more surveillance films.  The plaintiff's solicitors asked him to review the films.  In what must be regarded as a paradigm of leading questions, Mr Robinson is again asked:

    Do you agree that the film contained on the disks (and the material contained in the surveillance reports) do not establish that my client is fit to undertake his full pre-injury duties as a Transit Officer beyond what he has working since February 2019 when he reduced to part time hours?  Please provide your detailed reasons.

25. It would appear that the writer did not have proper regard to Mr Robinson's last expressed views about the plaintiff's ability to work full‑time hours, as opposed to the hours he had been working since February 2019.

1. When the plaintiff began his employment with the PTA, the course lasted four days, but for some time now it has been three days.

2. Participants practice 'open hand training' using restraints, work with batons and handcuffs, pepper spray and other, what are called 'safe working' techniques.  On the first day of training, participants go to the dojo (a gym with mats on the floor), and participate in grappling, wrestling and learning to do various kinds of restraining grips.  As the plaintiff said 'you're not always standing up because it's - it's learning how to take people down so you're rolling down and that with them'.

3. The second day of the training included a half day of '… physical cuffing, restraining, all that sort of training.  And we spent the other half, we would be doing baton strikes … which is not as hard going'.

4. The third day is spent testing what has been learned about physical training. On a simulated train carriage, officers take part in learning how to remove people from trains when they resist by trying to hang on to the seats, the handrails or the straps.

5. According to the plaintiff, over the course of the years he has had the same instructor for each course, a man named Kevin Smith.  Mr Smith, who is apparently a contractor engaged by the PTA, teaches officers defensive training.  

6. The plaintiff said he 'struggled' with the defensive training.  He said that was because of the pain in his arm, which required him to take up to six Panadeine Forte a day just so he could get through the training.  The plaintiff gave evidence that he would tell the instructor how he was and, 'they would go light on me'.  The plaintiff said 'everyone knew'.

7. Although there was no reliable evidence before me from which it was possible to gauge just how often Transit Officers are involved in physical confrontations of any significance, plainly such things do occur from time to time.  Among their duties, Transit Officers are required to keep the travelling public safe from the antisocial behaviour of others, and to assist each other in doing so.

8. One of the roles of Transit Officers, acknowledged by the plaintiff in signing a job description form at the commencement of employment, is 'to ensure passenger safety and security'. In a very real sense, the safety of the travelling public, fellow officers and the officer themself, may depend on a Transit Officer's ability to be able to physically carry out their duties.

9. Referring to the annual defensive training refresher course, the plaintiff said in his evidence-in-chief '… I'm not really doing the - the full hard training, so I'm not really up to speed in the training like everyone else … in real terms, I probably can't do my job physically when it comes to law enforcement'.

10. Despite that, each year he has successfully completed the defensive training refresher course. The trainer, according to the plaintiff, knew about the plaintiff's physical limitations, knew the plaintiff 'was struggling', but 'went easy' on him, and passed him anyway.  Mr Smith was not called to give evidence.  I infer that his evidence would not have assisted the plaintiff's case.

11. The plaintiff's evidence was that he avoids doing things like 'the law enforcement side when you end up having to restrain'.  He said he did this because:

    if there were more than two of us, if there was a couple of us, a lot of the guys know so they'll get me to step back and they'll step in … which is not fair … because when there's only two of us and the, its only my - my work colleague and me dealing with this situation and if there's someone there whose a man mountain and I can't even protect myself or - or my colleague can be up being injured very seriously or worse and because I wasn't able to do anything.

12. The only other Transit Officer to give evidence was Timothy Somerville, who was called in the plaintiff's case. It was obviously intended that he give evidence about the availability and allocation of overtime work to Transit Officers, although it was far from clear how it was supposed to support the plaintiff's case.

13. As it turned out, Mr Somerville has worked with the plaintiff on both the Armadale and Mandurah lines.  Mr Somerville's evidence was that antisocial behaviour that could result in a Transit Officer arresting a passenger was a nightly occurrence on the Armadale line.

14. Mr Somerville was not asked anything about his observations of the plaintiff's ability to carry out the physical aspects of his duties on the Armadale line.  I infer that the answers would not have assisted the plaintiff's case.

15. If in fact the plaintiff was physically unable to perform those aspects of his job, it would be more than 'unfair'. It would also be difficult to understand the basis of the plaintiff's case that he could or would be allowed to continue working half‑time until age 67.

16. One of the 'Essential' job criteria in the Job Description Form acknowledged by the plaintiff when he commenced employment is a 'Commitment to organisational values relating to integrity, honesty, respect, trust, and impartiality'.

17. Each time the plaintiff attended a physical training course there were forms that he was required to fill out.  Each of the forms commences in this way:

    During this course you will participate in:

    A.Training exercises and role plays which may involve physical exertion. 

    B.Bodily conduct with other participants and the lecturers. 

    C.Exposure to offensive language and simulated threatening behaviour. 

    D.Exposure to defensive techniques including holds, strikes, releases and for those participating in the baton and handcuff course, exposure to baton strikes and handcuffing. 

    …

    Due to the nature of these activities you may be participating in, you are required to disclose any physical or mental illness relevant to your involvement in this programme. 

    Please answer all questions with a YES or NO applicable to you by placing a cross (X) in the box next to each question.  If you are unsure please answer YES.

18. There then follows 14 questions about the officer's physical condition and medical status asking about things like chest pain or asthma or respiratory disease, mental health conditions and the like. 

19. One of the questions is this:

    Do you have, or have you suffered from any other condition or circumstances about which you should inform us?

20. At the end of this particular section the officer is asked to sign a statement in these terms:

    I fully understand the nature and contents of this form.  I agree that if I require any clarification of content I will ask an instructor. 

    I have answered all questions truthfully and to the best of my knowledge. 

21. There is another document that is required before the physical training is undertaken, and that is an 'acknowledgement of advice and confirmation of assumption of risk'.  This document asks the participant again to read the form carefully and complete it.  The operative part of the document is a statutory declaration in these terms:

    [Name of the officer] do solemnly and sincerely declare as follows:

    There are no restrictions that prevent my participation in the nominated course.  I acknowledge that I am aware of the inherent risks of undertaking the nominated course.  In particular, I acknowledge that I have been advised of the following: …

22. There then follows six further paragraphs setting out some of the requirements of the course, including physical exertion and bodily contact with the instructor and other trainees, and the kind of activities that that will involve.  The officer acknowledges the risks associated with the course as well as this advice:

    I further acknowledge that this document may be relied upon in any proceedings instituted in any court by me or my heirs, executors or assigns.

23. The forms completed by the plaintiff so that he could undertake physical training and dated 22 October 2013, 17 June 2014, 11 October 2016, 11 October 2017 and 2 October 2018 were tendered into evidence.  Every time the plaintiff completed the physical training forms with the 14 questions I have referred to, he ticked 'no' to the question 'do you have, or have you suffered from any other condition or circumstances about which you should inform us?'.

24. In October 2018, for the first time, he ticked 'yes' to the question 'do you regularly take prescription medication or have you ever suffered from high cholesterol, cardiovascular condition?'.  In the explanatory notes to this he has provided these further details: 'Panadol Osti + Forte for left arm and shoulder from motor vehicle injury in 2012'.

25. On each of these occasions, up to and including 2 October 2018, the plaintiff has solemnly and sincerely declared 'there are no restrictions that prevent my participation in the nominated course …'.

26. The plaintiff's explanation for this conduct was that the declarations were all false. Despite the fact that 'everyone knew' about his limitations, he told me that he made these false declarations to keep his job, that he thought he would lose his job if he told the truth about something that everyone knew.

27. The plaintiff's counsel's closing submissions sought to characterise the plaintiff's evidence on this point as 'admissions', and as something that should in fact reflect credit on the plaintiff.

28. There are of course circumstances where a witness gives evidence, contrary to their interest, that may have just the effect that the plaintiff's counsel contends for here. This is not one of them. It is in the plaintiff's financial interest to try to discredit his prior statements on these topics.

29. Earlier in these reasons I referred to the plaintiff's evidence that following the accident he gave up running. He has told various doctors something similar, because of a claimed inability of his left arm to 'gait', producing pain in his hip. I have referred to the clinical assessment of Dr Harper and the surveillance video that call that claim into question.

30. The plaintiff underwent a workplace medical assessment prior to his return to work in August 2015 following his knee surgery. The assessment was conducted by a Dr Lucas. The plaintiff was asked about his tolerance of activities of daily life. He told Dr Lucas that he had, 'returned to the majority of his usual day to day activities. However, he has not returned to formally undertaking running, which he undertook most days, due to concerns with regard to knee symptom exacerbation'.

31. The plaintiff's attempts in cross-examination to explain this passage were nonsensical.

32. Overall, the plaintiff's evidence was riddled with inconsistencies, contradictions, and improbabilities. He has shown himself to be dishonest in situations where he stands to gain.

33. I do not accept that the plaintiff was either truthful or reliable in his evidence about his pain and limitations. I reach that conclusion even without having regard to the video surveillance evidence.

34. I am of course conscious of the need to have regard to the potential problems of surveillance evidence, and its limitations. In this case there is a fair range of surveillance over an extended period of time. Dr Mattes summary of what can be seen in the surveillance is in my view an accurate description of what can be seen. I accept his observations and measurements of the range of left shoulder motion demonstrated by the plaintiff, in preference to that of the other medical witnesses.

35. As Dr Mattes says, even putting aside what can be measured about the range of motion of the left arm and shoulder, what is notable about what can be seen is the plaintiff's fluid, unhesitating and apparently pain free use of his left arm in a wide range of situations, including heavy lifting and activities that extend and jar the shoulder.

36. The video surveillance evidence also leads me to reject the plaintiff's evidence as to his claimed pain and disability.

1. Findings

Lost income and lost earning capacity

1. A feature common to the medical opinion that suggested that the plaintiff had some permanent functional disability in his left shoulder was its reliance on the plaintiff's complaints of limitation and pain.  The strength of those opinions depends on the weight to be given to the plaintiff's evidence about those matters.  The effect of that is to reduce the worth of those opinions to something negligible.

2. I accept the evidence of Dr Mattes.  In combination with the regular and triggered medical assessments that the plaintiff underwent, having regard to the plaintiff's regular successful completion of his defensive training, and what can be seen in the surveillance videos, I am not satisfied that the plaintiff has any significant residual disability.  Nor am I satisfied that he is unable to physically perform the duties of a Transit Officer.  I am in fact positively persuaded on the balance of probabilities that he is able to carry out his duties as a Transit Officer. 

3. It follows that I am not satisfied that his reduction in regular hours from February 2019 is in any way related to the accident.

4. I find that, with the exception of periods of time immediately following the accident and the plaintiff's medical treatment for the shoulder injury, the plaintiff has been physically able to undertake regular duties of his job as a Transit Officer.

5. Given my rejection of the plaintiff's evidence about the disability that he claimed with respect to his left shoulder, it follows that I am not satisfied that the plaintiff was unable to work overtime shifts.  Given the state of the evidence, or the lack of it, nor am I satisfied that he would necessarily have received more overtime if he had asked for it.

6. Beyond the fact that the plaintiff underwent an open release for carpal tunnel syndrome symptoms in his left hand, there is virtually nothing that the various medical experts agreed upon with respect to this issue.  There were significant differences between the medical experts as to how carpal tunnel syndrome can arise and what may have provoked it in the plaintiff's case. Most agreed however that gripping vibrating machinery, like lawnmowers (and, it should be observed, Harley Davidson handlebars) for prolonged periods, can induce the kind of swelling that provokes carpal tunnel syndrome.

7. The fact that (notwithstanding his denial) the plaintiff began experiencing carpal tunnel syndrome symptoms in his right hand shortly after the surgery for the left hand, points away from the accident and the consequential surgery as the cause of the problems in the plaintiff's left hand.  I accept Dr Mattes' evidence as to why this may have arisen in the plaintiff's case and why the symptoms in the right hand likely resolved. 

8. It follows that I would make no award for any loss of income associated with the carpal tunnel syndrome or surgery.  That is, I would not do so if there was any income loss associated with this claim which, despite the length of time this issue occupied at trial, there was not.

9. The parties have not been able to agree on a great deal in the course of the conduct of this matter.  Consistently with that, there is disagreement both about the periods of time that the plaintiff was unable to work and his average gross and net weekly earnings from time to time.  It is understandable that there would be variations in the plaintiff's average weekly earnings, depending on the days that he was rostered to work and the applicability of overtime rates for those particular shifts.  Doing the best that I can, I will use the figures from the plaintiff's earning analysis for the respective periods when loss was incurred.

10. For the period following the accident, the loss is $1,663 per week gross and $1,251 per week net.

11. The plaintiff's particulars of damage assert that the plaintiff was 'totally incapacitated for work for the period 11 October 2012 to 28 February 2013 (ie 20 weeks)'.  In fact, the plaintiff's payslip for the period ending 23 February 2013 shows that the plaintiff returned to work on 22 February 2013.  The correct total is therefore 19 weeks.  Loss of earnings for this period is calculated as follows:

    19 weeks x $1,251 = $23,769

    Superannuation at 9% of gross $1,663 x .09 = $149.67 x 19 = $2,843.73

12. The plaintiff took three of these 19 weeks as annual leave.  He is entitled to interest calculated on the remaining 16 weeks to the date of judgment. 

13. I allow one week of lost income for the period following the first left shoulder injection on 12 August 2013.  Based on the plaintiff's payslips from around this period I calculate the loss as $1,618 gross and $1,205 net.  The plaintiff is further entitled to $145.62 for lost superannuation ($1,618 x .09 = 145.62) and interest thereon to the date of judgment.

14. The plaintiff's particulars of loss claim a period of 15 weeks from the date of the third left shoulder surgery on 24 April 2015 until 8 August 2015.  The plaintiff's calculation ignores the fact that the plaintiff had right knee surgery on 21 July 2015 and that he received workers' compensation payments from 12 July to 19 October 2015 because of the injuries he received in his work place assault. 

15. When Mr O'Beirne reviewed the plaintiff six weeks after the surgery he found that the plaintiff was then pain free with a full range of movement.  At that time Mr O'Beirne was '… happy for him to proceed with surgery to his right knee and … happy for him to return to full duties when he was ready'.  The plaintiff had his right knee surgery on 21 July 2015 and about that time began to receive workers compensation payments for his workplace injury.  In all of the circumstances I would allow a period of 13 weeks from the date of the shoulder surgery on 24 April 2015.

16. Based on the plaintiff's average earnings in the first half of 2015 I will use a figure of $1,539 per week gross and $1,162 per week net.  The loss then is calculated as follows:

    $1,162 x 13 = $15,106

    Superannuation $1,901 ($1,539 x .095 x 13)

17. The plaintiff is further entitled to interest on any part of this loss that was not received as paid leave at the time. 

18. The plaintiff received a second left shoulder injection on 14 November 2017.  Based on the plaintiff's average earnings in the six month period at that time I allow one week's net earnings of $1,293 and superannuation in the amount of $165.11 (1738 x .095 = 165.11). The plaintiff is entitled to pre‑judgment interest on this sum to the date of judgment. 

Gratuitous services

1. A good sense of the degree of overreach in the claims made on the plaintiff's behalf can be found in the claim for gratuitous services.

2. I will observe for now that until very recently, following his return to work after the accident, and with the exception of times that he received surgical treatment or injections, the plaintiff was engaged in at least full‑time work as a Transit Officer, for at least eight days or 80 hours a fortnight. At the same time he was carrying on his lawn mowing business. From about March 2018 until February 2019, in addition to the minimum eight days per fortnight worked as a Transit Officer, the plaintiff was working two to three days per week at his lawn mowing business. The idea that the plaintiff might have needed assistance generally with domestic matters is understandable considering his work commitments.  It cannot be accepted however that any need for assistance arose because of the shoulder injury.

3. As particularised up to the date of trial, the claim exceeded $90,000.  That total was based on the proposition that the plaintiff initially required up to 7.5 hours per day gratuitous services, and later at least an hour a day, up to and including the first day of trial.  Following trial the claim was amended to limit the claim for gratuitous services until 14 November 2017, one week after the plaintiff's second cortisone injection in his shoulder.  The effect of that is to reduce the total claim under this head to just $80,965.

4. All hours are claimed by the plaintiff at the rate of $33 per hour.  Particulars of the amended further substituted particulars of damages refers to Cleary v Insurance Commission of Western Australia [2019] WADC 29 [357] in support of the claimed rate. Cleary v Insurance Commission of Western Australia offers no support for this proposition.  It says this:

   ICWA's counsel conceded that the appropriate rate for any calculation of gratuitous services was the $33 per hour claimed by Mr Cleary.

1. Counsel for the defendant here does not make any such concession. In this case the defendant relies on the restrictions on damages for provision of homecare services stipulated by s 3D of the Motor Vehicle (Third Party Insurance) Act 1943. Among other things, s 3D provides for the hourly rate that may be awarded for gratuitous services of a domestic nature or relating to nursing and attendance. Prior to April 2015 those hourly rates were less than $32.50 per hour. From 1 May 2015 onwards the rate has been $33.50 per hour.

2. Ms Whidgington gave evidence that on the day of the accident she took the plaintiff back to her house from the hospital and provided him with domestic services.  This included cooking for him and ensuring that he took the medication prescribed, helping him to shower and things of that kind.  She estimated that she provided 4 hours to 4½ hours assistance on the first day.

3. In the days following the accident, Ms Whidgington continued to provide the plaintiff with assistance, and this eventually extended to helping him in his own house.  It included doing housework and cleaning, including cleaning the pool.  She walked and fed the plaintiff's dogs and looked after his children as well when they came home from school.  She cooked for the children, helped them get to school and provided transportation for them.  In the house she did washing, ironing, vacuuming and cleaning.  She estimated that for a period of time she was providing 7 hours to 7½ hours of services.

4. Ms Whidgington said that her services to the plaintiff continued after the surgery on 23 October 2012, for 4½ hours to 7 hours a day.  Ms Whidgington took her annual leave from 25 November 2012.  In the course of her leave, she continued to provide services at a rate of 3 hours to 4 hours a day.

5. On 21 February 2013 the plaintiff was assessed as unconditionally fit for duty by Dr Ann Durack following on a triggered health assessment.

6. It was not particularly easy to follow Ms Whidgington's evidence with respect to the amount of time that she spent providing gratuitous services.  That is a not a reflection on her.  Following the evidence I have referred to above, Ms Whidgington was reminded of the fact that the plaintiff was off work for about four months following the accident and she was asked, '… over the course of that period, when we are not in the shadow of a surgery or an infection, how many hours a day of assistance do you think you provided Mr Baker?'  To this she answered 'would have said probably 1 - 1½'. 

7. Following each of the two shoulder injections that the plaintiff received Ms Whidgington said that she helped him for 'maybe a week' after each.  In that time she would have provided ' no more than 3, but no less than sort of 1, 1½' hours per day.

8. Following the 2015 surgery carried out by Mr O'Beirne, Ms Whidgington said that she went back to providing help for 7½ hours a day for 'approximately 4 - 6 weeks'.  In the last 18 months she said it was, 'just an hour a day, but I'd probably go down anywhere between two and three times a week, maybe even four times a week'.  Much of the ongoing services that she provided, Ms Whidgington said, were largely because the plaintiff 'struggled' with hanging out laundry.

9. For this period where gratuitous services were said to be required, the plaintiff was also partially disabled as a result of the knee injury arising from the workplace assault.

10. Two of the doctors who reviewed the plaintiff reported that the plaintiff told them that he had employed a cleaner for his house.

11. In September 2018 the plaintiff told Mr Robinson that he had '… had to hire cleaners to clean the house once a week.  They were there for 2 - 4 hours a week.  They mainly carry out mopping and vacuuming activities'.  This was in the same report where the plaintiff claimed, '… difficulty putting tops on and off especially buttoned shirts'.  And various other disabilities.

12. When Dr Harper reviewed the plaintiff on 2 July 2019 he reported that the plaintiff told him that, 'he now has a housecleaner once a week.  In general he avoids nearly all overhead activities'. 

13. Despite what appears in these medical reports, the plaintiff has not advanced a claim for paid cleaners. That was a sensible forensic decision, given what is known about the plaintiff's workplace health and fitness assessments, and his work both for the PTA and in his lawn mowing business.

14. The plaintiff tendered the evidence of Mr McLaren. Mr McLaren was also asked his opinion as to the level of gratuitous service that the plaintiff would have required following each of his three surgeries.  Mr McLaren's view was that following the initial surgery on 11 October 2012, given his expectation that the plaintiff would have been obliged to wear a sling for up to six weeks and use the associated arm sparingly, gratuitous assistance for that six weeks at a rate of 2 hours a day 'would not be unreasonable'.

15. With respect to the second surgery on 13 January 2013, again Mr McLaren anticipated the use of a sling while the wounds healed with progressively increasing use of the associated arm. Mr McLaren's view is that 'gratuitous assistance of up to 2 hours per day for two to three weeks during this time would not be unreasonable' given the associated infection however he thought that that would likely extend the period in which gratuitous assistance would be required.

16. With respect to the third surgery in April 2015, Mr McLaren's view was that use of a sling for up to six weeks, with gratuitous assistance of up to 2 hours a day, would be appropriate.  For the reasons given above I am unable to place any significant weight on the plaintiff's evidence about the amount of help that he required from time to time because of the shoulder injury received in the accident.  I do not doubt Ms Whidgington's honesty but in my view she has been influenced by her close association with the plaintiff and may well have been misled in the same way as various doctors that the plaintiff has seen.

17. A submission made by the defendant was that services provided by Ms Whidgington that benefited his children (and by implication his dogs) were not recoverable as damages claimed for the provision of gratuitous services.  The defendant cites CSR Ltd v Eddy (2005) 226 CLR 1; [2005] HCA 64 in support of this.

18. That proposition is correct. However, the plaintiff's loss of the ability to provide care himself for his children and pets may be compensated by general damages for loss of amenities of life.

19. Doing the best I can, in my view the following is a reasonable allowance for the gratuitous services that would have been needed by the plaintiff from time to time since the accident. With respect to each period the rate per hour that I have allowed is based on the amount payable from time to time pursuant to s 3D of the Motor Vehicle (Third Party Insurer) Act 1943.

Period	Days	Hours per day & total hours	Rate per hour	Total
11.10.2012 - 16.11.12	36	4 (144 hours)	$31.10	$4,478.40
17.11.2012 - 21.01.13	64	2 (128 hours)	$32.45	$4,153.60
22.01.13 - 05.02.13	14	4  (56 hours)	$32.45	$1817.20
06.02.13 - 13.02.13	7	2 (14 hours)	$32.45	$454.30
14.08.13 - 21.08.13	7	2  (14 hours)	$32.45	$454.30
24.04.15 - 01.05.15	7	4 (28 hours)	$33.67	$942.76
02.05.15 - 05.06.15	35	2 (70 hours)	$33.50	$2,345.00
Total:	$14, 645.56

Future medical expenses

1. The parties agreed damages for future medical expenses in the amount of $1,000 and I award that sum.

Pain, suffering, and loss of amenities of life

1. The pain and discomfort from the plaintiff's original dislocation would have been considerable.  He was required to undergo two surgeries for the fixing and then removal of the hardware in his shoulder.  The second surgery resulted in an infection that persisted for several weeks.  Ultimately the plaintiff required a third surgery in April 2015 which would have had its own associated pain, discomfort and inconvenience.  That was also true to a lesser degree of the two cortisone injections that the plaintiff received. 

2. The difficulty that I have in fixing damages for the plaintiff's pain, suffering and loss of amenities, is the difficulty that arises from the rejection of the plaintiff's evidence about the degree and extent of pain related disability that he has claimed. 

3. The consequence of the plaintiff's shoulder injury and the subsequent surgery may well have left the plaintiff with some degree of at least discomfort, and some limitation for some activities, at least extreme ones.  As the evidence of the medical experts recognises, the nature of the shoulder injury that the plaintiff suffered and the surgery that he had to undergo results in an assessment of a 10% upper extremity impairment according to the AMA 5 Guides. Dr Mattes, for example, thought it best that the plaintiff not indulge his claimed former passion for kite surfing given the shoulder surgery.

4. Once again, it is difficult for me to assess what pain or discomfort or practical limitations the plaintiff truly has, if any, and what, if anything has been lost that is attributable to his shoulder injury, as opposed to the repeated injuries to his knees and the inevitable consequences of advancing age. 

5. One matter that featured in the plaintiff's submissions with respect to general damages was the 10.4 cm surgical scar left on the plaintiff's shoulder.  Some photographs of the plaintiff's surgical wound at various stages were tendered into evidence.  There were of such poor quality that they appeared to be photographs of a cadaver.  The plaintiff gave no evidence that he was embarrassed or anxious about the surgical scar and it would have been hard to believe such evidence if offered.

6. Doing the best that I can, I will allow 20% of the amount payable for a worst case.  Taking into account the net amount after the deductable, the award under this head is $83,500.    

Special damages

1. The plaintiff claims a total of $14,555.85 in special damages, made up by these claims for reimbursement:

Police health (GP consult)	$7,773.35
Medicare (various)	$5,746.80
Pharmacy, GP etc	$1,035.70
Total	$14,555.85

1. Apart from the tendering into evidence of bundles of documents from Police Health that included a lengthy but not particularly detailed claims history for seven years, and various benefit payment statements and receipts, there is little evidence about these claims for special damages.  Apart from the bare outline of the totals claimed and the particulars of loss there is little information about these matters.  There is no submission on behalf of the plaintiff that was directed to these claims.

2. A submission made on behalf of the defendant is that with respect to the claim for reimbursement of the expenses incurred by Police Health, those claims should be 'confined to $6,726.20, ie those expenses incurred on 24 April 2015 when the plaintiff underwent shoulder surgery'.  It is in fact difficult to make sense of what exactly the Police Health payments relate to.  Since the amount of $6,726.20 is not in dispute, that is the amount that I would award for reimbursement of Police Health.

3. The defendant's submissions identify a number of expenses claimed in the Medicare notice of Past Benefits that relate, not to the shoulder injury, but to treatments and diagnosis of carpal tunnel syndrome.  Those matters amount to $597.25.

4. Also within the Medicare notice, as the defendant submits, are various GP attendances that appear to be entirely unrelated to anything to do with the accident and shoulder injury, including such things as an attendance for an upper respiratory tract infection, flu vaccine (two occasions), a problem with a knee, and keratosis.  Those non‑injury related claims amount to $219.75.  Thus it appears that a total of $817 claimed in the Medicare notice is unrelated to the shoulder injury.

5. Accordingly I would allow $5,250 in respect of the reimbursement of Medicare.  Together with the reimbursement of Police Health, the total amount allowed is $11,976.20.

1. Conclusion

1. I will hear from counsel with respect to final orders for damages (subject of course to the order for apportionment made by Staude J), including the calculation of interest, and costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

KM
Associate to Judge Scott

17 JANUARY 2020