Burge v Patterson - [2015] TASSC 62

[2015] TASSC 62

COURT: SUPREME COURT OF TASMANIA

CITATION: Burge v Patterson [2015] TASSC 62

PARTIES:  BURGE, Darren Maxwell
  v
  PATTERSON, Fiona Mei Han

FILE NO:  104/2011
DELIVERED ON:  11 December 2015
DELIVERED AT:  Hobart
HEARING DATES:  19, 20, 23 – 26 February, 3 March 2015
JUDGMENT OF:  Pearce J

CATCHWORDS:

Damages – Particular awards of general damages – Tasmania – Back pain and adjustment disorder – Electrician aged 32 at accident, 39 at trial – General damages of $60,000 for pain and suffering and loss of amenities.

Aust Dig Damages [61]

REPRESENTATION:

Counsel:
             Plaintiff:  B R McTaggart SC, A Gaggin
             Defendant:  P Jackson SC, R Webster
Solicitors:
             Plaintiff:  Murdoch Clarke
             Defendant:  M+K dobson mitchell allport lawyers

Judgment Number: [2015] TASSC 62
Number of paragraphs: 102

Serial No 62/2015
File No 104/2011

DARREN MAXWELL BURGE
v FIONA MEI-HAN PATTERSON

REASONS FOR JUDGMENT PEARCE J

11 December 2015

At about 12 noon on 6 November 2009 the plaintiff, Darren Burge, was driving his Hilux utility in Liverpool Street in Hobart. His vehicle was stationary just before the intersection with Murray Street. He was waiting for the traffic light. His car was mostly in the centre lane, when it was struck from behind by a van being driven by the defendant. It is admitted that the collision was caused by the negligent driving of the defendant. This is an assessment of Mr Burge's damages for personal injury.
Mr Burge claims that his life has been dramatically affected by a back injury he suffered in the collision. The defendant contends that Mr Burge's evidence about the consequences of the collision is unreliable and inaccurate. The defendant contends that Mr Burge overstates his disability and the restrictions on his domestic, social and recreational activities, and capacity for employment, and the extent to which the claimed injury and damage is contributed to by the collision.

Mr Burge's personal and employment background

Mr Burge was born in 1976. At the date of the collision he was aged 32. He is now 39. His biological mother was single and he has never known his biological father. When still a baby he was adopted by Maxwell and Carolyn Burge of Bothwell. They moved to Bridgewater when he was about a year old. Mrs Burge died when the plaintiff was 9 or 10. Maxwell Burge worked for most of his life operating machinery and driving trucks, and then taxis, until his retirement a couple of years ago. He is still alive. The plaintiff has one adoptive sister, Melinda Burge, who lives in Bridgewater and works in aged care.
The plaintiff was educated to year 10. He said he worked hard at school and obtained reasonable marks, but left part way through year 11 to start work as a trainee at an industrial insulation firm. He stayed only a few months but obtained other employment in a metal powder coating firm for a few years. He then found a job as a trade's assistant at Southern Cross Electrical, an electrical contracting company. He developed an interest in electrical work and continued with it for a few years. During that time he worked for about six months at a gold mine near Orange in New South Wales, where the pay was better. In about 1998, when he was 21, Mr Burge commenced an apprenticeship as an electrician with Advanced Electrical. As it turned out, although it was a four year apprenticeship, he did not complete it until 2005. He attributes that to some difficulty with the mathematics involved and some procedural employment issues. In the course of his apprenticeship he performed residential, commercial and industrial electrical work.
Mr Burge was married to Cassandra Kane in October 2005, the year he completed his apprenticeship. After completing the apprenticeship he stayed with Advanced Electrical for about a year before spending five weeks working as an electrician for a labour hire company at a mine at Tom Price in northern Western Australia. On his return he used the money he earned at Tom Price as a deposit to buy the house at 83 Finlay Street in Bridgewater which he and his wife had been renting. By then she was pregnant with their daughter, Jasmine, who was born in December 2006.
Mr Burge separated from Cassandra in 2008. During their marriage Mr Burge had worked as an electrician in a number of different positions and for a number of firms, including Southern Cross Electrical. His work included commercial and industrial placements in Hobart. He also spent six to eight months working for a labour hire company at Blackwater coal mine in central Queensland. He did so to earn the extra money available by working in such positions. Part of the money was used to undertake improvements on his house. By 2008 he was employed as a site foreman by Hawtree Electrical, a Hobart based electrical firm operated by a friend of his wife's father. His evidence was that, after his marriage ended, this employment was terminated. This occurred, he said, at the end of 2008 or in 2009. At the suggestion of a friend, he approached Simon Bevan who operated an electrical firm called Fourtec. Mr Bevan engaged Mr Burge as a sub-contractor which is when, according to the plaintiff, he "started his own business". He said that, after finishing at Hawtree, he was out of work for only a week or so.
On 31 July 2008 Mr Burge reached a financial property agreement with his wife. She was paid $15,000 which he raised by re-financing the mortgage on the home at 83 Finlay Street, Bridgewater which he retained, and by borrowing some money from family and friends.
The plaintiff's work with Fourtec, according to the plaintiff, was predominantly "testing and tagging" electrical appliances. He said that he did this work for 80 to 90% of the time. When not testing and tagging, the plaintiff performed standard electrical work in houses, commercial premises and occasionally in industry. He was required to work throughout the State. He was informed at the end of each week of the work he was required to do the following week. He was paid an hourly rate for general electrical work and, for testing and tagging, $1.20 for each appliance tested. He said that by mid-2009 he was in a comfortable financial position, able to pay his bills and take time off if he wanted to. He produced invoices for his work to Fourtec, the first of which is dated 3 April 2009. Towards the end of May 2009 Mr Bevan's business changed from Fourtec to Aintree, but the nature of the plaintiff's engagement did not change. His invoices continue consistently until 8 November 2009.
In 2009 the plaintiff met Michelle Cartledge and they commenced a relationship. She had two children then aged about 5 and 2. She and her children moved into the plaintiff's house in October 2009.
During 2009 the plaintiff lost his driver licence for drink-driving. His licence was disqualified for six months. He was able to continue working for Mr Bevan's firm because he applied for, and was granted, a restricted licence which authorised him to drive for that purpose.

The collision and its short term aftermath

The accident occurred on Friday, 6 November 2009. The nature and force of the impact is relevant to my assessment of the consequences of it.
At the moment of impact Mr Burge's vehicle was stationary in Liverpool Street facing west. His friend and workmate, Ben Brown, was in the front passenger seat. The plaintiff was waiting for the traffic light to change from red to green so he could turn left into Murray Street. He was back from the intersection because a truck was parked in the left lane, partly obstructing the lane the plaintiff's vehicle was in. The plaintiff was stopped about two to three metres or so short of the truck. He had his foot on the brake. He did not see or hear the vehicle that collided with the rear of his utility before the impact. The vehicle which collided with Mr Burge's utility was a rented van being driven by the defendant. It struck the rear of the plaintiff's vehicle toward the driver's side. The utility was forced forward until it struck the rear of the truck. The bull bar on the front of the Hilux lodged under the rear of the truck. I am satisfied that the force of the collision was substantial. I would draw that inference from a number of aspects of the evidence. The utility must have been struck with sufficient force to shift it forward two or three metres and with sufficient force to force the bull bar under the rear of the truck. Photographs of the utility show damage to the rear of the utility near the rear right tail light and the panel between the tail light and the right rear wheel, indicative of a forceful impact. The photographs also show damage to the front of the utility showing some distortion to the bull bar and damage to the top front of the bonnet. Some indication of the force of the collision is also given by damage which can be seen at the point where the fibreglass canopy over the tray of the utility was forced forward into contact with the cabin of the utility, hard enough to damage the cabin. The plaintiff said that the fan of his Hilux was pushed forward into the radiator causing it to rupture and leak water.
The plaintiff said that as a result of the impact from behind he flew quickly forward in his seat, even though he was wearing a seat belt, and then back again towards the back of his seat. He said his whole body shifted forward and back. He did not remember what happened when his utility hit the truck. Mr Brown said in his evidence that as a result of the impact he was "knocked headfirst into the window and sort of forwards towards the corner of the dash and the door and then flipped back, back into my seat". His reference to the window was to the side window of the utility. He indicated that he was sore to his neck and shoulder for a few days but had recovered.
Mr Brown gave evidence about what occurred immediately after the collision. Both he and the plaintiff got out of the utility. The police were called and statements were taken from those involved while still at the collision scene. They rang the plaintiff's employer and Mr Brown and the plaintiff then walked a few blocks to pick up his boss's utility which they drove to the plaintiff's house. After about an hour the tow truck arrived with the plaintiff's Hilux on the back. Mr Brown said he and the plaintiff both helped unload it onto the plaintiff's front lawn.
The plaintiff gave evidence that after the collision he did not immediately feel sore. However, after about 20 or 30 minutes, his lower back became achy. Mr Brown said that during the course of the afternoon the plaintiff started to complain that "his back was starting to ache, play up a bit". Mr Brown said that the plaintiff was "complaining to his girlfriend that he was getting very sore", and she recommended to him that he go to the hospital. According to the plaintiff, later that evening his neck became stiff as well. He stayed at home during the weekend, resting and relaxing, but the pain in his neck and back did not go away. He went to work on the morning of Monday, 9 November 2009. He and Mr Brown were to re-wire a house. After being there for about 15 to 20 minutes the plaintiff climbed a ladder into the roof space prior to running cables, but he found himself to be in too much pain to continue. Mr Brown gave evidence that the plaintiff "seemed to be in a fair bit of discomfort" and "was complaining about his back". The plaintiff phoned his general practitioner but was unable to obtain an appointment, so he attended the Royal Hobart Hospital Emergency Department. He said that he was told to take a week off work and was given a certificate. He was not prescribed medication and there was no radiological investigation.
The RHH medical records include the notes of the plaintiff's presentation at the Emergency Department on 9 November 2009. The notes record the plaintiff's presentation with the problem of "back pain for three days". A handwritten entry indicates that the plaintiff complained of right sided neck pain and lower back pain. The entry indicates "Had Panadeine Forte with poor effect. Worse Standing. Nothing improves".
The plaintiff took a week off work. He returned during the week ended 22 November 2009. His invoice to Aintree Contracting for that week records him having worked for 32 hours. Part of that time was spent back at the house re-wiring job. The rest was replacing light fittings in a commercial building. The plaintiff said that he had difficulty coping with this work and did not then work again, because of the pain he was experiencing, until the week ended 18 January 2010.
The plaintiff consulted his general practitioner, Dr von Caemmerer, on 25 November 2009. Dr von Caemmerer's notes are in evidence although he was not called as a witness. He recorded the plaintiff as complaining of central low lumbar pain with no significant radiation to the legs. He recorded the plaintiff as indicating that he was having difficulty managing with his work as an electrician. He noted a reduced global range of movement especially in forward flexion and extension. He wrote a medical certificate certifying the plaintiff as wholly incapacitated for work for two weeks, prescribed Naprosyn and referred the plaintiff for physiotherapy. He reviewed the plaintiff periodically after that. On 9 December 2009 Dr von Caemmerer spoke to the plaintiff's then partner, Michelle Cartledge. He noted her as complaining that the plaintiff was irritable and snappy. He considered referring the plaintiff to a psychologist, but that the plaintiff was "a little resistant" to that course. On 8 January 2010 Dr von Caemmerer recorded "feels 100% and managed gardening with lawnmower and whipper snipper without problems. He will return to work". According to the plaintiff's evidence, his pain was better while he was not working. His invoices record him as resuming work in mid-January. There are then invoices dated 18 January 2010, 22 January 2010, 2 February 2010, 9 February 2010, 15 February 2010, one undated invoice, and 1 March 2010. Dr von Caemmerer was consulted again on 2 March 2010. His notes record a recurrence of low back pain radiating to both thighs, but then some improvement during a period of rest up until 27 April 2010. The plaintiff did not work again until the week ended 8 May 2010, again according to the plaintiff because of pain. There are invoices for his work dated 16 May 2010, 23 May 2010, 24 June 2010, 2 July 2010 and 9 July 2010.
The plaintiff gave evidence that during this period he was feeling frustration because he was not able to work as he wished, and he was stressed because he had no income. He was annoyed about the "slightest things" and would take it out on the children and Michelle. He saw a physiotherapist, Chris Ling, on at least a weekly basis. His back would improve, he said, when he was not working, but would get worse again when he resumed. He said his back flared up in May 2010. On 24 May he consulted a different general practitioner at the same practice, Dr Craig, because Dr von Caemmerer was away. She recorded complaints of worse pain and the plaintiff was referred for a CT scan. The result of the CT scan is recorded by Dr von Caemmerer on 1 June 2010 as "disc bulges L4/5 > L5/S1".
The plaintiff saw Dr Sheehan, a different general practitioner, on 9 July 2010. She was his ex-wife's doctor and, he said, he consulted her because he was concerned that something had been shown by the scan undertaken in May 2010 which had previously been overlooked. He complained to her that work made his back seize up and ache. On 12 July 2010 she noted his low mood and that he was not sleeping well. She referred to depression. She referred the plaintiff to a neurosurgeon, Mr Erasmus.
Apart from a work trial in 2011, the plaintiff has not worked since July 2010.

The evidence for the plaintiff about his claim

According to Mr Burge, before the accident he enjoyed going fishing, using craypots and crayfish nets, motorbike riding, pushbike riding and hunting. He said that he was an active person, and engaged in activities of one sort or another every weekend. He enjoyed his work and the money was good. He found it satisfying, he said, to see and show others what he had achieved. He could afford to pay his bills, buy gifts for his children and take them on outings, and have holidays when he wanted to. He had a mortgage but was paying it off, and so he needed to continue to work.
After the accident he found himself in financial difficulty. Because he was not working he did not make the payments on his mortgage for 83 Finlay Street. He successfully applied for release of $13,000 in accumulated superannuation and paid it to the bank. He sold his car. He was able to retrieve the situation when the Motor Accidents Insurance Board commenced payment of disability allowance in about April 2010, but when the payments ceased in May 2012 the only income he received was a Centrelink disability allowance. He defaulted in payments of his mortgage. In February 2013 an order was made by the Supreme Court that possession of the property be given up to the Commonwealth Bank, and the property was later sold by the mortgagee. None of the proceeds of sale came to him. He lived with friends before he secured a rental property at Bridgewater where he now lives.
In May 2012, at about the time the MAIB disability allowance ceased, the plaintiff's relationship with Michelle Cartledge broke down. They had not married. Their daughter Samantha was born in April 2011. The separation was not amicable. There are Family Court proceedings by which the plaintiff is seeking to have contact with his daughter.
The plaintiff claims his life is now severely affected by back pain. He says that he is unable to work. The main problem, he says, is pain in his lower back, radiating around his right hip, down his right leg and into his right foot. There is, he says, a constant dull ache in his lower back. He has days where he is completely pain free, but other days when, without warning and with no apparent explanation, his back flares up and the pain is "excruciating". He is lucky, he claims, to have three hours' sleep each night, and usually wakes up feeling sore. Most activities aggravate his back pain. Sometimes he manages to do things for only a few minutes before he experiences pain. On other occasions he manages for longer. Flare ups can last for a few minutes or for weeks. He said that there was a period of months during 2014 during which his current partner, Stacey James, did everything for him because the pain in his back and both legs, mostly his right leg, was so bad. She helped him with housework, took him to and from appointments and helped pick up his daughter from school. On some days, when he was unable to do so himself, she helped him shower, dress and undress and get in and out of bed.
He no longer rides motor bikes because of the jarring it causes. He does not ride a push bike because it aggravates his back. He does some saltwater fishing but he no longer uses craypots or nets because he cannot get them into the boat. He has been hunting on several occasions since the accident but no longer does so for a combination of reasons. He no longer has a gun licence because of a family violence order made at the instance of Ms Cartledge. He claims also that he can no longer do the walking in the bush or carry the game.
The plaintiff's own evidence is that his mental state has been "reasonably stable lately". He accepts that his mood is contributed to not only by the accident, but also the difficulty of resolving the legal issues concerning custody and contact with his daughter from his relationship with Ms Cartledge.
The plaintiff accepts he is able to do some maintenance work and odd jobs around the house he rents. He sometimes uses the whipper-snipper. He occasionally does some gardening and mowing, although his garden is very small. He hangs out the washing, does vacuuming and general housework. How this affects his pain depends on the level of activity. He walks his dog but now only about twice a month, usually only for a kilometre, although sometimes for up to two or three kilometres. For a time he kept some chickens at Finlay Street before moving them to a property at Bridgewater operated by the owners of Southern Cross Electrical, where he went from time-to-time to feed them. Also at that property were some pigs, lambs and cattle. Occasionally he would help out by feeding stock, cleaning pens and marking lambs. This was unpaid work, in return for which he was sometimes given eggs and meat, but he stopped in 2013 because of the pain he said it caused him afterwards.

Ben Brown has been a friend of the plaintiff since about 1990 when they met as teenagers. In the years before the accident they saw each other frequently, sometimes many times a week. They would visit each other's house to chat, and most weekends there were barbecues within their large group of mutual friends. Before the plaintiff's marriage to Cassandra Kane in 2005, he lived with Mr Brown for about six months. Mr Brown described the plaintiff as the sort of person who could not sit still. He would go on long walks with his dog. Occasionally they went fishing together, and, once or twice, they went hunting. He said the plaintiff was handy with general maintenance and building, always "tinkering with something", and was "just a normal happy-go-lucky sort of bloke". He never complained of back pain. In 2004 the plaintiff helped him wire a half completed house that he had purchased, and noticed that the plaintiff was able to work "extremely fast".
According to Mr Brown, the plaintiff is now the "complete opposite" of what he used to be. He is not active, a lot of the time seemingly incapable of doing anything. He no longer participates in the activities he engaged in before the accident. He is subdued and withdrawn, not as cheerful. They do not have a lot to talk about so they see each other less often. Mr Brown described the plaintiff as being stuck on the couch and leaving jobs around his home unfinished. He said that the most active thing that he has seen the plaintiff do was to help him change a light fitting over the 8-ball table at Mr Brown's home about 12 months earlier, seeming to take a long time to finish the job.
Dale Ward has been friends with the plaintiff since they met at high school when they both lived at Bridgewater. They met two or three times a week. He described the plaintiff as being a fit and active person, without any physical restriction. On weekends they went woodcutting, shooting, fishing and camping together. Since the accident, according to Mr Ward, the plaintiff is anxious – "he always looked like he wanted to do something but he couldn't do it". The activities they shared have stopped. Over the last couple of years they see each other less often, now only once every two or three weeks. Mr Ward said that, since the accident, he and the plaintiff had been hunting together "probably twice". They had been motor bike riding once since the accident. When cross-examined, he was asked to expand on this. He said that it happened at Judbury, near Huonville, about three or four years earlier. They were trail bike riding on motor cycles they had taken on a trailer, and were riding, on and off, for most of the day.
Stacey James was introduced to the plaintiff through a mutual friend in January 2014. They started to see each other, and from about March 2014 they saw one another most days. By the time of the trial they had been partners for almost a year although they maintained separate residences. She described the plaintiff as having good days and bad days. She said he sometimes had difficulty bending, so much so that she helped him tie his shoe laces. On bad days his "depression kicks in" and his pain was such that she had to help him get up from bed into a sitting position, and help him dress and undress. On such days he would stay on the couch all day and have trouble finding a comfortable position. Sometimes, she did the cleaning for him at his home, even though he is generally "pedantic" about cleanliness and attends to it himself when he is able. She helped him shower. Sometimes, she said, travelling in a car was very difficult for him and he required frequent stops, even on short journeys. Sometimes he woke in the night with pain. She said that about a week before the trial the plaintiff helped with the barbecue at a wedding and, after standing for a couple of hours, his back was "really sore and really hurting" after they arrived home. She was cross-examined about the types of activities that the plaintiff is able to do, and she said that he would "have a go at most things".

Impairment of earning capacity

The plaintiff claims that since he last performed any remunerative work in July 2010 he has been totally incapacitated. Apart from a work trial in 2011, the plaintiff has not worked since July 2010. He claims to be no longer able to work as an electrician in any capacity. He says he cannot carry tools or climb into confined spaces. As to tagging and testing, he says that he cannot do things the work involves, principally, move furniture to access electrical appliances, or manoeuvre the appliances themselves. His claim is put on the basis that he has no education, training or experience to do any form of employment that would be within his physical capability, and that his future is "uncertain".
The work trial undertaken by the plaintiff was in mid-2011. At the instigation of a rehabilitation provider he participated in an engagement by Aintree Contracting, attending schools around Tasmania inspecting electrical switchboards. He used an iPad to photograph the switchboard and report on its features and condition. He worked for two hours each day over a period of about four weeks. The plaintiff said that the work itself was easy, but the travelling and prolonged standing aggravated the pain in his back. The work trial ceased because his back pain increased.
From mid-2013 he has been helping out at a butcher shop at which a friend is employed. It is unpaid work. He says that he puts stock on shelves or in the display cabinet, minces meat, or other like tasks. He works from only a few minutes to up to half a day, usually once or twice a week, but sometimes more often. He had done only one full day, and when he did so he could not return the following day because of pain in his back. He said he did this because he was bored, and thinks that it cannot lead to any paid work because he is "too unreliable".

The plaintiff's medical evidence

None of the plaintiff's treating practitioners gave evidence. That included not only Dr von Caemmerer and Dr Sheehan, but also the psychologist and the physiotherapists by whom he had been treated between the time of the accident and the present. Although the plaintiff was referred by Dr Sheehan to Mr Erasmus, a neurosurgeon, Mr Erasmus did not give evidence. Copies of the plaintiff's medical records from Dr Sheehan were tendered by him. Included in the records are Dr Sheehan's notes of her attendances on the plaintiff between 9 July 2010 and October 2014. I do not intend to refer to her notes in detail, but they contain an illuminating account of the plaintiff's complaints to her from time-to-time, and Dr Sheehan's assessment of his condition. Also included in the notes are letters from Mr Erasmus dated 11 August 2010 and 8 September 2010. The latter contains the following passage:
"The MRI scan of the lumbar spine shows a large central disc herniation at L4/5 with some foraminal narrowing and at L5/S1 there was also small disc herniation. I discussed the situation with him and indicated that the surgical option would be an L4-S1 fusion. However it appears that he is coping reasonably if he doesn't undertake any heavy manual work. Under these circumstances I have suggested that we not look at surgery seriously but that he should consider retraining for work that is lighter and does not involving [sic] heavy lifting, such as that he does presently as a qualified electrician."
On 2 November 2011 Mr Erasmus wrote a further letter including the following:
"He states that he has tried undertaking light duties and reading electricity meters but usually ends up the following day with severe pain in his back and in his legs and has to rest for several days after this. He has decided that he does not want to have surgery and would like to be pensioned off at this stage. He has also been experiencing much pain in his back and pins and needles in both lets when he tries to do too much.
… As his preferred option is not to have surgery and to be pensioned off, I have indicated that I would agree to him taking early retirement."
The records also include letters from a physiotherapist to whom the plaintiff had been referred, and also from a psychologist, Mr Glyn Spaulding, who, by early 2011, had already seen the plaintiff six times. One report from Mr Spaulding in February 2011 relates the plaintiff having assaulted his girlfriend, threatening her with a bow and arrows, and being taken away by the police as a consequence. The report indicates that he blamed the outburst on her not folding washing for four days. A further letter from Mr Spaulding in August 2011 reports continuing conflict between the plaintiff and his partner.
By 14 November 2012 Dr Sheehan reported that the plaintiff had not coped well with his inability to work as an electrician and was "seriously depressed in response to his low back pain". He was also being treated for alcohol dependence.
The plaintiff called evidence from two medical practitioners, Mr Stephen Doig, an orthopaedic surgeon, and Dr Philip Reid, a psychiatrist. Mr Doig first saw Mr Burge in November 2010. He was not a treating practitioner, but the plaintiff was referred to him by his legal advisors. Mr Doig was given a history by the plaintiff, which included the following description of the accident:
"He was hit hard enough to be pushed underneath the truck that was in front of him in the same queue. He was very sore in the back. He managed to get out of the car and went to exchange names and addresses. The police arrived. He did not think he was too bad at that stage and as a consequence he went home."
Mr Doig was told by the plaintiff that, after the CT scan in May 2010, he was referred to and assessed by a neurosurgeon who arranged for an MRI scan. Mr Doig reported that the plaintiff discussed with the neurosurgeon "about a spinal fusion but he was told that it would stress the other discs around the area and he was advised that surgery probably was not such a good idea and that he should give up being an electrician". The plaintiff complained to Mr Doig about low back pain, with pain radiating across the low part of his back to his right buttock and around towards the right hip. Mr Doig observed, on physical evaluation, "obvious spasm around the back". When asked to describe the state of the plaintiff's condition, Mr Doig opined that "the current state of his condition is that he continues to have ongoing pain and disability in the lumbar spine. It is continuing to cause him discomfort. It is continuing to be painful and is materially restricting his social, recreational and work life." Mr Doig considered that the plaintiff had a significant current incapacity for work as a result of the motor vehicle accident because he could not "lift, push, pull or carry easily due to the ongoing pain in his back". Mr Doig recommended conservative treatment, including pain management to help alleviate his symptoms.
Mr Doig next saw the plaintiff in August 2012. The plaintiff reported to him that he had attempted to return to work on numerous occasions but "it did not work out" because of continuing ongoing low back pain. The plaintiff told Mr Doig that he had discussed the possibility of a "spinal fusion with the neurosurgeon but had decided against such surgery". Mr Doig formed the opinion that the nature of the plaintiff's condition was disc damage at L4/5 with disc protrusion and ongoing low back pain. He considered it unlikely that the plaintiff would significantly improve, having, by the time of this examination, been treated conservatively for just under three years with little progress. Mr Doig considered it appropriate for the plaintiff to be seen by a pain management specialist, but that his prognosis was poor. Mr Doig considered that the plaintiff would continue to be markedly restricted and said that he could not see him going back to work as an electrician. Mr Doig saw the plaintiff for the final time in March 2014. By the time of this report, Mr Doig had been shown copies of medical reports prepared by Mr Wearne, an expert engaged by the defendant's insurer, to which I will later refer. Mr Doig did not change his opinion. He remained of the view that it was unlikely that the plaintiff would return to work as an electrician in the foreseeable future. Mr Doig said that he considered that it would be much better for the plaintiff if he did get back to work, but the work would need to be a fairly light sedentary job, not involving a lot of lifting, pushing, pulling, carrying, or crawling into confined spaces. The plaintiff would require ongoing medication but Mr Doig did not see that physical therapy had any part to play in his future treatment, although a pain management course would be of some benefit.
Just before the trial Mr Doig was asked to provide a supplementary report. He confirmed that prior to the preparation of his report of 26 November 2010, he had viewed the scans of the plaintiff's spine. He reported that the CT scan dated 24 May 2010 showed a sizable central disc bulge at L4/5 and some minor bulges at other levels, and that the MRI also showed the bulge at L4/5. He agreed with the opinion given by another orthopaedic surgeon, Mr Haig, that the bulge at L4/5 was "very large" and could properly be characterised as a central disc prolapse. Prolapse, he said, implies that part of the disc has come out and, in Mr Doig's opinion, was an extension of the bulge, or a more significant bulge. According to Mr Doig the plaintiff has no "focal neurological signs and he has no sciatica".
Dr Philip Reid, a psychiatrist, first met Mr Burge on 4 April 2011. Again, the plaintiff was referred to him by his legal advisers, and Dr Reid is not a treating practitioner. Dr Reid reported the plaintiff's symptoms as including irritability, anger, tearfulness, poor sleep and social withdrawal, secondary to persistent ongoing lower back pain. He diagnosed the plaintiff as suffering from an adjustment disorder with depressed mood, not having been able to adapt to pain without resolution, and the significant impact of him not being able to work. He recommended treatment in the form of cognitive behavioural therapy to be conducted over 12 sessions in six months. According to Dr Reid, if the plaintiff's pain state was resolved, and he was able to return to work, then his adjustment disorder would also resolve fully. Dr Reid saw the plaintiff again on 26 September 2012. On that day, the plaintiff attributed the breakdown of his relationship to the ongoing incapacity of his lower back condition and his mood changes. Lower back pain was his main continuing concern. Dr Reid reported that from a psychological point of view, there was ongoing sleep disturbance and irritability, but the plaintiff's psychological condition was now "heavily overlaid with emotional fallout from the relationship breakdown and his need to negotiate the Family Law Court process". Dr Reid reported that the primary reason for the plaintiff's inability to return to work as an electrician was lower back pain, but his psychological symptoms were not helping because of an additional burden of a failed return to work program, a level of demoralisation, and an attitude that he will not recover. Dr Reid saw the plaintiff for the final time on 23 June 2014. The plaintiff reported that his psychological state had improved because his domestic situation was more stable, he had been through the worst of the "anguish" he felt when he lost his property, and that he had reduced his alcohol intake. Despite the improvement, his lower back pain continued and remained his primary complaint, causing poor sleep and irritability. The plaintiff also complained to Dr Reid of "sciatica". Dr Reid described the plaintiff's prognosis as "fair", and that it is likely now that he will "adjust to persistent pain state and reduced work capacity but further serious mental health difficulties appear unlikely".

The defence contentions as to Mr Burge and his credit

In brief summary, the defendant contends that:
·     the plaintiff was not injured in the collision as he contends and that, at most, he suffered a minor musculo-skeletal injury from which he has very substantially recovered;
·     the plaintiff deliberately and grossly exaggerates his symptoms for the purpose of maximising his damages claim;
·     the plaintiff has no disability which would prevent him from undertaking the work he was primarily performing before the accident, and there has been no diminution in his earning capacity.
The defendant contends that the plaintiff's account of his pain and incapacity should not be accepted because he has given conflicting accounts of the immediate effect of the collision and the onset of symptoms, and his actions since the collision are inconsistent with his claim. The defendant contends that the evidence of the plaintiff's medical experts about the nature and effect of the plaintiff's injury should not be accepted, partly because the opinions are based on an incomplete or inaccurate history, and that the mechanism of the accident is inconsistent with the disc injury he claims, whether described as a prolapse or a diffuse bulge. The defendant also asserts that any psychological symptoms are not attributable to the accident.
There is evidence of the plaintiff's misuse of alcohol prior to the accident. In 1997, when he was 20, he was assaulted at a hotel in Hobart after having consumed a lot of beer. Two years later he was assaulted again after consuming alcohol. In September 2001, he was the driver of a car involved in an accident. He was subsequently convicted of a drink-driving offence with a reading of 0.173%. He told the hospital he attended at the time that he had consumed a dozen stubbies before driving. He agreed that in September 2002 he presented at the hospital after cutting his hand while very intoxicated. In December 2007 he was assaulted by being hit with a piece of wood. He agreed that it happened while he was intoxicated, but not "very intoxicated". In September 2009, two months before the accident, the plaintiff was caught drink-driving again and disqualified from driving.
There is further evidence of the plaintiff's use of alcohol after the accident. He admitted that in August 2010 he assaulted Michelle Cartlege after having been drinking. Dr Sheehan's notes record the plaintiff as having informed her about this on 31 August 2010; that he had been drinking heavily and "lost it", and that he "snapped assaulted Michelle several times, got his bow and arrows out". He broke a bone in his hand by hitting a cell wall after his arrest. It is the incident reported in one of Mr Spaulding's letters to Dr Sheehan and it led to the making of a family violence order. He told Dr Sheehan on 8 October 2010 "no alcohol except Grand Final but moderate intake". By July 2011 he reported to Dr Sheehan, "alcohol once a fortnight, writing myself off". Not long afterwards he requested her help with alcohol use, indicating that he "had already been to Holyoake". Holyoake is a drug and alcohol rehabilitation service. However in October 2011 the plaintiff committed a further drink-driving offence and was disqualified from driving. In November 2012 the plaintiff was assaulted while he was intoxicated. Then, in December 2012, the plaintiff crashed from a motor cycle he was riding on the road. The plaintiff was injured. He suffered a fractured skull, mainly one of his eye sockets. He was again charged with a drink-driving offence, with a breath alcohol concentration of .234%. This time he was disqualified from driving for three years. He says he has recovered from those injuries and there is no contention to the contrary from the defendant. He concedes that, at the time, he was drinking up to a carton of beer a day. Consequently, in early 2013, the plaintiff again sought counselling from Holyoake. He says that since then he has reduced his alcohol consumption to between 6 and 12 cans of beer each week. However, on 8 August 2013 he was assaulted by a woman at a waterfront hotel after he had been drinking.

The plaintiff gave the medical practitioners various accounts of his consumption of alcohol. As I have already indicated, Dr Sheehan's notes contain reports of the plaintiff's alcohol consumption. On 4 April 2011 he told Dr Reid that he was drinking about six stubbies every four weeks. By his appointment with Dr Reid on 26 September 2012, he told Dr Reid that he had been drinking heavily. On 3 July 2014, he told Dr Reid that he had moderated his alcohol consumption to between 6 and 12 stubbies per week. When he saw Dr Sale on 17 September 2010, he told him that he was consuming six drinks a week, but admitted that he had already been to Holyoake. On 11 April 2012, he told Dr Sale that he "doesn't drink much", a report inconsistent with other conduct and reports from the time.
The defendant also points to activities that the plaintiff has undertaken since the accident. At the Finlay Street property (from which it follows that it must have been prior to February 2013) the plaintiff installed a floating floor throughout the house. He did painting. He also erected a chicken pen and shed, and then dismantled and re-erected the shed. He built bird boxes and bird aviaries. I have already referred to his evidence about helping to tend chickens and lambs at the property owned by Southern Cross Electrical. During 2011 and 2012 he rebuilt a Holden utility over the course of a year. He said this involved a total of about a week's work. He performed unpaid electrical jobs for friends. During 2013 and 2014 he helped friends collect firewood on about a dozen occasions by helping load and unload wood from a vehicle. He has operated an excavator over the course of the last three or four years for a total of about five hours. He also used a machine he called a Dingo Digger. It is a small digging machine usually with a bucket on the front. The operator stands and operates the controls from the rear of the machine. The plaintiff said that he used such a machine for about three days' work at his Finlay Street property, levelling soil and levelling his back yard. He also agreed that he had used a tractor.
The plaintiff was cross-examined about the contents of video surveillance recordings. On 8 April 2011 he is shown lifting his daughter down from a boat on a trailer. He agreed that he had, once, been fishing in the boat. More surveillance from 22 December 2011 was shown to the plaintiff. It shows the plaintiff at his property at Finlay Street. It shows a wooden retaining wall which the plaintiff agreed he had constructed since the accident. It shows the colour bond shed which the plaintiff agreed that he erected, dismantled and then re-erected. It shows the plaintiff squatting to pull some weeds out of the garden. It shows, during the day, the plaintiff going to an adjoining property, over the back fence, to use a whipper-snipper to cut long grass near the fence. The plaintiff was also taken to a surveillance video recorded on the following day, 23 December 2011. The plaintiff was with his daughter at a shopping centre in Glenorchy. He retrieves her pusher from the car and sets it up. It shows the plaintiff leaning into the car to retrieve some small items. He agrees that he was out, with his partner, doing Christmas shopping. The recording also shows the plaintiff to be carrying a large bag of animal food from a shop, before dropping it into the back of his utility. He agreed the bag weighed approximately 20kg. The plaintiff was also shown on that day carrying some meat and other groceries in a cardboard box from the shopping centre to the car, although he estimated the box would have weighed less than 5kg.
The plaintiff was next shown in a surveillance recording from 3 January 2012. The video shows him leaning into his car, lifting his baby daughter, aged, by then, almost 1, out of the car and putting her into the pusher. The plaintiff was shown in video surveillance taken on 6 February 2012, showing him coming in and out through a door under his house at Finlay Street, apparently clearing rubbish and other items into his utility, each time having to duck under a fence or a gateway. In the course of the cross-examination the plaintiff was asked about the structure on the rear of his utility used when the plaintiff was spotlighting. He said that the structure was used to hang game which had been shot, such as kangaroos or rabbits. He said, however, that he would generally be driving the vehicle and his companions would be responsible for picking up and retrieving what had been shot.
There are still images of the plaintiff taken on 24 October 2014, leaning into a car and lifting out a cage containing two small lambs. The bodily actions involved require bending, twisting and lifting. The weight of the lambs is of course, not known, but I may draw inferences about that from my observations of the photographs.
The plaintiff was examined, at the request of the defendant, by three medical practitioners. He first saw an orthopaedic surgeon, Mr Max Wearne, on 26 May 2010. Mr Wearne prepared a report of the assessment dated 20 June 2010. Mr Wearne reported that Mr Burge "presented as a worried and agitated man who complained of multiple and bizarre symptoms that did not match my clinical findings". He reported the plaintiff as standing with normal posture of the thoracolumbar spine but indicating a localised area of pain and tenderness above the lower lumbar spine. Mr Wearne reported that the plaintiff "resisted forward flexion although he could be coaxed into a range of forward flexion of 70 degrees". According to Mr Wearne, this contrasted with the plaintiff's ability to sit bolt upright with both legs fully extended when he was later examined on the examination couch. Mr Wearne referred to the 24 May 2010 CT scan as reported, as "revealing annular disc bulges at the L4/5 and L5/S1 levels, more marked at the L4/5 level with no significant neural compromise identified". Mr Wearne offered a diagnosis. He stated that with the evidence presented to him he was prepared to "concede that Mr Burge may have suffered a musculo-ligamentous sprain to his lower back and neck as a result of subject accident". Mr Wearne described the injuries as "no more severe than that". He offered an excellent prognosis. To the suggestion that the plaintiff's lumbar spine had been irreparably damaged, Mr Wearne said that "this is simply not the case". He said that, in his opinion, Mr Burge was capable of returning to his pre-accident work as an electrician full-time, with no permanent disability, as a result of the accident, and no requirement for surgery. He thought Naprosyn and Panadeine Forte were totally unnecessary.
Mr Wearne saw the plaintiff again on 24 January 2012 and reported on 9 February 2012. He referred to the plaintiff's complaints of continuing low back pain and incapacity. According to Mr Wearne, the plaintiff's slow and protective way of dressing and undressing prior to examination appeared to be "somewhat exaggerated". He said in his report:
"My concern is that Mr Burge's symptoms are bizarre not typical of those of a person suffering with an isolated lumbar invertebral disc lesion. If his symptoms were solely due to an isolated disc lesion at one or two levels, I would have expected a more localised complaint of low back pain with symptoms and clinical evidence of specific nerve root irritation. Instead, we have vague symptoms and signs which I find impossible to relate to the specific invertebral disc lesion."
Mr Wearne offered an overall opinion that, "Mr Burge is being manipulative in his request to be 'pensioned off' and that his current presentation and complaints do not represent an accurate picture of his current physical state and capabilities". Mr Wearne suggested a period of surveillance, and referred to Mr Burge's "abnormal pain behaviour during his physical examination".
The plaintiff was next seen by a different orthopaedic surgeon, Mr Ronald Haig, on 7 October 2014. Mr Haig consults to the same medico-legal group of which Mr Wearne was a consultant prior to his retirement. Mr Haig took another history from the plaintiff. He reported Mr Burge's ongoing complaints of constant low back pain. Mr Haig had seen Royal Hobart Hospital records, Mr Wearne's reports, Mr Doig's reports, correspondence from Dr Sheehan and Mr Erasmus, and Dr Von Caemmerer's notes. Mr Haig viewed the scans of the plaintiff's spine himself. He then reported that "I believe the pathology is more significant that an 'annular disc bulge'. I would describe it as a frank central prolapse. That is a more significant finding radiologically than that of a bulge which in itself is common place and not necessarily significant". Mr Haig offered the following opinions:
"I do not believe he is capable of returning to his pre-injury employment as an electrician. Again I believe there are factors of a non-organic nature dominating the clinical picture. I tend to agree with the opinion of Mr Doig that he is unlikely to return to his pre-injury employment but perhaps for somewhat different reasons."
Even so, according to Mr Haig, he found it strange that the plaintiff could not manage work with such little physical input as was involved in the job trial in which the plaintiff was required to carry an iPad and inspect switchboards in schools. In Mr Haig's opinion the plaintiff could certainly perform work of that type now, at least from a purely musculo-skeletal point of view. He offered the opinion that Mr Burge exhibits "abnormal pain behaviour" and appears to be clinically depressed.

Consideration of and findings about Mr Burge's claim

The issues of the cause and effect of any injury suffered by the plaintiff are intertwined. The answer to one is influenced by the answer to the other, and both depend heavily on my assessment of the plaintiff and his credit. The overwhelming consideration in my assessment of the plaintiff's claim is my conclusion that he would not have subjected himself to the deprivations he has suffered since the accident for the purpose contended by the defendant, that is the deliberate fabrication and gross exaggeration of his claims to maximise his compensation entitlement. I did not form the impression, from my observation of the plaintiff, that he was falsifying or deliberately exaggerating his evidence. I consider his partner, Ms James, and his friends, Mr Brown and Mr Ward, to be honest and reliable witnesses. I accept the evidence of the plaintiff that he enjoyed and obtained satisfaction from his work. He purchased the property at Finlay Street using savings, and he assumed additional financial obligation on the breakdown of his relationship with Ms Kane to retain the property. He had worked to improve it and, in my view, took some pride in it. He has not only lost his house, but lost his job, and there has been obvious strain on his relationships. I find that the plaintiff would not have stood by while those things happened, in the absence of injury or incapacity.
The medical notes of Dr Sheehan, although she did not give evidence, paint a picture of persistent complaints of pain since the accident, the plaintiff sometimes presenting as tearful, distressed and requesting help. The records contain entries about the plaintiff repeatedly indicating a wish to return to work but being unable to do so, and complaining of pain after attempts to do so. I regard it as unlikely that the plaintiff's presentation, if so false as the defendant contends, could be maintained so persistently, and apparently convincingly, over such an extended period. The same applies to the reports from Mr Spaulding over a prolonged period.
The defence refers to the mechanism of the collision as support for its contention that the plaintiff did not suffer a disc injury at the time. The defendant's expert, Mr Haig, is not only an orthopaedic surgeon, but has a science degree majoring in maths and physics. The evidence is predominantly that the initial impact to the plaintiff's vehicle was from behind, and that his vehicle was projected forward. The plaintiff was facing ahead wearing a seatbelt. Mr Haig gave evidence, partly based on his knowledge of physics, that an impact from behind would not propel the plaintiff forward in his seat, but rather would be back into his seat. According to Mr Haig, assuming no twisting or sideways impact, the plaintiff would not be subject to any forward flexion of his spine, making a frank injury to the disc at that moment less likely. Different considerations apply to the second aspect of the collision when the utility struck the truck in front. At that point the sudden impact would bring the utility to a halt and project the plaintiff forward in his seat. Mr Haig believed that the plaintiff would have been restrained by his seat belt, again making the possibility of forward flexion less likely.
I found Mr Haig an impressive witness. I accept his evidence about the nature of the forces to which the plaintiff would likely have been subject in the collision. It accords with common sense and the ordinary laws of physics. However, Mr Haig accepted that although the occurrence of a frank injury to the disc at that point was less likely, it was nevertheless possible. He accepted that the history given by Mr Burge supported the proposition that the accident caused the prolapse. It is also to be taken into account that, in my view, the nature and direction of the impact cannot be determined with certainty. Mr Brown gave evidence, which I accept, of being propelled forward but striking his head on the side window. The damage to the car suggests, to me, a significant forward momentum. Neither can the precise posture of the plaintiff at impact be determined with certainty.
Mr Haig's doubt that the accident caused the prolapse is to be considered in the context of all the evidence. There is no evidence from which I could conclude that the plaintiff had an injury to his back prior to the accident. There is no evidence he suffered from pre-existing back pain. He was asymptomatic. However his complaints of low back pain commenced shortly after the collision. Mr Haig and Mr Doig are in general agreement that the investigations (the CT and MRI scans) disclose a frank central disc prolapse at L4/5 and broad based disc bulge at L5/S1. The location of the prolapse coincides with the location of the pain described by the plaintiff. As to the result of the investigations, I prefer the evidence of Mr Haig to that of Mr Wearne. I think that Mr Wearne's opinions were unduly influenced by his impressions of the plaintiff's lack of veracity. Mr Wearne was not certain that he had seen the original scans, as opposed to the report of them. He deferred, to some extent at least, to the evidence of Mr Haig, as to what the investigations revealed. Mr Wearne agreed in cross-examination that a frank prolapse is a more significant finding than a finding of a diffuse bulge. Mr Wearne maintained his evidence that the plaintiff's clinical history was not consistent with a disc prolapse. However he agreed, without agreeing that a disc prolapse existed, that if a prolapse were present he would not have diagnosed the plaintiff as suffering from a musculo-ligamentous injury. He further agreed that a prolapse, if present, is a possible and reasonable explanation of the plaintiff's continuing back pain. Although there is some area of difference between the opinions of Mr Doig and Mr Haig, their respective opinions coincide in significant respects. Although Mr Haig was doubtful about the mechanism of the injury, he agreed that the history given by the plaintiff suggested that the prolapse occurred in the accident. Mr Doig's opinion is that the accident either caused the prolapse or, at least, rendered it symptomatic. I also accept Mr Haig's evidence that although frank prolapses may exist without being symptomatic, that is less likely than is the case for a more diffuse disc bulge. It follows that if a disc prolapse is present, there is a greater chance that it will be symptomatic. Such evidence further supports a finding that the prolapse occurred in the accident. There is no evidence of any other injury or event which could have caused the prolapse.
I am satisfied of the presence of the frank disc prolapse in the plaintiff's spine at L4/5. I am satisfied that it was caused, or at least rendered symptomatic, by the collision, and that it is the cause of the plaintiff's continuing back pain.
It remains to assess the opinions of the medical practitioners about the plaintiff's ongoing incapacity. It is relevant to assessment of the plaintiff's claim to incapacity for work, and will be discussed further in that context. In my assessment the opinions of Mr Doig and Mr Haig are, subject to questions of degree, not markedly different. I prefer the opinions of each of them to that of Mr Wearne. Mr Doig indicates that the plaintiff has no focal neurological signs and no sciatica. He has no symptoms which indicate that the prolapse (or bulge) is affecting the nerve roots. He thought that a pain management course may be of some benefit to try to mobilise the plaintiff and get him back to work. Mr Haig thought that the plaintiff was exaggerating some of his symptoms and could not explain the plaintiff's leg pain.
Subject to questions of degree, I also accept Dr Reid's evidence that the plaintiff suffers from adjustment disorder with depressed mood, and that the condition arises from the plaintiff's back pain. This is a case to which s 13(1) of the Civil Liability Act 2002 applies. That subsection reads as follows:
"(1) Prerequisites for a decision that a breach of duty caused particular harm are as follows:
(a) the breach of duty was a necessary element of the occurrence of the harm ('factual causation');
(b) it is appropriate for the scope of the liability of the person in breach to extend to the harm so caused ('scope of liability')."
On my analysis of the medical evidence, I am satisfied on the balance of probabilities that the defendant's breach of duty in driving negligently was a necessary element of the occurrence of not only the plaintiff's low back injury, but also the resultant pain and adjustment disorder as diagnosed by Dr Reid. I am also satisfied that, because of the circumstances of the accident, it is appropriate for the scope of the liability of the defendant to extend to all the harm that I have referred to.
I accept the evidence of Dr Reid that the plaintiff's psychological symptoms arise at least in part from the back pain he experiences. Other factors may predispose a person to development of such a condition. But I find the defendant's negligence remains a necessary element of the existence of the condition. From his first report in April 2011, Dr Reid diagnosed adjustment disorder with depressed mood. He described adjustment disorder to be a minor psychological response seemingly not in keeping with the level of the stressor, but not sufficient to lead to a diagnosis of an additional condition such as major depression. He indicated the stressor in this case to be back pain. He described purported symptoms of irritability, anger, tearfulness, poor sleep and social withdrawal, all secondary to the persistent pain and impact on his lifestyle. He described the plaintiff's feelings of frustration and hopelessness. The second report in October 2012 reported those symptoms persisting, even though heavily overlaid with emotional fallout from the relationship breakdown proceedings. In his final report of July 2014, Dr Reid reported improvement in the plaintiff's psychological state, anguish from the loss of his property, although he was through the worst of that, and a much improved domestic situation.
Dr Sale's concerns about the plaintiff seem largely to arise from the plaintiff's inclination to attribute many of his problems to the accident, including his domestic relationship, and that his complaints of irritability, sleeplessness and weight loss were not particularly prominent, falling short of amounting to a psychiatric disorder. Dr Sale was also concerned about the plaintiff's use of alcohol, the pattern of which pre-existed prior to the accident. In his final report Dr Sale indicated that the major problem "by a long way has been the plaintiff's difficulty with alcohol", and the matters that flow from involvement in altercations and difficult domestic relationships. According to Dr Sale he did not regard there to be any psychiatric consequence of the back problem, and the plaintiff's major psychiatric problem remains alcohol use disorder.

However Dr Sale accepted that, in general, adoption and early loss of a parent led to increased risk of later mental health difficulties. He agreed that symptoms of insomnia, pervasive low mood and weight loss, if accepted, could lead to a diagnosis of an adjustment disorder. He also agreed that a persistent pervasive low mood did suggest depressive symptoms. He agreed that the loss of a home and employment for a person in the plaintiff's circumstances would be significant life stressors.
I am satisfied that other factors contribute to the development and continuation of the plaintiff's condition. Such factors may include predisposition to depression and other psychological symptoms because of his adoption and early loss of a parent. I find it likely that he had difficulties with anger and alcohol abuse prior to the accident. His separation from his wife Cassandra in 2008 cannot be attributed to the accident. The factors which led to that relationship breakdown may play a part in his later problems. However I am satisfied that the adjustment disorder arose from the defendant's negligence. That is so because, although the plaintiff's reaction to the back pain may be influenced by a pre-disposition arising from other factors, the primary cause of the response is the injury and resultant pain. His post-accident abuse of alcohol was at a greater and more persistent level. The same applies to his proneness to anger. Each is, I find, contributed to by the general unravelling of his life caused by the injury suffered. They arise from the injury and are thus caused by it. With the passage of time the extent to which the symptoms can be attributed to the negligence becomes more difficult to determine, but so long as the back pain continues at the level I have found, then it remains, in my view, the primary cause.
His condition has improved. On analysis of all of the evidence I think that the statement by Dr Reid in his final report best represents the plaintiff's situation, that is, that his prognosis is quite fair. It is likely that the plaintiff will adjust to persistent pain state and reduced work capacity, and further serious mental health difficulties appear unlikely.
Having accepted much of what the plaintiff says about the effects of the accident, there are aspects of his evidence I do not accept. I find that the plaintiff has a tendency to overstate his condition, both to the medical practitioners by whom he has been examined, and in his evidence. One example is his use of a walking stick. The plaintiff told Mr Haig on 7 October 2014 that he had been using a walking stick for two or three months, and that he needed the stick on some days. However, on 24 October 2014 the plaintiff was able to lean into a car, bending and twisting as he did so, and lift out a cage containing two lambs. I take into account the plaintiff's evidence that it takes him much longer to do some of the things he could previously do quickly. His work on the car and the outside building work are examples of this. His ability to do such work may be explained by the evidence that his level of pain comes and goes, that he "has good days and bad days". However I think that he is able to do more than he contends. Getting into and out of cars, and leaning in to lift items out of cars, are other examples. The evidence indicates forward flexion is improved on "good days". He agrees he operated machinery and tractors. He lifted other items apparently unimpaired. I accept that, again, these may have been on good days and resulted in later pain. However if he were as substantially disabled as he claims then some of the things he is observed to be doing would not have been attempted.
It is in this respect that I give weight to the failure to call the plaintiff's treating medical practitioners. I consider it appropriate to draw the inference that the evidence of Dr Sheehan or Mr Erasmus, and any of the plaintiff's treating physiotherapists, if called, would not assist the plaintiff in explaining the evidence of the extent of the plaintiff's present level of disability and incapacity.

Damages for pain and suffering and loss of amenities

Before the accident the plaintiff was an active man. He enjoyed his work and obtained satisfaction from it. He participated in social and recreational activities. He was prone to abuse of alcohol. I am satisfied that his abuse of alcohol affected his relationships and his employment. Since the accident he has been substantially affected by pain and the accompanying psychological symptoms I have already described. He has not been back to work. He has withdrawn from much of his social and recreational activity and his relationships have been substantially affected.
I have explained my findings that the extent of his incapacity is not as great as contended by the plaintiff. I will explain it further when dealing with lost earning capacity. Nevertheless I am satisfied that the impact of the negligence is substantial. It is likely that he will suffer symptoms indefinitely.
I would allow $60,000 for damages to compensate him for his pain and suffering and his loss of amenity.

Past medical expenses

The only claim for past medical expenses is the amount payable by the plaintiff to Medicare in the sum of $4,865.70. The claim is reasonable and should be allowed.

Future medical expenses

The plaintiff has medication prescribed by Dr Sheehan. He takes Lyrica (two per day at an agreed cost of $0.65 per 300 mg tablet), Tramadol (two per day at an agreed cost of $0.30 per 200 mg tablet), Naproxen (one per day when required at an agreed cost of $0.15 per tablet) and Panadeine Forte (eight per day at an agreed cost of $0.15 per tablet). He has been paying for his own massages, on average once each month when he can afford it. These, he says, provided him with some relief and relaxation of the muscles.
The plaintiff claims four visits to a general practitioner each year at a weekly cost of $5.38, and the cost of medication at the present dose and frequency at the total weekly cost of $22.33, for the remainder of his life. The Cumpston Sarjeant tables give the life expectancy of a 39 year old male, with allowance for mortality, is just over 46 years. The present value of the expense of $1.00 per week for 46 years, discounted at 5%, is $956.01. The claim is thus $21,497.13. I do not think it likely that the plaintiff will require appointments and medication, attributable to the accident, for the remainder of his life. I will allow $12,000, just over half the claim.
After the accident the plaintiff sought treatment from a psychologist, Glyn Spaulding, who he continues to consult about six times each year, depending on what he can afford. He claims 6-10 sessions with a psychologist at $250 per session to assist with coping strategies. In light of my findings the claim is reasonable and $2,500 should be allowed. Thus the total claim for future medical expenses is allowed in the sum of $14,500.

Past impairment of earning capacity

I will first assume that, ignoring the effects of the accident, the plaintiff had no physical or psychiatric impediment to fully utilising his capacity to work. The plaintiff's taxable income for the years ended 30 June 2001 to 30 June 2009 is as follows:

2001 Gross income $26,280 Taxable income $24,999

2002 Gross income $29,229 Taxable income $23,770

2003 Gross income $32,240 Taxable income $26,979

2004 Gross income $26,721 Taxable income $23,989

2005 Gross income $31,719 Taxable income $25,938

2006 Gross income $63,788 Taxable income $57,633

2007 Gross income $56,093 Taxable income $49,727

2008 Gross income $59,128 Taxable income $53,677

2009 Gross income $49,778 Taxable income $49,355

During the 30 week period between April 2009, when he started to work for Fourtec and then Aintree, and the accident in November 2009, the plaintiff worked as a contractor on his own account. He generated invoices totalling $45,205. That amounts to invoices averaging about $1,500 per week, or a gross annual figure of $78,000. The plaintiff's particulars of claim refer to a higher weekly figure but are based on a shorter period. In any event, the period of work relied on is relatively short and is not a particularly reliable indicator of the value of the plaintiff's capacity to generate income over a longer term. The result of the addition of the invoices takes no account of the usual expenses borne by sub-contractors - tools and equipment, vehicles, insurance and the like. The figures take no account of holidays or downtime for other reasons. Inferentially acknowledging such factors, the claim is put on the basis of an average gross income of $1,250, or $65,000 per annum. I think that is too high. It is more than he had earned in any previous year, even when he was working in higher paid employment interstate. In my view, the appropriate starting point for calculation is a pre-tax income of $55,000 per annum, or rounded to $1,058 per week. There is no evidence of how, if at all, the amount the plaintiff would have been able to earn would have changed between the time of the accident and the present, and so I will assume no change through that period. There is no evidence that the work he had been performing at Aintree would not have been available to him, and otherwise he was capable of general contracting work.
Doing the best I can on the limited information available to me, I calculate the tax and Medicare levy payable on a weekly income of $1,058 as $202, resulting in a net income of $856. Thus, for the period 6 November 2009 to 10 December 2015, I would calculate the value of the plaintiff's capacity to earn as:
6 November 2009 – 30 June 2010     33 x $856 =              $28,248
1 July 2010 – 30 June 2011             52 x $856 =              $44,512
1 July 2011 – 30 June 2012             52 x $856 =              $44,512
1 July 2012 – 30 June 2013             52 x $856 =              $44,512
1 July 2013 – 30 June 2014             52 x $856 =              $44,512
1 July 2014 – 30 June 2015             52 x $856 =              $44,512
1 July 2015 – 11 December 2015     23.4 x $856 =           $20,031
$270,839
The plaintiff's particularised claim for past impairment of earning capacity is reduced to take account of the period during which the plaintiff was disqualified from driving by reason of the drink-driving offences on 20 October 2011 and 17 December 2012. It is also reduced to take account of the incapacity arising from the injuries he suffered when he fell off the motor cycle on 17 December 2012. I would approach the assessment of this component of the plaintiff's claim in a different way. That is so because, in my opinion, the alcohol related driving offences are, at least in part, a manifestation of the psychological effects of the injury suffered in the accident.
In my opinion, the assessment of the value of the loss of the plaintiff's capacity to earn between the date of the accident and the present should be calculated by discounting the claim for the chance that the capacity to earn would not have been fully utilised because of other factors. His work history, and common experience, suggests that the plaintiff would have been able to find work, either as an employee or sub-contractor. In my view there was, however, a significant chance of periods of unemployment or under-employment. His circumstances made it most likely that the days of him travelling interstate to search for work were behind him. He had done so in the past, but is now older and his family situation changed. In this case there are other factors, including the plaintiff's propensity to abuse alcohol, his stressful and inharmonious family circumstances, and what I find is a pre-disposition to psychological difficulty. I think that there should be a considerable discount, greater than usual discount, for such factors in this case. That is so in part because the particulars of his claim already acknowledge reduced income by reason of loss of the plaintiff's driver licence through alcohol consumption. I would discount the claim by 30% as follows:
$270,839 less 30% ($81,251.70) = $189,587.30
For the reasons I have already explained I do not accept that the plaintiff is as incapacitated as he claims. I will expand on this when dealing with the claim for future lost earning capacity. In respect to his past loss, I think that there should be a discount to allow for retained unexercised earning capacity, but it should be modest. I would reduce the claim by 15%.
From the result of that calculation is to be deducted the net income received by the plaintiff during the relevant period as particularised. The amount includes income generated by him and the net disability allowance which is to be taken in reduction of the claim for damages: Motor Accidents (Liabilities and Compensation) Act 1973, s 39:
6 November 2009 – 30 June 2010                  $27,989.32
1 July 2010 – 30 June 2011  $46,585
1 July 2011 – 30 June 2012  $38,692.29
$113,266.61
The plaintiff's claim for past loss is thus:
Value of lost earning capacity  $189,587.30
Less 15% retained earning capacity               $28,438.09
$161,149.21
Less net earnings  $113,266.61
$47,882.60

Impairment of future earning capacity

In assessing the damages for impairment of future earning capacity I will adopt a mathematical approach rather than attempting to arrive at a result by a process of intuition; McLennan v Luttrell [2006] TASSC 44 at [32]. I adopt the method I have already explained to assess the amount the plaintiff was capable of earning at the date of the trial had it not been for the defendant's negligence. It is most likely that the plaintiff would have remained doing the type of work he was undertaking for Aintree, or undertaking general electrical contracting work in the Hobart area. I use as a starting point that at the time of the trial the plaintiff would have been capable of earning $856 net per week.
The present terms of the Commonwealth legislation provides that, subject to his means, the plaintiff will become entitled to an age pension at age 67: Social Security Act 1991 (Cth), s 23(5D). The plaintiff has his 39^th birthday on 25 December 2015. The amount required to compensate the plaintiff for loss of $856 per week to age 67, adopting the 5% discount rate prescribed by the Civil Liability Act, s 28A, is:
$856 x 796.7 = $681,975.20
The multiplier of 796.7 is the value of the loss of $1 per week for 28 years with no allowance for mortality, and comes from a table from consultant actuaries Cumpston Sarjeant, which the parties agreed I should use. There should be an allowance for adverse contingencies. It is common in Tasmania to discount damages for future economic loss by 15% to allow for mortality, illness, injury, unemployment, under-employment, early retirement, voluntary absence from the workforce and strikes: McLennan v Luttrell at [33]; Partridge v Hobart City Council [2010] TASSC 62. Both of the cases to which I have referred considered the appropriateness of that discount rate. In Partridge, the Full Court seemed to accept that a 15% discount is generous to a defendant in an ordinary case.
This case requires consideration of the working life of a 39 year old man to a pension age of 67. I take note of the physical demands made upon persons working as electricians. I think it very likely that the lighter type of work involved in the "testing and tagging" would not always have been available to the plaintiff throughout his working life. I have already referred to the factors personal to the plaintiff which, in the case of his claim for past loss, mean a greater than average chance that he would not have fully utilised his capacity to earn. The combination of his propensity to abuse alcohol, his susceptibility to psychological difficulty and disharmonious relationships, satisfy me that there would have been a greater than average prospect, over the plaintiff's entire working life, of periods of unemployment or under-employment. I think that I should also make allowance for the possibility that some other incident, apart from the defendant's negligence, may have caused a decline in the plaintiff's mental health.
Not all contingencies are adverse. His personal circumstances may have stabilised. In the longer term, the prospect of the type of disruption which applies to the determination of his past claim for loss of earning capacity would be less. He may have secured stable long term employment, but I think it unlikely that he would have earned substantially more than the amount I have assumed. Balancing all of these factors, both adverse and favourable, I would apply a discount of 20%.
I next consider the plaintiff's retained earning capacity. The plaintiff's response to his condition arises from the condition itself, and is thus caused by the defendant's negligence; Medlin v State Government Insurance Commission (1995) 182 CLR 1. Nevertheless, I would assess the plaintiff's damages on the basis that he can, allowing for his condition, be expected to display an intermediate standard of fortitude and not passively submit to its effects; refer Porter J in Partridge v Hobart City Council (above) at [262], [263].
Assessment of this aspect of the claim depends heavily on my assessment of the true extent of the plaintiff's current incapacity and the likelihood of improvement, about which I made findings earlier in these reasons. I do not think that the plaintiff will be wholly incapacitated for his entire working life. I do not think he is wholly incapacitated now. I do not accept that the plaintiff is permanently and totally incapacitated for remunerative employment. I think that he retains a capacity for remunerative employment. Mr Doig, in his report of 27 December 2014, indicates his view that the plaintiff is unlikely to be able to return to work as an electrician, but it would be better for him to "get back to work in a sedentary job where he did not have to do a lot of lifting, pushing, pulling or carrying and where he did not have to get into confined spaces". Mr Haig agreed that the plaintiff is not capable of returning to work as an electrician, but that there were factors of a non-organic nature dominating the clinical picture. He found it strange that the plaintiff was unable to manage the work trial duties and referred to exhibition of abnormal pain behaviour.
The work the plaintiff was doing prior to the collision primarily involved the testing and tagging of electrical appliances. The defendant called evidence from Mr Wesley Blachford, the national operations manager of a business involved in this type of work, about the type of duties involved. My Blachford accepted that normal domestic and commercial contracting work was physically demanding. For example, it involved crawling into confined spaces. However by contrast, testing and tagging work is performed in schools, aged care facilities and commercial premises and, although busy, is much less rigorous. Persons involved in the work earn, according to Mr Blachford, a pre-tax salary of about $45,000. The equipment provided to an employee performing such work includes a motor vehicle, a phone, a laptop and testing equipment. His firm commonly employs persons over age 40 to perform such work. Through Mr Blachford, a film depicting the type of duties involved in testing and tagging was shown. It shows a person with a trolley on which is located a laptop and testing equipment, moving through a building, inspecting and testing appliances. Each appliance is plugged into the computer and testing equipment and then tagged. It involves visual checks, some of which require location of a power source for individual pieces of equipment. He said in general it is not necessary to work in confined spaces or require shifting of heavy furniture or equipment. There are occupational health and safety requirements imposing a lifting limit of 20kg. He agreed that it was sometimes necessary to move objects such as televisions and refrigerators to enable inspection of power leads and plugs.

The plaintiff claims he cannot do such work. He pointed to the car travel required, claimed that some work in confined spaces was needed, and that the work was busy, constantly lifting and moving appliances, furniture, cupboards, wardrobes and desks. He said that there was a lot of lifting involved because of the requirement, generally, that the work is performed alone. He claimed that the work trial was unsuccessful for similar reasons. Mr Haig conceded that extended periods of driving may result in increasing symptoms for a person with a symptomatic disc prolapse, but, given my earlier findings, I see no reason why the plaintiff could not, from time to time, perform work of this nature. I did not receive any other evidence about the type of work the plaintiff may be suitable for. However I think it likely that there are other types of jobs involving suitable light work which a person with his skills may be able to perform, such as work in an electrical or hardware retail or wholesale store, if he makes reasonably diligent efforts to obtain such work. It may be that to allow for his injury the work must be casual or part time. There will be times when he is unable to work. There will be times when his injury will cause incapacity, but I do not accept his incapacity is total and permanent.
I regard it as probable that, with the passage of time, the plaintiff's condition will improve. It is now six years since the accident. The plaintiff continues to experience symptoms, but I do not accept that the symptoms are as disabling as he contends. I regard it as likely that he will be able to resume remunerative work in some capacity. For the future, my assessment is that he has a retained earning capacity of 30%.
So assessed, I would calculate his claim for future economic loss as follows:

Amount required to compensate for loss of $856 per week to age 67 $681,975.20

Less allowance for contingencies (20%) $136,395.04

$545,580.16

Less retained earning capacity (30%) $163,674.04

$381,906.12

which I would round to $382,000.00.

Conclusion and order

I would assess the plaintiff's damages as follows:

Pain and suffering and loss of amenities $60,000.00

Future expenses $14,500.00

Past expenses $4,865.70

Past economic loss $47,882.60

Future economic loss $382,000.00

TOTAL

$509,154.42

I order that judgment be entered for the plaintiff against the defendant for $509,154.42.

2001	Gross income	$26,280	Taxable income	$24,999
2002	Gross income	$29,229	Taxable income	$23,770
2003	Gross income	$32,240	Taxable income	$26,979
2004	Gross income	$26,721	Taxable income	$23,989
2005	Gross income	$31,719	Taxable income	$25,938
2006	Gross income	$63,788	Taxable income	$57,633
2007	Gross income	$56,093	Taxable income	$49,727
2008	Gross income	$59,128	Taxable income	$53,677
2009	Gross income	$49,778	Taxable income	$49,355

Amount required to compensate for loss of $856 per week to age 67	$681,975.20
Less allowance for contingencies (20%)	$136,395.04
$545,580.16
Less retained earning capacity (30%)	$163,674.04
$381,906.12

Pain and suffering and loss of amenities	$60,000.00
Future expenses	$14,500.00
Past expenses	$4,865.70
Past economic loss	$47,882.60
Future economic loss	$382,000.00
TOTAL	$509,154.42