Bushby v The Nominal Defendant - [2019] NSWDC 733

District Court

New South Wales

Medium Neutral Citation: Bushby v The Nominal Defendant [2019] NSWDC 733
Hearing dates: 24-27 September 2019; 12 November 2019 (last written submissions); 21 November 2019 (oral submissions)
Date of orders: 04 December 2019
Decision date: 04 December 2019
Jurisdiction: Civil
Before: Dicker SC DCJ
Decision:
(1) Judgment for the plaintiff.
(2) The defendant is to pay the plaintiff’s costs of the proceedings as agreed or assessed.
(3) Liberty to the parties to seek a different costs order to (2) above within 14 days.
(4) The parties are to bring in agreed short minutes of order reflecting the reasons for decision and the agreed deduction for contributory negligence.
(5) Liberty to apply to the Associate to Dicker DCJ to relist the matter if agreement cannot be reached as to the appropriate orders or if there need to be corrections to the calculations.

Catchwords: Torts – negligence – motor vehicle accident – liability not in dispute and contributory negligence percentage agreed – extent of the plaintiff's injuries arising from the accident – voluminous medical opinions expressing different views – domestic assistance – childcare assistance - loss of future earning capacity
Legislation Cited: Civil Liability Act 2002 (NSW)
Motor Accidents Compensation Act 1999 (NSW)
Cases Cited: Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13
Sretenovic v Reed [2009] NSWCA 280
White v Benjamin [2015] NSWCA 75
Category: Principal judgment
Parties: Ronald Noel Bushby (Plaintiff)
The Nominal Defendant (Defendant)
Representation:
Counsel:
K Andrews (Plaintiff)
J Catsanos SC (Defendant)
Solicitors:
LHD Lawyers (Plaintiff)
Moray & Agnew (Defendant)

File Number(s): 2014/00262312

Judgment

In these proceedings, the plaintiff, Mr Ronald Bushby, seeks damages against the Nominal Defendant under the Motor Accidents Compensation Act 1999 (NSW) (“MACA”) for personal injuries to him as a result of the negligence of the driver of an unidentified vehicle which caused a motor vehicle accident on 4 November 2010 in Swinbourne Street, Botany in the State of New South Wales.
It is not in dispute that the plaintiff was riding his motorcycle behind a vehicle proceeding along Swinbourne Street near the intersection with Kurnell Street. An unidentified vehicle proceeded out of Kurnell Street and failed to give way to the vehicle behind which the plaintiff was travelling, causing that vehicle to brake suddenly and the plaintiff to take evasive action resulting in the plaintiff falling from his motorcycle and suffering injury.
There is no issue between the parties that the plaintiff has undertaken due enquiry and search in relation to the unidentified vehicle.
There has been agreement between the parties in relation to liability and contributory negligence. The parties have agreed that there was a breach of duty of care owed to the plaintiff by the driver of the unidentified vehicle for whom the defendant is responsible. There is also an agreement as to the percentage of the reduction for contributory negligence. The Court has not been informed of this agreed percentage.
Accordingly, the remaining issues are causation and an assessment of damages. The latter is not a straightforward exercise on the unusual facts of the case.
A joint tender bundle became Exhibit A in the proceedings. This joint tender bundle consists of an extremely large number of medical reports reflecting the treatment which the plaintiff has received from November 2010 to date. Exhibit A also contains a large number of medico-legal reports obtained by the parties for the purposes of the proceedings.
There is a difference in opinion between the various medical experts in relation to the plaintiff's injuries arising from the accident and the current status of those injuries. There is also a considerable difference in opinion between occupational therapists who have assessed the plaintiff’s past and future domestic/commercial assistance needs.

The pleadings

The relevant pleadings relied upon are a Statement of Claim filed on 5 September 2014, a Second Further Amended Statement of Particulars filed on 15 August 2019 and a Defence filed by the Nominal Defendant on 14 November 2014.
Having regard to the agreement between the parties as to liability, it is unnecessary to set out a summary of these documents. However, the Defence does not admit the injuries, loss and damage as alleged in the Statement of Claim. Also, contributory negligence is pleaded by the defendant.

The oral evidence of the plaintiff

The plaintiff gave oral evidence that he was born in May 1978 and was at the time of the final hearing 41 years of age. He confirmed as accurate a chronology which became Exhibit C in the proceedings and in relation to which a limiting order was made concerning the statements in the chronology regarding medical reports. The plaintiff gave evidence that he was born in Darlinghurst in Sydney and attended Kingsgrove High School where he attempted the Higher School Certificate twice and did not pass. Since leaving school, he has undertaken no further study and has no trade or technical qualifications: T15. The plaintiff was very proficient in relation to sporting activities and ended up playing A-grade rugby league for South Sydney Rugby League Club for a number of years. As well as rugby league, he performed to a high standard in athletics and continued training after he had left school.
The plaintiff gave evidence that he was the eldest of eight children. In 1999, when the plaintiff was working at his current employment at Allied Packaging, the plaintiff's parents were sentenced to a term of imprisonment. To the plaintiff's great credit, he took responsibility for his younger siblings who ranged in age from 15 years to six months old. He temporarily left his position at Allied Packaging and for the next one and a half to two years looked after his siblings at the family home in Daceyville in Sydney which was a Housing Commission house. The plaintiff after one and a half to two years then returned to work at Allied Packaging where he still works. Until about eighteen months ago, the company premises of Allied Packaging were in Botany in Sydney. The plaintiff confirmed that he still essentially did the same work but had moved from being a general worker to a leading hand and now holds the position of foreman in the business. The plaintiff confirmed that prior to the accident, he had always performed some overtime work at Allied Packaging.
The plaintiff gave evidence that in 2005 he attended his general practitioner due to low back pain. He said the low back pain did not continue and he received no treatment for it. In cross-examination the plaintiff confirmed that he had problems with back pain as a child and he had been referred to a specialist, Dr Gibbs, who said that it was due to his bones growing too fast. He also agreed that in 2004 he saw his general practitioner about long-standing deep-seated back pain with his back being slightly tender. The plaintiff agreed that he had had back pain for a number of years and his pain had subsided at the time of the accident. He also said that his pain was not as bad as it was now when he had spasms.
The plaintiff confirmed that in 2008 he saw his general practitioner with a sprained right ankle. He could not recall obtaining physiotherapy in relation to it and could not remember having any problems with his right ankle in the period before the accident: T17.25. He said he was still running and stopped playing rugby league in 2008 or 2009. The chronology suggested that he played rugby league until one year prior to the accident which would indicate that he was having no continuing significant problems with his right ankle prior to the accident: see also T13.25.
The plaintiff gave evidence in relation to the motorcycle accident on 4 November 2010. He confirmed that he was proceeding down Swinbourne Street in Botany and fell down with his motorcycle when the vehicle in front swerved and braked to avoid a car coming out from the right. The plaintiff said that in the fall his right ankle was caught in the front wheel of the motorcycle and the motorcycle fell on top of him. The plaintiff said that in the accident his ankle dislocated and was “facing [his] face” and he was in excruciating pain. When he lifted the bike up somewhat his ankle went straight back into place: T18.14. He said a number of persons came on the scene soon after and there were witnesses. An ambulance was called, he was taken to Prince of Wales Hospital, an x-ray was undertaken and he was discharged soon after on crutches.
The plaintiff said that he did not attend work the next day but attended work the day after whilst on crutches: T18.42.
The plaintiff said that immediately prior to the accident he held the position of foreman at Allied Packaging (T18.46) and there were between six to eight employees at the time in the firm (T18.50). He said the company produced paper packaging in large machines which ran four days a week on Monday to Thursday between 6am and 4pm which were the hours he worked, apart from overtime. The plaintiff said he organised the workers, started the machines and loaded the paper. The plaintiff said that each roll of paper weighed about 350kg: T20.16. The rolls were delivered by trucks and he loaded the rolls usually by himself up to 40 times per day: T20.33. A forklift was used by him to get the rolls of paper into place. The plaintiff loaded the majority of rolls: T20.41. The plaintiff said that there were four sheds at the site and he was busy going between the sheds, seeing his boss and supervising the workers. There was a morning tea break of 10 minutes and a lunch break of 30 minutes. The plaintiff said he enjoyed his job and got on well with his boss Mr Phillips. The plaintiff said he completed overtime on Fridays and sometimes Saturdays undertaking the same jobs and worked about seven extra hours on a Friday after which he went home to the family home in Daceyville. He said the family home had lawns and a garden and a pool. Prior to the accident the plaintiff said that he undertook the lawns and gardening which took him between half an hour and 40 minutes once per month: T23.1.
In relation to the cleaning and domestic tasks, the plaintiff gave evidence that these were shared between himself and his partner of 18 years, Ms Hannah Annesley: T23.8; T23.44. At the time, the plaintiff said Hannah was working two days a week in a day care position and he still had some siblings living at home. Later evidence established that immediately before the accident the plaintiff had three children with Hannah with his youngest child being only a few months old. Hannah was taking maternity leave at the time. The plaintiff confirmed that he did some cleaning daily and that both prepared meals and undertook the shopping. The plaintiff said he did his “fair share” of laundry and washed his car himself: T24.11-.17. He said that Hannah and he also looked after his siblings who remained at home.
Later, in response to questions from the court, the plaintiff said that prior to the accident he did all outside domestic duties including looking after the lawns and the pool and Hannah did domestic duties inside although he did some domestic duties: T53.10 cf T23.50. In cross-examination, the plaintiff confirmed that essentially he did the outside tasks and Hannah did most of the inside domestic tasks whilst he helped with some cooking, laundry and cleaning if needed. He said there was no strict delineation between the parties and Hannah did the majority of the internal domestic duties: T58.15.
The plaintiff said that when he went back to work soon after the accident he was on crutches and “hopped around” at work for a number of months but still helped push the paper reels in place but did not operate the forklift and instructed others: T25.27. He said no more staff were employed while he was on crutches: T25.39. He said he also wore a boot on his injured ankle for six months while attending physiotherapy three times a week for a number of months from late 2010 to January 2011. Despite the three month estimate of attending physiotherapy in Exhibit C, the plaintiff gave oral evidence that he attended physiotherapy for about 4 to 5 months: T26.8.
The plaintiff said that his physiotherapist said about five to six months after the accident that he should attempt jogging. He said he attempted it once and that night his right leg went into spasm for the first time: T26.32. Even before the jogging, the plaintiff said he had pain in the right ankle.
The plaintiff gave evidence that at the time of the accident he was living with Hannah and his children and some of his siblings in the Daceyville house but soon after the accident, he moved with his family to a rental property in Ramsgate in Sydney. This was partly because his parents went back to the Daceyville house. His siblings stayed with his parents when this occurred. At about this time, the plaintiff stated that he took steps to obtain custody of his sister's children who were two nieces. He said the children were going to be taken from his sister due to alleged domestic violence issues. In due course, again to the plaintiff's credit, he obtained care of the two nieces and they remain with him: T27-T28. The plaintiff’s evidence was clear that at the time of the accident the two nieces did not live with him: T28.2. The plaintiff said that after the accident he obtained a lift to and from work.
The plaintiff stated that in the six months period until he suffered his first leg spasm he had not got back to 100% of his normal duties at work. The plaintiff gave evidence that at this time he was still completing overtime on a Friday and Saturday and working normal hours from Monday to Thursday. The fulltime work and overtime was with some restrictions as to his activities: T29.3.
The plaintiff was asked further questions in relation to undertaking domestic duties after the accident. The plaintiff said that he could not do any house work or other domestic duties after the accident: T29.36. He said the lawn mowing was done by either Hannah or by a third party which he paid for. He said it was done about once a month and cost him $40. The plaintiff said that he “did nothing” (T30.7) as he was always in pain and lay down each afternoon when he got home from work. After the spasms started, the plaintiff said he had spasms a few times per week in the right foot (T30.15) and nothing in particular brought the spasms on. He said they could occur randomly including at work and the spasms, which were painful, could last between five minutes and half an hour: T30.29. The plaintiff said that when they occurred at work he could not move and he lay on the ground. He used ice or hot water packs which had no effect. He said he was also taking a lot of painkillers at the time which were prescribed for him by Dr Kyriazis, the general practitioner to whom he was referred. When the spasms occurred, the plaintiff stopped work until they concluded. He confirmed that his boss David Phillips had been with him on occasions when the spasms occurred and he said that “everyone saw it”: T31.30.
The plaintiff gave evidence that he lived at Ramsgate in rental accommodation for about two years. He said he eventually took public transport to work and worried that he would have spasms whilst on public transport.
The plaintiff confirmed that whilst he was living at Ramsgate, Hannah, his partner, did all of the cleaning, shopping, laundry and other domestic duties: T32. He said that upon coming home from work he sat down in his recliner chair and put his right foot up. At this time the plaintiff said that whilst he was undertaking overtime he had given up sports and social occasions partly because there was a lot on and he was taking action to obtain custody of his two nieces: T33.23. In cross-examination, the plaintiff said that in this period he was obliged to take his two nieces once or twice a week from their foster care house in Sutherland to access with their parents. This consumed a lot of his time.
The plaintiff gave evidence that he moved from Ramsgate with his family to a house at Kogarah Bay. He said he drove a motorcycle to work as he did not need to use his leg to drive it. He said he worked normal hours with restricted duties and he had spasms on occasions. He also confirmed that he still did overtime on Fridays and Saturdays. The plaintiff said his spasms at this time were becoming more frequent and could occur daily and last up to two hours. The plaintiff confirmed that the spasms were occurring more at work and were lasting for longer when they occurred. He also said that he was suffering from pain in his right ankle and was taking medication for it. If the spasms occurred, he gave evidence that they went from his right leg right up the top of his right hip.
At the Kogarah Bay house, the plaintiff confirmed that he continued to undertake no domestic tasks and that his partner Hannah looked after their three children and his two nieces: T35.25. In relation to the lawns and gardens, he said that Hannah looked after them once a month and it took her 10-15 minutes to do them. At this time the children were young and they did not help with domestic duties. The plaintiff confirmed that Hannah did the shopping and that although he sometimes went to the shops, he did not like it because he was anxious that he would have spasms in public and would need to lie down: T36.14.
At this time the plaintiff said that the spasms made it difficult to go to sleep and he woke up if a spasm occurred: T36.23. He said nothing in particular brought the spasms on and at this time they occurred more at night when he relaxed. If a spasm occurred at work he would have to stop his work.
The plaintiff gave evidence that he and his family then moved from Kogarah Bay to Woy Woy. At this time the plaintiff said that he had concerns about his ability to keep working and he wanted a cheaper lifestyle: T37.9. The plaintiff also gave evidence that Hannah's grandparents lived on the Central Coast at the time.
The plaintiff stated that he went to work at Botany by catching a train at Woy Woy to Central Station in Sydney and then a bus. He said this took about two hours. He started at 6am and finished at 4pm and got up at about 3:30am to go to work. He said he lived at Woy Woy for four years and left the house there about 15 months ago. Initially, the plaintiff said that he did some overtime but not a lot: T38.20.
The plaintiff gave evidence that during the trip on public transport to work, he often experienced spasms which caused him to be in tears with the pain. He said that was why he did not like to use public transport and it caused him to be anxious. Also on occasions he did not obtain a seat which required him to remain standing.
The plaintiff gave evidence that he commenced not going home and staying at his work overnight about two years ago: T39.7. He said that his boss said to him that he noted that the plaintiff was struggling with fatigue. He said that a bed was arranged for him at the warehouse and there were toilet and shower facilities. At that stage the plaintiff said that he spent about two nights a week at Botany and went home at least once per week and once on the weekend using public transport: T39.38. The plaintiff said that his physical condition and his absence at the factory was hard on Hannah and took a toll on her and their relationship was on and off: T39.50. During this time the plaintiff confirmed that he still did overtime on Fridays and Saturdays.
The plaintiff was asked about his income since the accident. The plaintiff confirmed that his income had increased since the accident as he was working more. However, he said that he did not get his work done on occasions during the day because of spasms. He said that when these occurred which could last up to two hours, he did nothing: T40.49.

In cross-examination, the plaintiff confirmed that his income had increased considerably in the last few years. He accepted that his income on a gross basis had increased from about $135,000 in the 2014 financial year to $193,000 per annum gross in the 2015 financial year, to about $197,000 in the 2017 financial year and to $225,000 gross per annum in the 2018 financial year. He said that he earned a similar amount for the financial year ending 30 June 2019 and took home more than $3,000 per week net.
The plaintiff gave evidence in chief that when he lived at Woy Woy upon arrival at home he immediately showered and then lay down. He said there were lawns at the house which were done about once per month at a cost to him of $40. About 15 months ago, the family moved to a rental house at Point Clare and he paid someone to do the lawns once a month for $60.
The plaintiff gave evidence that the factory of Allied Packaging moved from Botany to Revesby about a year ago. He said the work site was not similar and there was one big shed, although the same type of work was undertaken. He said the machines were all in the shed and his boss had hired a demountable which was placed in the shed for him to sleep in. His boss also had built a bathroom there for him to use. The plaintiff said he was still working and completing overtime. He said other employees worked between 6am and 4pm. He said he was working seven days per week and that he did not get his work done in the 40 hours. He said he had spasms in his leg every day and sometimes twice per day and that they could last for 5 to 10 minutes to 2 hours. The plaintiff said he could not work for less than seven days and needed to get his work done. While the plaintiff said his duties were the same he said that his responsibilities had increased since the accident and it took him more time to do: T44.5. He said he now runs the factory and is in charge all the time and that the work of the company had increased but there were the same number of personnel: T44.18-.41.
In cross-examination, the plaintiff confirmed that Allied Packaging was one of one or two firms that made the specialist packaging production which it did in Australia. He said it was a very competitive market and the work needed to be done on time in order to retain clients. The plaintiff gave evidence that the work and orders had increased substantially at the company and this necessitated him working longer hours seven days a week: T43.2; T43.31. This was reflected in the plaintiff’s increased salary.
The plaintiff said that he tries to spend two nights a week at the Point Clare house now with his family. He said when he does go home he has a hot shower and says hello to the children and sits in a recliner chair: T44.46-T45.11. He said otherwise Hannah does all the domestic duties at home. On occasions, the plaintiff said that when he gets home to spend time with the children, Hannah is not there.
The plaintiff then gave brief evidence in relation to the treatment he had received. He confirmed that following the accident he had received physiotherapy and whilst attempting to jog had experienced later a spasm in his leg. He said he was referred by his general practitioner to Dr Lunz who referred him for an MRI and to Dr Hannan who diagnosed dystonia. He said Dr Hannan treated his pain and dystonia condition with nerve block injections and Botox. The plaintiff was also referred to Dr Tay at the Prince of Wales pain clinic. He said he still saw Dr Tay and has followed the treatment recommended by his various doctors. The plaintiff said he had an arthroscopy of the ankle performed by Dr Lunz and had a pain pump inserted in his stomach to assist with his pain. When it became infected he had it taken out. He said he had about a week off when the pain pump was put in his stomach and a week off when it was taken out following the infection. He said this was taken as sick pay. The plaintiff gave evidence that he currently saw Dr Tay every three months and his general practitioner about twice a year. He said Dr Tay had given him nerve blocks and cortisone injections and more recently a radio frequency block which did not provide benefit to him: T47.21.
The plaintiff said Dr Tay's treatment had not reduced his pain or the frequency of the spasms: T47.44. The plaintiff confirmed that his current medications were Baclofen, Endep, Valium and Gabapentin. He said he took the medications daily and side effects included loss of memory, dizziness and fatigue. He said the Endep and Valium was taken at night and enabled him to have four to five hours sleep. He said he was not seeing any other doctors. The plaintiff reported the cost of the medications to him as being $40 per month.
Prior to the accident, the plaintiff said he had never thought of when he would retire: T49.6 He said Allied Packaging was his first job and he had never thought of leaving. He said it was a daily struggle to continue work but he had to provide for the five children. At present, his partner Hannah worked two days per week.
In relation to the plaintiff's spasms, he said that they came out of nowhere and could result in his toes clawing, his big toe facing up and his ankle inverting. He said that his calf went into spasm and the spasm continued up his leg to his hamstrings and then to his hip. On one occasion, his calf muscle tore about four years ago during a leg spasm. The plaintiff confirmed that he had ketamine infusions on two occasions a few years ago but the relief was for a very short period. The plaintiff said that the spasms included causing a burning or tingling sensation in the knee and they made his leg very sensitive.
During a leg spasm, the plaintiff described his pain as 10 out of 10 and he confirmed it was excruciating pain. He said he had difficulties squatting and the spasms had caused problems right up to his lower back where he felt a knot. A spasm would cause sharp pain which came and went. He said the spasms could occur while he was walking or sleeping and while he attempted to relieve it with hot water bottles and ice, this was ineffective. The plaintiff said that his leg swelled up every now and again particularly in summertime and there were changes in the colour of his leg. He said he had difficulties kneeling on his right leg and had to adjust his sleeping position to his left side with the assistance of a further pillow for comfort.
The plaintiff said that the accident had an effect on his family which made him “low” particularly in relation to his oldest daughter aged 12 who has autism. He said his partner Hannah attended to taking that daughter to occupational therapists and speech therapists. The plaintiff said that his altered circumstances had created tension between himself and his partner and he would like to spend more time with his family if he could, including assisting his partner Hannah with her domestic duties. The plaintiff said that prior to the accident he was a “hands on dad” and assisted his children with school work activities and with outdoor activities. He said he no longer did that.
The plaintiff said that prior to the accident the cooking was mostly done by his partner but both assisted with cleaning and washing duties. The plaintiff said he does not cook anymore as he gets home late and he has difficulties standing for periods in the kitchen: T55.42.
In relation to his bedding and accommodation at the factory at Revesby, the plaintiff said the bedding was taken home and was washed by his partner, the area was cleaned by the cleaners and in relation to meals, these were mostly prepared by his partner Hannah which he heated up in a microwave.
In cross-examination, the plaintiff confirmed that at the time of the accident he was the foreman at Allied Packaging and that he was living at Daceyville with his partner Hannah: T57.13-.22; T57.31. He also confirmed that at this time they had three children. The plaintiff confirmed that he did the work outside and his partner Hannah did most of the domestic tasks inside with him helping to some degree with cooking and laundry and cleaning when needed: T58.9-.43.
In relation to his work, the plaintiff confirmed that he had worked up to the position of foreman and at one stage had a forklift licence which he no longer still had. He accepted that he could renew the licence and could still drive a forklift when required. He said he had always had the same boss, Mr Phillips, and they had a good relationship. At the time of the accident, the plaintiff confirmed that he worked fulltime with overtime of about 17 hours: T60.14. The fulltime duties were from Monday to Thursday and with overtime on Friday and Saturday. Overall, the plaintiff worked 55 hours a week and his pay reflected that degree of overtime: T60.31. At the time of the accident, the plaintiff was the only foreman at the factory premises and the only person above him was the owner Mr Phillips who he reported to: T60-T61.
In relation to Allied Packaging, the plaintiff confirmed that it had been around since the early nineteen fifties, was a market leader in cardboard packaging and in the course of his experience at the company, he had acquired a technical skill. He confirmed that as the foreman, he scheduled the works and ensured that the orders were filled and these were conveyed to him once received by phone or email by the receptionist at the company. At the time of the accident, there were five to six employees and himself working at the factory: T62.4.
The plaintiff gave evidence that the work position had altered since the accident. The plaintiff said that there were “definitely” more orders, that business had boomed but that although there was substantially more work, there was tough competition. He said that Allied Packaging had increased its market share and that the volume of work had significantly increased since the accident in 2010 but that the business employed still the same number of people to complete the increased work: T62.41. The plaintiff confirmed that longer hours were required from the workers to complete the work and that the five to six employees were not the same as those in 2010: T62.45. He agreed that the quality of the employees varied and that it was a difficulty to train them and as a result the plaintiff had to work harder.
In relation to his superior and the owner of the business, Mr Phillips, the plaintiff confirmed that he was not at the business as often and that he relied on the plaintiff more. The plaintiff also stated that Mr Phillips was placing more reliance on the plaintiff it was necessary for the plaintiff to “step up” and take a greater role in supervising employees which he found stressful: T64.18. The plaintiff said that he did the work and that if he did not others would do it. The plaintiff agreed that due to his skill and knowledge he did a substantial amount of work and the increased hours lead to extra income. The plaintiff agreed to the increase in his earnings which has already been referred to above: T64-T65.
The plaintiff agreed that as the owner became more reliant on him, he had assumed a more important role in the business and he had more to do with suppliers and keeping on top of the orders. He agreed that his role had increased in the last two years and particularly since the company had moved to Revesby. The plaintiff also confirmed that he had a relationship with the suppliers and they rang up to talk to him and that in the last year he had gone out about four times with Mr Phillips to talk to suppliers. The plaintiff agreed that Mr Phillips was “grooming” him and that he had attended the meetings and become a point of contact. He said he did not deal with customers as these were filtered by the receptionist who passed the orders through to him. The plaintiff agreed that the work was increasing regularly and that he arranged the logistics of prioritising orders if urgent orders were needed to be completed: T6719-.30. Despite that, the plaintiff still performed an active role on the factory floor, operating machines, pushing the rolls of paper to load the machines and using the forklift or assisting others where they needed help: T67.32-T68.5. He said he juggled the orders to ensure they were completed on time and when necessary spoke to suppliers and liaised with Mr Phillips. The plaintiff said that he completed machine logbooks which were needed for each machine sometimes at the end of the day: T69.31.
The plaintiff confirmed that the machines operated from Monday to Thursday for 10 hours and they were shut down at 4pm. He said other machines where needed, operated from 4pm to 8pm. On occasions, the plaintiff agreed he worked a 15 hour day and said he rarely worked after 9pm, but had worked a 16 or 17 hour day if there was an order to fill. The plaintiff said he tried not to stop at the lunch break as he is back and leg occasionally seized up. He said he went to bed at 9pm and the above was the course of his work for the last couple of years. He confirmed that as a result of the increased workload his income had increased and he had become an integral part of the business. The plaintiff said that if Mr Phillips the owner was not there people came to him. The plaintiff also agreed that he was at most times happy with his work.
In relation to domestic matters, the plaintiff confirmed that he had not done any work around the house since the accident. When pressed on this as to whether he had done nothing at all, the plaintiff said “pretty much”: T71.50. When it was put to the plaintiff that his condition had improved as summarised in the report of neurologist Dr Sharpe following physiotherapy in the few months after the accident before his spasms had commenced, the plaintiff confirmed that the swelling had gone down but he was still in a lot of pain. He accepted that there was some improvement and he could walk more easily particularly after he stopped using the crutches but he had a limp. When it was suggested to the plaintiff that when the improvement occurred he could have done some domestic tasks around the house, the plaintiff said he was working and was busy and it was difficult because he was limping, his leg was bruised and he used ice to assist with the swelling and pain. Importantly, the plaintiff confirmed that his partner Hannah did the lion’s share of the domestic duties in the house both after and before the accident: T74.31. The plaintiff also confirmed that he had never done the lawns at any of the houses he had lived in since the accident.
The plaintiff was then cross-examined for some time about his changed living arrangements since the accident and the various houses he had moved to. The plaintiff confirmed that in 2013 he assumed responsibility for his two nieces. At this time he was living at Ramsgate. The plaintiff confirmed that on occasions during his relationship with his partner Hannah they had lived apart and shared custody but during the week Hannah looked after the children and he saw them at weekends when he was not working. The plaintiff confirmed that his work commitments reduced his time with the children and that was also the case now.
In relation to the present position, the plaintiff said his children were now 9, 12 and 16. He confirmed that they could dress and bathe themselves and could do their homework. He agreed that he did not have a lot of time now because of the pressures of his work. The plaintiff confirmed that he tried to get home on Saturday afternoon, particularly to spend dinner with the family either at home or out. He confirmed that he needed to work seven days a week as his role was a hands-on role and sometimes other people also worked on the weekend at the factory. He agreed that when he got home his emphasis was the children and to have dinner together as a family.
When it was suggested to the plaintiff that he could do some domestic tasks now if he was requested by his partner, the plaintiff said that he did not do any. He said he could probably try to put a load of washing on but did not: TT81.17. When it was put to him that he could wash the dishes, he said he would not do so and would get his children to do it. However he accepted that he could do it if necessary: T82.9. When it was suggested to him that he could do most things in the house if he wanted to, the plaintiff said he could not bend over to pick items up or kneel down. He agreed that he could do tasks such as dusting and accepted that he could do some tasks at home but does not as Hannah does it: T82.41. He agreed that he would have difficulty cleaning the bathrooms and that his spare time essentially was spent with the children and then he returned to work.
The plaintiff said that when he moved to Woy Woy, a house was rented and then his partner Hannah and the children moved into the house with him. Due to the commuting to Sydney, the plaintiff was up at 3:30am and left the house at 4am to get to work by 6am. The plaintiff said he did not undertake further overtime at night because of the length of the train journey. He agreed that when he was at Woy Woy he had no real time after he came home and that essentially he had dinner and went to bed, with his partner Hannah doing the domestic tasks. If he drove, he left at about 4am and spent some days at the factory as he was physically too tired to come home. He said this continued for two years and he had Sundays off unless he needed to work. While he agreed that he could have done some domestic tasks if asked in this period, he spent most of the time when home with the children. The plaintiff agreed that since moving to Revesby with the new factory location that he had worked seven days a week to the present time. He said he drove to and from Revesby to his house at Point Clare when he came home.
In relation to his medical conditions, the plaintiff agreed that his symptoms were highly variable and that he had been able to walk during the hearing to the witness box quite normally: T90.13. This was the court’s impression also. He agreed that at present he saw Dr Tay every three months and took medication. He agreed that he was “definitely” reluctant to have a spinal simulator inserted to assist with the pain: T90.31. He also agreed that his back pain came on later and was connected with his leg spasms. He agreed that at times he had no back pain and that it varied and came and went.
In re-examination, the plaintiff confirmed that the move to Woy Woy by his family was partly due to the fact that he thought he would have to leave work. This is reflected in what he said to doctors during consultations as early as 2015. The plaintiff said that his working was a “day-to-day thing” and that he was in a lot of pain to work but continued as he had five children to look after. He said his body was getting worse from his injuries and work: T95.25.
In relation to the hypothetical scenario put to him by counsel for the defendant where his partner left him a note to undertake a task, he said that he would get the children to do it. He said after work he was in physical distress with pain and needed to relax. He said he would ask someone else to do it if they were capable of doing it.
The plaintiff confirmed that despite him taking on more responsibility and communicating with suppliers he still spent more time working hands-on on the factory floor.
The plaintiff agreed that the current business environment for his employer was very competitive, there was a lot of pressure and they had recently lost a client. He said there are only a couple of businesses like theirs in Australia and, accordingly, there was continuing pressure on himself and his boss.
The plaintiff also confirmed that one of the reasons for him having to work longer hours was because of his leg spasms and his need to catch up. He said the spasms could last up to two hours, could occur at work, and if the work was not done, he would have to catch up when the spasms ceased. He said the spasms could last five minutes or much longer and if they occurred at work he would have to close the machine, lie on the ground and then catch up.

The plaintiff impressed me as a frank and honest witness. I did not perceive any exaggeration or embellishment by the plaintiff in the course of his evidence. At all times I formed a clear impression that the plaintiff was doing his best to give his evidence truthfully and completely to the best of his recollection. He made concessions where appropriate and resisted opportunities to tailor his evidence to improve his case. The plaintiff was also a fairly good historian, although he could not recall the precise times that he resided in certain premises and could not recall some medical appointments. This is not surprising having regard to the number of doctors he has seen. Overall, I accept the plaintiff as a witness of truth who generally gave reliable and accurate evidence.

Oral evidence of Ms Hannah Annesley

Oral evidence was given by Ms Hannah Annesley who is the partner of the plaintiff. The plaintiff and Ms Annesley have three children together aged 16, 12 and nine. She said she was presently working as a childcare educator part-time two days per week on the Central Coast and had known the plaintiff for 20 years since she was 16. She agreed that as at the date of the accident her youngest child was several months old and she was on maternity leave.
Ms Annesley was asked about domestic duties performed by the plaintiff as at the time of the accident in November 2010. In relation to the children, Ms Annesley said that the plaintiff was involved in everyday duties including looking after the children emotionally and physically and doing his fair share of parenting. In relation to duties outside the house such as the lawns, gardens and washing the car, Ms Annesley said that the plaintiff undertook these tasks prior to the accident. In relation to inside domestic duties, Ms Annesley gave evidence that the plaintiff and her shared domestic duties equally including cleaning, cooking, attending to the laundry and ironing. She said it was an arrangement of equal completion of domestic duties. She denied that prior to the accident she attended to the domestic duties alone inside the house.
After the accident, Ms Annesley gave evidence that she has completed all domestic duties and that the plaintiff's contribution has ceased. She assessed the extra hours at between eight to 10 hours per week with the latter figure being more appropriate when outside work was included. She said she initially attempted to do the outside domestic duties but now these were paid for. She said she did them at the beginning for about six months.
Ms Annesley gave evidence that the plaintiff began having spasms between three and six months after the accident and that following them, his personality changed, he was in more pain and he was tired. The plaintiff was also no longer as involved with the children's activities and did not assist with the children's sport. The plaintiff’s emotional issues cause problems with their daughter who has autism and also with their son. Ms Annesley said that she has now picked up a greater role in relation to the daughter with autism. This meant she could not go back to work as much. She assessed that the accident had caused her to take on an extra 20 hours per week in relation to the children including extra time with the daughter who has autism. This includes spending substantial time at the weekend. This appeared a high figure in the light of her estimate of an additional 8-10 hours of domestic assistance performed by her since the accident. I will consider this further below.
Ms Annesley was asked about the move to Woy Woy. She informed the court that this was in 2015. Various medical reports before the court suggest that it was in December 2014: see Exhibit A at pages 306 and 365. Ms Annesley said that at this time they were trying to work out what was best for them and on the Central Coast there was support for her from her grandparents who are now deceased.
Ms Annesley said that following the move to the Central Coast the plaintiff on coming home was exhausted. She said he would sit down and often fall asleep. At this time her hours of domestic duties did not change. However, they had someone undertake the lawn mowing. She said this was the same position today at their current house at Point Clare.
Ms Annesley confirmed that when the plaintiff came home she had seen his leg in spasm and it appeared to affect his whole body. She described it as like a seizure with the plaintiff's leg becoming very rigid. She said it could come on at any time and she did her best to support the plaintiff. She said a spasm could last from ten minutes to one hour. She said the plaintiff slept downstairs and on occasions she heard him scream out when he had a spasm. She confirmed that he was on medication.
Ms Annesley said that the plaintiff was not capable of going out more when he came home because of the amount of pain he was in. She said that he often was seen crying when he had a spasm. She described him as emotionally fragile, lacking coping skills and not being physically capable of doing things.
In cross-examination, Ms Annesley was asked about the period after the accident and before the plaintiff’s spasms commenced following the receipt by him of physiotherapy. She agreed that the plaintiff went from crutches to a leg boot but there was no improvement in his condition. She disputed that there was any significant improvement in his mobility and denied that he had very little limp and was mobilising well at this time. She also denied that there was any improvement in his condition and said that his position as at January 2011 was the same as in December 2010. This description by Ms Annesley was quite different to the history given to Dr Sharpe, neurologist, as set out in his report dated 19 December 2011 (Exhibit A page 480) when he said:

“I understand that he was referred to you [Dr Kyriazis] and that under your care he had a program of physiotherapy with a slow plan to return to work. At the end of three months there is only a little swelling of the ankle with some minor pain, but his walking was reasonably good.”

Ms Annesley confirmed that the plaintiff went back to work within a few days on crutches and then a boot. She could not recall in detail the timing in relation to physiotherapy and having the boot removed, but her recollection was that there was no improvement in the plaintiff's mobility. She said he was worse now.
Upon cross-examination, Ms Annesley confirmed that the plaintiff had undertaken no domestic work around the house at all since the accident and she had completed all domestic duties. She said that in her view he was not capable of doing any domestic duties. When it was suggested to her that he was capable of doing some domestic duties, Ms Annesley conceded this but said that he could not do any the way he was working and when he came home. When it was asked whether she was suggesting that he was not capable even of lifting a bag of clothes, Ms Annesley said that she “can’t comment”: T131.18. She said that from her observation the plaintiff was in chronic pain 24 hours a day and when he had the spasms he screamed out and was crying: T131.32. She did not know that the plaintiff pushed large rolls of cardboard at work: T132.2.
Ms Annesley confirmed that at the time of the accident they were living at Daceyville and she was living in the house and the plaintiff was working 55 hours a week with overtime and working six days per week. She disputed that when the plaintiff was working he did not undertake domestic duties prior to the accident. She agreed that prior to the accident the plaintiff spent time with the children and kept an eye on them and undertook the outside duties relating to the lawns and the garden.
It was put to Ms Annesley that in relation to inside domestic duties prior to the accident she was generally responsible for undertaking most domestic duties inside while the plaintiff occasionally assisted: see T58.9-.34. Ms Annesley disputed this and said that the plaintiff was much more involved. She agreed however that the plaintiff only had Sunday off from his work. When it was put to her again that she had more time to do domestic duties than the plaintiff prior to the accident, Ms Annesley said she had a newborn baby as well as a disabled child to look after. She agreed however that she was in the household for more time than the plaintiff. Ms Annesley said that she relied on the plaintiff to give support in relation to housework including the laundry.
Ms Annesley agreed that in 2013 the plaintiff obtained custody of his two nieces. She also agreed that for one and sometimes two nights per week on returning home from work he drove to Sutherland to collect his nieces for the purpose of taking them to access visits. She did not recall when the plaintiff came home but said he was working hard at the time. When it was put to Ms Annesley that the plaintiff undertaking such a lot of driving was inconsistent with him being incapable of assisting, she said that driving was different to domestic duties.
Ms Annesley was cross-examined in relation to her assessment of her undertaking an increase of between eight and 10 hours of domestic duties per week after the accident with the figure being 10 hours if outside duties were included. When it was put to her that this figure was a guess she disputed it and said that the figure was roughly about eight to nine hours excluding external duties. She agreed that now she did all the laundry, ironing, dishwashing, tidying, making the beds and cleaning the bathroom. She said she could not recall the plaintiff doing anything over the last 10 years or so since the accident and that she did not expect him to do anything: T136-T137 especially at T137.15.
Ms Annesley was asked whether the plaintiff assisted with ironing before the accident. She confirmed that he did for about an hour a week. The plaintiff's evidence was inconsistent on this issue. At T55.20 he said that he did not iron before the accident but at T82.27 the plaintiff said that he “partly did ironing before [his] injury”. When Ms Annesley was asked whether she meant that the plaintiff was currently incapable of ironing, she said he was “not capable of doing a lot”: T138.20. Ms Annesley said the domestic duties were not part of what the plaintiff does now.
Ms Annesley agreed that the hours the plaintiff worked had increased over time and that at Woy Woy he got up to leave for work at 4am carrying a work bag and worked a full day. She agreed that he was tired when he came home between 6pm and 7pm and rested and that she did the dinner and house work. She also confirmed that other than spending time with the children he went to bed early as he was getting up early. She agreed that when they moved to Woy Woy he was home less frequently and she would see him two or three times a week.
In relation to the current position, Ms Annesley confirmed that the plaintiff was working seven days a week, came home on Saturday afternoon and left for work on Sunday. This was the position including from when the business had moved to Revesby and that he had accommodation there. She confirmed that when he came home he spent time with the children and she did not expect him to do house work. Ms Annesley said he was tired after a heavy week. She agreed that she did not ask him to do any housework but if he was healthy she would have. She also agreed that in relation to the children their needs had changed over time and that they were independent as to self-care other than the smaller daughter.
Ms Annesley appeared to the court to be a confident witness who was generally making her best effort to give truthful evidence. She appeared to have a fixed view that since the accident the plaintiff was incapable of undertaking any domestic duties. She has taken it upon herself to complete all domestic duties since the accident and was firmly of the view that the plaintiff was incapable of doing anything at home. Her evidence was inconsistent with that of the plaintiff as to the division of labour in the household prior to the accident. Overall, while I accept that Ms Annesley was attempting to give complete and truthful evidence, I prefer the plaintiff's recollections to hers. The plaintiff's evidence as to the division of labour was more consistent with someone who worked six days a week with extensive overtime. Prior to the accident, Ms Annesley worked part-time but was on maternity leave. Even with a small child and a daughter with developmental difficulties, it is likely that she undertook far more domestic duties at the time than the plaintiff whilst the plaintiff provided some support to her with inside duties while he was working his long hours. Her evidence of her undertaking 20 more hours weekly with the children after the accident appears to be highly unlikely where the plaintiff was working 6 days per week before the accident: T60.31, T78.15 cf T124.30.

Oral evidence of Mr David Phillips

Oral evidence was given by Mr David Phillips, the owner and managing director of the company for which the plaintiff works, Allied Packaging Pty Ltd. Mr Phillips confirmed that the business was currently located at Revesby. He stated that he was 69 years of age and that he had acquired the company in 2000 and had become its managing director. He confirmed that it made packaging products particularly corner protectors in packaging and was the dominant manufacturer of that material in Australia. He said that the company was originally located at Botany and had moved to Revesby in June 2018. He said there were six to seven employees working on the factory floor operating five key machines.
Mr Phillips confirmed that the plaintiff had commenced as a junior machine operator and had become foreman about seven to eight years ago. This was different to the plaintiff's evidence. He said he was foreman at the time of the accident. Mr Phillips was somewhat vague about the date and I prefer the plaintiff's evidence on this issue.
Mr Phillips said he came upon the plaintiff at the scene of the accident shortly after as he was driving the same way. He said he stopped to assist the plaintiff. Since that time, Mr Phillips said that he had seen the plaintiff at the Prince of Wales Hospital pain clinic as his wife was also a chronic pain sufferer and was under the guidance of the Prince of Wales Hospital pain management team.
Mr Phillips gave evidence that he saw the plaintiff at the company premises and that he went often out to the factory floor. He said he had observed the plaintiff lying down many times with pain. He said the pain appeared to be random. He said he had seen the plaintiff’s leg in spasm.
When it was put to Mr Phillips that the company's income had increased since 2010 he said it had “plateaued”. This was despite his later evidence that the company's orders and business had increased substantially. Mr Phillips said that he planned to continue operating the company in the short term for a period of one to 2 years and had a goal of moving out of the company and selling it.
He confirmed that the plaintiff stayed some nights at the factory at Revesby and said that this was for the plaintiff’s “welfare”. He said the plaintiff's family lived on the Central Coast which was a long journey and a high risk one in the circumstances. He said he could see that there was a need for the plaintiff to be able to stay at the factory. He said the plaintiff staying at the factory did not relate to the profits of the company. He confirmed that accommodation for the plaintiff with a bed was made available at the factory at his initiative. This was to avoid the risk of travel.
In relation to the company's business, he said that usually the machines went off at 6pm but they could keep going until 8pm. He agreed that the plaintiff was at the factory late. He also confirmed that it was unnecessary for a person to be with a machine while it was operating the whole time. This was variable and some machines could be left for an hour or two while they were still functioning.
He confirmed that the plaintiff came back to work soon after the accident. Whilst he was clearly injured, the plaintiff appeared robust. Mr Phillips hoped the injury would be of a short duration but it had not proven to be and the plaintiff had got dystonia. He described the plaintiff's work effectiveness as between 80 to 100% and his individual performance had suffered with his injury. He agreed that the plaintiff’s time away from work relating to his injury would be recorded in the company’s sick leave record.
In cross-examination, Mr Phillips confirmed that he had bought the business and operated it since 2000 and that his plan was to sell the business in one to two years’ time.
He confirmed that when he acquired the business, the people in the factory knew what they were doing and that he gave commercial input to the business. He agreed that the plaintiff had worked up to his current position in the business and was “absolutely” a valued employee. He also agreed that the plaintiff had good communication skills, he got on with the people on the factory floor and he was good at what he did. Mr Phillips accepted that production at the company had increased since 2010 and that more product was produced since the plaintiff’s accident. He said that the business had stabilised and had gone into different directions while being the market leader in its field in Australia. He said that while there is competition for the company, it was mainly from overseas and that Allied Packaging was “virtually” the sole manufacturer of its line of cardboard products in Australia with 100% Australian product.
Mr Phillips agreed that the plaintiff was good at prioritising orders and where there were ad hoc orders which the company could manage, the plaintiff was able to deal with them including urgent orders if the order was not too big. Mr Phillips said that the company had “definitely” received more orders in recent times and that business was booming with more demand while the mix of work was different. He agreed that there needed to be flexibility in working in the company and that there was also a need for someone with knowledge of the whole process of manufacture.
Mr Phillips said that he had confidence in the judgment of the plaintiff and in his work with the other workers and that the plaintiff had not let him down. He agreed that the plaintiff was his second-in-command. He described him as having a “terrific knowledge” in relation to the machinery and the manufacturing methodology and that he was very important to the company. While he agreed that attempts were made to ensure there was a leading hand, he said that workers did not have the skills, knowledge and common sense of the plaintiff. He agreed the plaintiff only came to him for guidance if it was absolutely necessary and that the plaintiff kept the orders going out and dealt with problems including responsibility for overall management of the work of the machines. He said the plaintiff’s technical knowledge was good. He said the plaintiff occasionally used a forklift.
Mr Phillips agreed that the company's records showed that the plaintiff's income had increased progressively in recent years. While someone else handled the payment of wages he had a broad idea as to what was paid and said that in the 2019 financial year the plaintiff had had a 2% or 3% increase in his earnings. It was put to Mr Phillips that in the period 2014 to 2016 the plaintiff's income had jumped by $50,000 per annum. He said he was aware of this and it was as a result of the plaintiff working longer hours rather than taking any more responsibility. In relation to meeting with other companies, he agreed that in the last year he had taken the plaintiff along to meet other manufacturers of cardboard. He said he took the plaintiff along to see what other manufacturers were doing and to increase his knowledge. Mr Phillips said the plaintiff was a good worker and was keen to know more.

Mr Phillips seemed not to have detailed knowledge of the plaintiff’s working hours. However, he agreed that the plaintiff was working longer hours on the machines and did paperwork during and after business hours. When it was suggested to him that the plaintiff did more work now than he did three to five years ago he replied “possibly” (T116.22) and that he had not compared the hours. He agreed it was possible that the plaintiff worked seven days a week and on some occasions did not get home, but he was not aware of his precise movements. Mr Phillips conceded that the plaintiff working long hours was to his benefit but that he was rewarded for it. When it was suggested that the plaintiff could not commute sensibly while he was working such long hours he agreed, but said that staying at the factory was to meet his “welfare”. He agreed it was impossible to work very long hours and return home late to the plaintiff's residence at Point Clare and come back early the next morning. He said that staying at the premises of the factory avoided a danger to the plaintiff.
When asked about the running of the machines, Mr Phillips said the machines worked from 6am to 4pm but could work longer hours closer to 8pm. He said they could also have problems with the machines which required them to be repaired and then catch up work was needed after hours. Mr Phillips said he would have no hesitation in recommending the plaintiff as a dedicated loyal worker with good knowledge.
In re-examination, Mr Phillips said he thought highly of the plaintiff but his injuries were relevant.
Overall, I accept Mr Phillips as a witness of truth who was doing his best to assist the court. He had a very high opinion of the plaintiff and his loyalty, work performance and knowledge. He also appeared to put great faith in the plaintiff looking after the other workers and the orders that were given. I formed the impression that Mr Phillips left production matters largely to the plaintiff and did not have a close knowledge of the hours worked by him or what was done in the overtime period other than the manufacturing of product as ordered. In general terms, Mr Phillips made concessions where appropriate and I accept his evidence.
As stated, Mr Phillips gave evidence that he is 69 years old and hopes to sell the business in the next year or two as an ideal result.

The medical evidence

As was stated above, a voluminous amount of medical evidence was tendered in the course of the proceedings consisting of 100 medical or allied health reports in the joint tender bundle, Exhibit A. Whilst the court has reviewed all of the medical material in Exhibit A, it is necessary only to refer to the more important medical reports in these reasons.

Pre-accident history

The plaintiff was a professional rugby league player for some years prior to the accident before commencing with his present employer, Allied Packaging.
The medical evidence does not reveal an extensive relevant pre-accident medical history. The report of Dr Dalton, rehabilitation specialist, dated 29 June 2015 provides as follows:

“I have reviewed the medical records of Dr Kyriazis. These confirm that Mr Bushby had been seen by Dr Affleck on the 5th December 2008 after sustaining an injury to his right ankle. He reported sudden pain as he stepped over a ridge in the pavement at work and presented with a limp and marked tenderness over the right talofibular ligament in keeping with lateral ligament strain. No follow-up visits are recorded …”

The plaintiff also reported in the materials various ankle strains to the left and right ankles during his football career, none of which apparently caused him relevant ongoing issues.

The New South Wales ambulance report

A New South Wales ambulance attended the scene of the accident. The officer’s report (Exhibit A page 538) reveals that the ambulance was booked at 4:50pm and arrived on the scene at 5pm. The nature of the accident was referred to and more relevantly, there was no reported head injury and no loss of consciousness. The plaintiff was complaining about right ankle pain at the time he was seen by the ambulance officers and stated that his right ankle dislocated but was now back in place. It was also noted that the plaintiff did not complain of cervical or back pain.
The plaintiff was transported to Prince of Wales Hospital and arrived at 5:30pm. Other medical evidence (for example Dr Spira’s report dated 19 April 2018, Exhibit A page 250) notes that plain x-rays of the ankle were taken which revealed no evidence of fractures. The plaintiff was supplied with underarm crutches and discharged from the Emergency Department within an hour of his arrival.
Dr Spira sets out the following history:

“Mr Bushby informed that he remained in considerable pain within his right ankle and was unable to go to work on the following day. He did, however, resume work following the weekend, but remained on crutches at that time. His job was supervisory but he also operated machinery which he was unable to do due to his ankle injury. He remained at work at full-time but mainly supervised others.
Mr Bushby was seen by the WorkCover doctor some days after the accident and further radiographs were obtained. These again demonstrated no evidence of traumatic change. Mr Bushby was treated with physiotherapy and analgesics, primarily Panadeine Forte.
Mr Bushby continued to use the crutches for about two or three weeks and thereafter resumed independent gait but with a limp due to ankle pain.
Mr Bushby continued to note discomfort within the ankle and his general practitioner and physiotherapist found it difficult to explain why this was so.”

Prince of Wales Hospital and immediately thereafter

In the MAS Review Panel Certificate and Reasons dated 12 June 2018 which commence at page 209 of Exhibit A, the Review Panel from page 4 of their reasons (Exhibit A page 212) undertakes a detailed examination of relevant material up to that date. At page 8 of the report (Exhibit A page 216), the Review Panel refers to the Emergency Department records from 4 November 2010 which referred to mild swelling and tenderness about the right lateral malleolus of the ankle. The Review Panel also referred to a discharge summary which mentions moderate swelling and tenderness over the right lateral malleolus with an x-ray showing no fractures, although there was soft tissue swelling over the lateral malleolus. A diagnosis of ankle sprain was apparently made.
There is a reference to return to work documentation noting that the plaintiff had been provided with a support boot, physiotherapy and analgesia. It is said that the plaintiff was certified fit for specified restricted duties at fulltime hours.

The radiological evidence

MRI of the right ankle dated 11 April 2011

In Exhibit A was an MRI report by Dr Wendy Brown dated 11 April 2011. The MRI report noted that there was evidence of a previous ligamentous injury with tears of the deltoid, tibiofibular and talofibular ligaments. There was also a small osteochondral defect of the talar dome where there was a partial thickness cartilage loss. It is noted that the MRI was taken several months after the accident.

MRI of the brain dated 10 August 2011

An MRI report of the plaintiff's brain dated 10 August 2011 by Dr Williams showed essentially a normal report. This was ordered by Dr Hannan, a rehabilitation specialist, due to the plaintiff having spontaneous muscle spasms and dystonia.

MRI of the cervical and thoracic spine dated 15 August 2011

An MRI of the cervical and thoracic spine dated 15 August 2011 by Dr Kuan was in general terms normal.

MRI of the right ankle dated 20 October 2011

An MRI of the right ankle was reported on by Dr Linklater on 20 October 2011. This report referred to ligament scarring and a lateral talar dome osteochondral lesion. Dr Lunz, in a 24 October 2011 report, noted an injury to the plaintiff’s lateral ligament complex on his right ankle relying on this report.

MRI of the right ankle dated 22 May 2013

At page 552 of Exhibit A is an MRI report dated 22 May 2013 of the plaintiff's right ankle. Scarring to the plaintiff's right ankle ligaments was noted. It was also noted that features of posterior impingement had progressed compared to the previous MRI. The report was that of Dr Noakes.

Ultrasound right leg dated 7 January 2015

An ultrasound of the plaintiff’s right leg was reported on by Dr Hiew on 7 January 2015 with a history given of recurrent cramps and muscle spasm. This showed a 3.2cm tear consistent with a partial tear of one of the plaintiff’s calf muscles on his right leg. The plaintiff said this occurred during a spasm.

Reports of Dr Lunz

The plaintiff’s treating general practitioner referred the plaintiff for review to Dr David Lunz, a foot and ankle surgeon. Dr Lunz reviewed the plaintiff in the period from April 2011 (although the Review Panel noted an earlier report at Exhibit A page 216) until January 2014. A number of reports were provided by Dr Lunz to Dr Kyriazis, the plaintiff's general practitioner.
In his report dated 27 May 2011, Dr Lunz noted that the plaintiff had an MRI scan reported on by Dr Linklater which showed evidence of an injury to the lateral ligament complex as well as the deltoid ligament to the plaintiff's right ankle. Dr Lunz noted that the plaintiff had spasm in his peroneal tendons and an inability to invert his right foot. Forced inversion caused the plaintiff pain. Dr Lunz expressed the opinion that the plaintiff had developed a mild eversion dystonia as a result of the motor vehicle injury. Dr Lunz referred the plaintiff to Dr Hannan who he described as a “world expert on eversion dystonia” and said that this may require Botox injections into the peroneal tendons and a tri lock ankle brace.
In his report dated 14 October 2011, Dr Lunz noted that the plaintiff was being treated by Dr Hannan for his eversion dystonia with Botox and that it had improved significantly, although the plaintiff still complained of pain about his right ankle which fluctuated in intensity. Dr Lunz said that the plaintiff reported requiring regular analgesics. Dr Lunz also noted that the dystonia was much better and the ankle itself was not as painful but there was some continuing pain.
In a report dated 24 October 2011, Dr Lunz noted the repeat MRI showed an injury to the lateral ligament complex as well as the deltoid ligament complex. Dr Lunz said he was not keen to undertake surgery as this could trigger the eversion dystonia.
In a report dated 13 February 2012, Dr Lunz noted that the plaintiff had been having continued trouble with his leg with spasms. Dr Lunz stated:

“This is a very rare condition and very few doctors understand much about dystonia. There are not many people who have any insight into the condition but it is certainly a real condition. Ron's pain needs to be managed appropriately but the dystonia needs to run its course and he will need to see Dr Hannan again.”

In a report dated 11 June 2012, it was noted that the plaintiff’s ankle joint was in pain and in spasm of the peroneal tendons. After referring to the radiological investigations, Dr Lunz stated that the scans showed evidence of injury to the ankle joint with evidence of posterior impingement, tendinosis and tendinitis. He noted that his diagnosis of eversion dystonia was confirmed by Dr Hannan. Dr Lunz expressed the opinion that the plaintiff sustained a subtalar joint dislocation on the right ankle which corrected itself. He also said that the plaintiff injured a number of ligaments in the right ankle in the accident and sustained a defect of the lateral talar dome bone in the right foot which subsequently led to an eversion dystonia. Dr Lunz noted that the plaintiff may require some assistance with domestic duties as a result of the accident, particularly gardening and domestic chores otherwise there would be developing pain by prolonged walking and standing. He noted that although the plaintiff was fit for work, the eversion dystonia was a more complex condition that could be prolonged for many months and may require repeated episodes of treatment.
In a report dated 30 May 2013, Dr Lunz noted that the plaintiff had been attending the pain clinic at Prince of Wales Hospital under the care of Dr Tay and that he was currently on Endep, Panadeine Forte and Gabapentin. The plaintiff reported ongoing pain and locking of the right ankle with an examination by Dr Lunz showing fairly global ankle tenderness. Dr Lunz expressed the opinion that the plaintiff had a complex regional pain syndrome, a dystonia, impingement and a lesion of his talar dome in his right foot.
In a report dated 1 August 2013, Dr Lunz reported on a right ankle arthroscopy in which a small loose chondral body was removed.
In a report dated 15 August 2013, the plaintiff noted that his foot had a lot of swelling which had now settled but he reported an episode of dystonia.
In a report dated 20 January 2014, the plaintiff noted a flare in his pain and having good days and bad days. While the plaintiff’s ankle moved freely and his impingement was negative, he had pain and continuing dystonia.

Reports of Dr Tay, pain specialist

The plaintiff was referred to Dr TG Tay, a pain specialist at the Prince of Wales Hospital pain management clinic. Dr Tay provided a number of reports for the period from 2012 to 2017 which were part of Exhibit A.
Dr Tay expressed the opinion that the plaintiff had a right lower leg complex regional pain syndrome type 1 which he assessed and managed for the plaintiff. Dr Tay is consistent in his assessment of a complex regional pain syndrome type 1 (“CRPS”) in his various reports and notes that the plaintiff reported deep pain in his right lower leg below the knee and in his ankle. In his 30 November 2012 report, Dr Tay said that the plaintiff's symptoms “correlated to early onset of CRPS”. In his report dated 8 March 2013, Dr Tay said that further surgery on his ankle should be discouraged unless there is a definite organic cause. In his report dated 22 March 2013, Dr Tay noted that the plaintiff reported increased pain compared to six months ago but there were no obvious objective findings that the CRPS had worsened.
In his 7 May 2013 report, Dr Tay noted that the plaintiff complained of pain in the ankle, hamstring and also in the right lower leg associated with dystonia and locking of his right ankle intermittently which lasted for a few minutes. Dr Tay said it may be worthwhile to explore the option of a spinal cord stimulator to modulate the plaintiff's pain and prevent further deterioration.
In his report dated 11 June 2013, Dr Tay noted that the plaintiff complained of a constant background pain in the right ankle and also intermittent locking pain associated with inversion dystonia which did not appear to be interfering with his work. In a report dated 21 January 2014, Dr Tay noted that on examination the plaintiff’s inversion dystonia in his right ankle and foot had worsened. In his report dated 21 February 2014, Dr Tay confirmed the right leg complex regional pain syndrome type 1 but that the plaintiff was functionally stable. In his report dated 23 May 2014, Dr Tay noted that the plaintiff reported his right leg pain had been gradually worsened but he was still able to keep up with his work. He noted that no apparent dystonia was detectable by him.
In a report dated 11 March 2015, Dr Tay referred to the plaintiff having a partial tear of his right calf muscle spontaneously at the beginning of 2015 which had aggravated his usual right leg or foot pain and CRPS. He noted that the option of a spinal cord stimulator had been considered and discarded because of the plaintiff’s heavy work.
In a report dated 9 November 2016, Dr Tay noted the plaintiff having two types of pain, a constant and deep sharp pain inside the right ankle and secondly, an episodic and right lower leg pain triggered by movement or which could occur spontaneously and lasting for hours. He noted that more recently the plaintiff’s pain and dystonia problems had become worse and were not responding to high doses of oral medications or repeated injection blocks. He recorded that the plaintiff’s sleep was disturbed by pain and dystonia. Dr Tay expressed the opinion that the plaintiff's right leg pain and dystonia was consistent with a diagnosis of complex regional pain syndrome type 1. He said this commonly occurred after a minor injury following a period of immobilisation and was thought to be caused by central nervous system sensitisation and cortical re-organisation. Dr Tay expressed the opinion that the progress for the plaintiff's complete recovery was very poor and there was no curative treatment for the pain syndrome. He said the plaintiff required ongoing advice and treatment from a multidisciplinary pain team including a psychologist, physiotherapist and occupational therapist. Dr Tay was of the view that the accident had contributed to the onset of the plaintiff’s pain syndrome and functional impairments and that the majority of pain syndromes occur in the distal part of the extremities after a minor or major trauma.
The diagnosis of a complex regional pain syndrome type 1 was made by Dr Tay in his report dated 6 November 2017 and he stated that the plaintiff required ongoing lifelong multidisciplinary treatment. He said his prognosis for the plaintiff’s pain and dystonia had not changed. There are no later reports of Dr Tay in evidence.

Reports of Dr Scott Hannan

Dr Lunz, the plaintiff’s treating foot and ankle surgeon, referred the plaintiff for review to Dr Scott Hannan, a specialist in rehabilitation medicine. There are references in a number of reports to Dr Hannan being a specialist in the treatment of dystonia. Dr Hannan treated the plaintiff from 2011 until 2014 when he apparently retired. Initially, the plaintiff was referred to Dr Hannan for review of “his painful right ankle”: Exhibit A page 484. In his initial report dated 14 June 2011, Dr Hannan described the plaintiff's presentation as follows:

“He presents with peroneal muscle spasm though describes extremely painful episodes of inversion/plantar flexion spasm, usually in the evening or at night. Aside from his motor vehicle accident he has no history of trauma or any neurological signs or symptoms other than “rolling his ankle” once or twice while playing rugby league but that was over 6 years ago”: Exhibit A page 484.

In his report dated 14 June 2011, Dr Hannan noted that there were no changes to suggest the plaintiff had a complex regional pain syndrome at that time, but he recorded gross restriction of movement in the hind foot with a fairly poor range of inversion as well. Dr Hannan stated as follows:

“These signs and symptoms are typical of an eversion dystonia secondary to peripheral trauma. However, he is quite adamant that when his foot goes into severe spasm his foot inverts and dorsiflexes, suggesting that there is a dynamic inversion posturing as well as part of his dystonic process. I have seen this pattern spasm in agonist or antagonist muscles before, but mainly in the upper limb … I believe as you do that this gentleman has a dystonia of his ankle, with spasm of his peroneus longus, brevis and tertius and extensor digitorum longus. The history and examination matched the other 20 or so cases that I have treated like this in the past. The inversion component he complains of complicates things. However, the fact that his dystonia came on many months after the initial injury is still consistent with dystonia secondary to peripheral trauma, as the definition is applied to any dystonia occurring up to one year after significant injury to a limb.”

Dr Hannan described the plaintiff's condition as “a severely debilitating condition, which will start to interfere with what work and physical exercise he can do”: Exhibit A page 487.
By report dated 2 August 2011, Dr Hannan noted that he had injected the plaintiff's right ankle with Botox which he describes in his report as due to the eversion of the ankle. He noted on examination that there was spasm in the plaintiff’s right foot. Dr Hannan added:

Counsel for the plaintiff in paragraph 111 of his submissions seeks a continuing claim for the next five years at seven hours per week at $31.03 per hour equalling $50,284.11 under s 15B of the CLA. This is on the basis that the plaintiff’s youngest child is nine: paragraph 9.1.2 of Ms Cogger's last report: Exhibit A page 167. Ms Cogger only recommends the assistance for three years.
I do not allow this claim for the same reasons. Over this period the plaintiff will likely continue his long hours and some limited commuting. He will have little time to provide the services claimed to the level satisfying the statutory intensity requirement.

Future loss of earning capacity

In paragraphs 67-88 of his written submissions, counsel for the plaintiff submits that the plaintiff has suffered a substantial loss of future earning capacity which should be compensated for by making a substantial buffer award for the period to age 60 and then a total loss of earning capacity for the period from age 60 to age 70. In the alternative, a substantial buffer should be allowed for the whole period to which superannuation should again also be added.
The defendant agrees that a buffer should be awarded but submits that only a buffer of $100,000 should be allowed. The essential basis for this submission is that since the accident, “the plaintiff has demonstrated a significant work capacity, has increased his managerial skills and responsibilities, all the time accommodating the variable effects of his injury”: written submissions paragraph 47. Weight is placed on the plaintiff working longer hours since the injury and him substantially increasing his earnings: written submissions paragraph 8. It is said this is mainly due to the plaintiff working longer hours to deal with the increasing orders to the business. It is also said that the plaintiff’s skills would suggest he will be in demand with employers.
In general terms, I prefer the substance of the plaintiff’s submissions on this issue but with a future retiring age of 67 not 70.
In considering this issue, I take into account:

That employment at Allied Packaging has really been the plaintiff's only career and that he is essentially a one employer person;

The plaintiff has no formal skills or qualifications and has essentially been primarily a blue-collar worker. While he is an impressive man as far as his work ethic goes, he has limited managerial experience;

The evidence of the plaintiff’s employer, Mr Phillips, that he hopes to sell the company in the next one to two years if possible. Mr Phillips also noted that in his view the plaintiff worked anywhere between 80% and 100% of his efficiency due to his injuries;

That the plaintiff’s dystonia is regular and to some degree the symptoms are worsening. As stated above, I accept the plaintiff’s evidence on this issue. I also accept the plaintiff’s evidence that his regular spasms require him to make up his lost working hours. It seems and I infer from the level of the plaintiff’s pay that he is still paid for the lost hours resulting from his injuries;

That it is uncertain whether the plaintiff would be able to continue his position either with the purchaser of the business or with another similar company having regard to his medical condition. A new employer may be accommodating but may also not want an injured worker with regular spasms remaining on the factory floor;

The extensive medical evidence that the plaintiff should be on restricted duties and not working the extensive hours which he is currently working;

The plaintiff’s increased working hours, increased pay and him taking on more management tasks (albeit to a limited degree).

Damages for the loss of future earning capacity under MACA are governed by s 126 of MACA which provides as follows:

“126   Future economic loss—claimant’s prospects and adjustments
(1)  A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant’s most likely future circumstances but for the injury.
(2)  When a court determines the amount of any such award of damages it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events concerned might have occurred but for the injury.
(3)  If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.”

In Sretenovic v Reed [2009] NSWCA 280, McColl JA stated as follows at [79]-[81]:

“[79] I turn then to the issue of future economic loss. The primary judge’s finding in this respect was also tainted by reason of the erroneous findings I have identified. It was also, in my view, inappropriate for his Honour to assess the impairment of the respondent’s future earning capacity over the entire period of his anticipated working life. Rather this was a case where, as the appellants submitted, a buffer should have been awarded.
[80] Compensation for lost earning capacity is awarded because diminution in an injured plaintiff’s earning capacity “is or may be productive of financial loss”: Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 (at 347). It is incumbent upon the plaintiff to prove the loss for which compensation is claimed: Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402 (at 412).
[81] It is appropriate to award damages by way of a buffer, including in a case such as this where damages are to be determined pursuant to the Civil Liability Act, when the impact of the injury upon the economic benefit from exercising earning capacity after injury is difficult to determine. In such a case where the plaintiff has an earlier demonstrated earning capacity, the court undertakes a comparison between the economic benefits the plaintiff derived from exercising that earning capacity before injury and the economic benefit derived from exercising earning capacity after injury, although the difference cannot be determined otherwise than by the broad approach of a buffer: Penrith City Council v Parks [2004] NSWCA 201 (at [3]–[5]) per Giles JA; applied K-mart Australia Ltd v McCann [2004] NSWCA 283 (at [62]) per Pearlman AJA (Handley and Ipp JJA agreeing); see also Hornsby Shire Council v King [2005] NSWCA 67 (at [23]) per Ipp JA (Mason P and Brownie AJA agreeing); Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 (at [33]) per Hodgson JA (McColl JA agreeing). In the latter case Mason P (at [2]) opined that “a buffer or cushion award is usually reserved to the situation where there is a smallish risk that otherwise secure employment prospects may come to an end, in consequence of the tort-related injury, at some distant time in the future”.”

In Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13, McColl JA stated the following at [6]-[9]:

[6] The circumstances in which damages by way of a buffer are appropriate was summarised in Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99; (2008) 172 IR 453 (at [84]) per McColl JA (Mason P and Beazley JA agreeing), a case in which a challenge to a buffer of $120,000 failed, as follows:
84 As to the future economic loss, it is appropriate to award damages by way of a buffer, including in a case such as this where damages are to be determined pursuant to the Civil Liability Act , when the impact of the injury upon the economic benefit from exercising earning capacity after injury is difficult to determine. In such a case, the Court still undertakes a comparison between the economic benefits the plaintiff derived from exercising earning capacity before injury and the economic benefit derived from exercising earning capacity after injury, although the difference cannot be determined otherwise than by the broad approach of a buffer: Penrith City Council v Parks [2004] NSWCA 201 (at [3]–[5]) per Giles JA; applied K’mart Australia Ltd v McCann [2004] NSWCA 283 (at [62]) per Pearlman AJA (Handley and Ipp JJA agreeing); see also Hornsby Shire Council v King [2005] NSWCA 67 (at [23]) per Ipp JA (Mason P and Brownie AJA agreeing); Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 (at [33]) per Hodgson JA (McColl JA agreeing). In the latter case Mason P (at [2]) opined that “a buffer or cushion award is usually reserved to the situation where there is a smallish risk that otherwise secure employment prospects may come to an end, in consequence of the tort-related injury, at some distant time in the future”, but, with respect, the accepted wisdom appears to be that a buffer can be deployed in circumstances such as the present.

[7]  The award of a buffer for future economic loss in circumstances “where earning capacity has unquestionably been reduced but its extent is difficult to assess” reflects the proposition that, to paraphrase, the want of precise evidence “does not necessarily result in non-recovery of damages”: New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536 (at [87]) per Heydon JA. It must also be taken into account, when considering the appellant’s complaint about the adequacy of the claims assessor’s reasons for quantifying the buffer, that the task of assessing damages for lost earning capacity is “necessarily impressionistic”; Brear v James Hardie & Co Pty Ltd [2000] NSWCA 352; (2000) 50 NSWLR 388 (at [49]) per Mason P (Spigelman CJ and Priestley JA agreeing).
[8]  While, as Giles JA said in the Nominal Defendant v Lane (at [67]), “s 126 is presumably intended to promote intellectual rigour”, the authorities recognise that, whether in the s 126 context or when applying common law principles of assessment of damages as to future hypothetical scenarios, there is a point at which, even with the application of the requisite degree of intellectual rigour, an element of impression must be involved. The claims assessor properly arrived at this point once he had made the minimum factual assumptions necessary for the s 126 exercise. The appellant has not identified any legal error in the award of the buffer.
[9]  The foregoing should not be seen as a licence to award buffers indiscriminately. Where the evidence enables a more certain determination of the difference between the economic benefits the plaintiff derived from exercising earning capacity before injury and the economic benefit derived from exercising that capacity after injury, recourse should not ordinarily be had to the award of damages for future economic loss by way of a buffer. Each case must turn on its own facts.

See also Basten JA at [27]-[30] and Macfarlan JA at paragraph [66]-[67].
Accordingly, compensation for loss of future earning capacity is awarded because diminution in an injured plaintiff's earning capacity “is or may be productive of financial loss”. When one looks to the future in relation to loss of earning capacity, there is a degree of uncertainty and damages are difficult to assess. However, that does not necessarily result in non-recovery of damages. The task of assessing damages for lost earning capacity is “necessarily impressionistic”. A buffer may be appropriate where there has been a clear injury to the plaintiff which has unquestionably reduced earning capacity but the calculation of the amount is difficult. Such a buffer may be substantial in an appropriate case.
In my view, the plaintiff’s most likely future circumstances but for the injury are as follows:

The plaintiff would have remained working for Allied Packaging as the foreman as long as possible and if the business was sold, would seek to remain working for the purchaser in the same role. The plaintiff’s work ethic and efficiency make it likely that he would be retained by a new employer;

If he could not remain working for the purchaser, he would have sought a similar role with another company. He may have experienced some difficulties or delays obtaining a position due to his lack of qualifications and the industry being competitive;

Having regard to the high earnings of the plaintiff, it is likely that he would retire at 67 at the latest as he would have significant superannuation to rely on. I choose this date rather than 70 years of age as the plaintiff claims as the plaintiff's work is heavy and involves considerable physical effort which would be more difficult as he gets older. His children would also be adults by this stage and therefore likely independent. I accept the defendant’s submission on this issue;

It is likely that the plaintiff would have continued working six days per week as he did prior to the accident, but may have worked further overtime for all or part of a seventh day on occasions if the demands on the business for jobs were extensive and there was no alternative. However, the plaintiff is a strong and supportive family man and I think he would have avoided work on Sunday unless it was clearly required and necessary. I consider he works longer hours now partly because of his uncertain working future due to his injuries.

The plaintiff’s future working circumstances are quite uncertain. Mr Phillips said that he would try and sell the business in one to two years but of course he may hold it for longer. It may be that he will have difficulty selling it and will take a smaller role in the ongoing business. A purchaser may highly value the plaintiff upon the recommendations of Mr Phillips and retain him despite his current injuries. However, a purchaser also may not want to retain someone who is injured or seek to introduce slowly another replacement foreman.
In the end, the plaintiff's submission supporting a buffer for the period from now until the plaintiff attains the age of 60 years is persuasive and I accept it. In my view, the defendant’s submission places too much emphasis on the plaintiff’s current working hours and his minimal managerial skills and not enough weight on the plaintiff’s worsening spasms and his need to work to make up lost time. I accept the plaintiff’s evidence as to each of these matters. In relation to the period from 60 to 70, I am not persuaded that the plaintiff would work beyond 67 years as I have indicated. Accordingly, in my view the damages for loss of earning capacity are to be assessed having regard to these findings.
In paragraph 68 of his written submissions, counsel for the plaintiff submits that the economic loss documents establish in the schedule of income that the plaintiff in 2018 had a gross income of $225,059 which relates to a net weekly income of $2,802.40. It is submitted that subject to a deduction for the Medicare levy, this was the plaintiff's income to be taken into account. However, the plaintiff gave evidence that he was working over six days per week for this amount. But for the accident, it is assumed that the plaintiff would only have worked six days per week unless there was an exceptional requirement to work longer hours in the short term because of particular orders. Also it seems the plaintiff is paid both for his lost working hours and the hours to make them up. I infer this from the plaintiff’s current high salary which in my view can only logically be explained on this basis. The annual amount claimed by the plaintiff is less than the maximum amount of earnings that can be claimed as at 1 October 2019 under s 125 of MACA as indexed.
As the plaintiff has five children to support and a partner who works part-time and provides significant domestic assistance, I find that there is a strong incentive for the plaintiff to continue working for as long as possible subject to his injuries. However, in general terms the balance of the evidence is that the plaintiff's prognosis is poor in relation to the ability to continue working at this level in the longer term. I accept the plaintiff's submission in this regard in paragraph 76 of his written submissions. See in particular, the opinions of Dr Couch and Dr Dalton. I find that it is most likely that he will retire from his employment early and by 60 due to his ongoing condition which appears to be worsening with greater frequency and duration of spasms and that his retirement will be 7 years prior to when he would otherwise have retired. It must be recalled that the plaintiff has in effect not worked for a previous employer and has no technical qualifications but has significant practical experience in a fairly limited industry.
As I have indicated above, I find that it is likely that the plaintiff would have retired at aged 67 and not at age 70 as the plaintiff submitted but for the accident. I accept the submission of the plaintiff that on the whole of the evidence it is reasonable to find that the plaintiff would retire at age 60 because of the accident. As I have indicated, I also believe that some reduction should be made to the $2,802 net per week because the plaintiff would likely not have worked more than six days a week but for the accident. The defendant submits that $1,500 should be adopted (written submissions paragraph 61). I would allow $1,900 net per week from age 60 to age 67. This takes into account the plaintiff currently working seven days per week and longer hours on other days to make up lost time due to his injuries. This amounts to $587,860 (1,900 times multiplier 309.4) which should be further reduced by 15% for vicissitudes equalling $499,681.
I accept the submission that having regard to these findings the amount needs to be deferred for a further 19 years ($499,681 times multiplier 0.396) which equals $197,873.67. Superannuation should be added to this amount at 12% making a total amount of $221,618.51.
I then need to consider the period between the present and age 60. I accept and prefer the submission of the plaintiff that he is very likely to suffer ongoing loss in this period and therefore an allowance has to be made (written submissions paragraph 86).
Having regard to all of the evidence, I accept the submission of the plaintiff that the amount to be allowed should be $300,000, having regard to the worsening nature of his spasms and the risk of the plaintiff not obtaining employment due to his injuries once the business he is working in of Allied Packaging is sold which may be in approximately one to two years’ time, although there may well be delays. The amount of $300,000 also takes into account the plaintiff’s historical high net annual earnings as reflected in Exhibit E. The defendant’s figure of $100,000 does not appear realistically to reflect these earnings or the plaintiff’s struggle to continue working despite his injuries. Superannuation again at 12% should be added. Accordingly, I would allow the sum sought of $336,000 for the period from the date of assessment until the age of 60. The total amount for the plaintiff for loss of future earning capacity and superannuation is therefore $557,618.51.

Total of damages awarded

Non-economic loss

Nil

Past out-of-pocket expenses

$121,529.30

Future out-of-pocket expenses

$30,491.00

Past economic loss and loss of earning capacity together with the Fox v Wood component

$16,655.47

Past commercial assistance (lawn mowing)

$4,340.00

Past domestic assistance

to be calculated by the parties

Future domestic assistance

to be calculated by the parties

Past and future childcare assistance

to be calculated by the parties

Future loss of earning capacity

$557,618.51

Contributory negligence

A deduction for contributory negligence has been agreed between the parties. This should be made.
My calculations should be checked by the parties.

Disposition

I make the following orders:

Judgment for the plaintiff.

The defendant is to pay the plaintiff’s costs of the proceedings as agreed or assessed.

Liberty to the parties to seek a different costs order to (2) above within 14 days.

The parties are to bring in agreed short minutes of order reflecting the reasons for decision and the agreed deduction for contributory negligence.

Liberty to apply to the Associate to Dicker DCJ to relist the matter if agreement cannot be reached as to the appropriate orders or if there need to be corrections to the calculations.

**********

Decision last updated: 05 December 2019

Medium Neutral Citation:	Bushby v The Nominal Defendant [2019] NSWDC 733
Hearing dates:	24-27 September 2019; 12 November 2019 (last written submissions); 21 November 2019 (oral submissions)
Date of orders:	04 December 2019
Decision date:	04 December 2019
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	(1) Judgment for the plaintiff. (2) The defendant is to pay the plaintiff’s costs of the proceedings as agreed or assessed. (3) Liberty to the parties to seek a different costs order to (2) above within 14 days. (4) The parties are to bring in agreed short minutes of order reflecting the reasons for decision and the agreed deduction for contributory negligence. (5) Liberty to apply to the Associate to Dicker DCJ to relist the matter if agreement cannot be reached as to the appropriate orders or if there need to be corrections to the calculations.
Catchwords:	Torts – negligence – motor vehicle accident – liability not in dispute and contributory negligence percentage agreed – extent of the plaintiff's injuries arising from the accident – voluminous medical opinions expressing different views – domestic assistance – childcare assistance - loss of future earning capacity
Legislation Cited:	Civil Liability Act 2002 (NSW) Motor Accidents Compensation Act 1999 (NSW)
Cases Cited:	Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 Sretenovic v Reed [2009] NSWCA 280 White v Benjamin [2015] NSWCA 75
Category:	Principal judgment
Parties:	Ronald Noel Bushby (Plaintiff) The Nominal Defendant (Defendant)
Representation:	Counsel: K Andrews (Plaintiff) J Catsanos SC (Defendant) Solicitors: LHD Lawyers (Plaintiff) Moray & Agnew (Defendant)
File Number(s):	2014/00262312

Non-economic loss	Nil
Past out-of-pocket expenses	$121,529.30
Future out-of-pocket expenses	$30,491.00
Past economic loss and loss of earning capacity together with the Fox v Wood component	$16,655.47
Past commercial assistance (lawn mowing)	$4,340.00
Past domestic assistance	to be calculated by the parties
Future domestic assistance	to be calculated by the parties
Past and future childcare assistance	to be calculated by the parties
Future loss of earning capacity	$557,618.51