Caterson v Insurance Australia Limited - [2013] NSWDC 221

District Court

New South Wales

Case Title: Caterson v Insurance Australia Limited

Medium Neutral Citation: [2013] NSWDC 221

Hearing Date(s): 17 & 18/10/2013; last submissions 15/11/2013

Decision Date: 18 November 2013

Before: Levy SC DCJ

Decision:
1.Verdict and judgment for the plaintiff in the sum of $1,141,833.63;

2.The defendant is to pay the plaintiff's costs on the ordinary basis unless otherwise ordered;

3.The exhibits may be returned;

4.Liberty to apply on 7 days notice if further orders are required.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: DAMAGES - assessment of claimed heads of damage following injuries received by the plaintiff in a motor vehicle accident;

Legislation Cited: Evidence Act 1995, s 60
Motor Accidents Compensation Act 1995, s 113, s 136, s 141B

Cases Cited: Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13
Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25
Sharman v Evans [1977] HCA 8; (1977) 138 CLR 653

Category: Principal judgment

Parties: Kenneth Allen Caterson (Plaintiff)
Insurance Australia Limited t/as NRMA Insurance (Defendant)

Representation

- Counsel: Mr A Lidden SC with Ms E Welsh (Plaintiff)
Mr J Gracie (Defendant)

- Solicitors: Brydens (Plaintiff)
Hunt & Hunt (Defendant)

File Number(s): 2011/176437

Publication Restriction: None

Judgment

Table of Contents

Nature of case [1] - [4]

Issues [5]

Credit [6]

Facts [7] - [100]

Plaintiff's background circumstances [8] - [24]

Injuries [25] - [27]

Treatment [28] - [32]

Subsequent treatment and medical and allied reviews [33] - [80]

Analysis of conflicting medical opinions [81] - [90]

Disabilities [91] - [99]

Mitigation [100]

Assessment of damages [101] - [161]

Plaintiff's probable life span [102]

Past economic loss [103] - [119]

Past loss of superannuation [120]

Fox v Wood [121] - [122]

Future economic loss [123] - [133]

Future loss of superannuation [134]

Past domestic assistance [135] - [145]

Future domestic assistance [146] - [152]

Future treatment [153] - [159]

Past out-of-pocket expenses [160]

Summary of damages assessment [161]

Disposition [162]

Costs [163]

Orders [164]

Nature of case

At about 8.30am on Wednesday 4 June 2008, the plaintiff, Kenneth Caterson, was injured in a major head-on motor vehicle accident that occurred on the Picton Road, Mt Keira, NSW.
At that time the plaintiff was driving a prime mover and an attached empty fuel tank trailer when he was struck by a Chubb armoured security van that had crossed over onto its incorrect side of the roadway out of control and into the plaintiff's path. The plaintiff could see that there was going to be a collision which turned out to be horrendous. His semi-trailer tanker jacknifed against the cabin of the prime mover. There was nothing he could have done to avoid the collision. The plaintiff's vehicle was declared a total loss. The aftermath of the collision is evident from a photograph taken at the scene: Exhibit "B".
The plaintiff has brought these proceedings against the insurer of the other vehicle, Insurance Australia Limited (trading as NRMA Insurance) claiming damages for personal injury because the other driver had been negligent. The defendant has admitted liability for the plaintiff's injuries.
The proceedings are governed by the Motor Accidents Compensation Act 1995 ["MAC Act"]. The defendant insurer has been joined to these proceedings pursuant to s 113 of the MAC Act because the driver of the other vehicle was killed in the subject accident.

Issues

Essentially, the issues in the case concerned the state of the plaintiff's pre-injury health, the extent of his injuries from the subject accident, his residual disabilities, and relevance of those matters to the extent of the plaintiff's entitlement to damages.

Credit

The plaintiff and his wife were the only witnesses who gave oral evidence in the proceedings. Their evidence was not the subject of any credit challenges. In my assessment, they gave their evidence honestly and truthfully. I considered that their evidence was believable, not otherwise improbable, and therefore, reliable.

Facts

In the paragraphs that follow, and unless otherwise qualified, I set out my findings of fact concerning the plaintiff's background circumstances, the nature of the plaintiff's injuries, the treatment he received, the details of the medical and allied assessments of the plaintiff, his remaining disabilities, and the issue of mitigation.

Plaintiff's background circumstances

At the time of the accident the plaintiff was aged 55 years. He was aged 60 years at the time of the hearing. He has been married for 41 years and has 3 independent adult children. But for the accident, it was his intention to work until the age of 70 years. He used his work in order to fund his interest in travel.
In 1969 the plaintiff had completed his formal education to Year 10 level. He has worked as a driver of heavy vehicles for the majority of his working life. In 1969 he joined the company known as Jack Simpson Fuel, as a driver. He was in that employment at the time of the accident. After a prolonged period of absence from work due to his accident-related injuries, his employment was terminated in December 2008. The termination of his employment had greatly disappointed him. He felt he had been betrayed by his employer, to whom he had given many years of loyal service. Since that time the plaintiff has remained in receipt of weekly workers' compensation payments, and has not returned to any other form of employment.
Before the subject accident the plaintiff was in reasonably good health except for some work-related back problems and some right knee problems. He had nevertheless remained fit for his work and he had continued to carry out his work duties without difficulty before the subject accident.
A bundle of pre-accident x-ray reports was tendered: Exhibit "5". The reports in that bundle included a lumbo-sacral CT scan dated 10 October 1995, an x-ray of the thoracic and lumbar spines dated 30 April 2001, and a CT scan of the lumbo-sacral spine dated 7 May 2001.
When read together, those pre-accident imaging reports show that the plaintiff had some pre-accident degenerative changes in his spine and some mild to moderate facet joint osteoarthritis at the levels L3/L4, L4/L5 and L5/S1, as well as a broad-based disc bulge at L4/L5 without definite nerve root compression. The bulging was slightly more pronounced on the 2001 scans when compared to the 1995 scans. Some osteophytes were also seen arising from several vertebral bodies. Significantly, no fractures were seen in those spinal imaging films. There was normal anatomical alignment of the spine and the disc spaces appeared within normal limits.
Those pre-accident images were obviously obtained in conjunction with a medically assessed need for radiological investigation at the time.
The plaintiff was asked questions about those pre-accident matters. In his evidence in chief he briefly touched upon those matters in response to the questions asked of him. The brevity of his explanation, to the effect that he had previously suffered a left wrist fracture which had left him with occasional aches but no problem, "a bit of back pain" from a protruding disc a "very long time ago, 2001, the early 2000's" (T10 to T11) was in response to the nature of the questions that had been asked of him. The plaintiff could not recall an injury to his left knee from using the clutch pedal of his truck in August 2005: T11.35.
The plaintiff's prior history of back pain was explored in greater detail in cross-examination: T34 to T42. In essence, the plaintiff agreed that whilst he had been working 12 hour shifts driving trucks he experienced occasional back pain, a phenomenon he said was common in the industry amongst truck drivers, and one which he managed as being "not a big thing". It did not interfere with his work and he persevered with that work in the interests of pursuing the level of earnings that were offered by such work: T37.46; T38.11.
In cross-examination the plaintiff had also acknowledged that before the subject accident he had been taking anti-inflammatory medication for some time to manage the osteoarthritis in his thumb, which was obviously mis-transcribed at T38.34.
The plaintiff explained that the back pain he had experienced in the period 1995 to 2000 had been influenced by the state of the seat of his truck. He said that the addition of a back insert into that seat, together with exercises and physiotherapy, had helped with that problem: T37.15.
During cross-examination, the plaintiff was taken to the details of some accidents that had occurred many years before the subject accident, in either 1995 or 1997, and in 1999. In my view the plaintiff's inability to recall the details of those events was unremarkable given the time span involved: T34.35 to T36.5.
In my view, the most salient feature of the plaintiff's explanatory evidence in that regard is that his back pain had "lagged on for quite a few years until [he] came upon a way to fix it": T36.40. This was clearly a reference to his use of a back insert in his driver's seat, together with exercise and physiotherapy: T37.15. In my view, that explanation was not inherently improbable. It was not otherwise contradicted, and I accept it, particularly as the plaintiff's medical records from his general practitioner, Dr Aman Khan, were not inconsistent with his explanations concerning those matters.
In that regard, Dr Khan's clinical handwritten records were tendered by the defendant: Exhibit "4". Without intending any criticism of Dr Khan, his notes were in parts difficult to interpret. The defendant pointed to a number of entries in Dr Khan's notes between 1 May 2001 and 30 November 2005 concerning the plaintiff's recorded complaints of back pain which were apparently treated at different stages with physiotherapy, hydrotherapy and Voltaren tablets.
Those complaints of pre-accident back pain recorded before 30 May 2005 appear to have been intermittent, not specifically located, and were not referrable to any particular event. The back pain recorded on 30 May 2005 was located in the plaintiff's thoracic spine, and was noted to be related to an incident in which the plaintiff had been engaged in pushing the bonnet of his truck.
Dr Khan's notes made reference to episodes of back pain and, it appears, neck pain, on 1 April 2006, and an episode of back pain on 23 November 2007. The defendant's submissions placed no importance on those entries.
Dr Khan's notes also recorded the plaintiff's intermittent pre-accident complaints in the plaintiff's right thumb. Those records commence from 26 July 2007, and in some parts refer to the CMCP joint, which I interpret to be a reference to the carpo-metacarpo-phalangeal joint of the plaintiff's right thumb, for which the plaintiff was recommended to take Voltaren for OA, which I interpret to refer to osteoarthritis.
Significantly, before the subject accident, the plaintiff had not suffered from any of the psychological problems that have affected him since the accident.

Injuries

The plaintiff's physical injuries consisted of a crushing injury to the chest in which he sustained anterior fractures to the 6th, 7th, 8th and 9th ribs on the right side. He sustained a blood blister under one of his fingernails from the strong grip he had on the steering wheel in the lead-up to the collision. He also suffered significant soft tissue injuries to the neck, thoracic and lumbar spines, and to the left shoulder. The latter injury involved tears to the rotator cuff tendon complex.
The injury to the plaintiff's thoracic spine involved a fracture of the end plate at T5. The plaintiff also suffered straining injury to the facet joints of his thoracic spine with an associated tearing or strain of the interspinous ligaments in that area.
In addition to his physical injuries, the plaintiff suffered a substantial psychological shock in the events of the accident. Inter-mixed with that shock was his upset on learning that the driver of the other vehicle had been killed in the collision. The combination of those events has continued to have an emotional effect on the plaintiff.

Treatment

The ambulance service gave the plaintiff initial medical attention at the accident scene. The plaintiff's chief complaint at the scene was of a sore chest and ribs, and associated discomfort under the right axilla. He also had some bruising under the right thumbnail, which he presumed was as a result of him tightly gripping the steering wheel in the moments before the collision when he knew a collision was imminent and unavoidable.
The plaintiff was taken by ambulance to Wollongong Hospital where it was noted that he exhibited anterolateral rib pain on chest compression. A chest x-ray found no abnormality or fractures. After observation he was discharged into the care of his general practitioner, Dr Khan, whom he saw on 5 June 2008.
On 6 June 2008, at the request of Dr Khan, the plaintiff underwent a CT scan of his chest. This was reported as showing no rib fractures in the lower thoracic ribs.
Over time, Dr Khan recommended the plaintiff have physiotherapy and analgesia for his injury related pain. He also referred the plaintiff for a series of radiological investigations and he ultimately referred him for orthopaedic management, which included manipulations of the left shoulder and corticosteroid injections, as well as periodic reviews.
Dr Khan had also referred the plaintiff for neurosurgical and pain management assessments. The neurosurgeon who saw the plaintiff advised against surgical intervention. The pain management specialist to whom the plaintiff was referred, provided treatment aimed at reducing the plaintiff's neuropathic pain. The plaintiff has also had some psychological counselling however this treatment was terminated when the psychologist in question was de-registered.

Subsequent treatment and medical and allied reviews

On 25 June 2008, at the request of Dr Khan, the plaintiff underwent a CT scan of his thoracic spine. Apart from showing some minor degree of bony spurring of the vertebral end plates at multiple levels, no other abnormalities were seen.
On 15 July 2008, at the request of his general practitioner, the plaintiff underwent a bone scan which reported results consistent with fractures of the 6th 7th, 8th and 9th anterior ribs on the right side.
On 31 December 2008, at the request of his general practitioner, the plaintiff underwent an ultrasound scan of the left shoulder which revealed mild biceps tendinosis, two separate tears of the supraspinatus tendon comprising a partial thickness tear in the leading edge and a full thickness tear in the posterior insertional fibres of that tendon. The ultrasound report also noted a partial thickness tear in the articular surface of the inferior insertional fibres of the subscapularis tendon, moderate bursal thickening due to fluid decompression from the shoulder joint through the posterior supraspinatus tendon tear, and impingement at 70 degrees of humeral abduction.
On 30th January 2009, at the request of his general practitioner, the plaintiff underwent an MRI study of his left shoulder in view of a history of worsening left shoulder pain. This confirmed the presence of a partial thickness tear of the foot plate of the anterior supraspinatus tendon, with posterior tendinopathy of that tendon, and a substantial abnormality of the gleno-humeral ligament, with an associated fluid distribution abnormality and evidence of a strain on the humeral side, indicating a significant previous injury to that ligament.
On 11 February 2009, at the request of Dr Khan, the plaintiff was examined by Dr Michael Stening, a consultant orthopaedic surgeon, who thought the plaintiff had suffered a soft tissue neck strain, and an adhesive capsulitis of the left shoulder, or frozen left shoulder.
On 4 March 2009, the plaintiff underwent a manipulation of his left shoulder under anaesthetic, and an injection of corticosteroid into that shoulder. This was performed by Dr Stening.
On 25 March 2009, Dr Stening reviewed the plaintiff and noted some improvement in the range of left shoulder movements.
On 27 March 2009, Dr Khan instituted investigations for a suspected fracture of the plaintiff's left humerus, however no bony injury or other abnormality was detected.
On 17 April 2009, the plaintiff underwent an ultrasound-guided injection of corticosteroid into the posterior aspect of the left gleno-humeral joint under local anaesthetic.
On 30 April 2009, at the request of his general practitioner, the plaintiff underwent a cervical MRI scan because of neck pain radiating into his left shoulder and arm. This scan was reported as showing retrolisthesis of C5 on C6, with minimal generalised disc desiccation, and mild to moderate osteochondral, and mild bilateral foraminal narrowing.
On 6 May 2009, the plaintiff was examined by Dr Stening who recommended an ultrasound guided cortisone injection into his left shoulder.
On 12 May 2009, the plaintiff was re-examined by Dr Stening who noted some improvement in the range of left shoulder movements, and recommended that the plaintiff cease physiotherapy as the range of shoulder movement was almost full range.
On 26 May 2009, at the request of his general practitioner, the plaintiff underwent a thoracic and lumbar MRI scan because of persistent thoracic pain. This was reported as showing an old T5 superior end plate fracture and mild degenerative disc disease of the lower lumbar spine. That report offered no comment concerning the likely timing of the end plate fracture. Nor did it explain the relative meaning of "old" T5 end plate fracture in the context of the plaintiff's injury.
On 25 June 2009, at the request of his general practitioner, the plaintiff underwent a CT guided left sided C5/6 foraminal steroid injection.
On 26 August 2009, at the request of his solicitor, the plaintiff was assessed by Dr Thomas Clark, a consultant psychiatrist. Dr Clark noted a range of symptoms which he described as psychological disturbances. He described the plaintiff as a depressed insomniac. He identified his diagnosis as being a severe and chronic depression with complications due to a regional pain syndrome. He noted the plaintiff's psychological prognosis was good at that time, given he was having psychotherapy.
On 3 September 2009, at the request of his solicitor, the plaintiff was assessed by Dr James Bodel, a consultant orthopaedic surgeon. Dr Bodel predicted the plaintiff had a guarded prognosis for his physical symptoms because of persisting pathology from the soft tissues of the neck and the lower back, the minor fracture of the T5 vertebral body and the interscapular region of the thoracic spine.
On 16 September 2009 the plaintiff again consulted Dr Khan.
On 12 October 2009, at the request of his solicitor, the plaintiff was assessed by Dr Peter Conrad, a consultant surgeon. After reviewing the plaintiff's neck, thoracic and shoulder problems, Dr Conrad considered the plaintiff's prognosis was very guarded.
On 4 November 2009 the plaintiff again consulted Dr Khan.
On 16 November 2009, the plaintiff first consulted Dr Corey Cunningham, a sports physician. This was for assessment, investigation and treatment of his left shoulder and vertebral problems. He had further consultations with Dr Cunningham on 25 November 2009 and 7 January 2010. At that time, Dr Cunningham expressed a favourable prognosis for recovery of the left shoulder problems but a more guarded prognosis for the thoracic spine problems.

On 25 November 2009 the plaintiff again consulted Dr Khan.
On 2 December 2009, at the request of Dr Cunningham, the plaintiff underwent a CT scan of the thoracic spine, which was reported as showing synovitis in the articulations of T9 and T6 on the left, and T6 and T5 on the right.
On 7 December 2009, the plaintiff was assessed by Dr Khan who noted restrictions in the movements of flexion, extension and bilateral rotation were moderately restricted in the cervical spine, with tightness in the trapezius muscles and in the thoracic and interscapularis regions, with associated restricted thoracic movements.
On 23 December 2009 the plaintiff again consulted Dr Khan.
On 15 January 2010, at the request of his general practitioner, the plaintiff was assessed by Dr Kevin Seex, a specialist neurological and spinal surgeon. Dr Seex considered that the treatment at that time should be non-surgical in nature, but left the issue open for further consideration.
On 22 February 2010, the plaintiff underwent a CT guided left C5/C6 and C6/C7 facet joint injection.
On 4 March 2010, Dr Khan provided the plaintiff's solicitor with a progress report of consultations and treatment to that time.
On 30 April 2010, the plaintiff underwent a CT guided interspinous injection at the levels C7/T1 and T7/T8.
On 29 September 2010, at the request of the Motor Accidents Authority, the plaintiff was assessed by Dr Enrico Parmegiani, a consultant psychiatrist, whose report and certificate was issued on 20 October 2010. Dr Parmegiani considered that the plaintiff did not report sufficient psychological symptoms to support a formal psychiatric diagnosis. He considered the plaintiff's responses to his circumstances to fall within what can be reasonably expected to be "the norm". That opinion has to be assessed in light of the evidence of the plaintiff and in the light of the other psychiatric opinions that were tendered. That report also has to be considered in the context of its limited statutory purpose and the fact that it was not required to be compliant with the Expert Witness Code. In those circumstances, where the report cannot be tested, I do not consider that this report should be given any weight as the opinions within it were untestable.
On 12 October 2010, at the request of the Motor Accidents Authority, the plaintiff was examined by Dr Richard Crane, in respect of his physical injuries. Dr Crane assessed the plaintiff's total degree of impairment due to the injuries sustained in the motor vehicle accident, at 18 per cent.
On 29 October 2010, at the request of the solicitor for the defendant, the plaintiff was examined by Dr Richard Sekel, a consultant in occupational medicine. Dr Sekel considered that the plaintiff would have been unfit for work for about one and a half years, and after that, he would have been impaired from work or domestic activities. The reasoning for those views requires examination.
On 4 November 2010, the at the request of the solicitor for the defendant, the plaintiff was assessed by Dr Robert Lewin, a consultant psychiatrist. Dr Lewin noted the presence of what he considered to be pain behaviours. He noted the plaintiff's complaints of reactive depressive symptoms and stated the plaintiff did not report any sustained depressed mood. He found no evidence of a morbid depressive condition. He noted the plaintiff's intense feelings of frustration associated with his functional limitations resulting from his pain. He stated that the plaintiff described a depressive reaction.
Dr Lewin considered that the diagnosis which most adequately encompassed the plaintiff's pattern of symptoms to be Partially Treated Adjustment Disorder. He did not diagnose Major Depression or Post Traumatic Stress Disorder because "the full diagnostic criterion set of those two more severe conditions were not satisfied". He considered the plaintiff's prognosis to relate directly to the progress of the plaintiff's pain condition. At that stage, he considered that the plaintiff's "psychiatric condition" had "not stabilised".
On 12 January 2011, the plaintiff was assessed by Dr Bodel for a second time. Dr Bodel considered the plaintiff's ongoing disabilities. In his report, Dr Bodel reiterated his earlier expressed guarded prognosis.
On 20 April 2011, at the request of the general practitioner, the plaintiff was examined by Professor Raj Sundaraj, a pain management specialist. This was the first of a series of such consultations for pain management. Professor Sundaraj prescribed exercise, physiotherapy and hydrotherapy, reduced the medication, and offered denervation radiofrequency therapy to the apophyseal joints of C2 to C5.
On 28 April 2011, the plaintiff was assessed by Dr Bodel for a third time, and reiterated his earlier expressed guarded prognosis.
On 11 August 2011, Professor Sundaraj performed radio-frequency denervation therapy to the plaintiff's upper left cervical spine.
On 21 September 2011, after the radio-frequency denervation therapy, the plaintiff's neck pain settled to a significant extent but the mid-thoracic pain at T8/T9 remained. This was considered to be due to the thoracic crush fracture. This was to be managed with mid-thoracic epidural steroid injections.
On 27 January 2012, the plaintiff was assessed by Dr Bodel for a fourth time. Dr Bodel assessed the plaintiff's level of whole person impairment at 16 per cent.
On 8 February 2012, the plaintiff was admitted to hospital under Professor Sundaraj for T8 to T10 facet joint steroid injections. The pain largely settled except for a trigger point at the T7 spinous process. Medication was prescribed for this problem.
On 10 February 2012, at the request of his solicitor, the plaintiff was re-assessed by Dr Clark, who noted the plaintiff was still experiencing dysthymic symptoms. Dr Clark's earlier expressed opinion remained unchanged, and he reiterated his earlier diagnosis of chronic depression with features of a chronic pain syndrome.
On 30 March 2012, Dr Khan provided the plaintiff's solicitor with a progress report of consultations and treatment to that time. He noted the plaintiff's neck, left shoulder, interscapular and thoracic problems were continuing. He noted continuing treatment in the form of physiotherapy, hydrotherapy and medications for neuropathic pain, as well as anti-inflammatory medication.
On 5 July 2012, the plaintiff was assessed by Dr Lewin for a second time. At that time Dr Lewin considered that the plaintiff "reported no particular depressive symptoms". That adjectival expression was open to differing interpretations. He did not diagnose any current depressive condition at that time, nor did he consider the plaintiff to have any evidence of a post-traumatic stress disorder, or any related anxiety disorder. He concluded that there was no diagnosed psychiatric condition in the plaintiff.
On 9 July 2012, Professor Sundaraj reviewed the plaintiff. He noted that the plaintiff's thoracic pain in the midline continued to be troublesome. The cause was considered to be an interspinous ligament sprain or a tear. This was noted to be a notoriously difficult problem to treat, noting the problem could continue for years. Professor Sundaraj recommended continued medication but was cautious about continued opioid therapy as this could lead to other problems.
On 20 July 2012, the plaintiff was assessed by Dr Sekel for a second time. Dr Sekel made an assumption that the plaintiff was suffering from significant ongoing abnormalities including lower back pain that had been present "for many years", and recurrent posterior thoracic vertebral pain, and osteoarthritis in his left thumb. Dr Sekel considered that the plaintiff "appeared to have acquired a sick role". He also adverted to a number of discrepancies in the plaintiff's presentation that he considered were not consistent with the objective physical examination and investigation results. Dr Sekel's reasoning will be examined when weighing his opinions alongside the other medical opinions.
On 8 October 2012, the plaintiff was re-examined by Professor Sundaraj. The plaintiff's mid-thoracic pain was noted to be a continuing problem, probably related to the interspinous ligament injury previously identified. Professor Sundaraj suggested the plaintiff continue with his medications for the time being.
On 15 July 2013, the plaintiff was assessed by Dr Bodel for a fourth time. At that time Dr Bodel reiterated his earlier expressed guarded prognosis.
On 20 August 2013, Dr Khan provided the plaintiff's solicitor with a progress report of his consultations and treatment of the plaintiff to that time. He noted the plaintiff was continuing to complain of persistent neck pain, occipital headaches, occasional dizziness, shoulder pain, radiated symptoms in the upper limbs, interscapular and thoracic pains, and symptoms of depression.

Analysis of conflicting medical opinions

In the context where no medical experts were called to explain or clarify their opinions, or to comment on aspects of their opinions that were discordant, I am required to undertake an analysis of the medical evidence as best I can without the assistance of explanatory oral evidence. In those circumstances, the key to the analysis is the reasoning of the authors of the medical reports.
The opinions of the medico-legal psychiatrists were discordant. On the one hand, Dr Clark considered the plaintiff to be depressed when he first saw him in August 2009. Dr Clark reiterated that view when he saw the plaintiff in February 2012. Consistent with those views of Dr Clark, in 2010, Dr Lewin considered the plaintiff to have described symptoms of a depressive reaction which had not yet stabilised.
In his report dated 5 December 2012, Dr Lewin, adjectivally qualified the results of his examination of the plaintiff by stating that he considered the plaintiff "reported no particular depressive symptoms", and therefore concluded that there was no diagnosed psychiatric condition.
In his written submissions, Mr Lidden SC submitted the defendant's evidence should be utterly disregarded. He went on to make scathing submissions, as follows:
"... It is a sad day when a doctor (even a defendant's doctor) cannot, by careful questioning, elicit information as to the true state of affairs in the case of an injured plaintiff.
Careful questioning during the plaintiff's evidence in chief promptly revealed the gross psychological disturbance from which this plaintiff suffers. That Dr Lewin failed to elicit this information is merely a reflection of his profession competence and not anything else. Any experienced psychiatrist should be able to go behind a middle aged man's reluctance to disclose matters of personal distress and to find out the true picture. These remarks similarly apply to the MAS report of Dr E. Parmegiani who seems to have been similarly neglectful. After all, a psychiatric examination should not merely consist of asking a question such as "are you depressed?". It should be much more probing and searching than that."
In my view little weight should be placed on the opinions of Dr Lewin as cited above because the adjectival qualifications he has used remained undefined and unexplained. Dr Lewin's description seemed more in keeping with the statistical instrument used for diagnosis rather than engaging with the emotionally based symptoms that the plaintiff has described, and which were well evident and observable to lay observation during the course of the plaintiff's evidence.
In that regard, the plaintiff was clearly upset and adversely affected by his post-accident experience of emotional symptoms. In this context, diagnostic labels would appear to be of little importance when seeking to characterise the plaintiff's emotional upset. For these reasons, I do not consider Dr Lewin's views adequately summed up the plaintiff's presentation in court. Instead, I prefer the more clearly explained views of Dr Clark concerning the plaintiff's post-accident emotional state.
When the physical medicine specialists' views are examined as a whole, I found Dr Sekel's views to be of no assistance. On behalf of the plaintiff, Mr Lidden SC submitted that Dr Sekel's opinions should be rejected. I consider there is considerable force in that submission, and I accept it.
This is because Dr Sekel has placed undue emphasis on the plaintiff's presentation in "a sick role" without co-relation and analysis to the consequences of the accident on the plaintiff's complaints of ongoing pain and his altered post-accident circumstances. I found Dr Sekel's description to be of no assistance in assessing the plaintiff's post-accident disabilities.
Furthermore, it seems to me that Dr Sekel has assumed, incorrectly, that the plaintiff's lower back pain that was present before the accident to a more limited degree, equated with his post-accident complaints. On the plaintiff's evidence, that analysis was clearly incorrect.
Instead, I prefer the reasoned opinions of Dr Conrad and Dr Bodel, for the reasons they have stated. It seems to me that they have more accurately summed up the plaintiff's problems, consistent with the evidence he gave in these proceedings.

Disabilities

I am satisfied that the plaintiff gave truthful evidence about the extent of his injuries and his related complaints. I therefore propose to draw upon the medical reports for evidence of the plaintiff's post-injury difficulties, his treatment, and his ongoing disabilities: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, per Heydon JA at [70]; s 60 of the Evidence Act 1995. My findings on those matters follow.
From a physical perspective, and to differing degrees, the plaintiff continues to have pain, discomfort and restriction of movement in his neck and associated neck muscle spasm and medium to moderate symptomatic degenerative changes in the cervical spine. There is also mild biceps tendinosis on the right. He also has pain, discomfort and restriction of movement in his left shoulder associated with the plaintiff's rotator cuff injury. He has intermittent left upper arm pain. This has been described as a traumatic capsulitis.
The plaintiff also experiences occasional symptoms like a feeling of pins and needles in the 3rd and 4th fingers of his left hand, and he has ongoing pain and discomfort in his thoracic and lumbar spines. He also experiences dizziness associated with his neck pain. There is osteoarthritic hypertrophy and synovitis in the articulations of T5 and T6 on the right, and T6 and T9 on the left. The associated pain is both significant and chronic in nature.
The plaintiff has difficulty standing and walking for prolonged periods. He has reduced mobility, strength and dexterity. This interferes with his leisure activities and with his capacity to work. He carries a special walking stick called a flip stick, with a seat attached so he can pause from activity to sit and alleviate his discomfort.
The plaintiff's ongoing physical disabilities preclude him from engaging in sustained physical activities of the kind he undertook before his injury. This includes a wide range of domestic and home maintenance tasks.
The plaintiff has not been able to resume his work as a truck driver since his accident. He feels he no longer contributes as he should and he feels guilty about not being able to do jobs around the house as he used to be able to do.
From an emotional perspective, although the plaintiff tries to remain in a positive frame of mind, he continues to suffer from disturbed sleep, occasional nightmares and tearfulness, chronic depression, anxiety, mood changes, irritability and reduced tolerance for frustration.
These matters relate not only to the restrictive effects his physical disabilities have upon him, but they also relate to the times when he thinks about the accident and the death of the driver of the van. As a result of these matters, the plaintiff has become much more cautious as a driver. It is unlikely that he will be able to resume his profession as a driver. He is suited for little else in the way of work at his age. If that was not the case, it would have been improbable that the workers' compensation insurer would have continued to pay him workers' compensation benefits.
The plaintiff still requires ongoing medical review and treatment, including medication for pain relief. He is also continuing to have physiotherapy for his left shoulder problems.

Mitigation

The plaintiff had a duty to take reasonable steps to mitigate his situation both with regard to seeking treatment for his disabilities and with regard to his loss of earning capacity in connection with his claim for damages: s 136 of the MAC Act. There was no suggestion that there had been any failure on the part of the plaintiff to fulfill that obligation.

Assessment of damages

In the paragraphs that follow, after identifying the plaintiff's probable statistical life span, I set out my assessment of the plaintiff's entitlement to damages.

Plaintiff's probable life span

In assessing the plaintiff's entitlement to damages, there is nothing that reasonably arises from the evidence to suggest that the usual statistical median life span would not apply to the plaintiff's circumstances. At the age of 60 years, the plaintiff has a rounded down probable median statistical life span of a remaining 25 years. The 5 per cent multiplier of 25 years is 753.6.

Past economic loss

On behalf of the plaintiff, an initial claim was made for past economic loss in the amount of $361,725. This was calculated at an average rate of $1325 per week net over 5.25 years. At the conclusion of the evidence that submission was varied to $346,164, being the calculation of an average of $1268 per week net over 5.25 years. That average figure was derived by applying an average of 26 per cent increase in AWE between May 2008 and the time of the hearing. When the plaintiff's revised submission is adjusted to reflect the correct interval of time between the accident and the trial, namely 5.36 years, the claim for past economic loss is identified as being $353,416.
In contrast, the defendant submitted the plaintiff's claim should be confined to the sum of $35,088, which was based on a calculation of a loss of $394 per week net from 4 June 2008 to 31 December 2009, being $20,488, and an allowance of $100 per week from 1 January 2009 to 17 October 2013, namely $14,600.
The defendant's submissions are based upon an assumption that the plaintiff's continuing economic loss should be based on an un-indexed base rate, and further assumptions not reflected in my findings concerning an alleged emergent residual earning capacity, including findings on the medical evidence.
The medical evidence provides some useful insight into the claim for past economic loss.
In January 2010, Dr Cunningham expressed a guarded prognosis for recovery of the plaintiff's left shoulder symptoms. In April 2010, Dr Stening was optimistic about the plaintiff's return to his full work duties. That optimism has not been borne out by the effluxion of time. Dr Khan considered the plaintiff to be permanently unfit for his pre-injury work as a truck driver.
In January 2011, Dr Bodel considered that there were poor prospects of the plaintiff returning to work. In January 2012, Dr Bodel considered the plaintiff may be able to tolerate 20 hours per week at most in modified duties, but he noted that the plaintiff could not see himself resuming work as a truck driver due to his ongoing levels of pain.
In July 2013, Dr Conrad accepted the plaintiff would have difficulty in returning to work as a tanker driver but he considered there may be some scope for the plaintiff being able to possibly do some light duty part-time work for between 12 hours to 15 hours per week, provided he could stand or sit at will, limit lifting to 5kgs but not lifting anything above the level of his left shoulder.
From a psychiatric perspective, Dr Clark considered that the plaintiff was unable to work at the time he had last assessed him in February 2012.

The reports from Dr Sekel obtained on behalf of the defendant refer to the plaintiff's "inexplicable complaints" as a factor precluding his return to work. In my view, Dr Sekel's opinions provide no reasoned assistance to the analysis of the claim for past loss of earnings. Dr Sekel does not actually suggest the plaintiff is fit for work. His invocation of the "sick role" does not justify a bold assertion of fitness for the plaintiff's pre-accident duties. Dr Sekel appears to have placed insufficient weight on the psychological factors affecting the plaintiff in coming to his conclusion on the plaintiff's fitness for work. I therefore do not accept the views of Dr Sekel on the evidence in this case.
Contrary to the views of Dr Sekel, I consider that the plaintiff's own evidence of his inability to resume his employment to be more realistic, and sufficiently determinative of that issue, especially since he has been in receipt of workers' compensation benefits since he was injured, and there is no suggestion that he has failed to mitigate his loss.
In those circumstances, I accept that since the accident, and as a result of the accident, the plaintiff has remained unfit for his pre-injury employment and has therefore lost his pre-accident earning capacity as a consequence of the accident.
Furthermore, I consider that the suggestions in the medical reports raising the possibility that the plaintiff may have a residual capacity for some lesser hours of employment must be recognised to be speculative in nature. Insofar as Dr Bodel and Dr Conrad expressed such views I do not accept them because they pay insufficient regard to the psychological factors identified by Dr Clark, whose opinions I have accepted.
Contrary to the inference based submissions made by the defendant to the effect that the plaintiff's claimed losses must be reduced to reflect the amounts paid by the employer pursuant to "its employee arrangements", I consider that the evidence does not permit that inference to be reasonably drawn. The plaintiff's evidence was that he received workers' compensation payments from his employer. In the absence of contrary evidence called on this point, I prefer the plaintiff's evidence characterising the payments.
As to the rate for calculation of the loss, given that comparable wage records were not tendered, I consider that the submission made on behalf of the plaintiff relying on adjusted average weekly earnings represents a reasonable approach to assessment.
However, given the plaintiff's history of prior intermittent back complaints, and given the evidence that the plaintiff's pre-accident work had the potential to cause back symptoms, I consider that a 15 per cent discount should be applied to the calculation of past loss of earnings.
In the light of that finding, I accept as reasonable, the submission made on behalf of the plaintiff that he has lost an average of $1268 per week net from 4 June 2009 to 17 October 2013. This is a period of 5.36 years or 279 weeks. The resultant loss therefore amounts to the sum of $353,416 net. When discounted by 15 per cent for past vicissitudes this reveals a discounted sum of $300,403
I therefore assess the plaintiff's entitlement to damages for past economic loss in the sum of $300,403.

Past loss of superannuation

In accordance with convention, using the well-settled actuarial formula, damages for loss of past superannuation benefits should be assessed at 11 per cent of $300,403, being the amount assessed for past economic loss, yielding an amount of $33,044. Accordingly, I award the plaintiff damages for loss of past superannuation benefits in the amount of $33,044.

Fox v Wood

On 15 November 2013 the parties advised that they had reached an agreement on Fox v Wood damages in the amount of $20,122.85.
Accordingly, I award the plaintiff damages for reimbursement of the amount of tax deducted from his payments of weekly compensation, in the amount of $20,122.85.

Future economic loss

On behalf of the plaintiff a claim is made for future economic loss in the amount of $491,351, being the projection of $1400 per week net over the ensuing 10 years, (x 412.9) less 15 per cent for vicissitudes. The amount of $1400 per week net was derived by rounding down the submitted indexed amount of AWE of $1413 which featured in the averaging process for calculating the note for assessing past economic loss.
In contrast, the defendant submitted a calculation of $97,578, which was based upon an arbitrary base rate of $562 per week net projected over 5 years (x 231.5) and discounted by 25 per cent.
The defendant's submission proceeded upon the premise that its medical evidence is accepted. This has not been the case, for the reasons already identified.
The defendant's submissions also in effect included the double discounting as it was submitted that the plaintiff's remaining working life would be a further 5 years, and not the 10 years claimed. The defendant then sought to apply a much higher than usual discount for vicissitudes. In my view, that approach is flawed for the reasons that follow.
The plaintiff's pre-accident back condition was not acute in the years before the accident. It did not require him to take significant time off work. He managed to continue in his work with the assistance of medical advice, medications, exercise, and importantly, a resolve to continue working. In my view, there is nothing in the medical evidence relied upon by the defendant that should serve to cancel out those compelling factors that suggest the plaintiff would have continued to work for as long as he could, to age 70 years.
The fact that the plaintiff's back condition may have come against him, or that he may have had another accident as his living was earned as a driver, matters that are more properly dealt with by way of a discount for vicissitudes. In my view, a discount of 20 per cent for possible adverse vicissitudes is an appropriate way of reflecting those uncertainties.
Accepting that the plaintiff would have continued to work to age 70 years to fund his travel plans, and accepting that the plaintiff is no longer able to work in his pre-injury employment, and is not trained or experienced in other work, it remains to identify the base rate and apply the required projection.
In that regard, I consider that the selected base rate for projection should be discounted to a degree to reflect an uncertainty as to whether the shifts that the plaintiff would have liked to work would have continued to be available to him as he continued to work in the later years of his earning capacity.
In the absence of evidence from the former employer, or other industry based evidence on the point, doing the best I can to reflect this factor in a discount, I consider that the appropriate base rate for projection should be the sum of $1100 per week net.
The projection of $1100 per week net at 5 per cent over 10 years to age 70 (x 412.9) less 25 per cent for vicissitudes yields the sum of $340,642.
Accordingly, I award the plaintiff damages for loss of future economic loss benefits in the amount of $340,642.

Future loss of superannuation

In accordance with convention, using the actuarial formula at 13.05 per cent on the net award for future economic loss, damages for loss of future superannuation benefits should be assessed at 13.05 per cent of $340,642, being the amount assessed for future economic loss, yielding an amount of $44,453. Accordingly, I award the plaintiff damages for loss of future superannuation benefits in the amount of $44,453.

Past domestic assistance

On behalf of the plaintiff, a claim is made for past domestic assistance that the plaintiff's family has gratuitously provided to him since the accident. The submission quantifying the claim was for 10 hours per week at $25 per hour for 5.25 years, in the amount of $68,250.
In contrast, the defendant submitted that no allowance should be made for this component of the plaintiff's claim. That submission proceeds upon what I consider to be an erroneous assumption that the threshold, under s 141B of the MAC Act, namely domestic assistance for 6 hours per week for 6 months, has not been established by the plaintiff.
The evidence of the plaintiff on his need for domestic assistance was that he and his wife live in a 3 bedroom freestanding cottage with a study, on a 720 square metre block. The block has extensive gardens. Before the subject accident, the plaintiff used to do the washing, hang most of it, help make beds and clean the study. He also attended to occasional vacuuming. He cleaned the shower because his wife has a knee disability. He also occasionally cleaned and mopped the laundry floor. He did all the outdoor gardening, the lawns and maintenance. In that regard, he was assiduous in his attention to detail. He managed to do this, without difficulty, around his work and other commitments.
Since his accident, he has only been able to carry out minor tasks, such as dusting. His wife and one of his sons do the domestic work he used to do. The plaintiff estimated that these tasks, that are now fulfilled by others, occupy about 10 hours per week: T32.34. That evidence was not contradicted, and it did not seem inherently improbable. It was not suggested that the estimate given by the plaintiff was in any way exaggerated.
Mrs Caterson's evidence did not contradict that estimate. Her evidence as to the division of domestic labour was not shown to be improbable.
The evidence of Mrs Caterson on this subject was to the effect that there were many domestic tasks she was unable to attend to due to her knee disability, these being tasks the plaintiff carried out before his injury.
The medical evidence on this subject offers little guidance, and in any event, should not be seen to be prescriptive on the issue.
I consider the plaintiff's evidence concerning his need for past domestic assistance to be reasonably based. The only discounting factor I would apply is on account of the touchstone of reasonableness, rather than perfection: Sharman v Evans [1977] HCA 8; (1977) 138 CLR 653, at [14]. On that account, I would reduce the calculated hours of assistance to 8 hours per week.
I find that but for the subject accident, the plaintiff would not have required the assistance provided by his wife and by his son.
The Appendix to these reasons identifies the statutory rates that must not be exceeded for the assessment of damages for past-domestic assistance: s 141B of the MAC Act. The calculation of 8 hours per week at those rates between 5 June 2008 and 17 October 2013 yields the sum of $55,738.
I therefore award the plaintiff damages for past domestic assistance in the amount of $55,738.

Future domestic assistance

On behalf of the plaintiff, a claim is made for future domestic assistance calculated at the commercial rate of $40 per hour for 10 hours per week projected at 5 per cent over 25 years (x 753.6) in the submitted sum of $301,440.
In contrast, the defendant submitted that no allowance should be made for this head of damage. That submission was advanced on what I consider was the erroneous proposition that the evidence did not justify any award. That submission is contrary to the findings I have made at paragraphs [135] to [144] above, in connection with my findings on the claim for the past domestic assistance.
Whilst I accept the plaintiff has received 10 hours per week of family provided domestic assistance in the past, consistent with my finding in paragraph [144] above reducing the past claim to 8 hours per week, I consider the claim for future domestic assistance should be confined to 6 hours per week.
The reasons for this are firstly, since the work is going to be undertaken commercially (T79.27), it should be assessed on the basis that an element of greater commercial efficiency is applied to the tasks to be undertaken. Secondly, at their respective ages, and absent their children living at home, there is the prospect that the plaintiff and his wife may well downsize their domestic dwelling in the coming years, thus possibly lessening the need for the presently claimed level of domestic assistance.
Counter-balanced against that discounting factor is the possible adverse effect of Mrs Caterson's declining physical ability to continue to carry out a range of domestic tasks.
The projection of the value of 6 hours per week of domestic assistance at the NSW Home Care commercial rate of $40 per hour ($240 per week) over 25 years (x 753.6) yields the sum of $180,864. That sum does not require further discount in view of the discounting factors I have already taken into account.
I therefore assess the plaintiff's damages for future paid domestic assistance in the amount of $180,864.

Future treatment

On behalf of the plaintiff, a claim is made for a lump sum of $75,000 to represent the likely cost of future treatment to be incurred by the plaintiff. The defendant's attack on that sum was that it was not justified by evidence or argument.
The plaintiff continues to experience physical discomforts in his neck, left shoulder and back. He also has psychological symptoms, which cause him distress from time to time. These matters are more fully described at paragraphs [91] to [98] above.
Whilst the tendered medical evidence does not provide a precise or prescriptive basis for a monetary allowance for future treatment expenses, when the evidence overall is considered, I consider that there should be a significant allowance made in the damages assessment in the form of a buffer sum to reflect the plaintiff's need for future medical and allied assistance in the future.
It is only reasonable that the plaintiff's residual complaints be overseen and managed by intermittent visits to his general practitioner, physiotherapy, hydrotherapy and medication as has occurred to date, pain management advice and treatment, together with other possible specialist assistance, including possible intervention by minor surgery.
In my view, the appropriate method by which to compensate the plaintiff for those matters is to award a lump sum buffer amount: Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13.
In assessing the appropriate amount of that buffer, it is relevant to consider as a guide to assessment the significant and agreed amount for past out-of-pocket expenses that the plaintiff has incurred to date, and which have been paid by his workers' compensation insurer.
In taking those matters into account, I therefore award the plaintiff the lump sum buffer for future treatment and allied future out-of-pocket expenses in the amount of $30,000.

Past out-of-pocket expenses

The parties are agreed that the plaintiff's out-of-pocket expenses, as paid by the workers' compensation insurer, are in the amount of $136,566.78. I therefore award the plaintiff out-of-pocket expenses in the sum of $136,566.78.

Summary of damages assessment

My assessment of the Plaintiff's damages is summarised as follows:

(a) Past economic loss $300,403

(b) Past loss of superannuation $33,044

(c) Fox v Wood $20,122.85

(d) Future economic loss $340,642

(e) Future loss of superannuation $44,453

(f) Past domestic assistance $55,738

(g) Future domestic assistance $180,864

(h) Future out-of-pocket expenses $30,000

(i) Past out-of-pocket expenses $136,566.78

Total $1,141,833.63

Disposition

The plaintiff is entitled to a verdict and judgment in his favour in the amount of $1,141,833.63.

Costs

As the plaintiff has been successful in the outcome of the litigation, he should have his costs of the proceedings paid for by the defendant on the ordinary basis, unless otherwise ordered.

Orders

I make the following orders:
(1)Verdict and judgment for the plaintiff in the sum of $1,141,833.63;
(2)The defendant is to pay the plaintiff's costs on the ordinary basis unless otherwise ordered;
(3)The exhibits may be returned;
(4)Liberty to apply on 7 days notice if further orders are required.
APPENDIX
CALCULATION OF VALUE OF PAST GRATUITOUS DOMESTIC ASSISTANCE / CARE ACCORDING TO THE MOTOR ACCIDENT'S COMPENSATION ACT 1999, s 141B
(8 hours per week between 5 June 2008 and 17 October 2013)

PERIOD WEEKS
WEEKLY
s.141B

RATE

HOURLY
s.141B

RATE

AMOUNT FOR
8 HOURS PER

WEEK

1. 05.06.2008 to 15.08.2008 10.14 $921.60 $23.04 $1869.00

2. 16.08.2008 to 21.11.2008 13.14 $933.50 $23.33 $2452.44

3. 22.11.2008 to 19.02.2009 12.71 $938.50 $23.46 $2385.41

4. 20.02.2009 to 15.05.2009 12.00 $946.40 $23.66 $2271.36

5. 16.05.2009 to 21.08.2009 13.85 $939.00 $23.48 $2601.58

6. 22.08.2009 to 20.11.2009 12.85 $959.90 $23.99 $2466.17

7. 21.11.2009 to 19.02.2010 12.85 $969.40 $24.23 $2490.84

8. 20.02.2010 to 21.05.2010 12.85 $989.90 $24.74 $2543.27

9. 22.05.2010 to 20.08.2010 12.85 $986.90 $24.67 $2536.08

10. 21.08.2010 to 19.11.2010 12.85 $985.50 $24.63 $2531.96

11. 20.11.2010 to 18.02.2011 12.85 $996.40 $24.91 $2560.75

12. 19.02.2011 to 20.05.2011 12.85 $1025.90 $25.64 $2635.79

13. 21.05.2011 to 19.08.2012 12.85 $1026.00 $25.65 $2636.82

14. 20.08.2012 to 18.11.2011 12.85 $1027.10 $25.67 $2638.88

15. 19.11.2011 to 17.02.2012 12.85 $1016.30 $25.40 $2611.12

16. 18.02.2012 to 19.05.2012 12.85 $1054.70 $26.36 $2709.81

17. 20.05.2012 to 16.11.2012 27.71 $1054.50 $26.36 $5421.72

18. 17.11.2012 to 17.05.2013 25.85 $1081.20 $27.03 $5589.80

19. 18.05.2013 to 17.10.2013 21.57 $1107.80 $27.69 $4778.16

TOTAL $55,738.96
**********

Case Title:	Caterson v Insurance Australia Limited
Medium Neutral Citation:	[2013] NSWDC 221
Hearing Date(s):	17 & 18/10/2013; last submissions 15/11/2013
Decision Date:	18 November 2013
Before:	Levy SC DCJ
Decision:	1.Verdict and judgment for the plaintiff in the sum of $1,141,833.63; 2.The defendant is to pay the plaintiff's costs on the ordinary basis unless otherwise ordered; 3.The exhibits may be returned; 4.Liberty to apply on 7 days notice if further orders are required. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	DAMAGES - assessment of claimed heads of damage following injuries received by the plaintiff in a motor vehicle accident;
Legislation Cited:	Evidence Act 1995, s 60 Motor Accidents Compensation Act 1995, s 113, s 136, s 141B
Cases Cited:	Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25 Sharman v Evans [1977] HCA 8; (1977) 138 CLR 653
Category:	Principal judgment
Parties:	Kenneth Allen Caterson (Plaintiff) Insurance Australia Limited t/as NRMA Insurance (Defendant)
Representation
- Counsel:	Mr A Lidden SC with Ms E Welsh (Plaintiff) Mr J Gracie (Defendant)
- Solicitors:	Brydens (Plaintiff) Hunt & Hunt (Defendant)
File Number(s):	2011/176437
Publication Restriction:	None

Nature of case	[1] - [4]
Issues	[5]
Credit	[6]
Facts	[7] - [100]
Plaintiff's background circumstances	[8] - [24]
Injuries	[25] - [27]
Treatment	[28] - [32]
Subsequent treatment and medical and allied reviews	[33] - [80]
Analysis of conflicting medical opinions	[81] - [90]
Disabilities	[91] - [99]
Mitigation	[100]
Assessment of damages	[101] - [161]
Plaintiff's probable life span	[102]
Past economic loss	[103] - [119]
Past loss of superannuation	[120]
Fox v Wood	[121] - [122]
Future economic loss	[123] - [133]
Future loss of superannuation	[134]
Past domestic assistance	[135] - [145]
Future domestic assistance	[146] - [152]
Future treatment	[153] - [159]
Past out-of-pocket expenses	[160]
Summary of damages assessment	[161]
Disposition	[162]
Costs	[163]
Orders	[164]

(a) Past economic loss	$300,403
(b) Past loss of superannuation	$33,044
(c) Fox v Wood	$20,122.85
(d) Future economic loss	$340,642
(e) Future loss of superannuation	$44,453
(f) Past domestic assistance	$55,738
(g) Future domestic assistance	$180,864
(h) Future out-of-pocket expenses	$30,000
(i) Past out-of-pocket expenses	$136,566.78
Total	$1,141,833.63

PERIOD	WEEKS	WEEKLY s.141B RATE	HOURLY s.141B RATE	AMOUNT FOR 8 HOURS PER WEEK
1.	05.06.2008 to 15.08.2008	10.14	$921.60	$23.04	$1869.00
2.	16.08.2008 to 21.11.2008	13.14	$933.50	$23.33	$2452.44
3.	22.11.2008 to 19.02.2009	12.71	$938.50	$23.46	$2385.41
4.	20.02.2009 to 15.05.2009	12.00	$946.40	$23.66	$2271.36
5.	16.05.2009 to 21.08.2009	13.85	$939.00	$23.48	$2601.58
6.	22.08.2009 to 20.11.2009	12.85	$959.90	$23.99	$2466.17
7.	21.11.2009 to 19.02.2010	12.85	$969.40	$24.23	$2490.84
8.	20.02.2010 to 21.05.2010	12.85	$989.90	$24.74	$2543.27
9.	22.05.2010 to 20.08.2010	12.85	$986.90	$24.67	$2536.08
10.	21.08.2010 to 19.11.2010	12.85	$985.50	$24.63	$2531.96
11.	20.11.2010 to 18.02.2011	12.85	$996.40	$24.91	$2560.75
12.	19.02.2011 to 20.05.2011	12.85	$1025.90	$25.64	$2635.79
13.	21.05.2011 to 19.08.2012	12.85	$1026.00	$25.65	$2636.82
14.	20.08.2012 to 18.11.2011	12.85	$1027.10	$25.67	$2638.88
15.	19.11.2011 to 17.02.2012	12.85	$1016.30	$25.40	$2611.12
16.	18.02.2012 to 19.05.2012	12.85	$1054.70	$26.36	$2709.81
17.	20.05.2012 to 16.11.2012	27.71	$1054.50	$26.36	$5421.72
18.	17.11.2012 to 17.05.2013	25.85	$1081.20	$27.03	$5589.80
19.	18.05.2013 to 17.10.2013	21.57	$1107.80	$27.69	$4778.16
TOTAL	$55,738.96