Cochrane v Brooks - [2006] SADC 128

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
COCHRANE v BROOKS
[2006] SADC 128
Judgment of His Honour Judge Tilmouth
3 November 2006
NEGLIGENCE - PROOF OF NEGLIGENCE - ONUS OF PROOF
Rear end motor vehicle collision involving the plaintiff and the defendant. Negligence proved on the part of the defendant. No basis for a finding of contributory negligence. Current injuries are causally linked with the subject accident.
Once the plaintiff proves that the negligence materially contributing to his ultimate condition, the evidentiary onus falls on the defendant to “disentangle” the causes. Defendant held liable for some but not all of the plaintiff’s loss

DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES - METHOD OF ASSESSMENT
Where a plaintiff is more susceptible or vulnerable to injury, the defendant must take him as he finds him. Plaintiff’s pre-accident condition is such that he would have been afflicted with impediments in any case. The court must proceed to evaluate that chance and determine how it then affects any award of damages.
Wrongs Act (SA) 1936 s 24, s 24D, s 24E & s 24H, referred to.
Husher v Husher (1999) 197 CLR 138; Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485; Watts v Rake (1960) 108 CLR 158; Dibbins v Dibbins Unreported, 23 October 1978; Wilson v Peisley (1975) 50 ALJR 207; Wade v Allsopp (1976) 50 ALJR 643; Malec v JC Hutton Pty Ltd (1990) 169 CLR 638, applied.
Graham v Baker (1961) 106 CLR 340; Mann v Ellbourn (1974) 8 SASR 298; Medlin v State Government Insurance Commission (1995) 182 CLR 1; Spence v Demasi (1988) 48 SASR 536; Dudieu v White & Sons [1901] 2 KB 669; Nance v British Columbia Electric Co Ltd [1951] AC 601; Commissioner of Railways v Ruprecht (1979) 142 CLR 563; Kosinsici v Snaith [1983] 1 DLR (4d) 170; Donjerkovic v Adelaide Steamship Industries Pty Ltd (1980) 24 SASR 347; Christie v Bridgestone Australia Pty Ltd (1983) 33 SASR 377; Joblin v Associated Dairies Ltd [1982] AC 794; Terrington v Beck (1982) 100 LSJS 264; Bonnington Castings Ltd v Wardlaw [1956] (HL) 613; Savini v Australian Terrazzo & Concrete Co Pty Ltd [1959] VLR 811; Purkess v Crittenden (1965) 114 CLR 164; Murray v Dawson (1996) 24 MVR 244; Dessent v The Commonwealth (1977) 13 ALR 437; Carson v Knott [1999] SASC 71; Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649; Griffiths v Kerkemeyer (1977) 139 CLR 161; Van Gervan v Fenton (1992) 175 CLR 327; Sharman v Evans (1976-77) 138 CLR 563; State Government Insurance Commission v Hitchcock Unreported, 11 March 1997, Western Australian Full Court BC 9700650, considered.

COCHRANE v BROOKS
[2006] SADC 128
Introduction

By all accounts the plaintiff James Cochrane now aged 32, suffers chronic depression and back pain and other associated problems, conditions likely to persist for some considerable time yet. The central question in this case is whether a rear-end motor vehicle collision involving him and the defendant Jason Brooks, on 18 February 2002 caused any of these problems, and if so to what extent he is liable for them.
It is the case for the plaintiff (Mr Cochrane) that although the current injuries from which he continues to suffer are largely, if not entirely, psychological in nature, they can be linked with the subject accident. The case for the defendant (Mr Brooks) is that negligence was not proved, and even if it was the plaintiff suffered at most soft tissue injuries which wholly resolved by August that year. His current problems were attributable to events and personal issues confronting him well before February 2002.
The respective positions of the parties
Very close to 7.00 am on the day in question – a Monday morning – the plaintiff left home intending to drive to work at Joyson’s Apple Orchard in the countryside, some distance away. He turned left from the driveway adjacent to 184 Jubilee Highway West, Mount Gambier heading east to collect his boss at the time, a Mr Griffin. Griffin had left a vehicle for servicing at OGR Holden, situated less than a kilometre further to the east on Jubilee Highway, on the northern or left hand side for his direction of travel.
Mr Griffin gave evidence of a prior arrangement with Mr Cochrane to collect him there that morning. From a distance of approximately 25 metres or so west of the intersection of Jubilee Highway and Littletown Road – OGR is situated on the North Eastern corner - he saw the immediate aftermath of the collision. A view taken by the Court confirms it was certainly possible for him to have done so.
Shortly before pulling out, Mr Cochrane noticed the vehicle being driven by Mr Brooks, a yellow Gemini station wagon, in the left lane heading towards him. He proceeded to turn into Jubilee Highway as he judged there to be plenty of time and space in which to safely do so. After slowly accelerating to about 30-35 kph, because the engine was still cold, he noticed in his rear view mirror the yellow vehicle closing on him. In order to allow it to pass unimpeded in the left lane, he pulled into the right. After completing that manoeuvre and having brought his car into a straight line for some distance, Mr Brooks collided into the rear of his vehicle, in that lane.
As to liability, the plaintiff contends Mr Brooks was travelling at an excessive speed, failed to keep a proper lookout and could easily have avoided impact by simply remaining in the left hand lane, or alternatively by swerving back to the left. The defendant on the other hand contends he was always positioned in the right lane and that Mr Cochrane unexpectedly turned in front of him and was therefore the sole cause of impact. The defence pleads Mr Cochrane travelled “across the path of the defendant’s motor vehicle without giving an adequate signal of his intention to do so and commenced to execute a U turn when it was unsafe to do so”.
As far as the damages go, the plaintiff says he returned to work under sufferance, in effect, even though he continued to experience increasing pain to the neck and back. In order to hold his employment, he did not tell his subsequent employers of his problems, masking the symptoms of pain. Nor did he tell treating doctors due to fear of losing his employment, especially since he lived and worked in the relatively small communities of Mount Gambier and Horsham, where word was likely to spread.
In contrast the defendant contends the collision had very little or no effect on the plaintiff. Hospitalisation was mainly precautionary, he took only the two or three days off work immediately following, and the evidence of subsequent employers strongly suggests there were no difficulties at work and no complaints to anyone of consequence.
In fact the defence says that insofar as Mr Cochrane now suffers from a chronic depressive illness and other related mental difficulties (which essentially it does not dispute), the origins lie in unrelated stressors, already manifesting themselves before the subject collision. The collision therefore had no causative, precipitating or aggravating influence or effect.
Some background events
Before turning to questions of liability, it is well to sketch briefly the events canvassed by the parties leading up to the accident, in order to appreciate the issues of relevance. The following matters are not seriously in dispute between them.
The plaintiff was born in Townsville, Queensland in December 1973 and clearly had difficulties in his relationship with his father, who was abusive to him and the family in general. The family eventually settled in Coffs Harbour, New South Wales where he attended primary school and for some time secondary school. The family again moved, this time to Sydney. His parents separated when he was thirteen years of age during 1986, which appears to have had some adverse effect upon him as well. He left school during year 10 in 1989. After their separation Mr Cochrane remained with his father for about two years, and then moved to Horsham, Victoria, to live with his mother – by then Mrs Walker - and his other siblings. He remained there for some unspecified time. There was a suicide attempt when he was 18 years of age. Unfortunately her then husband and the man called his “step-father”, unexpectedly died in April 2001; an event also having a deleterious effect on him.
It also emerged during the course of the evidence that on 24 May 2001, Mr Cochrane was involved in another collision in Commercial Road, the main street of Mount Gambier, when he hit a stobie pole whilst driving at no less than 80 kph. This was potentially far more serious than the 2002 accident. Even so, there are no reports of consequential injury, although it produced nightmares. He claimed the costs of repairs on a comprehensive insurance policy in the order of $25,000, which was duly paid to him. It appears thereafter the insurance company sought repayment because he “made misrepresentations about what happened”.[1] The upshot was that he was summoned to appear in court and eventually bankrupted. Both made him anxious and concerned, “it was always in the back of [his] mind”.[2]
[1] Transcript P261 L11-L12.
[2] Transcript P262 L27.
Mr Cochrane was an asthma sufferer. All the evidence indicates it was under control, except for occasional critical moments when brief hospitalisation might have been required. The triggers for those were unspecified although they do not appear to have been work related.
By the time of the subject accident, he had been in consistent employment as a labourer, farm hand and machinery operator, at which he appeared to be fairly flexible and capable. He proved especially adept at mechanical repairs and the like and he was a more than capable driver of a wide variety of mechanical, farming or horticultural type machinery. He was employed as a machinery operator and storeman by Miland Treated Timbers at Millicent from about February 1996 until February 1998. It was in this period that he met Ms Susan Shaw with whom he lived for some time. They had a daughter in June 2001. That relationship broke up. Next he found work as a farm hand on Myora Farm, Casterton Road Mount Gambier for approximately two years between May 1998 and August 2001. On 25 September 2001 he obtained a job with Joyson’s Apple Orchard, Millicent Road, Kalangadoo as an orchard worker and farm hand, this being his employ at the time of the accident. This came to an end on 17 May 2002, in contentious circumstances discussed in more detail later in these reasons.
After finishing with Joyson’s he found work as a forklift operator with Delblock Masonry in Horsham for about two months around mid 2003. Further casual work came his way for about four and a half months from 17 November 2003 until 22 March 2004 as a forklift and plant operator for Johnson Asahi Pty Ltd, near Horsham. Shortly before finishing with Johnson Asahi he fathered a second daughter by another woman, Bonnie Hall. Thereafter that relationship went “downhill”. At one point she took out an apprehended violence order against him. They too separated. Mr Cochrane was then employed for less than a fortnight as a tractor operator before finding work with Karkana Support Services near Horsham from 14 April 2003 to about 12 September 2003 on a part time casual basis. There were a few minor casual jobs thereafter which returned something in the order of $7,500 income, following which there appears to have been no other paid employment, although he claims to have applied for many and various positions. These proceedings were issued on 15 December 2004.
The subject accident
An outline of the issues in dispute between the parties in relation to the circumstances of the accident itself, are detailed briefly above. As mentioned the plaintiff entered Jubilee Highway intending to collect Mr Griffin. He saw the vehicle driven by the defendant at a point roughly 200 metres to his right adjacent to a Ford dealership, travelling in the left hand lane of the dual carriageway. The conditions, according to him were “quite sunny” and there was “light fog around”.[3] After turning into the left hand lane - which was 5 metres wide (2 metres wider than the right), he noticed Brooks “actually catching me – caught up to me a lot quicker than what I expected”.[4] In his estimate the distance between them had closed to some 80 metres when this observation was made. After checking his right rear-view mirror, he indicated right, turned slowly into the right lane at about 30-35 kph, moved ahead in a straight line for approximately five to six seconds, when “all of a sudden I just got this quite a large shunt, like a big wack from behind … (i)t lurched my body forward and the car came to a stop.”[5]
[3] Transcript P68 L4-L8.
[4] Transcript P68 L32-34.
[5] Transcript P72 L9-12.
Both vehicles came to rest at a mid point between the driveway and a break in the median strip to the east, opposite McGregor Street, some 50-70 metres approximately from the former. Mr Cochrane described the gap in the medium strip as a place where it was possible to do a “U-bolt in between”[6] (a U-turn), which is exactly what the defendant says he was intending, because the quickest or the most convenient route to Joyson’s was to have so travelled. It should be noted that it is also possible to make the journey to Joyson’s by more or less an equally convenient route, simply by turning left at Littletown Road, near OGR Holden.[7]
[6] Transcript P70 L35.
[7] Evidence of Mr Butcher Transcript P702 L10-11.
After alighting his vehicle, a five litre V-eight Commodore, Mr Cochrane deposed to Brooks making admissions to him “sorry mate, I didn’t see you because my windscreen was too fogged up”.[8] The rear of the Commodore was seen to be extensively damaged, the repairs being proved by Mr Jakutavicius, a panel beater, to have been $5,675.[9] That damage was described by him as “basically a full rear ender”.[10] This evidence so far as it goes, suggests a direct rear end collision, rather than one involving any significant impact angle.
[8] Transcript P75 L20-22.
[9] Transcript P674 L31, Exhibit P9.
[10] Transcript P674 L7-8.
Police, ambulance and emergency services attended shortly afterwards and eventually Mr Cochrane was persuaded to go to the Mount Gambier hospital, where he was admitted overnight.
This account of the events by the plaintiff is consistent with the contents of a motor accident report form submitted by him [Exhibit D4A] on 22 April 2002 to the insurer. All the same not much evidential weight can be placed on it, as it is essentially self-serving: Spence v Demasi.[11] There is one notable exception. A diagram drawn in it depicts the course taken by Mr Brooks at least for some distance to the west (or right of the driveway), to have been entirely in the right or centre lane. Although the form did not permit him to draw the line of approach much further back from this point, it is surprising that he did not indicate in some way the altered course of Brooks’ vehicle from the left to the right lane, if that was the fact.
[11] (1988) 48 SASR 536.
In his evidence given towards the end of the trial – other witnesses were interposed both for the defence and for the plaintiff – Mr Brooks himself painted a rather similar picture, in the event. However, he claimed to have always been only in the right hand lane. He described the conditions at the time as involving extreme glare as he was driving directly into the sun. It was his evidence that he was intending to turn right at the intersection of Littletown Road. He admitted telling the Police that the sun was in his eyes. His evidence concerning the accident was:[12]
[12] Transcript P966 L12- 967 L38.
QThe accident that we are giving evidence about, can you tell his Honour where that happened with regards to the Western Tavern, or that street.
AThere was a road that comes up alongside the Western Tavern and there is a break in the median strip and I’d say it would be about 50 to 70 metres before the break in the median strip.
QAt any stage within 200 metres of the Western Tavern were you travelling in the left-hand lane; that’s the lane closest to the footpath.
ANo.
QAs you were travelling in that right-hand lane next to the median strip, in an easterly direction, can you tell his Honour what happened as you got towards the Western Tavern.
AAs I was travelling up there, it was very glary, I was just trying to work out which way I was going on the road, and then all of a sudden I just ran up the back of the car.
QDid you know the road. Was that the first time you’d travelled on the Jubilee Highway.
ANo, knew the road very well.
QPrior to having the accident and when you were driving along in the easterly direction, can you tell his Honour what you saw.
AThere was very little, or not very little, but it was quite hard to see at the time.
HIS HONOUR
QWhy was that, was it just the sun glare.
AYes, the actual road, at this time of the year the sun was right on top of where the road was, so you are right directly into the road.
QThe sun is at a low horizon or something.
AYes, only just rose, the sun did.
XN
QI think you’ve just told his Honour that your vision is troubled because the sun is just rising.
AYes.
QI think you mentioned before fog as well; that’s correct.
AYes.
QSo as you are travelling in that lane what did you see prior to the accident.
AI didn’t see any cars in front of me either, there were no cars in the right-hand lane and, yes.
Senior Constable Marston was on general uniform duties at the time, when called to attend the scene at about 7.20 am. He received a history of the collision occurring at about 7.05 am which is consistent with the evidence of both parties on that point. He confirmed Mr Brooks admitted to him that he did not see Mr Cochrane’s vehicle “due to sun in his eyes and fog”, which is precisely what he also told the plaintiff. Marston saw for himself that conditions were foggy and misty, even though it was twenty minutes later by then. According to the Vehicle Collision Report prepared by him and tendered in evidence [Exhibit P15], Mr Cochrane told him he pulled out ahead of Mr Brooks’ vehicle, “some distance in front”. Marston recorded Brooks’ vehicle as travelling at 60 kph (according to Brooks) and Mr Cochrane’s vehicle at 40 kph (according to Cochrane), which is consistent with the evidence of both.
The circumstances were such that Senior Constable Marston was not called upon to make an extensive investigation. He said however, that if there was any allegation by one driver of being cut-off by the other, he would have noted it. Likewise if there was a suggestion of a driver intending to do a U-turn at the break in the median strip, he would have noted it. He has no note of either allegation being made. On this topic, it is true that Mr Cochrane’s flatmate Mr Baker, whom he rang from a nearby shopping centre shortly afterwards to “pick him up”, did say that during a conversation between them, Mr Cochrane suggested he was “going to do a U-turn around the traffic island”. Baker acknowledged Mr Cochrane “was definitely going to pick up the boss that morning”, that it was “difficult to remember, what exactly was said by James” and that he might have misheard him, so on the whole this evidence does not really advance the case for the defendant on the subject.
Negligence and Contributory Negligence

Even on the defendant’s own evidence, which was very straight forward, there was clearly negligence on his part, as he simply did not see Cochrane’s vehicle at all. For some time he continued ahead at a constant speed in conditions of poor visibility, compounded by the rising sun on the horizon directly ahead. Quite plainly he failed to drive defensively under those conditions.[13] Lookout was so poor that whatever course Mr Cochrane’s vehicle took earlier, he neither saw it nor took any reactive measure.
[13] Stoeckel v Harpas (1971) 1 SASR 172.
The question then arises whether there was contributory negligence on the part of Mr Cochrane. Contributory negligence is made out once it is shown the plaintiff has failed to take reasonable care for his own safety, and that failure contributed to the injuries caused: Nance v British Columbia Electric Co Ltd,[14] Commissioner ofRailways v Ruprecht.[15] There is a heavy onus on the driver of a following vehicle: Kosinsici v Snaith.[16]
[14] [1951] AC 601, 611.
[15] (1979) 142 CLR 563, 570
[16] [1983] 1 DLR (4d) 170.
It is difficult to follow completely why Mr Cochrane would ever have moved into the right hand lane, given he was about to collect Mr Griffin. On the evidence of both men there was no need and no point in tracking to the right. Possibly he did so out of habit. Moreover, whether Mr Brooks was coming up in the left or right lane, the more sensible manoeuvre was to let him pass by pulling to the left, as there was more room in that lane permitting him to do so. For what it matters, the probabilities are that Brooks remained in the right lane.
The fact of the matter remains, even though the manoeuvre into the centre lane by the plaintiff was in one sense inexplicable, that there is no proof of the allegation Mr Cochrane suddenly pulled in front of Brooks or that he was preparing to do a U-turn. The evidence is otherwise; it suggests he pulled gradually to the right at a safe distance between both vehicles, sufficient to permit him to straighten his course for some little time. Accordingly there is no basis upon which a finding of contributory negligence can possibly be made.
Post accident events – medical consultations
The circumstances of the accident suggest in the most general of terms, a whiplash type injury. Mr Cochrane himself described sitting in the vehicle for about twenty seconds following impact, more or less to steel himself into action, before alighting to inspect the damage and speak with the other driver. At the Mount Gambier Hospital he was recorded as experiencing occipital headache and chest pain and the following day he complained to his brother Mathew that “he’d hurt his neck”. It is unclear on the evidence just how much time he was off work, but it was certainly at least two days – apart from the Monday itself and possibly for the rest of the week – no conclusive finding is possible on the latter question.
The following Monday 25 February 2002, he reported to a local General Practitioner Dr Bruorton, complaining of whiplash injury, still tender from “in a motor vehicle accident one week ago”. It appears he told Dr Bruorton he was on light duties for a week. On clinical examination the doctor noted a good range of movement in the neck and gave a medical certificate for Workcover purposes for light duties for a further week [Exhibit D8]. On 15 March he complained to his brother about stiffness to his neck, who was dismissive of it.[17]
[17] Transcript P406 L24, 407 L15.
In an “Injury Claim Form” [Exhibit D4] submitted to the insurer at the same time as Exhibit D4A in late April, the plaintiff described injuries to the back, neck/shoulder and chest, involving hypertension, stiffness, limited movement and “bruising from seatbelt/whiplash”.
The only other involvement of Dr Bruorton came on Thursday 8 August 2002, when preparing a report for the insurer. His report of the same day [Exhibit D8] refers to complaints following the accident of severe neck pain. It confirmed that when examined on 25 February, Mr Cochrane “still had very tender paraspinal muscles on both sides of his neck and I assess these as being typical post “whiplash injury symptoms”. This report concluded however that “as is usual with this sort of injury he had persistent pain for two to three weeks after the accident but this then resolved fully and spontaneously”. Dr Bruorton suggested in evidence, this observation was made “I suspect … from when I asked him”.[18] He did not examine Mr Cochrane for the purposes of completing the report on this occasion. Otherwise the records of the Hawkins Medical Clinic where Dr Bruorton consulted, reveals one other attendance having nothing to do with the subject accident.
[18] Transcript P910 L20-24.
It is clear enough that Mr Cochrane consulted a General Practitioner at Horsham, Dr Cymbalist, whose medical records were tendered, although she was not called [Exhibits D13 and D13A]. These commence in 2002 and go right through to October 2005. Dr Cymbalist saw him on more than thirty occasions between 20 May 2002 and when last seen on 10 October 2005. The case for the defence is very much focussed around the fact that there were no significant reports of pain by Mr Cochrane in relevant periods following the accident in the records of Dr Cymbalist, when such reports would be expected, if he remained ill or in genuine pain.
Post Accident Work Situation
In this context, much attention was devoted during the proceedings to reports Mr Cochrane did or did not make to other people of pain. One of them was the manager of Joyson’s Apple Orchard at the time he was employed there, Mr Griffin, co-incidentally the man he was supposed to collect that morning. On 23 May 2002, he gave Mr Cochrane a reference confirming his employment at Joyson’s as a tractor operator. The reference described him as “punctual, practical, reliable and very energetic”. It concluded that Mr Cochrane “ceased work due to the end of apple picking season on 17 May 2002” [Exhibit D7]. There is no doubt on the whole of the evidence the work with Joyson’s would have ended in one way or another at about that time, because management had resolved to “down-scale” by one employee. Mr Cochrane was the one selected by Mr Griffin to go.
Mr Griffin encountered no difficulties before the subject accident, describing him as “pretty fit and agile”, to the point that he was able to “jump fences and chase kangaroos”.[19] Following the accident Griffin painted a very different picture, stating that he worked only a few days following the accident, doing three or four hours work which did not involve any lifting, mostly cleaning equipment and maintenance.[20] He also described Mr Cochrane as having stiffness when reporting for work, complaining of a sore back, taking painkillers, a situation that “got worse by the month”.[21] He also described particular difficulties climbing in and out of tractors, in completing full tractor runs and the like.
[19] Transcript P576 L4-7.
[20] Transcript P580 L5-12.
[21] Transcript P581 L16-17.
Mr Baker, referred to above, gave evidence for the defendant. By the time of giving evidence he was promoted to the position of the orchard manager at Joyson’s, the position co-incidentally previously held by Mr Griffen. Baker was employed at the time of Mr Cochrane’s accident as a leading hand. He then shared a unit with Mr Cochrane and obtained the job for him at Joysons. Mr Baker described him pre-accident as doing work to a good standard, work that did not need to be checked, although there were at times problems with large groups of people, as he did not “cope well with sort of stressful situations”.[22]
[22] Transcript P689 L23-25.
Upon returning to work, Mr Baker described the situation as “starting to wind up” so that Mr Cochrane’s duties were not “overly heavy at that stage”.[23] He observed no evident problems or complaints and no differences in the way he went about his work. He described Mr Cochrane as never being the sort to complain, keeping things pretty much to himself,[24] although after the accident he did get “grumpier” on occasions. Relations between them, for one reason or another not explored, deteriorated over the years.
[23] Transcript P690 L27-32.
[24] Transcript P709 L38-P710 L3.
When it comes to considering the evidence of both these men (Mr Griffin and Mr Baker) it is impossible to conclude from the content of their evidence or their demeanour in court, that either deliberately set out to mislead. Rather, in the case of Mr Griffin the probabilities are that he was the sort of person in whom Mr Cochrane confided. More than likely Mr Griffin, who remains friends with Mr Cochrane, has conflated to some extent what he sees now, with what he remembers back then. The position is the reverse with Mr Baker – he sees the plaintiff now through the eyes of a man well known to him in February 2002, but hardly at all over the ensuing years. He was clearly not one in whom Mr Cochrane confided much.
The probabilities are that Mr Cochrane was not the sort of person to complain to those he was not otherwise in the habit of confiding in. The fear of losing his employment was a good reason not to. To the extent that he did so, he is only likely to have confessed his problems to those whom he saw as unlikely to take them any further. Mr Cochrane certainly did make complaints about pain from time to time of the type described by Mr Griffin, but even then on a fair reading of Mr Griffin’s evidence, they were not as extensive either in frequency or extent, as Mr Cochrane described them. The recollection of Mr Cochrane in that respect is equally very much seen through the eyes of a man who now suffers deep chronic depression and recollects the past by reference to complaints he has in the present.
Defence counsel called Mr Symes, a shipping manager with Johnson Asahi. This firm was engaged in the business of hay processors and exporters in the Horsham area. They employed Mr Cochrane from late 2003 to early 2004, as a mill hand. In that capacity his duties were to transport large 25-27 kilograms of compressed hay, drive forklifts, sweep the premises, jobs he described as requiring employees to be “on their feet, except when they are driving the forklifts.[25] He said it was the responsibility of the shift supervisor to report any incident at work involving injury or vulnerability to injury and that he was aware of no such report in relation to the plaintiff. The only report he received was via a handwritten medical certificate from Dr Cymbalist of 8 March 2004,[26] which merely recorded that Mr Cochrane has a “medical condition 9 March – 23 March 2004”.[27] Mr Symes described the work performed by Mr Cochrane as being “perfectly satisfactory”. Nothing adverse was recorded on his file.[28]
[25] Transcript P870 L8-9.
[26] Transcript P861 L36-38.
[27] Exhibit D 12.
[28] Transcript P864 L33-35.
It turns out neither party was able to identify by name, his supervisor at the time and to whom he was directly answerable at Johnson Asahi. Mr Williams, then leading hand during the plaintiff’s employment there was called by Mr Krupka. He deposed to complaints of pain made to him, and of limitations in performing work duties. He described Mr Cochrane as not being one to complain, and if he did, he would have lost his job straight away. This explains why no relevant reports would have come to the attention of Mr Symes, as does the continuing fear of loss of employment.
Mr Ward for the defendant also called a Mr Wheaton, the Chief Executive Officer of the Karkana Support Services, a disability support organisation in Horsham. Karkana ran a fruit and vegetable shop, a vegetable processing division and a registered kitchen. Its records indicate for the period during which Mr Cochrane was employed by that organisation, that he worked in the market garden, in the shop and also as a relief driver. The majority of Mr Cochrane’s time was spent in the shop, packing shelves, serving customers, moving bags of between 10 and 20 kilograms each, as well as his relief driving. In all, he put in a total of 226 hours, or an equivalent of six weeks full time work. The hours for each fortnightly pay period varied considerably, from about 6.5 hours (during the last week of his employment) and up to 56 hours per fortnight during the first weeks.[29] His role was to replace permanent full time staff when they were unable to report for work. Mr Cochrane asked for increased hours or further duties, probably two or three times according to Mr Wheaton, work he described as impossible to provide, the organisation already being “over-staffed”.[30]
[29] Transcript P921 L5-31.
[30] Transcript P922 L26-33.
No work related injury problems came to the attention of Mr Wheaton over the course of this employment, nor did he become aware of any physical condition impairing his ability to do the work required of him at Karkana. It became clear during the course of cross-examination, that Mr Wheaton had relatively little to do with the plaintiff. So far as Mr Wheaton was able to tell, Mr Cochrane was one who got on well with both staff and the “client group”, however Wheaton hardly ventured outside and had little contact with him. It is hardly surprising then, that no complaint of ongoing difficulties or otherwise, came to his attention.
Finally, the defendant called a former friend and mother of Mr Cochrane’s first child born in June 2001, Susan Shaw. They met at high school when she was about seventeen. Their relationship lasted two and a half years commencing in 1997 when Mr Cochrane was then working at the timber mill in Millicent. They co-habited for some time thereafter. Although initially promising, the relationship “started to go down” according to her when he became rude or embarrassed her. She described him as being happy “as long as he was the centre of attention”,[31] otherwise he would “sulk or become annoyed,” even a bit angry and occasionally would storm off in his car.
[31] Transcript P730 L21.
More importantly to the present action, she said he became particularly annoyed when she became pregnant. He wanted her to terminate, as he felt too young to have children. Soon afterwards they broke up, maintaining some contact during which he, according to her, become verbally abusive. This led to proceedings in the Family Court for access on his part and by her seeking Child Support. Access was difficult and an unhappy experience for both, for about a year or so. Thereafter access was taken when both agreed upon it. She also described an incident relating to a funeral in the Horsham area, which as the evidence ultimately unfolded, became of no particular significance to these proceedings.[32]
[32] Transcript P740 L13 – 742 L3.
The evidence of Ms Shaw may be accepted, yet it casts very little light of relevance on the pre-accident situation of the plaintiff. It establishes to a point that he bore some grudges in relation to the pregnancy and that he was unhappy about having a child, when they were both so young. His reaction to her was one at times of some intemperance and intolerance. Grievances in the context of access and maintenance disputes are not uncommon in domestic situations involving children. The evidence shows these were of concern to him but that is as far as the evidence goes, taken alone.
At this point the contrasting evidence of Mrs Walker, the mother of the plaintiff, should be mentioned. Mrs Walker described her son as a “doer” and a “goer” in his earlier years. She confirmed problems during childhood with his father and of the abuse involved. He had determination academically and in his personal life, but was a poor speller being diagnosed with dyslexia, although was diligent enough at school even though his memory was always “pretty vague at times”. However, at high school with such problems he “lost the edge to even bother”.[33] Before the subject accident she regarded him as a “normal young man going places … getting his life together … prepared to settle down with a lady …”.[34]
[33] Transcript P629 L19-21
[34] Transcript P631 L20-24.
Following the accident things stood differently. She first saw him three weeks afterwards, noticing signs of visible pain in the lower back and to the neck.[35] Mrs Walker described her son as later being unable to move if he failed to take his medication. If taken “he seems to have ease of movement but still he cannot sit for a long period of time without pain”.[36]
[35] Transcript P633 L36-38.
[36] Transcript P634 L20-25.
On two occasions, both of about five to six months duration, he came to live with her for support. His condition gradually worsened over time, he became insular, losing interest in his friends and in his relationships. At times he articulated his concerns to her over the prospect of bankruptcy should the insurance company pursue the claim for $25,000 against him. At the same time he expressed concern about his inability to provide a home for his second girlfriend, Bonnie, or to provide for her. By Bonnie Hall he fathered a second daughter. They also separated, apparently because he was not able to earn enough money to keep up repayments on the house they resided in. Unlike Ms Shaw, Ms Hall was not called to the witness stand. Ultimately she labelled him “the bean bag” because he could not do anything,[37] becoming indolent and lacking motivation. During these times Mrs Walker assisted him with various daily tasks, such as ironing, cooking, cleaning and the like.
[37] Transcript P638 L16-32.
There was no reason to doubt the evidence of Mrs Walker, but it is evidence all the same to be seen very much through the eye of a caring mother, influenced and interpreted through an uncritical acceptance of the things he said to her. Her evidence certainly paints a pattern of deterioration over time following the accident, a deterioration related to the accident in some respects and by his personal problems in others.
Medical evidence for the plaintiff.
The involvement of the General Practitioner Dr Bruorton is detailed above, as is the report of continuing pain made to the insurer in April 2002 and to his brother and mother, in-between-time. Mr Cochrane sought little medical assistance outside the legal process other than this, largely because he was afraid of word getting out and of losing his employment.
It is significant that Dr Lim examined him as early as 21 March 2003. Dr Lim described “neck pain improved after about six months and he now has only occasional pain and aching at the back of the neck … his main problem is pain and aching at the right side of the lumbar spine …”. His report of 21 March 2003 continued “clinical examination of the neck showed tenderness in the middle of the upper cervical spine”. Based on this observation Dr Lim expressed the opinion during the course of his evidence that there was some physical basis for the complaints of pain in the neck and back.[38]
[38] Transcript P824 L27 – 825 L15.
His two reports of March and August 2003 comprise part of Exhibit P1. Based on the information supplied to him, Dr Lim considered there to be a 10% permanent physical impairment of the cervical spine and 15% permanent lumbar spine and associated part of the right leg. An MRI of the lumbar spine of 15 August 2003 showed “central dorsal bulging of T11/12, T12/L1 and L2/3 inter-vertebral discs, which he concluded “could be pre-existing but aggravated by the motor vehicle accident”.[39]
[39] Report 19 August 2003.
Dr Lim thought that a patient having this history “indicates that someone with chronic pain like this is very likely to continue with the pain”.[40] He considered the plaintiff would have difficulty in driving a tractor for extended periods, with moderate manual labour – depending on the duration – repetitive movement and it was advisable for him to look for light duties.[41] He acknowledged his findings on examination were to an extent “subjective”[42] and that Mr Cochrane told him he was “trying to hide” his difficulties at work.[43] Nevertheless his opinions were based in part on the wrongful assumption that Mr Cochrane left Joyson’s because it was the end of the apple picking season rather than because of the after effects of the accident.
[40] Transcript P831 L20-25.
[41] Transcript P823 L33-833, L24.
[42] Transcript P480 L9.
[43] Transcript P785 L21-22.

Dr Kalnins saw Mr Cochrane for psychiatric assessment on 10 January 2006 and again on 23 May 2006, for medico-legal purposes. He explained that until the mid- 1970s it was thought necessary to identify a direct relationship of cause and effect between physical injury and mental sequale, before the mental injury could be said to be related to physical. It is now generally accepted that whether the pain is physically or emotionally induced, all factors, physical as well as the mental, have an impact on pain “re-produced in the brain”. Therefore the chronic pain cycle he diagnosed Mr Cochrane to be suffering, need not have a direct link in a “precipitating” cause. Dr Kalnins noted in his report of 1 August 2006 [Exhibit P18] that when considering the history of a depressed man like Mr Cochrane, “it needs to be considered that he … presented with considerable emotional distress”.
Dr Kalnins thought that Mr Cochrane appeared genuine, “a very down to earth fellow who saw it important to be able to get out … during the day working and earn a living, and to support his partner or his family …”.[44] In addition he assessed him to be a person “worried about telling people, worried about telling an employer that he had back pain … worried about the fact that he may have deceived the employer and worried that if he gets found out or if he is injured he was worried about what would be the consequences to him …”.[45]
[44] Transcript P754 L35 – 735 L1.
[45] Transcript P757 L37 – 758 L6.
By the same token one has to be cautious in placing this evidence too highly, as Dr Kalnins was not provided with the report of Dr Bruorton and he properly conceded he would have liked to know more of the omitted history. When it came to assessing the origins of the symptoms claimed by Mr Cochrane, he gave the following explanation[46] [Exhibit P1, p24]:-
Regarding whether it is important to resolve the conflict between Dr Lim (continuing organic pan) and Dr Jackson (no continuing organic pathology).
Mr Cochrane’s organic pain experience does not need to be continuing in order to ground the psychiatric diagnosis. It therefore does not really matter whether the Court accepts Dr Lim or Dr Jackson, the psychiatric diagnosis will remain the same.
Orthopaedic Surgeons tend to look at the cause of the patient’s pain in a rather black and white manner. They look at movement and radiological evidence in order to find an explanation for pain. If they can not find organic pathology they can not explain the pain.
However humans are more than just muscle and bone. Recent theories suggest that the initial experience of pain can trigger changes in the brain that may explain the perception of pain after identifiable organic cause is resolved.
[46] Transcript P752-753.
This passage from his report was further explained by him during the course of his evidence in the following way:[47]
QIn those paragraphs underneath, I think you explain that it is not critical. Can you explain to his Honour how it could come to a stage where that sort of orthopaedic evidence isn’t critical is grounding his pain experience now.
AThe concept of pain and the psychology of pain is now understood to be quite inter-related. Many years ago when I first started in the area of pain management, people used to refer to: is it organic or is it not organic, or is it psychological or organic, which even at that time was a rather naïve way of referring to pain and the impact of pain on a human being. Over a number of years now, particularly since research in 1975 which developed the Gate theory of pain. It has been understood now that physical injury, one’s emotional state and also the social environment and the behavioural environment that we live in, all impact on pain. That has become more understood over the last few years, where it’s now considered that the brain isn’t the static organ that we have sometimes thought it to be. There is plasticity or Neuro plasticity in the brain, where an individual experiencing pain will have actual biological changes in the brain; the signals of pain can change how we think and behave. While there is part of our anatomy that tells us that a person may have pain in their back or pain in their foot, there is that part of our brain that tells us that the “ouch” factor, that this is uncomfortable and this is hurting. It is now understood that the way psychologically that we are feeling, has an impact on the suffering component of pain. An individual who is suffering depression or is experiencing some form of conflict or behaviour difficulties or difficulties within their lives in some way, that impacts on the pain experience.
QSo as I understand that, this is particularly relevant in trying to explain why soft tissue injuries, which the orthopaedic surgeon sometimes tell us heal within six weeks or so, six weeks to three months, can cause ongoing symptoms. Is that correct.
AThat’s correct.
The evidence of Dr Kenny – to be discussed in detail later in these reasons - is not inconsistent with these views.[48]
[47] Transcript P782 L9 – 783 L13.
[48] Transcript 1035 L13 – 1037 L3.
Medical Evidence for the Defendant
In contrast the consultant Orthopaedic Surgeon, Dr Jackson in a report based on a single examination of 24 May 2005,[49] initially painted a somewhat different interpretation on Mr Cochrane’s problems. He took a history to the effect that he was off work for approximately two weeks, returned to light duties for some three to four months, eventually achieving full normal duties “with difficulties”. Physical examination demonstrated a normal range of movements. Dr Jackson readily accepted psychiatric diagnosis was “beyond [his] field of expertise”. So far as the physical diagnosis and prognosis went, Dr Jackson concluded “it was difficult to relate his current symptomology to the road traffic accident in question … ” and there may be “non organic factors that are more significant to him not returning to the workforce”.[50] Dr Jackson placed a great deal of weight on the report of Dr Bruorton of 8 August 2002, to the effect that the symptoms “resolved fully and spontaneously after about two or three weeks” following the accident. That observation he thought was wholly consistent with soft tissue injuries being suffered by Mr Cochrane.[51]
[49] Exhibit D11.
[50] Exhibit D11 P7.
[51] Transcript P875 L6-L33.
Dr Jackson had little difficulty in stating Mr Cochrane may still have some pain “assuming Mr Cochrane continued to suffer neck and back pain continuously since the accident”. He also accepted “psychological factors come in to play very much with long-time complaints of this type”[52] and “psychological factors can very much influence pain factors … (T)here are many articles out there to that effect”.[53] Having looked at the x-ray films he formed the view there was “some evidence here of underlying pathology but whether that pathology was relevant is uncertain”[54] and that pain was a “non-measurable quantity, one simply cannot estimate it”,[55] there being a “tremendous variation of person to person”:[56]
… because pain is something which we still do not fully understand and people’s perception of pain varies tremendously, to the extent that some people experience pain levels which would be considered to be out of context with the average person and therefore they will tend to limit themselves far more than what most people may do in similar circumstances.[57]
[52] Transcript P886 L34-L35.
[53] Transcript P891 L4—16.
[54] Transcript P888 L14-16.
[55] Transcript P889 L1-3.
[56] Transcript P890 L25.
[57] Transcript P890 lines 28-36.
Dr Jackson added that those taking long periods off work due to pain become “deconditioned” and once in excess of four years or more “the pain is now rated as chronic and therefore the outlook for any relief, or significant relief, of that pain with any treatment is to be very guarded and likely, or it will, persist into the future”.[58] He also added, quite fairly, that Mr Cochrane “may need to be investigated more fully … to try and determine the exact cause of that pain” and “if we find a definite organic basis for this man’s pain and can prove what that basis is … and I think a pain clinic of a multidisciplinary type that one can pay attention to both possible organic and possible inorganic factors as the ideal situation for this man now”.[59]
[58] Transcript P892 L26- 893 L7.
[59] Transcript P893 L24 – 894 L16.
Dr Barrie Kenny, a Melbourne psychiatrist, examined Mr Cochrane on behalf of the defendant on 27 April 2006, for one hour. He took a work history, details of past accidents and sequelae and asked a series of questions on the issues examined in his report of 18 May 2006 [part of Exhibit D16]. Relying on the truthfulness and accuracy of the history as given, which he had no reason to doubt at the time, his conclusion was that it was “reasonable to say that in the early stages he had a mild Post Traumatic Stress Disorder, which now leaves him with residual symptoms associated therewith – but certainly no longer a full blown Post Traumatic Stress Disorder”. From a psychiatric point of view his conclusion then was the plaintiff suffered Chronic Depression since the time of the accident, a moderately severe and fluctuating Adjustment Disorder with predominantly stress mood and minor residual symptoms of the Post Traumatic Stress Disorder. He also thought there would be a “great degree of improvement should Mr Cochrane find work”, and that he would benefit from psychiatric treatment recommended by Dr Kalnins.
However, following the production of the records of Dr Cymbalist and the Ballarat Health Services at Horsham, Dr Kenny reassessed his position, as outlined by his second report of 4 July 2006 [part of Exhibit P16]. In seeking that further report, the solicitors for the defendant in their letter of 4 July 2006, directed Dr Kenny’s attention to various portions of those records, which recorded difficulties relating to the insurance lawsuit, court battles over the custody of his daughter, the prospect of bankruptcy and suicide attempts. Consequently Dr Kenny revised his earlier view, stating the plaintiff “has a much more turbulent life-style and many more traumas than he acknowledged to me”. Further he regarded it as “quite significant that there is no mention of his treating doctor’s report of any continuing problems associated with the car accident” to the point he felt the history obtained “was certainly not reliable and therefore that cast considerable doubt on the opinion expressed therein”.
Accordingly Dr Kenny concluded that the Adjustment Disorder with depressed and anxious mood diagnosed in his first report of 11 May 2006, was “very likely indeed ….[to be]…….depended upon many other factors in his life”. Thus he no longer had “any way of being confident that his physical symptoms related to the accident and/or that his adjustment disorder is primarily related to the accident”.
However, under cross-examination Dr Kenny accepted that a number of assumptions made in his latest report were erroneous or that he missed important references,[60] and to being at a significant disadvantage, having only examined Mr Cochrane once. It became clear Dr Kenny’s revised opinion was based in part on the premise that there was no mention of “the car accident or effects thereof in the notes forwarded to him”.[61] As it transpires Mr Cochrane saw Teresa Newton, a psychiatric nurse on at least 23 occasions in the first half of 2005,[62] some of them containing such references as “chronic neck and back pain”, “lower back and neck pain from MCA almost 3 years ago”, entries Dr Kenny thought “certainly seems to tie his pain into the accident”.[63] Ultimately he embraced the proposition “it’s not really accurate to use Teresa Newton’s notes on 22 June 2005 to support the theory that he [the plaintiff] doesn’t mention the car accident much”.[64]
[60] Transcript P1003-1033.
[61] Transcript P 1006 L12-L13.
[62] Exhibit D14, pp9, 16, 19 (x2), 21 (x2), 23, 24, 25, 26, 30, 33, 34, 36, 44, 49, 50, 51, 52 (x2), 55, 58, 68 and 71.
[63] Transcript P1011 L16-17.
[64] Transcript P1012 L5; Exhibit D14P 71.
Based on such entries, Dr Kenny very properly made concessions that portions of his last report were “inaccurate”,[65] that in other respects he “was wrong”[66] for failing to notice references to a car accident,[67] finally conceding that he tendered “back towards [his] first report”.[68] For those reasons the evidence of Dr Kenny did not advance matters, one way or the other, and if it did it was marginally more supportive of the plaintiff’s position than otherwise, as significant patient and hospital records were missed or overlooked by him.
[65] Transcript P1021 L16.
[66] Transcript P1025 L12-L24.
[67] Transcript P 1028, L22-L36, Exhibit D14 P9.
[68] Transcript P1031 L37-L38).
Analysis and Findings.
Plainly the plaintiff suffered injuries of a soft tissue nature of some duration in the subject accident. These were likely to have involved the neck and back for which he was x-rayed at hospital later that day and referred to an orthopaedic surgeon. He had at least several days off work, returning on light duties for up to some three weeks. When seen by Dr Bruorton on 25 February 2002 he continued to be suffering from typical post “whiplash” injury symptoms and presented clinically as still being tender in the neck area. That situation was ongoing as of late April 2002. Although the plaintiff may have reported to Dr Bruorton, or Dr Bruorton may have supposed this had “resolved fully and spontaneously” about three weeks afterwards, Dr Bruorton was somewhat hesitant as to this, and more importantly no examination was undertaken for the purpose in August 2002.
The probabilities are that he continued to suffer from pain to the neck for some time, especially after doing heavy or sustained manual work, which he continued to disguise, in the main, as he did not wish to risk his employment or his employment prospects. For the same reason he did not mention these continuing problems to Dr Bruorton or for that matter to anyone in authority in the work place. He did let on to others such as Mr Griffin, his brother and his mother and to a lesser extent Mr Baker and Mr Williams at times, on the implicit understanding it would go no further. The continuing problems were evident to Dr Lim in March 2003, as detailed above and to Dr Kaiser in April and June of that year, and again in February 2004.
The records of the General Practitioner Dr Cymbalist [Exhibit D13] and the Ballarat Health Services [Exhibit D14] do contain the following reported references of relevance to the February 2002 accident, as well as to other factors affecting Mr Cochrane at various times:-
3 April 2003        Dr Cymbalist: stressed by insurance claim.
10 April 2003       Examination by Dr Kaiser consultant physician Horsham: 'headaches after a whiplash injury last February...he's had a lot of private trouble because of a law suit after a car accident....he's also fighting in court for custody of his daughter and faces bankruptcy if he looses the law suit'.
3 June 2003 Dr Cymbalist: (refers to Dr Lims report) – “sore neck. Problem reading, pain to lower back and elevating arm above head. Apparently lifting pavers. Strained neck, referral to physiotherapy”.
5 June 2003Examination by Dr Kaiser: “since his accident James still has pain in his neck, mainly his left shoulder and his left arm”.
15 August 2003    MRI scan 'T11-12, T12-L1 and L2-3 central dorsal bulges'.
29 September 2003 Dr Cymbalist: Physio for back, middle neck and lumbar spine. New work, forklift pavers. Lawyer will ask me re general health.
17 February 2004   Examination by Dr Kaiser “suffers from chronic headaches/migraines...had a high speed car accident in February 2002...apart from chronic tiredness and headaches, he has no complaints”.
7 March 2004 Dr Cymbalist: After hours home visit. Depression. Re depression factors – lost father, bankruptcy, MCA, custody of daughter, new baby, back injury, job doesn’t like.
18 March 2004      Dr Cymbalist: Left medication in Mt Gambier. Symptoms as above … Been off work 2 weeks, will try to return Monday … Baby a pain …
24 May 2004 Dr Cymbalist: Johnson Asahi, lifting 27 kg, but is not to lift over 10 kg, as per Dr Lim … Not fully qualified for work at Karkana. …
14 December 2004 Dr Cymbalist: … Stabbing pain over shoulder. prev. neck pain, physiotherapy … insurance to pay. Soreness thoracic spine, suggested physio … Can’t sleep due to discomfort, prescribed panadene forte.
23 January 2005 Dr Cymbalist. Accident and Emergency Dept. .. Suicidal, ready to drive car into a tree. Broken up with Bonnie, nothing to live for … Referral to Grampians Psychiatric Services.
24 January 2005     Stressors attributing to above symptoms are recent relationship break-up, unemployment, chronic neck and back pain...lower back and neck pain from MVA almost 3 years ago...pain in knees (sports injury, exacerbated by above MVA) ... hypertension'.
24 January 2005 Hospital admission note: chronic back pain – MVA 4 years ago.
25 January 2005 Adjustment disorder with depressive symptoms.
30 January 2005     Recent separation with his de facto partner and chronic back pain.
9 February 2005     Examination Dr Emmanuel psychiatrist Horsham 'James is currently on disability support pension, having had a bad    back injury following car accident 4 years ago'.
21 February 2005 Dr Cymbalist: Can’t find job because of back problems … Solicitor, re back injury, can’t get a job. Employers are scared off by his back injury.
24 February 2005 Hospital admission note: “chronic back pain – MVA 4 years ago”.
3 March 2005 Dr Cymbalist: Feeling 7/10 CRS re back and depression …
30 March 2005    To physio tomorrow for back pain treatment.
8 April 2005         Dr Cymbalist: … living with mother … to have independent psychiatric evaluation in 6 months. Doesn’t know where he stands with Bonnie. Intervention order 12 months … CRS to ring lawyer and insurance Co re payout.
20 April 2005       In Adelaide looking for work.
11 May 2005 Dr Cymbalist: CSR appointment psychologist … slipping down last two weeks … risk of suicide … poor sleep and motivation … still look for work with CRS. Waiting to her from solicitors re insurance payout, depressed 3/10.
9 June 2005 Dr Cymbalist: phone call – overdose … found unconscious in the Grampians.
18 June 2005       Dr Cymbalist … depression, relationship issues, chronic back pain and post traumatic experiences.
20 June 2005       Horsham hospital 'recent breakup with partner, chronic back pain'.
22 June 2005       Horsham psychiatric 'a history of chronic back pain'.
Not seen again.
These records certainly show no medical reports of back problems were made between late April 2002 and March 2003, but it is not fair to say that there is a complete absence of such complaints over a longer period of time. In the period just mentioned, the probabilities were that there were reports of pain to Mr Griffin, Mrs Walker and a Mathew Cochrane as deposed to by them, albeit overstated at times to the extent mentioned above.
The probabilities are such that as the back pain subsided the psychiatric problems gradually surfaced, masked at first by physical pain, then by the myriad of other problems, passing largely unnoticed until about March 2004 and undiagnosed until around January 2005. By then an insidious situation had become chronic, the product of an underlying pre-existing mental vulnerability triggered by the subject accident, one compounded by other issues, such as the loss of employment, separation from Bonnie and the consequential problems of child access and so on.
It must be acknowledged that as of 18 February 2002 the plaintiff was prone to a mental breakdown of some kind, because of the cumulative effect of the various stressful events and relationships in his life up until then. These were very likely to have impeded his working capacity and to have resulted in periods of part-time employment or significant gaps between jobs, but not of themselves likely to lead him to become completely unemployable.

The mechanism for this type of reaction, although not completely understood, is explained by Dr Kalnins in the passages from his report and his evidence quoted above, one fairly acknowledged by Dr Jackson and not disputed by Dr Kenny, at least in principle, although Dr Kenny questioned its application to this case. Once it is accepted there were continuing complaints of pain related to the accident, an identifiable link between them and the subject accident emerges.
So far as the plaintiff is concerned, clearly the court must be guarded in accepting his evidence unconditionally. Then again on some occasions he was plainly reliable, for example as to the circumstances of the accident itself, and at others he was struggling through pain, real or psychiatric to recall and at others too exhausted or too overcome to turn his mind adequately to the question. On other occasions he was prone to exaggerate, particularly as to the extent and frequency of pain following the accident, and at the present time.
In this case the medical evidence varies to the extent analysed above, so it is the direct evidence concerning the plaintiff as he was before and as he presented following the accident that becomes important. In those circumstances the case ought to be approached in the manner described by Bright J in Dibbins v Dibbins:[69]
This case is an example of the useful principle that where medical evidence is in conflict the primary consideration may be the credibility of the plaintiff. True, the medical specialists, with their skill and experience, can move parts of the body so as to test the range of involuntary movement. They can also, by means of diagnostic aids, detect the presence or perceive the apparent absence of physical abnormalities which might be the cause of claimed symptoms. They can also, with their knowledge of anatomy, give a valuable opinion as to whether claimed symptoms are consistent with each other or with a suggested physical cause. But ultimately we must come back to the symptoms. Of course, anatomical signs detected by the medical specialists or the absence of such signs may tend to establish that the patient is telling untruths about or is exaggerating her symptoms. But it is the symptoms that are central, not the signs. I hope that I am not being unduly idiosyncratic when I say that if reliable independent evidence clearly indicates that the patient is credible, one does not disregard his or her complaints merely because the signs suggest that little or nothing is seriously wrong. Failure to recognize this simple truth has, I should think, led to the death or invalidity of many patients. Medical science has advanced very far but it is still not always capable of producing unqualified and indisputable answers.
Very often there is no reliable independent corroboration of the patient's account. In such a case, obviously, the medical evidence is of the greatest importance, especially if the medical evidence is all one way. But if the doctors disagree the judge still has to decide, and he may not make it his first concern to assess the relative credibility of the doctors. I think he may first assess the evidence of the patient.
All this is by way of preamble to the reasons for judgment in the present case which is an assessment of damages in which there is almost complete disagreement by the medical specialists, there is a body of nonmedical evidence supporting the plaintiff's credibility, and the defence strongly attacks the plaintiff as an impostor, or, at best, a great exaggerator.
My approach to this case will therefore be to examine the plaintiff's evidence, then the evidence of non-medical witnesses as to their observations of her physical condition, then the evidence of medical experts to see if their evidence causes me to vary my conclusions as to her symptoms, and then to consider again the medical evidence, in so far as it is consistent with those conclusions in order to determine a prognosis.
This approach was approved by White J in Donjerkovic v Adelaide Steamship Industries Pty Ltd ,[70] comments repeated by him sitting as a member of the Full Court in Christie v Bridgestone .[71]
[69] Unreported 23 October 1978.
[70] (1980) 24 SASR 347 at 353.
[71] (1983) 33 SASR 377 at 386.
The issue of causation
It is submitted by the defendant that it has not been proven the various injuries alleged by Mr Cochrane were caused or contributed to by the subject accident and the explanation is exaggeration on his part and otherwise the source of his pain and discomfort lies in pre-existing and subsequent unrelated events in his life. Accordingly, it is submitted, he failed to discharge the onus of proving the accident contributed to his current complaints and the psychiatric problems which accompany them: Joblin v Associated Dairies Ltd.[72] It is further contended that any problems evidenced by the x-Rays and MRI films suggested natural degenerations which overtook any problems arising from the accident: Terrington v Beck.[73]
[72] [1982] AC 794, Luntz Assessment of Damages 4^th Ed. Para 2.6.4.
[73] (1982) 100 LSJS 264, 268.
In this matter we have a situation in which the plaintiff is able to prove that the accident probably did materially bring about his present problems, most of which are now clearly psychiatric in nature. There were also other contributing causes, occurring both before and after February 2002. It is difficult to accept that the plaintiff would have suffered mental breakdowns to the extent or for as long, but for the subject accident.
Once the plaintiff has proved negligence materially contributing to his ultimate condition, an evidentiary onus falls on the defendant to “disentangle” the causes and if it is not possible to do so, the defendant may then be held liable for the full extent of the plaintiff’s loss: Bonnington Castings Ltd v Wardlaw,[74] Savini v Australian Terrazzo and Concrete Co Pty Ltd[75] and Purkess v Crittenden.[76]
[74] [1956] (HL) 613,
[75] [1959] VLR 811.
[76] (1965) 114 CLR 164, 168.
No other physical cause for the present ailments emerged on the evidence – on all accounts he was a good worker beforehand. The timing of the accident, the undoubted soft tissue injures and the consequent onset of the psychiatric injuries, were more than matters of mere coincidence.
Assessment of Damages – General Observations
The plaintiff claims damages for pain and suffering and loss of amenities or non-economic loss, past and future loss of earning capacity, gratuitous services, future medical care and expenses, superannuation losses and special damages. These are to be assessed in turn. Before doing so it is well to make further findings in relation to his general state of health, work history and other relevant considerations.
It cannot seriously be doubted that Mr Cochrane was in good physical health before the accident, although by that time his mental state was questionable, but not serious enough to have been diagnosed or in need of treatment. He had worked in a variety of jobs, some involving quite hard work, with no history or evidence of back problems or lasting pain. As mentioned he proved flexible and adept, especially at mechanic tasks and repairs. In that case, being in apparent good health beforehand and in poor health thereafter, the changed circumstances may be regarded as a consequence of the accident; it is then for the defendant to prove that there is some other explanation for it: Watts v Rake.[77]
[77] (1960) 108 CLR 158, 163.
Although not vulnerable to back ailments, he was to psychiatric injury. His earlier childhood experiences according to Dr Kalnins were “predisposing factors” to the onset of a psychiatric injury, but not of themselves sufficient to explain the extent or enduring nature of the current ailments. Other factors came into play, such as lack of self-esteem due to loss of work, the break-up of two relationships – one before and one following – and two suicide attempts, again one before and one following the accident.
However where a plaintiff is more susceptible or vulnerable to injury, the defendant must take him as he finds him: Dudieu v White & Sons,[78] Watts v Rake[79] and Shorey v PT Ltd.[80] By the same token, as stated by Menzies J in the latter case, when a plaintiff’s pre-accident condition is such that he would have been afflicted with impediments in any case, the court must proceed to evaluate that chance and determine how it then affects any award of damages: see also Wynn v NSW Insurance Ministerial Corporation.[81]
[78] [1901] 2 KB 669, 679.
[79] (1960) 108 CLR 158, 160, 164.
[80] (2003) 77 ALJR 1104 at [45]
[81] (1995) 184 CLR 485, L98-L99.
In the reference dated 23 May 2002, the reason ascribed for the employment terminating at Joyson’s Orchard on 17 May 2002 was “due to the end of the Apple picking season” [Exhibit D7]. However Mr Griffin’s evidence was that because of physical problems following the accident, Mr Cochrane would not “be able to do the pruning” so he was the employee selected to be laid off. Griffin said he would not have lost this position had he not been injured.[82] Andrew Baker confirmed this was Griffin’s decision.[83] The probability therefore is that but for the accident, the employment with Joyson’s would not have terminated then.
[82] Transcript 586 L16-L37, Transcript 602 L8.
[83] Transcript 708 L21-L23.
The subsequent employment history is set out earlier. Thereafter work became harder and harder to come by. The reasons are not hard to find; as the pain subsided mental de-compensation, stress and depression took over. At the same time accumulated personal problems began to take their toll, to the point that he became locked into a “chronic pain cycle”.[84] Nor is it difficult to accept the evidence of Mr Baker and Mr Symes that they would not have employed those who through prior injury might have been a work-cover risk.[85]
[84] Transcript 756 L6-L15.
[85] Transcript 714 L16 – L38, Transcript 871 L1-L8.
From there on his condition deteriorated significantly. There was an attempted suicide in early June 2005 after his separation from Bonnie, when he was found unconscious in the Grampians having overdosed on prescription medication. He is obviously chronically depressed, trapped in a psychologically induced chronic pain cycle. He takes a disturbing quantity of painkillers and has been prescribed antidepressants since early 2005. No one suggests he is likely to obtain substantial employment in the short term.
With these observations in mind, the various heads of damages sought to be proved, can next be considered. Both parties accept that (insofar as applicable) damages are to be assessed against the provisions of Wrongs Act 1936 (SA).[86]
[86] Since repealed by the Civil Liability Act 1936 (SA).
Non-economic loss, Pain, Suffering and Loss of Amenities
As noted already Mr Cochrane suffered soft tissue damage in the nature of whiplash injury, which at first was relatively severe, causing time off work measured in days rather than weeks, persisting for several months, beyond August 2002 and at least until late April 2002, but then only episodically, probably when heavy or repetitive work was involved. That situation must have resolved physically at some indefinite time, possibly within eighteen months or so after February 2002. In the meantime a more serious psychiatric condition surfaced, becoming full blown by possibly late 2004 or early 2005 when Dr Cymbalist and other agencies at Horsham actively intervened. This condition also fluctuates, for example it worsened in each of the two periods whilst staying with his mother. It has clearly become chronic. Mr Cochrane previously had difficulty in relating to people but that has become more serious. Equally he has difficulty in maintaining relationships. Those impediments in addition to his difficulty in reading are likely to carry over into his employment situation.
In these circumstances there can be no doubting his ability to lead a normal life is significantly impaired for a substantial period.[87] Damages for non economic loss should be calculated in relation to these combined injuries arising from the accident occurring in 2002 by fixing a scale value of 16, to which a monetary sum in accordance with s24B(2)(b) of the Wrongs Act applies. It is not open to divide these pre and post accident.[88]
[87] Refer generally to SGIC v Fioranti [1991] ATR 81-114.
[88] Morris v Thorpe [1991] SASC 282.
Past loss of earning capacity.
Under this head of damage it is necessary to identify what capacity was lost and what economic consequences will probably flow from that loss: Husher v Husher.[89]The primary task is to arrive at a sum, duly compensating the plaintiff for diminished earning capacity which has been or will be productive of pecuniary loss: Graham v Baker,[90] Mann v Ellbourn,[91] Medlin v SGIC.[92] In cases of partial incapacity the commencing point in evaluating that loss is the extent of diminished earning capacity expressed as a percentage of full capacity: Murray v Dawson,[93] Dessent v The Commonwealth,[94] Carson v Knott.[95] This is not a matter of simple arithmetic as it is the loss of earning capacity and not the loss of earnings that must be measured: Arthur Robinson (Grafton) Pty Ltd v Carter.[96]
[89] (1999) 197 CLR 138, 143.
[90] (1961) 106 CLR 340, 347.
[91] (1974) 8 SASR 298.
[92] (1995) 182 CLR 1.
[93] (1996) 24 MVR 244.
[94] (1977) 13 ALR 437.
[95] [1999] SASC 71.
[96] (1968) 122 CLR 649, 658.
As was seen above, Mr Cochrane was in steady employment since February 1996, but it was not always constant. There were periods of several months between jobs in both 1998 and 2001. Proved income in previous years through taxation returns, were as follows: [Exhibit P3]:-
Financial Year  Taxable Income          Tax  Net
30 June 1998  $17,932  $2,506.40          $15,425.60
30 June 1999  $16,779  $2,275.80          $14,503.20
30 June 2000  $30,545  $6,407.30          $24,137.70
30 June 2001  $32,292  $6,067.60          $26,524.40
30 June 2002  $26,785  $4,415.50          $22,369.50.
Of course the annual income earned to 30 June 2002 reflects the loss of the job at Joyson’s from mid May that year over a period of six weeks or so; even so average net wages were $430 per week.
The probabilities are that the job at Joyson’s might have been secure for the short to mid term, but it was by no means a permanent or guaranteed source of work. Mr Cochrane was likely to have taken a significant period off work, in order to deal with the other mounting pressures in his life which were beginning to compound by early 2002. This was more than likely going to occur sooner rather than later. The fact that he developed such a major depressive disorder from such a relatively minor collision (impact speed of 20-25 kph), serves to demonstrate the high probability of that very occurrence. On the above findings the situation is one like that acknowledged by Barwick CJ in Wilson v Peisley:[97]
Thus, whilst the [defendant] must pay for bringing out that condition, what he must pay must, in my opinion, justly reflect the fact that that condition was not merely latent in the [plaintiff] but that events, not of an unusual or unlikely kind, could and might in the ordinary course of life have evoked that condition had not [plaintiff’s] negligence intervened.
[97] (1975) 50 ALJR 207, 209.
The probabilities were also that he would eventually bring them under control, but not wholly overcome them. Nevertheless a major factor in this instance was the loss of self esteem and consequent depression occasioned by the loss of his job at Joyson’s. As against that it is not possible to be satisfied on balance that Mr Cochrane lost 100% of his working capacity. Although formal employment trailed off as time went on, there is evidence of residual earning capacity, both in the subsequent employment as noted above, in assisting to renovate a house, working for short periods at Delblock Masonary and VITA in 2003, at Collac, with a Mr Klowss and he undertook some volunteer fire fighter duties as well as working on his brother’s farm.
The period in question pre-trial is nearly four years and eight months, or 244 weeks. As a consequence the most likely loss of earning capacity due to pre-existing factors is in the order of about 40% of his working capacity. Given these considerations, actual earnings were most probably going to average something in the order of $260 per week net or $63,000 in round figures to the present time, less $20,000 of earnings conceded by the plaintiff actually earned since. This produces pre-trial losses of earning capacity reflected in dollar terms of $43,000 (less one week).[98] Although there was some evidence of a few isolated occasions working for a nightclub and being paid something of the order of $20 “cash under the counter”, this was insignificant in the scheme of things.
[98] Section 24D Wrongs Act 1936 (SA), previously s35a(1)(d).
Future Loss of Earning Capacity
When assessing damages for loss of future earning capacity, both favourable and unfavourable contingencies which may affect that capacity must be considered, including the prospect of ill health, unemployment and accident: Wynn v NSW Insurance Ministerial Corporation.[99] This is not such a straightforward exercise in this particular matter.
[99] (1995) 184 CLR 485, 497-498.
It was uncertain for how long the job of Joyson’s might have otherwise endured. The past employment history made it likely Mr Cochrane would find equivalent work in time, but it would not have been consistent. His psychiatric problems would have in addition, resulted in periods off work and probably longer periods of unemployment between jobs. It was not likely that he would ever be up to working in the Iluka mines, like his brother has done. Then again, as age began to catch up with him in a competitive job market, coupled with the latent mental problems, full-time employment to age 65 was always going to be most unlikely.
It must be acknowledged that the plaintiff also exaggerated somewhat as to how long he is able to stand, how long he can sit and as to his true capacity to undertake even the most basic of daily chores, exaggeration in part the product of his depression. As time goes on, and these proceedings are finally behind him, he is likely to improve. That prospect is on all the medical evidence, to be measured in terms of years, given the established course and persistence of the present pain and depressive cycle. On the other hand it may be accepted there will be continual problems undertaking “heavy manual labour” which necessarily limit the scope of jobs realistically open to him. In addition, his chances of securing employment will be hampered by the history of back and mental injury: Wade v Allsopp.[100]
[100] (1976) 50 ALJR 643, 647.
One also needs to take into account the probabilities of other employment, and part time or casual employment being obtained: Malec v JC Hutton Pty Ltd.[101] Account should also be taken of the fact that Mr Cochrane would be competing with other applicants not suffering from disability and that “the process of selecting one from a number of applicants for employment is, on each occasion, an all or nothing affair in which the applicant with diminished capacity may each time be wholly unsuccessful”: Wade v Allsopp (above).
[101] (1990) 169 CLR 638, 643.
The parties have agreed a multiplier reflecting the present day value of the loss of $1 per week as 834, for a 32 year old male to age 65, at the prescribed discount rate of 5%.[102] Given a pre-accident capacity measured in dollar terms of $260 per week, that produces a sum of $216,840 as the preliminary estimate of future loss of earning capacity based on those “raw” sums. However, at this point the other contingencies otherwise affecting earning capacity must be brought into account.
[102] Wrongs Act 1936 ss24 and 24E.
The court has already judged that the plaintiff’s earning capacity was depleted because of the fact that pre-existing issues were more than likely to have diminished his ability to maintain or retain consistent full-time employment. As to the future, there is no doubt that the lost employment, the loss of self-esteem and the insidious nature of the mental condition, compound to the extent that the court can have no confidence he will obtain long-term or stable employment for any significant periods of time. For those reasons, although the provisional sums must be reduced to properly reflect the adverse contingency of the likely onset of events extraneous to the accident afflicting future working capacity in any event, it is not necessarily appropriate to do so at the same rate as was allocated to the pre-trial situation, simply because the relevant contingencies are somewhat different. That this may be the case was acknowledged in Husher v Husher[103] per Gleeson CJ, Gummow, Kirby and Hayne JJ (footnotes omitted):
[7] Since at least Graham v Baker it has been recognised that it is convenient to assess an injured plaintiff's economic loss "by reference to the actual loss of wages which occurs up to the time of trial and which can be more or less precisely ascertained and then, having regard to the plaintiff's proved condition at the time of trial, to attempt some assessment of his future loss". But damages for both past loss and future loss are allowed to an injured plaintiff "because the diminution of his earning capacity is or may be productive of financial loss". Both elements are important. It is necessary to identify both what capacity has been lost and what economic consequences will probably flow from that loss. Only then will it be possible to assess what sum will put the plaintiff in the same position as he or she would have been in if injury had not been sustained.
[8] No doubt the past may provide important evidence about the plaintiff's earning capacity and what economic consequences will probably flow from what has happened. What a worker earned in the past may provide very useful guidance about what would have been earned if that worker had not been injured. But the inquiry is an inquiry about the likely course of future events and evidence of past events does not always provide certain guidance about the future. There may be many reasons why an injured plaintiff's past work history provides no assistance in deciding what that plaintiff has lost through diminution of future earning capacity. The student who is yet to enter the workforce is an obvious case of that kind. That student may have no history of paid work. Important as evidence of past events may be, that evidence is not determinative of an issue about loss of future earning capacity.
[103] Above.

This is by no means an exercise capable of mathematical precision. On the basis of the identified adverse contingencies, the proposed award is appropriately reduced by 30%,[104] so that the proper amount of future economic loss on that finding becomes $151,788.
[104] Compare Harrison v Suncorp Insurance & Finance, SC (Qld) 12/12/95 BC 9502176 and see cases noted in Luntz (above) para 2.2.3,
Gratuitous Assistance
This head of damages centres around Griffiths v Kerkemeyer[105] and Van Gervan v Fenton.[106] The former acknowledges damages in the hand of a plaintiff representing the loss of capacity occasioning the need for assistance provided by way of voluntary services. The latter establishes the proposition that it is the market rate for the provision of such services, which is generally the basis for assessing such losses. The common law has in this State been modified in several respects immaterial to this action.[107] The rate, if applicable to this case, has been agreed at $25 per hour.
[105] (1977) 139 CLR 161.
[106] (1992) 175 CLR 327.
[107] Wrongs Act s24H.
Mr Cochrane lived with his mother for periods of five to six months, on two separate occasions, before his suicide attempt in June 2005 and one after. Plainly she devoted much time to him by undertaking everyday household chores, helping to pay bills, lifting heavy items and by providing support during numerous late night conversations, which she estimated at between 45 minutes and 3 hours per day. The latter came about by reason of his depression, but they were in many respects nothing more nor nothing less than one would have expected of a caring and devoted mother, as Mrs Walker clearly was.
Although the evidence was that the ordinary domestic chores would not have been done by him if he were living alone, they would of necessity have been done by someone. Although the commercial rate for counselling and domestic services was agreed by the parties at $25 per hour, the most the plaintiff could prove was no more than two hours per week (for both counselling and domestic duties). Therefore making an allowance of $50 per week over ten months, an award of say $2,200 in round figures is the best the plaintiff can hope to prove for the extra assistance provided by his mother when he lived with her.
Future Care – General.
The court is far from convinced that the plaintiff is wholly unable to carry out every day tasks such as weeding, mowing, home repairs, cleaning and so on, and certainly that such impediments are life long. The plaintiff gave evidence of his inability to undertake what might be described as every day tasks, such as gardening, mowing lawns, building work, cleaning and the like. To a point this was inconsistent with several tasks he has undertaken in the meantime. He will no doubt require help with heavy extended or more arduous chores, as best one can predict, for an hour per fortnight, at an average rate per hour of $20 as suggested by counsel. A rest of life multiplier of 930 per week per dollar loss, produces damages under this head of $9,300.
Future Medical Care and Expenses
The plaintiff’s medical condition is likely to continue for some years and it is clear he will need psychiatric assistance in order to pull out of the chronic pain cycle into which he has sunk, if at all. Dr Kalnins recommended therapeutic treatment, which was not inconsistent with the evidence of either Dr Jackson or Dr Kenny on this issue. Indeed Dr Jackson suggested referral to a pain clinic. Clearly Mr Cochrane will require therapy for depression and his current predicament, as he is more vulnerable to future psychiatric episodes which might possibly require hospitalisation. He will also require physiotherapy and chiropractic treatment in the event of acute problems.[108] Practically no evidence was given as to the cost of any of this. Judging by the schedule of special damages [Exhibit P19] physiotherapy costs upward of $38.85 per session and GP visits $37 per session. The costs of psychiatric sessions can only be guessed – say $180 per session.
[108] Transcript 893, 831-832.
When it comes to medication required in the future, these must be reasonably incurred and not what the ideal requirements might be Sharman v Evans.[109] The cost of these, must be assessed ignoring pharmaceutical benefits: State Government Insurance Commission v Hitchcock.[110] Very little evidence was presented on this issue as well. It was proved that chemist purchases from 27/10/04 – 6/6/05 were $215.35. There was some evidence that the plaintiff requires analgesics and anti-depressants for chronic pain into the foreseeable future.
[109] (1976-77) 138 CLR 563, 573.
[110] Unreported 11 March 1997 Western Australian Full Court BC 9700650.
On those assumptions, six physiotherapy sessions for the first year would cost $233 and six psychiatric sessions $1,080. This is a cost of $25.25 per week in the first year. As times goes on the need for these will diminish, gradually reducing over the next few years, to come down to about two sessions per year for each such consultation, producing ultimately a weekly loss of about $10 in round figures. Allowing $1,313 for the first two years and half that for the next two, brings about a loss in that period of say, $4,000, plus an allowance of $10 per week thereafter. Adding an arbitary sum of $5 per week for medications over the entire period, on present day value based on the agreed multiplier of 930 per week, results in a rounded sum of $14,000. Losses under this head will therefore be assessed at $18,000.
Future Superannuation Losses
There is a claim for loss of superannuation at 9% of total past and future earning capacity. This percentage was agreed by the parties. As the past economic loss was $43,180 and future $151,788, the combined loss at the rate of 9% comes to $17,500 in rounded figures.
Special Damages
Special damages have been agreed at $3,448.88. There is no material before the court, indicating whether the treatment to which these accounts relate was necessary or otherwise, but Mr Ward took no issue as to this. Because of that and because the amount sought is relatively modest, it is proposed to allow this sum in full.
Interest
The plaintiff also claims interest at 6% per annum on past loss of earning capacity and past gratuitous services. That loss is accepted as falling over a period of four years and eight months. Interest on non-economic loss is precluded by Statute, but the latter is not.[111] Interest therefore of $330 is allowed. As the past economic loss was assessed at $43,000, interest of $12,000 in round figures is allowed on that head of damages.
[111] S24F Wrongs Act.
Conclusion and Orders
Based on the above reasons the court assesses damages for injury in the nature of soft tissue injury and subsequent psychiatric sequelae caused by the subject accident, as follows:-
Past Loss
Non-economic loss   $27,360.00
Past economic loss  $43,000.00
Interest on past economic loss  $12,000.00
Gratuitous Services   $2,200.00
Interest on past gratuitous services   $330.00
Future Loss
Future loss of earning capacity  $151,788.00
Future Care – general   $9,300.00
Foregone employees superannuation contributions                $17,500.00
Future medical care and expenses                 $18,000.00
Special damages  $ 3,488.88
Total   $284,966.88
The parties are entitled to be heard on the issue of costs and as to any other consequential orders as may become appropriate.