CSS v KD - [2016] WADC 82

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: CSS -v- KD [2016] WADC 82

CORAM: DERRICK DCJ

HEARD: 8-11, 14-18, 21 MARCH 2016

DELIVERED : 31 MAY 2016

FILE NO/S: CIV 3468 of 2012

BETWEEN: CSS
Plaintiff
AND
KD
Defendant

Catchwords:

Torts - Negligence - Motor vehicle accident - Negligence admitted - Causation - Assessment of damages

Legislation:

Civil Liability Act 2002 (WA)
Motor Vehicle (Third Party Insurance) Act 1943 (WA)

Result:

Judgment for plaintiff
Damages assessed

Representation:

Counsel:

Plaintiff: Mr D R Clyne
Defendant: Mr P E Jarman

Solicitors:

Plaintiff: Simon Walters
Defendant: Jarman McKenna

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

Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420
AMP General Insurance Ltd v Roads & Traffic Authority of NSW [2001] NSWCA 186
Arthur Robinson (Grafton) Pty Limited v Carter [1968] HCA 9; (1968) 122 CLR 649
Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408
Bowen v Tutte (1990) Aust Torts Rep 81-043
Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232
City of Stirling v Tremeer [2006] WASCA 73; (2006) 32 WAR 155
Den Hoedt v Barwick [2006] WASCA 196
Graham v Baker [1961] HCA 48; (1961) 106 CLR 340
Hodge v Barham [2011] WADC 71; (2011) 74 SR (WA) 340
Husher v Husher [1999] HCA 47; (1999) 197 CLR 138
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Lyle v Soc [2009] WASCA 3
March v E & MH Stramare Pty Limited [1991] HCA 12; (1991) 171 CLR 506
McGhee v National Coal Board [1973] 1 WLR 1
Medlin v The State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1
Naxakis v Western General Hospital [1999] HCA 22; (1999) 197 CLR 269
Payne v Parker [1976] 1 NSWLR 191
Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164
Raso v Raso [2007] WADC 53; (2007) 51 SR (WA) 1
Schuster v Signorile (1987) Aust Torts Rep 80-141
Seltsam Pty Limited v Ghaleb [2005] NSWCA 208
Southgate v Waterford (1990) 21 NSWLR 427
State Government Insurance Commission v Oakley (1990) Aust Torts Rep 81-003
State Rail Authority of New South Wales v Chu [2008] NSWCA 14
Strong v Woolworths Ltd t/as Big W [2012] HCA 5; (2012) 246 CLR 182
The Bell Group Ltd (in liq) v Westpac Banking Corporation (No 9) [2008] WASC 239; (2008) 225 FLR 1
The State of Western Australia v Watson [1990] WAR 248
Van Der Velde v Halloran [2011] WASCA 252
Villasevil v Pickering [2001] WASCA 143; (2001) 24 WAR 167
Watts v Rake [1960] HCA 58; (1960) 108 CLR 158
Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485

Table of Contents

The plaintiff – an overview
The accident
The cases of the parties - summary
Issues for determination
What injuries and symptoms did the plaintiff suffer as a result of the accident?

Evidence as to plaintiff's pre-accident medical history
Evidence as to plaintiff's post-accident injuries and condition

The lay witnesses
Plaintiff
David Parkinson
John Lindley
Shaun Miller
Medical witnesses
Dr Paramvir Dhillon
Dr Ross Goodheart
Dr Andrew Harper
Dr Nick De Felice
Mr Michael Alexeeff
Dr Graham Jeffs
Mr John Liddell
Dr John Pearce
Dr Philip Carrivick
Dr M Kent
Dr Tarmala Caple
Dr Helena Piirto

Plaintiff's credibility

The way in which the plaintiff gave his evidence
Aspects of the plaintiff's evidence reflecting adversely on his credibility

Analysis and findings as to causation

Legal principles
Alleged injuries
Soft tissue injuries to cervical spine, lumbar spine and left shoulder
Headaches
C6 nerve root impingement and paraesthesia in left arm and left fingers
Mental illness
Post August 2012 symptoms

Assessment of damages

Loss of earning capacity

General principles
Evidence as to plaintiff's past employment
Plaintiff
David Parkinson
Evidence as to plaintiff's post-accident work capacity
Plaintiff
Dr Dhillon
Dr Goodheart
Dr Harper
Dr De Felice
Mr Alexeeff
Dr Jeffs
Mr Liddell
Dr Pearce
Dr Carrivick
Dr Piirto
Findings as to past loss of earning capacity
Financial loss produced by past loss of earning capacity
Findings as to future loss of earning capacity
Financial loss produced by future loss of earning capacity

Past loss of superannuation
Future loss of superannuation
Past medical costs
Future medical costs

Evidence
Award

General damages – pain and suffering and loss of enjoyment of life

Relevant statutory provisions and general principles
Award

Jones v Dunkel inferences

Conclusion

DERRICK DCJ:

This action arises out of a motor vehicle accident. The plaintiff and the defendant were the drivers of the two vehicles involved in the accident. The defendant admits that the accident was caused by his negligence.

The plaintiff – an overview

The plaintiff was born in the United Kingdom. He is now 53 years old.
When the plaintiff was 2 years old his family immigrated to Australia. On arrival in Australia the plaintiff and his family lived in Melbourne. After a period of time the family moved to Perth. The plaintiff has lived in Perth ever since.
The plaintiff left school when he was 15 or 16 years old. On leaving school he applied to become a cadet with the Western Australia Police Service (WAPS). His application was unsuccessful.
A year later the plaintiff again applied to become a police cadet. On this occasion his application was successful. He commenced work as a police cadet on 9 April 1980. He graduated from the Police Academy in December 1981.
From 1981 to 1984 the plaintiff worked as a general duties police officer.
In 1984 the plaintiff joined the Protective Services and Counter Terrorist Intelligence Unit also known as the Tactical Response Group (the TRG).
In 1991 the plaintiff was promoted to the rank of sergeant.
In 1996 the plaintiff was promoted to the rank of senior sergeant and became the Tactical Commander of the TRG.
In September or October 2008 the plaintiff transferred from the TRG to the Murdoch Police Station.
In or around January 2009 the plaintiff became the officer in charge of the Murdoch Police Station. He remained in this position until in or about November 2013 (although he was not at work for much of the latter part of 2012 and most of 2013).
In or about November 2013 the plaintiff was transferred to work at the WAPS Fremantle District Office.
In December 2013 the plaintiff accepted a voluntary severance package that the government had made available for public sector employees including police officers. The plaintiff formally retired from the WAPS on 13 March 2014. The plaintiff has not worked since that date.
The plaintiff is married. He has three adult children.

The accident

At about 8.00 am on Wednesday 26 May 2010 the then 47 year old plaintiff was driving himself to work. He had just been to the gym. He was driving a Triton four-wheel drive dual cab utility. He had his seatbelt on. He was driving south along Canning Highway in South Perth.
After driving some distance past the intersection of Canning Highway and Berwick Street the plaintiff prepared to turn left into a small carpark by a group of shops. He slowed down and put his indicator on. He was intending to buy the paper and some breakfast from a delicatessen in the group of shops. He usually bought the paper and some breakfast from the delicatessen on his way to work.
As the plaintiff was about to execute his left-hand turn he was hit from behind by a Transperth bus being driven by the defendant (the accident). The plaintiff's vehicle was almost stationary at the time of the impact.
The force of the impact pushed the plaintiff's vehicle off the road, over some bollards and into one of the shops. When the vehicle came to a stop the plaintiff found that his seat had been broken. He was twisted with the bottom part of his seat facing the passenger seat. His seatbelt was over his face. His vehicle was a write-off.
The plaintiff managed to get his seatbelt off. He then got out of his vehicle as quickly as he could.
At some point after the plaintiff had got himself out of the vehicle he was examined by paramedics at the scene. The paramedics wanted the plaintiff to go to hospital in the ambulance. However, the plaintiff reported that he was 'okay' and refused to go to hospital. He was in a state of shock. He wanted to leave the scene and go home to his wife.
The plaintiff was ultimately picked up at the scene by one of his work colleagues and was driven home.

The cases of the parties - summary

In his statement of claim the plaintiff pleads that the accident was caused by the defendant's negligent driving. He particularises the defendant's negligence as follows:
1.Failure to keep any or any proper lookout;
2.Failure to drive with any or any proper control;
3.Driving at a speed which was excessive in all the circumstances;
4.Failing to brake in time to avoid the collision; and
5.Failing to steer or control the vehicle so as to avoid the collision.
The plaintiff pleads that as a result of the accident he suffered soft tissue injuries to his cervical spine, to his lumbar spine and to his left shoulder. He further pleads that these injuries produced:
1.Pain, stiffness and tenderness of the neck, shoulder and back;
2.Limitation of movements of the neck, shoulder and back;
3.Nervous shock; and
4.Headaches and discomfort together with sleep disturbance.
Despite the plaintiff's plea that the psychiatric injury that he suffered as a result of the accident was nervous shock, the plaintiff's case as presented at trial was that he suffered psychiatric and/or psychological injury in the form of post-traumatic stress disorder (PTSD) and depression as a result of the accident.
The plaintiff further claims that his accident caused injuries have been productive of significant pecuniary and non-pecuniary loss.
In her defence the defendant, as I have already indicated, admits that the accident was caused by her negligence, although she does not expressly plead to the particulars of negligence alleged against her in the statement of claim. It was not suggested during the trial on behalf of the defendant that he was not negligent as alleged in the plaintiff's particulars. Accordingly, and although not much turns on the issue, I will proceed on the basis that the defendant was negligent as alleged in the plaintiff's particulars of negligence.
Although the defendant admits that the accident was caused by her negligence, she denies that the plaintiff suffered anything other than some relatively minor soft tissue injuries and associated pain symptoms to the left shoulder, neck and lower back as a result of the accident. The defendant's position is that these soft tissue injuries and associated pain symptoms had completely, or at the very least substantially, resolved by no later than the first half of 2012. The defendant also denies that the plaintiff has suffered any significant loss as a result of his accident related injuries. Further, the defendant contends that the plaintiff has failed to mitigate any loss that he has suffered.
In her defence the defendant also pleads in the alternative that the plaintiff's injury, loss and damage was caused or materially contributed to by pre-existing injuries suffered by the plaintiff. However, this allegation, although not formally abandoned, was not pressed with any real vigour by the defendant at trial.

Issues for determination

It follows from the cases of the parties as summarised above that the issues for my determination are as follows:
1.What injuries (and associated symptoms) did the plaintiff suffer as a result of the accident?
2.What (if any) loss and damage has the plaintiff suffered as a consequence of the injuries suffered by him as a result of the accident?

What injuries and symptoms did the plaintiff suffer as a result of the accident?

In order to properly deal with and determine the first of the above posed questions it is necessary to refer to the evidence adduced at trial as to the plaintiff's physical and mental health both before and after the accident. The evidence relating to the plaintiff's post-accident state of health needs to be referred to in some detail.

Evidence as to plaintiff's pre-accident medical history

The evidence adduced at trial established the following in relation to the plaintiff's pre-accident injuries.
On 9 December 2001 the plaintiff was required to apprehend a person. A struggle ensued. During the struggle the plaintiff suffered a soft tissue injury to his neck. The injury resulted in the plaintiff having a very tender neck accompanied by a limited range of neck movement. The injury resolved over a number of weeks. The injury did not result in the plaintiff taking time off work.
On 15 or 16 May 2006 the plaintiff suffered an injury to his right shoulder in the course of apprehending and arresting a person. After suffering the injury the plaintiff took sick leave from 16 May 2006 to 10 July 2006. He took a total of 63 days sick leave in 2006. When the plaintiff returned to work he did so on a formal return to work programme. He was provided with an injury management consultant from the WAPS Health and Welfare Services section (Health and Welfare) to assist him in the return to work programme.
In September 2007 the plaintiff fell in a change room. He fell onto his right buttock area. He suffered a muscle tear injury to his calf as a result of the fall. The plaintiff was on crutches for a period of time. The injury resolved within a period of a few months.
Throughout 2007 the plaintiff reported ongoing pain in his right shoulder and neck resulting from the 2006 injury to his shoulder, and right buttock and right lower back pain resulting from his fall in the change room. In 2007 the plaintiff took a total of 127 days sick leave for these conditions.
On 17 April 2008 the plaintiff reported that a month after his fall in the change room he had started to experience right buttock pain and right lower back pain with radiation down his right leg. The plaintiff continued to report right lower back pain through 2008 and up until the time that he commenced working at the Murdoch Police Station in September or October 2008. Indeed during 2008 the plaintiff was on sick leave from the beginning of the year until 29 February 2008 (he had in fact been on sick leave from 20 September 2007 through to 29 February 2008). He then took a period of annual leave from 29 February 2008 before going back on sick leave. He managed to return to work on 13 May 2008 but worked for only a few days before going back on sick leave. The plaintiff took a total of 77 days sick leave in 2008.
On 22 July 2008 the plaintiff was certified as being fit for a restricted return to work from 23 July 2008. The plaintiff returned to work on a return to work programme.
At the time that the plaintiff commenced working at the Murdoch Police Station he was on a return to work programme. He worked for three days a week four hours a day. The hours that he worked slowly increased. He remained on restricted duties until the end of 2008.
At the end of 2008 the plaintiff passed his annual critical skills training. As a result he returned to being classified as an operational police officer.

Evidence as to plaintiff's post-accident injuries and condition

The evidence adduced at trial in relation to the plaintiff's post‑accident physical and mental health came from the plaintiff, three lay witnesses and a significant number of medical practitioners (which term I use to include a psychologist). The evidence of the medical practitioners was voluminous.
In summarising the evidence of the medical practitioners I will, to the extent that is necessary, refer to the history that was provided by the plaintiff to the practitioner during his or her consultations with the plaintiff. I note in this regard that the plaintiff was cross-examined extensively on what the various medical practitioners had recorded in their notes and/or reports as having been said to them by the plaintiff during their consultations with him. By and large the plaintiff accepted that what the medical practitioner had recorded in his or her notes and/or report as having been said by him accurately reflected not only what he had said to the practitioner at the consultation, but also that what he had said to the practitioner was a true reflection of how he felt at the time. There were, however, some instances in which the plaintiff said, in substance, that he did not think that he had (or would have) used the words attributed to him by the medical practitioner, or that he could not recall if he had said the words attributed to him. In some of these instances the words in question were recorded in the relevant report as an actual quote of what the plaintiff had said.
In those instances in which the plaintiff did not accept that he had made the statements attributed to him, I did not find his evidence convincing. My impression was that the plaintiff did not have any definite recollection that he had not said what was attributed to him. This being the case, in those instances where there was a dispute between the medical practitioner's evidence and the plaintiff's evidence as to what the plaintiff had said to him or her during a consultation, I prefer and accept the evidence of the medical practitioner.

The lay witnesses

Plaintiff

The plaintiff gave the following evidence‑in‑chief in relation to his post‑accident condition.
As soon as he got home after the accident he began feeling pain. He started getting sore and he was 'feeling things that were not right' in his body (ts 12). He was feeling pain in his lower back, shoulder and neck. His pain was all down the left side. He decided that he needed to see a doctor. His wife made an appointment for him to attend the Ranford Medical Centre that day.
He attended the Ranford Medical Centre. He was not able to see his usual general practitioner, Dr Dhillon. He saw another doctor. He was examined and was referred for X-rays and an MRI scan. He was prescribed pain‑relieving medications and Voltaren gel.
He had the rest of the week off plus the weekend. He might also have had a couple of days off during the following week.
He went back to see a doctor during the time that he was off work. At this consultation he was provided with the results of the X-ray and MRI scan. He was prescribed some more medication and told to come back a week later.
After returning to work and through the 'initial period' he took a lot of time off work (ts 13). He would finish work at lunchtime during the day. He found it very uncomfortable to sit for longer than 20 minutes. He knew that his body was not right and that it was not responding to what he thought it should have been responding to. He had headaches. It was probably during the week after the accident that the 'effects of the whiplash … really came' (ts 13). He realised he was in quite a lot of pain and had some problems.
He did not suffer from headaches before the accident. The headaches that he started to suffer from after the accident were 'fairly intense' (ts 13). They were not migraines but they were causing him a lot of discomfort. The regularity of the headaches was of concern to him. He was getting the headaches every couple of days. He noticed that the headaches were accompanying pain in his shoulder and prolonged sitting.
During the year following the accident he repeatedly went to see his doctor. He stressed his concerns about his injuries.
About two or three weeks after the accident he was referred by Dr Dhillon to a sports physiotherapist. The physiotherapist had a look at the scans and referred him back to Dr Dhillon. The physiotherapist advised him that he thought that he needed to have further scans and that there were some other problems associated with his injuries which needed to be addressed before he could start any rehabilitation.
On being referred back to Dr Dhillon, Dr Dhillon prescribed different medication. He was having a reaction to some of the medications so Dr Dhillon was trying different medications.

Towards the end of the year, around August or September 2010, he was not getting any better. Dr Dhillon referred him to a neurosurgeon, Mr John Liddell. He saw Mr Liddell in or around August, September or October 2010. Mr Liddell referred him for another MRI scan, a bone scan and an EMG. He went back to his doctor and organised to undergo the scans and the EMG.
At this stage he was struggling in terms of being able to sit at his desk and do his job for longer than 20 minutes without getting up. He was taking pain medication daily. It was a struggle. He remembers saying to himself, 'This isn't clearing up as well as I expected' (ts 15). However, he was always hopeful that he was going to recover. He was going to work towards a good recovery and a good outcome. He still went to work. The only time that he took off work, apart from nominated sick leave days, was when he would go home in the afternoon and adjust his hours in accordance with the award for an officer in charge. Officers in charge of police stations did not under their award claim overtime. If they worked hours over and above their ordinary eight‑hour shift the hours would be accumulated and recorded and the hours could then be taken off at a time when the station was supposedly not too busy.
After the results came back from Mr Liddell's assessment he was referred back to Dr Dhillon. Dr Dhillon then looked at a rehabilitation programme and he started off with remedial massage therapy. This was organised through Dr Dhillon.
He was not on a formal return to work programme as such. He was just non‑operational. His district office, which was located at Fremantle, knew about the accident and knew about his injuries. His district office knew that he was non‑operational.
He was non‑operational from the time of the accident. He could not conduct himself operationally after the accident. His non‑operational status was probably not formalised until the end of 2012 when he could not pass any of the critical skills qualifications. It was at the end of 2012 when he informed his superintendent that he would not be able to pass the critical skills testing.
He remained at the Murdoch Police Station through to July 2013 when he was transferred. He was on leave at the time of the transfer.
He went on approved annual leave at the end of 2012 for six weeks. After this period he did not return to work. He remained off work on sick leave. He would have been on sick leave from either the last week of February or the first week of March in 2013. He remained the officer in charge of the Murdoch Police Station right up until July or August 2013.
His son was charged with offences on 24 August 2012. His son went to trial in the Children's Court on 8 April 2013.
On 5 April 2013, a couple of days before his son's trial, he was contacted by an inspector from the South West District Office and was told that he was not to return to work or contact anybody because he was under internal investigation.
He remained on sick leave after his son's trial. He could not return to work because he was the subject of the internal investigation. He did not know exactly why he was being investigated. It was to do with his son's trial and his son's evidence.
His injuries from the accident were impacting on him severely. He was not able to be an operational police officer. He was repeatedly getting therapy. He was being referred to different specialists, going to his general practitioner, going through a number of medications, and going through remedial massage and a number of physiotherapists. He was taking time off work for the injuries which were severe headaches, pain, and shooting pains across his shoulder, down his back and right down to the lumbar region on his hips. The pain was aggravated by prolonged sitting.
After a period of time he started getting quite severe migraines. The migraines were 'thumping' (ts 17). He had pain at the front of his eyes. He reacted to lights and had to close his eyes. When he had these migraines he had to leave work, go home, lie down and put cold compresses over his head. He would be 'out of it' for four or six hours as a result of taking strong medication (ts 17). He had never experienced anything like the migraines before. This was occurring probably once or twice every fortnight. He had probably started to suffer the migraines after his son's trial in April 2013 but he cannot remember an exact date.
In the period leading up to his son's trial he had not taken any significant periods of leave. He had taken different days off at different times. He was adjusting his hours. He would work for as long as he could and then he would take time off because he could not finish the day.
This was the position in 2010 and 2011. From the time of the accident he managed his own hours. A week would not go by when he was not adjusting his hours.
In 2013 after his son's trial he was referred to the police psychiatrist. The psychiatrist was Dr Piirto. He was referred to Dr Piirto in relation to his son's trial. He had made some observations during the trial about the conduct of the investigating officers and these observations paved the way for him to lay some serious complaints in relation to corruption, ethical practice and standards of the WAPS as an agency. He wanted to report this and he wanted to have a meeting with the Commissioner. He was also getting over his son's trial. He was also dealing with family issues 'in relation to the emotional behaviour of' his family (ts 20). It was for these reasons that he was seeing Dr Piirto.
Dr Piirto knew about his physical injuries arising from the accident. However, he was mainly seeing her about observations that he had made during his son's trial about the conduct of a number of senior officers in the WAPS.
He attempted to report his complaints to the Commissioner without success. After he had exhausted his attempts to see the Commissioner he made a complaint through his lawyer to the Corruption and Crime Commission (the CCC).
He was never charged criminally or managerially as a result of the internal affairs investigation.
In July or August 2013 he received a phone call from his reporting line inspector, Inspector Russell, who told him he could go back to work at the Murdoch Police Station. He was happy about this. He thought it was a good outcome.
Two days later he received another phone call from Inspector Russell who told him that Superintendent Lindley had said that he would not be returning to Murdoch Police Station but would be 'coming up to the Fremantle District Office' (ts 20). He was concerned about this. He lived in Canning Vale and was seeing a physiotherapist in the morning because he was getting pain in the mornings. He would have been able to drive from home to the physiotherapist, who was in Leeming, and then onto work at Murdoch. However, if he was working in the Fremantle District Office attending at the physiotherapist on the way to work would make him late for officer in charge meetings with the superintendent. In addition, working in the Fremantle District Office would mean that he was sitting in the car for longer than five or ten minutes. Driving was always a big issue for him. Driving would aggravate his back and his shoulder pain. He had to change from a manual car to an automatic car. He would start getting pain if he had to drive for longer than 10 or 15 minutes, particularly if he had his left hand on the steering wheel 'on the angle' (ts 21). The seats would give him pain. He always had to have support in the car that he was driving. It got to a stage where he declined to drive and family members had to drive him. That is how it is today.
He requested through his supervisor and through Health and Welfare not to be posted to the Fremantle District Office. However, his requests were denied.
He thinks he started working in Fremantle in November 2013. He would drive to work. He was arriving late. He would have to stop two or three times on the way. This was not facilitating the needs of his return to work and rehabilitation. He was still in pain when he got to work. However, he still wanted to work.
Not long after he had returned to work Superintendent Brad Sorrell, who could see that he was 'struggling' called him into his office and spoke to him (ts 22). During this conversation Superintendent Brad Sorrell made clear to him that as a non-operational officer he had no future in the police. Superintendent Sorrell told him to take a redundancy.
In December 2013 he accepted a severance (redundancy) package. He left the police in March 2014.
After accepting the redundancy he wanted to keep working until March 2014. He was still on a return to work programme which was three to four days a week, for three to four hours a day. He continued to work up until January. However, it just got too hard. The driving to work was too hard. He felt belittled and humiliated by the way he had been treated by Superintendent Sorrell.
His injuries have left him incapacitated. He cannot sit down for longer than 10 to 15 minutes. He takes copious amounts of medication just to get him through the day.
In cross-examination the plaintiff gave the following further evidence in relation to his post-accident injuries and condition.
He did not work on the Monday after the accident. He took either sick leave or adjusted hours on the Monday. He returned to work on the Tuesday.
He had to take a lot of hours off work in the months following the accident because of his accident caused injuries.
When he returned to work after the accident it was not under a formal return to work programme. His return to work was being managed by his general practitioner and himself.
After the accident he was not declared to be non-operational in any WAPS records. However, he informed his inspector that he was non‑operational. This did not change the job that he was doing. As officer in charge of a police station 99% of his work was administration. He was not going out on patrol.
He agrees that there is no WAPS record to indicate that he was non‑operational in 2010. The reason for this is that the district office did not, 'through the chain of command, go through to the Health and Welfare Department' (ts 35). He was only able to deal directly with his chain of command officer. It is not the case that he just decided to call himself non-operational.
He knows that for the two years following the accident he saw his general practitioner numerous times.
He worked as the officer in charge of the Murdoch Police Station from the date of the accident until the end of 2012. During this time he carried out his duties appropriately.
As far as he knows for the two years after the accident he obtained medical certificates from the doctors for time off work. He had time off and he adjusted his hours. This was accepted by the district office at the time.
He agrees 'totally' that from the date of the accident up until June 2012 he performed his duties as the officer in charge at Murdoch Police Station to a very good standard (ts 65). He does not agree that during this time he was operational. He made clear to both inspectors who he reported to during this time that he was able to run the station, which involved managing and being an administrator, but that he could not go out on patrol. Although technically you do have to be operational to be the officer in charge of a police station, he has not been operational since the date of the accident. He has not been out on patrol. He has not made arrests. He has not done any of these operational requirements. Although he may not have been formally deemed non-operational, the reality of the situation was that he was non-operational.
There was one occasion where he did make an arrest on 30 October 2011. On the night in question he was in the command post at the Fremantle Police Station. There was an operation running in Fremantle that night. Due to his incapacity he was assigned to run the command post. There was a call over the radio from officers requesting urgent assistance. He tried to get other police officers to provide the assistance. However, no one else could go. They were tied up. It was an extremely busy night. In these circumstances he went to assist the officers. He arrested an offender for fighting with another person on South Terrace, Fremantle near the Metropolis nightclub. It was a 'once off' (ts 67).
He injured his right calf in October 2012. He was at Murdoch Hospital going to SKG. He had a referral to go to SKG from his general practitioner in relation to his left shoulder and back. He got out of his car and as he started walking from the car he fell down a hole.
He did attend a doctor following the incident. He saw Dr Wong at the Ranford Medical Centre. He was certified to take a week off work following the incident. He could not walk.
When he returned to work following the injury to his calf he performed light duties for a while.
On 15 October 2012 he saw Dr Majda at the Ranford Medical Centre about his calf injury. He does not remember telling Dr Majda that he was on operational duties at the time. He remembers having a conversation with her. He was reluctant to take any time off work. He wanted to go back to work. He and Dr Majda talked about crutches and how he was going to cope. He organised some crutches. He accepts that Dr Majda certified him as unfit for work for three days from 15 to 17 October 2012 and as fit for light duties for the two weeks after that.
He accepts that on 22 October 2012 he saw Dr Wong about his calf injury and that Dr Wong certified him as fit for only office based duties for one month.
Although he was never certified as fit only for office duties after the accident, it was quite obvious that he could not do anything but office duties in 2010 and 2011. He was communicating with the district office at the time. He was having time off. He would sometimes communicate with the district office by email and sometimes by phone.
From the date of the accident through to 2012 he had difficulties sitting for any period of time and had pain in his lower back on his left‑hand side. He does not accept that his pain had significantly decreased over 2010. He does not accept that in 2011 and 2012 he was functioning very adequately with very little effect on his work duties.
He did travel to the United States for six weeks in January 2011 for a family holiday. He was on long service leave. He managed the plane trip to the United States and back. He and his family went to Disneyland. During the six weeks he and his family looked at music shops because his son was into music. His wife and his daughter were into dancing so they looked at different things for dancing while they were there. They caught up with some friends and socialised with them. They did some sightseeing. They spent the whole time in Los Angeles.
During some of the time away he had significant back and neck pain. At other times he did not. He managed his injuries while he was away. It was a planned family holiday and he was not going to let his kids down.
He does not accept that his injuries did not cause him any difficulties at all during the period around the end of 2011 and early 2012.
His recollection is that in 2011 and 2012 he was using Panadeine Forte on a daily basis.
On 2 November 2011 he attended on Dr Mandic and reported that his back pain was aggravated because he had been wearing his heavy work belt for 14 hours straight. The belt was just his normal work belt. It was a thick woven leather belt. It is not correct to suggest that what had occurred during the 14‑hour shift is that he had been out doing front line police work and had been wearing a utility belt with a full kit on it as worn by operational officers.
Since the accident he has not done any exercise or any running or any sporting activities that he was involved in prior to the accident. He has regularly done home exercises in accordance with his physiotherapy. He was on a programme that he commenced to try and strengthen his injuries.
As at 25 January 2012 he had not had any nightmares or flashbacks about the accident. They came after this date.
He accepts that after 25 January 2012 the next time he saw his general practitioner was 5 September 2012, a period of seven months. It is not the case that the reason for this is that he was not having any symptoms. It is not the case that if he was having any symptoms they were minor and were not preventing him from undertaking his normal duties. It is not the case that from January 2012 to September 2012 he did not have any pain. He certainly had pain. During this time he was seeing different specialists.
In August 2012 his son was charged with having committed some serious sexual offences against a younger boy. It is not the case that prior to his son being charged his attendances at his general practitioner were declining markedly. To his knowledge he had always been under the care of Dr Dhillon and had been seeing specialists. He was conducting his rehabilitation in line with Dr Dhillon's directions.
He agrees that after his son was charged and after he had been removed as the officer in charge of Murdoch Police Station his attendances at his general practitioner increased substantially.
The charging of his son in August 2012 had an immediate effect on his performance in his job. He was highly stressed as a result of his son being charged. The allegations were false. He was concerned about the investigation into the allegations made against his son. His concern was that there was no proper investigation done at all. The matter went from report to arrest. He was angry about this. However, he was always in control. He was more concerned about his family and the emotional turmoil that the charging of his son was creating at the time. His wife was very angry and upset about what was going on.
The allegations made against his son had been made by people who had been his family's friends.
The news of his son being charged filtered into his community of friends. This had serious implications for his wife's dance teaching business. In addition, he felt that his son being charged had an adverse effect on the health of his daughter. His daughter is a Type 1 diabetic.
He did ultimately make a complaint to the CCC about the investigation into the allegations made against his son. He has never been spoken to by the CCC about his complaint. Given that he made the complaint a long time ago and he has not heard anything, he would accept that the CCC has probably dismissed his complaint.
What happened to his son was devastating. After speaking to his doctor he eventually went and saw a counsellor.
On 4 or 5 September 2012 he turned up for work at the Murdoch Police Station. He could not get into the station. He then had to attend a meeting with Superintendent Lindley. After attending the meeting he had to go home to his wife and his daughter. His daughter was quite ill. By the time he got back to the police station he had a phone call from Inspector Miller asking him to see Superintendent Lindley. He saw Superintendent Lindley. Superintendent Lindley wanted to take him away from the Murdoch Police Station and to redeploy him to the district office. He asked Superintendent Lindley not to do that. He needed to be around his people at the police station and he needed to continue with his rehabilitation. He told Superintendent Lindley that he could get better and that he could manage both the situation with his son and the police station. This was not something new to him and he was able to manage the stresses. Superintendent Lindley asked him if he wanted to take sick leave. He said 'no'. A week later Superintendent Lindley removed him from his position at the Murdoch Police Station.
Prior to his son being charged he and Superintendent Lindley had a dispute. At a meeting Superintendent Linley had bullied and tried to intimidate him. This was some months prior to his son being charged. Their relationship was never the same after this. Superintendent Lindley was counselled and had to formally apologise to him. It suited Superintendent Lindley's purpose to get him out of the police station.

He was not looking dishevelled in September 2012. He was in complete control. He was carrying out his functions at the police station and managing his home life as well. He could quite easily do both.
He was devastated when he was removed as the officer in charge of Murdoch Police Station. There was nothing he could do about it. He was frustrated. However, at the time he was really more worried about his family. Whatever feelings that he had about Superintendent Lindley or being removed from the station, they came underneath the welfare of his family.
Having his son falsely charged had a devastating effect on him and his whole family. The main problem was that he could not talk to anyone about what had happened.
He did not attempt the critical skills training in December 2012. He knew what it entailed and he knew that he would not be able to complete it. The critical skills training involved use of a firearm, handcuffing and baton use. He knew he would not be able to do the handcuffing because it required him to kneel and squat down. He would not be able to do the baton training because it would require him to use both arms. There was a lot of bending and a lot of exchange of strength for the handcuffing and the baton use. He was not going to be able to achieve that.
As to the use of the firearm, it involved kneeling down and changing magazines. That 'just was not going to happen' (ts 96). Also the shooting involved one handed and two handed shooting. He would not have been able to 'bring his other hand up to assist [him] in that' (ts 97).
He completed the critical skills training in 2010 and 2011. However, he knew he would not be able to complete the training in December 2012. The situation is that he had progressively got worse. He reported his injuries to his supervisor. He said to his supervisor long before the critical skills training date came up that he was not going to be able to do it.
The shooting requirements for the critical skills testing in 2010 and 2011 were different to those required in 2012.
Although he is recorded as having completed the critical skills assessment in December 2011, 'he did not partake in doing … most of the things in the baton training or the handcuffing because he couldn't' (ts 100). Further, with respect to the firearm shoot he did not have to kneel down on this particular occasion. He had to stand up when he changed magazines. He could stand up and change the magazines.
In 2010 and 2011 it was optional whether you stood or kneeled in doing the firearm shoot. The focus was actually on doing a magazine change on the weapon.
On 16 July 2013 his lawyer wrote a letter to the police making a complaint about the conduct of the police officers who conducted the investigation into the allegations concerning his son. Subsequently the police responded by saying that there was no impropriety in the investigation and that a prima facie case had existed for the charges to be brought against his son. This outcome made him angry and frustrated. He therefore made a complaint about the police officers to the CCC. This was in November 2013.
When he returned to work in the last months of 2013 the superintendent that he was reporting to was Superintendent Sorrell. One of the issues that he had with Superintendent Sorrell on his return to work was that he was not wearing his uniform. He did not have a uniform at the time. The uniforms that he had did not fit him anymore. He told Superintendent Sorrell that he had not ordered a uniform prior to returning to work but that he would get on the system and order a uniform. He told Superintendent Sorrell that he did have problems with the uniform 'earlier' (ts 224). However, when he returned to work he gave Superintendent Sorrell a 'surety' that he was going to get on the system and order a uniform (ts 224).
He was angry and frustrated and said to the police psychiatrist that he did not want to wear the police uniform immediately after his son's trial. However, at the time that he had commenced work this was something that he had compartmentalised. It was done and dealt with. He had done everything he could possibly do in relation to having the investigating officers in his son's trial investigated.
When he went back to work he still did not want to wear the police uniform. Nonetheless he ordered a uniform. The reason he did not 'front up' in uniform on his first day back at work is that he did not want to wear it (ts 227).
It was his feeling against the police officers who conducted the investigation into his son, as opposed to the WAPS agency itself, that caused him not to want to wear the uniform.
It is correct that he was declared non-operational in April 2013.
He has not had any operations on either his right shoulder or his left shoulder. He is looking at having an operation on his left shoulder. He has not had an operation already because he has been going through different types of rehabilitation. Further, there are risks associated with surgery. He has discussed these matters with his doctor. The decision that has been made is that he will delay having surgery for as long as possible and use injections, medication and low level exercise in order to deal with his symptoms.
He did not have an ongoing problem with his right shoulder and his lower right back prior to the accident, although his right shoulder has never returned to what it was. There were no problems with his back.
It is not the case that after the accident he recovered well through 2010 and into 2011. The 'best way for him to say it' is that he progressively got worse from the time of the accident (ts 236).
He accepts that on 20 January 2011 he refused the opportunity of a C6 nerve block. He does not remember that on 7 February 2011 he refused to have an epidural injection.
He accepts that between the date of the accident and February 2013 his general practitioner prescribed him Panadeine Forte on seven occasions and that since February 2013 the amount of Panadeine Forte he has been prescribed has significantly increased.
He flew to Melbourne three times last year. He flew to Melbourne to see his son in relation to his son's health.
His flashbacks about the accident started either late in 2013 or early 2014.
He accepts that he saw a psychiatrist, Dr Jonathon Spear, on 21 May 2015 in relation to making a claim under his superannuation total permanent disability policy.
It is true that his mental health issues started after his son was charged. His depressive conditions started around this time. His flashbacks and nightmares started after his son was charged in around 2014.
His feelings of anger and frustration about what had occurred to his son were directed against specific officers not WAPS as a whole.
He has had a problem sitting for any period of time since the accident. However, it has got worse and worse over the years. It is not true that he feigns an inability to sit when it suits him.
After the accident and up until the end of 2012 his status on the computer system may have been operational but he was not operational. He made one arrest in the four years after the accident.
In October 2015 he went to Melbourne with his wife for his son's birthday. He also went to see his son on this occasion in relation to a health issue of his son. His son had an injured ankle.
He possibly went to Melbourne in April 2015 with his wife.
He does not go out frequently. It is not correct to say that in the last two years his current condition has not prevented him from going to Melbourne on three occasions, going out to dinner, going out to lunch and having a reasonably active social life.
He accepts that he first saw the psychiatrist, Dr Piirto, on 5 July 2013. He does not think that his interview with Dr Piirto went for as long as one and a half hours. He disagrees that he was able to sit comfortably through the interview. He cannot recall whether he expressed any signs of pain during the interview.
He disagrees with the proposition that the accident had no substantive effect on his appearance or the performance of his work as the officer in charge of the Murdoch Police Station. He disagrees with the proposition that after his son was charged his behaviour changed and his appearance changed. He was always in control and he could always separate his work and the issues with his son.
It is 'quite possible' that to pass the critical skills test in 2010 to 2012 you had to shoot double-handed.
The reason he retired from the WAPS was because of his non‑operational status. He had dealt with all the other matters. His son's case had been finalised. His superintendent told him that there was no future for non‑operational officers.
In re-examination the plaintiff said the following.
He travelled to Melbourne to see his son because his son is in Melbourne by himself, and is very young. His son has no other support in Melbourne. His family is a close family. His son did not have the 'equipment' to manage issues that he had arising from a basketball injury (ts 301). His son is in Melbourne on a scholarship for performing arts and in the evening he is coached by Andrew Gaze from the Melbourne Tigers basketball team.
He left WAPS because he was non-operational as a result of the accident. The injuries he sustained in the accident progressively got worse and worse.

David Parkinson

The plaintiff called Mr David Parkinson to give evidence. Mr Parkinson is a retired police officer. At the time of his retirement he held the rank of superintendent.
Mr Parkinson joined the WAPS in November 1975. He retired from the WAPS in July 2008.
Mr Parkinson gave evidence that he had first come to know the plaintiff in about 1984. He said that over the years the plaintiff had used him as a mentor or sounding board.
During cross-examination Mr Parkinson said that after the accident the plaintiff was always 'pretty distressed' about not being able to do the physical things that he could previously do such as going to the gym twice a day. He said that he did observe a difference in the plaintiff after his son was charged and that before his son was charged the plaintiff was 'more Craig'. He said that since his son was charged the plaintiff's demeanour has changed to an, 'I'm not going to let the bastards grind me down' sort of attitude. He said that in his view the plaintiff has become a lot stronger mentally since the charging of his son, although not stronger physically.

John Lindley

The defendant called Superintendent John Lindley to give evidence. Superintendent Lindley is currently the superintendent at the WAPS State Control Centre.
In his evidence‑in‑chief Superintendent Lindley said the following.
In the course of his duties he has come to know the plaintiff. He has known the plaintiff for many years.
In January 2011 he became the new District Superintendent at the South Metropolitan District which is in Fremantle. At the time the plaintiff was a senior sergeant and the officer in charge of the Murdoch Police Station. The plaintiff reported to Inspector Russell. Inspector Russell was one of the four inspectors who then reported to him.
About 12 months after he became the superintendent of the South Metropolitan District Inspector Miller took over from Inspector Russell.
He was not responsible for removing the plaintiff from his role as the officer in charge of the Murdoch Police Station in September 2012. He left the position of superintendent of the South Metropolitan District in January 2013 and the plaintiff was still the officer in charge when he left. There were some things that did happen in mid to late 2012, but the plaintiff was certainly not removed from his position by him.
When he returned from overseas in August 2012 there were some issues at the Murdoch Police Station in relation to the plaintiff from a personal and a professional level. The plaintiff's personal issues related to his son being charged with offences.
The plaintiff has always been the sort of person who is very well kept. The plaintiff comes across as a very clean cut, alert, aware and happy person who would give the police or a person his time and concentration. He had never seen the plaintiff dishevelled prior to the issues relating to his son. However, when he came back from overseas in August 2012 the plaintiff's appearance had changed somewhat and the plaintiff looked a little dishevelled in his appearance. The plaintiff looked tired and stressed out. This led him to have some concerns about the plaintiff's personal health.
When he spoke to the plaintiff and ascertained the position relating to the plaintiff's son he suggested to the plaintiff that he needed to go and see a doctor and perhaps consider taking some leave, whether sick leave or annual leave, it did not matter to him. In fact he told the plaintiff that he needed to take leave, get well, and then come back to work so that he could actually concentrate on his job. However, the plaintiff decided that he was going to stick with both looking after his son's welfare and also that of his police station.
There were allegedly some issues with the plaintiff's conduct which were coming to light around this time and which certainly needed to be discussed with the plaintiff. He did discuss these issues with the plaintiff. However, having spoken to the plaintiff and then the assistant commissioner, it was his belief that it was certainly not the time or appropriate to remove the plaintiff from his position. He did not believe and he still does not believe that circumstances warranted the plaintiff to be removed from his position at that time.
It is incorrect to assert that he removed the plaintiff as the officer in charge of Murdoch Police Station in September 2012. He does not know why the plaintiff would say that he had been removed as officer in charge of the Murdoch Police Station without justification in September 2012. In early 2013 when he left his position the plaintiff was still the officer in charge.
Before he left for overseas in June or July 2012 the plaintiff's personal presentation and appearance was fine. He had never known the plaintiff to be different until the time in August 2012 when he returned to work. At this time he became concerned for the plaintiff. It was his belief that the plaintiff should go on sick leave. However, it took him and others including Inspector Russell a number of weeks to actually convince the plaintiff to go on sick leave because the plaintiff did not want to listen.
As the officer in charge of a police station the officer can be operational but there are also other duties where the officer does not need to be operational. It was not necessary for the plaintiff to be operational to be the officer in charge of the Murdoch Police Station. As the officer in charge you are the leader and you are the manager. So the officer in charge does not need to go out in a police vehicle and task. The officer in charge has sergeants and a number of other staff to do that for him. The role of the officer in charge is really about leading and managing people and the police station, integrating with the community and ensuring that the aims of the station are met. He has put non‑operational sergeants as acting officers in charge of Murdoch.
In around August or September 2012 he referred the plaintiff to Health and Welfare because he was actually concerned for the plaintiff's welfare.
His observations of the plaintiff's ability to perform his role as the officer in charge of the Murdoch Police Station prior to the plaintiff's son being charged were that his personal health was fine. He was actually quite impressed with the way that the plaintiff had put his hand up to try and put together a standard operating procedure in relation to the possibility of asylum seekers who were being housed at Jandakot attempting to leave that location. The plaintiff showed good leadership skills by wanting to take this on. The plaintiff was very enthusiastic.
In cross-examination Superintendent Lindley said the following.
It could be the position that after the plaintiff took leave and came back to work his keycard would not let him into the police station. If somebody has personal issues and 'we' believe that there is a danger or a likelihood that perhaps they might self-harm, then access to the station and/or the armoury in the form of the swipe card is normally removed. Notice of this occurring is given. He does not know exactly what took place in the plaintiff's case at the time, but certainly it is generally the position that the person is advised of the reasons for access to the station being denied.
He had nothing to do with the internal affairs investigation. In fact, what happened was that he was contacted by internal affairs and then interviewed in relation to the plaintiff.

Shaun Miller

The defendant called Inspector Shaun Miller to give evidence. Inspector Miller is an inspector employed by the WAPS. He has been a police officer for 30 years.
In his evidence-in-chief Inspector Miller said the following.
He was an inspector at the South Metropolitan District Office during the period August 2009 through to November or December 2012. For the period August 2009 until July 2011 he was the inspector responsible for five police stations within the South Metropolitan District including the Murdoch Police Station. He was also responsible for these five police stations during the period July 2012 to November or December 2012.
When he was appointed an inspector at the South Metropolitan District Office the plaintiff was the officer in charge of the Murdoch Police Station. The plaintiff reported to him. He would then report to the superintendent for the district. When he first became an inspector at the South Metropolitan District Office the superintendent to whom he reported was Superintendent Scott Higgins. Superintendent John Lindley took over from Superintendent Higgins.
He was the plaintiff's supervising officer during the first of the periods for which he was responsible for the Murdoch Police Station. As part of this role he would visit the Murdoch Police Station as required. The number of times that he would see the plaintiff would vary. Sometimes he would see the plaintiff two or three times a week. On other occasions a week would go by without him seeing the plaintiff.
During the period August 2009 to January 2011 the plaintiff carried out his duties as the officer in charge of the Murdoch Police Station to an adequate level.
On 10 January 2011 he formally reviewed the plaintiff's performance for the period July 2010 to December 2010. As part of the review he recorded that the plaintiff managed the Murdoch Police Station to an acceptable level, and that he managed staff and supervisory issues consistently in line with WAPS policy. His overall assessment of the plaintiff at this time was that the plaintiff fully met the requirements of his position as officer in charge of the Murdoch Police Station.
It is not correct that during the period August 2009 to January 2011 the plaintiff was presenting to him on a weekly basis his journal for review. He cannot recall the plaintiff providing his journal to him to sign.
He is not aware of the plaintiff having recorded in his journal time that he was taking off as a result of injuries suffered in the accident. Nor is he aware of the plaintiff having provided his journal to him every week so that he knew that the plaintiff was taking time off every week for his injuries.
His observations of the plaintiff at around the time the plaintiff's son was charged were that the plaintiff was struggling. The plaintiff could not remain focused.
During the time that he was supervising the plaintiff he understood the plaintiff to be operational.
He was aware that the plaintiff was involved in the accident in May 2010. Over the six months following the accident he did not observe any change in the way the plaintiff carried out his duties.

I do think that it is appropriate to make some allowance for the plaintiff having ongoing consultations with his general practitioner and consulting with a pain management specialist. I also think that it is appropriate to allow a modest amount in respect of future treatment of, and medication for, the plaintiff's ongoing perceived pain symptoms. In my view an allowance of $2,000 is appropriate in all the circumstances. I therefore award this amount in respect of the plaintiff's future medical costs.

General damages – pain and suffering and loss of enjoyment of life

Relevant statutory provisions and general principles

Section 3C of the Motor Vehicle (Third Party Insurance) Act 1943 (WA) imposes a limit on the award of damages that can be made for non‑pecuniary loss, that is, for pain and suffering and loss of enjoyment of life: Motor Vehicle (Third Party Insurance) Act, s 3(1).
Section 3C(2) of the Act provides that I must assess damages for the plaintiff's non-pecuniary loss as a proportion, determined according to the severity of the non-pecuniary loss, of the maximum amount that may be awarded. The maximum amount that may currently be awarded is $399,000. Section 3C(3) provides that the maximum amount may only be awarded for a case that is assessed to be a 'most extreme case'.
Section 3C(2) and s 3C(3) do not require me in assessing damages for non‑pecuniary loss to envisage a number of examples of cases which may fall within the most extreme category and to compare the injuries in question with all of them before arriving at an appropriate percentage: Den Hoedt & Anor v Barwick [2006] WASCA 196 [5], [7], [95] ‑ [97]. The methodology that I am required to apply is that described by Gleeson CJ, Kirby P and Meagher JA in Southgate v Waterford (1990) 21 NSWLR 427, 440 ‑ 442 and Den Hoedt v Barwick [5], [7], [95] ‑ [97]. I am required to conceive 'a most extreme case', quadriplegia being an example, and then apportion the amount to be awarded somewhere between nil and the maximum available, keeping in mind that the maximum is only available for a most extreme case: Den Hoedt v Barwick [5], [7], [95] ‑ [97].

Award

I have already referred in detail to the evidence given by the plaintiff as to the nature of his injuries and the effect that they have had on him.
The plaintiff submits that for the injuries to his neck, left shoulder and left back, and for his associated headaches, that occurred over a period of not less than two years after the accident, he is entitled to an award of general damages based on 15% of the worst case scenario, namely $39,850. The plaintiff further submits that if it is accepted that as a consequence of the added impact of the psychological issues the plaintiff has a genuine perception of pain, the award should be based within a range of 17.5% to 20% of the worst case scenario, giving a nett figure of between $59,150 and $79,100.
The defendant submits that the plaintiff's physical injuries, confined to mild soft tissue injuries to his neck, back and left shoulder, should be assessed at 9% of a worst case on the basis that the plaintiff has already made a full recovery from these injuries, or, alternatively that he would have done so by now were it not for the 'novus actus interviens and/or psychological overlay'. The defendant submits that no allowance should be made for any psychiatric/psychological injuries 'since the evidence overwhelmingly does not support these being caused or materially contributed to by the accident'.
In light of my findings, I obviously agree with the defendant's contention that in assessing the appropriate award for the plaintiff's non‑pecuniary loss no allowance can be made for any pain and suffering and loss of enjoyment of life arising from the plaintiff's depressive condition. Any award can only be made in respect of pain and suffering and loss of enjoyment of life suffered by the plaintiff as a result of his accident caused soft tissue injuries and associated pain and limitation of movement symptoms during the period between the date of the accident and the development of his depressive condition, and as a result of his perceived aggravation of his symptoms since the development of his depressive condition.
In all the circumstances, taking into account all the relevant evidence of the plaintiff and the medical witnesses, I am of the view that the damages for the plaintiff's pain and suffering and loss of enjoyment of life caused by the accident should be assessed at 11% of a most extreme case. It follows that I award $23,890 for the plaintiff's non-pecuniary loss: Motor Vehicle Insurance Act, s 3C(2), s 3C(6).

Jones v Dunkel inferences

The defendant has invited me to draw Jones v Dunkel type inferences in respect of the plaintiff's failure to call as witnesses a number of medical practitioners and other health professionals. On the face of it these witnesses, if they had been called, would have been in a position to give some evidence as to the plaintiff's post-accident condition. Nonetheless, and as is apparent from these reasons, I have not, in making my findings of fact as to the extent of the injuries, symptoms and disabilities caused to the plaintiff by the accident (these findings being broadly consistent with the case advanced on behalf of the defendant at least in relation to the pre-September 2012 period), drawn any of the Jones v Dunkel adverse inferences contended for by the defendant as a result of the plaintiff's failure to call these medical practitioners and health professionals to give evidence. I have not done so because I am not persuaded that in the case of these medical practitioners and health professionals it can properly be said that they would be expected to be available to the plaintiff rather than the defendant, or that they might be regarded as being in the camp of the plaintiff, or that their knowledge might be regarded as the knowledge of the plaintiff rather than the defendant: Payne v Parker [1976] 1 NSWLR 191, 201 ‑ 202; The Bell Group Ltd (in liq) v Westpac Banking Corporation (No 9) [1015].

Conclusion

In summary I assess the damages payable by the defendant to the plaintiff as follows:

Past loss of earning capacity

$38,614

Future loss of earning capacity

$30,204

Past loss of superannuation

$4,251

Future loss of superannuation

$3,489

Past medical costs

$0

Future medical costs

$2,000

General damages

$23,890

Total

$102,448

Past loss of earning capacity	$38,614
Future loss of earning capacity	$30,204
Past loss of superannuation	$4,251
Future loss of superannuation	$3,489
Past medical costs	$0
Future medical costs	$2,000
General damages	$23,890
Total	$102,448