Derham v Insurance Commission of Western Australia - [2010] WADC 12

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: DERHAM -v- INSURANCE COMMISSION OF WESTERN AUSTRALIA [2010] WADC 12

CORAM: SCOTT DCJ

HEARD: 25-28 MAY & 22 DECEMBER 2009

DELIVERED : 9 FEBRUARY 2010

FILE NO/S: CIV 329 of 2007

BETWEEN: MICHAEL JOHN DERHAM
Plaintiff
AND
INSURANCE COMMISSION OF WESTERN AUSTRALIA
Defendant

Catchwords:

Damages for injuries in motor vehicle accident - Subsequent injury - Evidentiary onus - Turns on own facts

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943

Result:

Plaintiff awarded damages

Representation:

Counsel:

Plaintiff: Mr T Offer
Defendant: Ms B A Mangan

Solicitors:

Plaintiff: Stephen Browne Lawyers
Defendant: Lavan Legal

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

CSR Ltd v Eddy [2005] HCA 64
Graham v Baker (1961) 106 CLR 340
Henville v Walker (2001) 206 CLR 459
Naxakis v Western General Hospital (1999) 197 CLR 269
Shorey v PT Limited [2003] HCA 27
State of New South Wales v Moss (2000) 54 NSWLR 536
Thomas v O'Shea (1989) A Tort Rep 80‑251
Watts v Rake (1960) 108 CLR 158

SCOTT DCJ:

Background

The plaintiff was born on 26 January 1972.
On 9 June 2001 the plaintiff was a passenger in the cabin of a road train which was proceeding in a southerly direction along Brand Highway, Cataby when a motor vehicle being driven by Galang Quach ("Mr Quach") in a northerly direction along Brand Highway veered into the path of the road train and a head on collision ensued ("accident").
Mr Quach died at the scene of the accident and the plaintiff brings this action against the defendant pursuant to s 7(2) of the Motor Vehicle (Third Party Insurance) Act 1943 ("Act").
Liability is not in issue. The issue is one of quantum.
In the statement of claim the plaintiff claims that as a result of the accident he suffered injury a summary of which is as follows:

Injury

(a)2 centimetre by 1 centimetre scalp haematoma;
(b)bruising to the right shoulder;
(c)acute stress reaction;
(d)median nerve compression of both wrists;
(e)post traumatic stress disorder;
(f)major depressive disorder; and
(g)soft tissue injury to the cervical spine, thoracic spine and lumbar spine;

The plaintiff claims that as a consequence of the injuries sustained by him he has suffered significant and continuous pain and suffering and has suffered permanent disabilities to his cervical spine and thoracic spine together with residual anxiety and depressive symptomatology.
The plaintiff claims that he has suffered past and future loss of earnings in respect of which he alleges that by reason of the physical and psychological injuries he sustained in the accident, he is and remains totally unfit for any employment duties and that he will need to recover substantially from his psychiatric condition before he can attempt a return to work.
Past loss of earnings claimed by the plaintiff are based upon a claim that had it not been for the injuries sustained in the accident the plaintiff would have continued to work as a long haul truck driver and would have worked in that capacity to trial.
The claim under this head is the difference between the net sum which he would have earned as a long haul truck driver from the date of the accident to the date of the trial plus superannuation contributions, less the sums paid to him and the superannuation payments made over that period.
The plaintiff's claim for future economic loss is that had he not been injured in the accident he would have worked as a long haul truck driver from trial to age 65. The plaintiff claims that as a result of the physical and psychological injuries he sustained in the accident he was at trial totally unfit for employment duties and will remain so. In his closing submissions counsel for the plaintiff submits that the defendant has an evidentiary onus of establishing remunerative employment available to the plaintiff having regard to his residual disabilities and that it has failed to discharge that onus.

Defence

The defendant by its amended defence (to the extent maintained at trial):
(a)admits that the plaintiff suffered injury as a result of the accident but does not admit that he suffered the injuries alleged;
(b)says that the plaintiff suffered from injuries and disabilities which were unrelated to the accident and were related to:
(i)an exacerbation of psychological problems and sleeping difficulties resulting from a motor vehicle accident in 2002 when the truck in which the plaintiff was asleep in the cab collided with a cow ("cow accident");
(ii)an incident on 28 September 2003 when a 30 kilogram tyre fell onto the back of his head causing injuries to his cervical spine, thoracic spine, lumbar spine and a psychiatric condition ("tyre accident");
(iii)bilateral carpal tunnel syndrome from December 2003;
(together "unrelated injuries");
(c)admits that the plaintiff needed treatment as a result of the accident, does not admit that the treatment pleaded resulted from the accident and says that he needed treatment for the unrelated injuries;
(d)does not admit that the plaintiff sustained the pain and suffering, past and future loss of earnings, permanent disability, interference with his way of life and special damages claimed as a result of the accident and says that same has been caused or contributed to by the unrelated injuries.

Issues

The issues in this case can be distilled down to the following:
(1)The symptoms suffered by the plaintiff consequent upon the injuries sustained by him in the accident.
(2)The plaintiff's condition immediately prior to the cow accident and the tyre accident.
(3)The effect on the plaintiff's psychological condition consequent on the cow accident.
(4)The nature of any injury sustained by the plaintiff in the tyre accident and the extent to which the plaintiff suffered new symptoms or an exacerbation of symptoms from the accident which had resolved or would otherwise have resolved in time.
(5)Whether the plaintiff, by reason of the injuries sustained by him in the accident, could have returned and/or can return to long haul truck driving.
(6)The extent to which the need for the plaintiff to care for his children would in any event, have resulted in and will result in him not being able to undertake long haul truck driving and if so for what period.
(7)Having regard to the injuries sustained in the accident, whether the plaintiff was capable (and if so from when) to drive trucks in the metropolitan area or to work as a doorman, or forklift driver.
(8)Whether the defendant bears an evidentiary burden as to the work for which the plaintiff is, by reason of accident related injuries, capable and the availability of such work.

Circumstances of accident and injury

The plaintiff gave evidence that at the time of the accident he was employed by Nexus Transport as a long haul truck driver. His father was driving the truck and he was asleep in the compartment which was situated behind the driver and passenger seats.
He said that the first thing he remembered after climbing in to go to sleep was a big thud then a big flash of light as his feet were thrown forward and he went into the driving compartment and onto the dash. He said that his back hit the dash and smashed a truck phone and a fleet com which were on the dash.
He finished up on the floor of the truck, hard against the gear stick. He hit his head and a number of items tumbled down on top of him. He opened the door and went to step down on what was a step but it had been torn off in the accident. He fell straight down and jarred himself again.
He and his father went back to where the accident occurred where he saw Mr Quach. He said that it was a pretty gruesome scene. It would seem that Mr Quach was likely to have committed suicide by driving his vehicle into the path of the truck.

Symptoms and treatment

The plaintiff said that he felt pain in his neck and back. He was given medication for his pain and taken by ambulance to Moora Hospital and later conveyed by ambulance to Royal Perth Hospital. He said that in terms of the severity of the pain, on a scale of 1 to 10 it would probably be 8 or 9.
In addition to pain in his neck and back he had pins and needles in his arms. He had x-rays taken. There were no fractures found and he was released from hospital with advice to see his general practitioner and was given a couple of cards of Panadeine Forte. He then saw his general practitioner, Dr Thomas.
Over the next day or so his neck was stiff and he said that the pain settled over a couple of weeks to about 6 or 7 out of 10.
His employer referred him to a psychologist, namely Dr Guest. Emotionally he found it difficult to sleep and Dr Thomas prescribed Temazepam.
He said that he returned to work after six or eight weeks. Financially he said he had to because the workers compensation payments were about half of the monies he was earning. When he returned to work he still had pains in his neck and back and numbness in his arms.
On 16 July 2001 he returned to work, driving trucks in the metropolitan area only. On 30 July 2001 Dr Thomas certified him fit to return to his duties as a long haul truck driver whereafter he worked in that capacity.
On 8 October 2001 he complained of interscapular pain and numbness in his arms and hands in certain positions and on that day Dr Thomas certified him unfit for one day.
On 8 February 2002 Dr Thomas certified him unfit for work for seven days. Dr Thomas, in his report of 14 February 2002, said that the plaintiff had regressed with worsening pain in the interscapular region and neck, pins and needles down to both hands, difficulty sleeping and the onset of depression. An appointment was made to see Mr Cameron Thrum, orthopaedic surgeon, on 18 February 2002 and Dr Thomas certified the plaintiff unfit to work in the meantime.
In his report of 14 February 2002 Dr Thomas said that:
(a)He had seen the plaintiff on 11 June 2001 and the clinical examination revealed a 2 centimetre by 1 centimetre left parieto‑occipital scalp haematoma and bruising of the right shoulder. There was tenderness in the interscapular region and movement of the cervical, thoracic and lumbar spines was limited by pain.
(b)The plaintiff was seen on several occasions over the following weeks and was referred to physiotherapy and continued to see the psychologist arranged by his employer for counselling and continued medication for ongoing pain, stiff and sore muscles, and disturbed sleep.
(c)Since 3 August 2001 the plaintiff had been continuing with normal duties but experiencing intermittent symptoms. He had ceased all medication and physiotherapy.
(d)The plaintiff's response to treatment had been less than ideal primarily because his work did not enable him to have continuous physiotherapy.

Cow accident

In June 2002, the plaintiff said that he was working with another driver who was at the time driving the truck and the plaintiff was lying down on the bunk in the sleeping compartment. The driver braked and collided with a cow.
He said that he had in the past collided with a number of cows but on this occasion he thought it was like having the (June 2001) accident again because he was in the bunk where he did not feel safe. It was not a severe accident. After he got back to work he did not feel as safe.
He said that over the next 12 months he became really moody. He said that he still had pains in his neck and was taking "heaps of pills" just to get him through the day.
He said that he was hardly doing any of the physical loading and unloading trucks – those travelling with him were doing that work, and that made him feel bad watching others do the work he should have been doing.
He was referred to Dr Geoffrey Gee and started an exercise program then undertook hydrotherapy and worked in the gym. He felt he was taking a cocktail of pills. He was seeing the psychiatrist (Dr Guest) about once a month.
Dr Guest in his report of 4 November 2002 said that he saw the plaintiff on 17 September 2002 when the plaintiff told him that he had continued to have problems since the accident, had ongoing problems with sleeplessness, and was constantly agitated and grumpy. Since the cow accident, the plaintiff had told him that things had been worse ever since.
The plaintiff said that in September 2003 his symptoms flared up again, namely in his neck, back and the numbness in his arms. He was grumpy and moody all the time and was not sleeping. He was unable to sleep on long haul trips because "it was like having one eye open … waiting for something to happen …".
He said that he was unable to drive his full four hour stint ‑ sometimes he could only drive for an hour and a half and then he would have to pull over and have his co‑driver take over.
He was seeing the psychiatrist once a month and when he was able he would undertake hydrotherapy which had been recommended by Dr Gee.

Reported symptoms before tyre accident

Just before the tyre accident he said he saw Dr Thomas and told him he could not cope, that he could not keep taking pills, he was feeling sick, was not sleeping and had been really uncomfortable and could not keep up. He said that the pain in his back had flared up as a result of a particularly big trip he had recently done. He was suffering pain in his neck and back and from numbness in his arms.
In his report of 3 October 2003, Dr Thomas said that he reviewed the plaintiff on 19 September 2003 at which time the plaintiff:
(a)Complained of being in agony. The plaintiff told him that he had just returned from his last trip the day before and complained of nausea, loss of appetite and severe pain across his lower back. The plaintiff told Dr Thomas that he had not been this bad for a long time. He also complained of headache, neck and shoulder pain, numbness in both arms and disturbed sleep.
(b)Had features of post traumatic stress disorder and emotional disturbances associated with chronic pain.
(c)Was still significantly symptomatic from the accident. Some of the symptoms had actually worsened while some others had developed only after some time.
Dr Thomas certified the plaintiff as unfit for work from 19 September 2003 to 26 September 2003.

Tyre accident

On 28 September 2003 the plaintiff said that he was in the yard in Kununurra, untarping a load. As part of the load were tyres for Beaurepaires and Bridgestone in Kununurra. They were brand new tyres, not on a rim, not inflated. They were positioned on top of the load, over which the tarpaulin would be tied.
As the tarpaulin was pulled off, one of the tyres came down and got him on the back of the neck and back.
He said that a legal load was 2.4 metres high and he was standing right beside the trailer. He was about 190 centimetres tall. The tyre came down off the top of the load and hit him on the base of the neck and kept rolling. There was no evidence as to the actual height of the load. The height of a legal load (2.4 metres) must, I assume be measured above the tray. There was no evidence as to the height of the tray from the ground.
The plaintiff said in evidence that the tyre did not hit him on the head and did not knock him to the ground. He said that he moved his head forward, trying to get away from the tyre, and "it just got me". He said he was already uncomfortable. He said it hurt but he was not in any more pain. He had a headache but he did not feel any different from the symptoms from which he was already suffering.
He said he got a bit of stiffness but it was no different to what he was already experiencing. He said that there was no difference to his back. He said that there was a flare up of the symptoms from which he was suffering. There were no new symptoms.
He made a claim for workers compensation. He was certified as being totally unfit for work and agreed in evidence that it was the aggravation of his pain caused by the tyre accident that put him off work. He said he did not get any extra medication for the pain or get any extra physiotherapy or other treatment. The headaches remained the same as what they normally were.
In cross-examination the plaintiff said that the tyre struck him on the back of the neck.
He was asked whether he told Dr Thomas that a 30 kilogram four wheel drive ("4WD") tyre fell from 15 feet onto the back of his head and neck to which he responded that he did not make reference to any weight of a tyre. He said he told Dr Thomas that a 4WD tyre had struck him in the back of the neck and back.
The plaintiff said that he recalled seeing a psychologist, Mr Kemp. He was asked whether he told Mr Kemp that a 4WD tyre fell from the top of the load and struck him on the head. He said that the tyre struck him on the neck and back. He said that he was not knocked to the ground. He sat down to get his breath.
He was asked whether he told Dr Gee that a 4WD tyre came off the top of the load falling 18 feet hitting him on the back of the head and knocking him forward to which he responded "yes, neck and back".
He said that he now knows that the tyre weighed 12 kilograms.
He was asked whether he told Dr Goodheart that he was knocked to the ground when the tyre hit him to which he responded that he did not and that he said that he was struck on the back of the neck and head.

Instructions to medical practitioners re: tyre accident

In his report of 16 February 2004 Dr Thomas said that:
"Mr Derham consulted me on 3/10/03 and reported that on 28/09/03 while at work at the Nexus freight yard in Kununurra a 4WD tyre fell off a loaded flat top and landed on the back of his head and neck. The tyre fell from a height of about 15 feet and weighed approximately 30 kilograms. He immediately felt severe pain in his head, neck and shoulders and felt dizzy and shaky."
Dr Thomas, in his evidence at trial, confirmed that this was what the plaintiff told him.
In his report of 28 November 2003 Dr Gee said that he attended on the plaintiff on 28 November 2003 and the plaintiff told him that:
"On 28 September 2003 he was unloading in Kununurra when a 4WD tyre came off the top of a load falling 14 feet, hitting him on the back of the head and knocking him forward."
In his report of 26 July 2004, Dr Ross Goodheart said that the plaintiff told him that:
"He was struck by a tyre which fell from a truck that he was unloading. Apparently he was knocked to the ground in the course of the accident. I was told that there was an exacerbation of his headache, neck pain and lower back pain for a period of time. Apparently these symptoms 'returned to baseline'."
In her report of 21 October 2003, Dr Sharon Hodgson said that the plaintiff told her that:
"He has been off work for the past month after his pain became aggravated when a tyre fell on his head."
In his report of 10 November 2003, Dr Michael Kemp said that the plaintiff told him:
"The third accident (28/09/03) a 4WD tyre falling on his head whilst he was unloading cargo from a stationary truck".
Later in that report he said:
"Mr Derham stated that on 28 September 2003 he was unloading a truck load of hardware supplies in the north of the state when a 4WD tyre fell from the top of the load and struck him on the head knocking him to the ground … apart from the aggravation to his pre-existing injuries and back pain Mr Derham described increased sleep disturbance with frequent waking during the night due to pins and needles in his arms. He says that prior to this accident he would wake during the night two – three times per week whereas now he is waking two ‑ three times per night."
I am satisfied that the plaintiff gave these instructions to these practitioners and that in the tyre accident a 4WD tyre weighing approximately 30 kilograms fell from about 14 feet, striking him on the back of the head and neck with sufficient force to knock him to the ground. I do not accept the evidence of the plaintiff that he did not tell Drs Thomas, Gee and Mr Kemp that the 4WD drive tyre fell on his head. In my view the plaintiff in his evidence understated the tyre accident and the symptoms caused by it.

In his closing submissions counsel for the plaintiff said that the 4WD tyre fell little more than 50 centimetres – that distance being calculated as the difference between the top of the load (2.4 metres) and the height of the plaintiff (1.9 metres).
I am satisfied that when the plaintiff, in his evidence, referred to the height of a legal load being 2.4 metres he was referring to the height of the load above the tray of the truck. Although the legal height for a load may well have been 2.4 metres there is no evidence as to whether on this occasion the height of the load was within the legal limit.
The fact that the plaintiff told Dr Thomas that the 4WD drive tyre fell from a height of about 15 feet and told Dr Gee that it fell 14 feet leads me to accept, as I do, that the 4WD drive tyre fell from a height of 14 ‑ 15 feet. The submission that the tyre fell only 50 centimetres again supports my view that the plaintiff understated the effect of the tyre accident on him.
The plaintiff said that after the tyre accident it was uncomfortable, he had a headache but he did not feel any different to the symptoms that he was already experiencing.
Dr Thomas said in his report of 16 February 2004 that the tyre accident caused new symptoms, and caused the plaintiff's pre-existing symptoms to be aggravated however with rest and treatment the new symptoms resolved and his aggravated pre-existing symptoms stabilised to their previous levels.
He said that the plaintiff was currently totally unfit for work due to the accident and that he did not believe that the tyre accident had affected the plaintiff's work capacity for employment.
In his evidence, with respect to his report of 16 February 2004 Dr Thomas said:
"It was becoming increasingly difficult to differentiate between the two because the mechanism of injury for both accidents was very similar, alright? So the effects on the body from those two accidents was about the same. There was a difference in the beginning in the sense that his existing symptoms actually worsened … Now, I put him off work, I put him on medication, I gave him physiotherapy during that time so the rest, medication and treatment alleviated his symptoms to the extent that they – they came back to the level – the pre-accident levels. They didn't go away completely but went back to the level of the previous accident. So I – I had to make a decision as to whether – because it was becoming really, really difficult to have two workers comp – and I – I could not humanly differentiate between the two and it was becoming a real nightmare, legally and medically, so I closed the other case. But I think I had good reason for doing so. I acted in good faith and his symptoms had actually come back to the level that they were before."
Dr Thomas said that he concluded that the tyre accident was quite a significant event on what he had been told.
He agreed that both the accident and the tyre accident could cause the same symptoms about which the plaintiff complained. He did not agree that the tyre accident alone could have caused the symptoms with which the plaintiff complained because the plaintiff had symptoms prior to that accident.
Dr Thomas then said:
"… I'll tell you why, that injury [from the tyre accident] by itself was a straightforward uncomplicated injury, if some – a tyre fell on your head – Mr Derham's accident [the accident] was a rather horrific accident and I think we need to remember that there are two components to his symptoms, his current symptoms. His physical symptoms and the psychological aspect as well. The post traumatic stress disorder that he has developed very significantly impinges on his other symptoms as well. If he did not have post traumatic stress disorder I think he would not have developed the chronic pain that he has got."
He was then certified as unfit for work at all until April 2004.

Ongoing symptoms alleged by plaintiff

The plaintiff underwent carpal tunnel surgery in November 2005 (left) and February 2006 (right) but did not get any improvement and said that he still had pins and needles and numbness in his arms.
He said in his evidence that the ongoing symptoms with which he continues to suffer comprise:
(a)Numbness in his arms which results from twisting, bending and lifting. Tasks such as sweeping the floor, vacuuming, mopping the floor result in that numbness.
(b)Neck and back symptoms resulting from lifting and bending and playing sport with his children.
(c)Continual moodiness, irritability and anxiousness. He has gone from being a happy‑go‑lucky person living life to the full to being miserable, moody and snappy.
He said that his relationship with his de facto terminated in September 2004. He said that the relationship drifted, he was grumpy, he couldn't perform the things that he used to do and give her the financial things that she wanted. She became unfaithful and the relationship ended.
He said that he sees Dr Thomas once a month and that Dr Thomas continues to certify him unfit for work. He has continued with physiotherapy, however hydrotherapy was discontinued because the workers' compensation insurer would not renew his gym membership. He was approved for deep tissue massage which he has undergone once or twice a week depending on how uncomfortable he is.

Medication

The plaintiff gave evidence that the medication he continues to take comprises:
(a)Panadeine Forte, 2‑4 a day (packets of 20);
(b)Di‑Gesic, 2‑4 a day (packets of 20 or 30);
(c)when he is very uncomfortable, Tramal once or twice a day. Tramal is stronger than Panadeine Forte. He takes 2‑4 per day (packets of 20);
(d)Celebrex 1 in the morning and 1 at night (packets of 30);
(e)Stilnox to help him sleep, 1 or 2 tablets per day (packets of 15);
(f)Nexium for nausea, 2 a day (packet of 80 tablets).

Loss of enjoyment

The plaintiff gave evidence that he:
(a)Has difficulty playing with his children – kicking the football and surfing with them. He said he cannot do those things without taking a handful of pills which is very frustrating.
(b)Has reduced socialising. He used to socialise before the accident but no longer does so because he does not have the money. His socialising is restricted to seeing friends.
(c)No longer does Muay Tai – a martial art. Before the accident he used to do that martial art twice a week but has not been able to do so since the accident.
(d)No longer rides motorbikes or dirt bikes.
(e)No longer fishes with his children which he previously enjoyed because he cannot cast comfortably.
(f)Has difficulties forming any relationship because he cannot perform sexually as he used to.
Overall he had gone from doing lots of things to doing nothing because he does not like doping himself up just to get through life.

Work history

The plaintiff gave evidence said that after he left school he became a cabinet maker for 12‑18 months. He left cabinet making and started roof tiling because it paid better than cabinet making. He worked as a roof tiler for about two years.
He then commenced work at Key Transport with his father who was a truck driver. He started as a doorman and then worked as a forklift driver for about 4 or 5 years.
As a doorman he said that there was a need to be fit because it involved stacking goods, carrying cartons and lifting. As a forklift driver there was some physical work required because sometimes it was necessary to move goods and push things around and climb up on trailers.
He commenced work as a long haul truck driver with Key Transport in about 1993 or 1994 and then commenced in that capacity for Nexus Freight in October of 1997 and was working for Nexus Freight as a long haul truck driver when he was injured in the accident.
The long haul runs were primarily in the north of the State. There would be three men on roster. The truck would be on the road 22½ hours a day. Sometimes the truck would leave on a Friday night and be back on a Wednesday and on other occasions the truck would leave on a Monday night and be back on the following Sunday afternoon. Generally he would work six days.
The freight was primarily produce. The freight would be delivered to locations up north and there would then be fresh produce out of Kununurra which was loaded and brought back to Perth.
In the main there were forklifts available to unload and load but north of Broome there were roadside drops to primarily Aboriginal communities, the weight of boxes being about 15 kilograms.
With respect to the three men on roster, the person who had a week off would start early in the morning that the truck was due to leave organising the load and then the two who would be on the driving shift would arrive later in the day to help load.
In the event that he went on the trip on the Friday night he would return on the Wednesday and then he would not work on Wednesday or Thursday but then would be required to work on the Friday when the truck would be loaded. If it was his second trip then he would come in to help load the truck and leave about 9 pm.
In the event that there was no other driver available and instead of having a week off he would do the trip commencing on the Monday through to Saturday night/Sunday morning. As a consequence he had to be pretty flexible and on call.
He was working about 112 hours per week. He said he enjoyed the job and intended to work until age 65.

Work post‑accident

After the accident he was certified unfit by Dr Thomas until 16 July 2001 when he went back to work driving in the metropolitan area only and went back full‑time long haul driving in August 2001.
In the main with driving in the metropolitan area there was no need to do physical work save for bullocking pick‑ups where there was a need to load goods and climb up on the trailer.
In the financial year ending June 2002 he had little time off relating to injuries which were accident caused demonstrated by the fact that only $5,500 in workers compensation payments were made. He agreed he told Mr Thrum in February 2002 that there was nothing he was totally unable to do but that he had difficulty with lifting and driving. He said that he continued to carry on the long haul driving because he was pushed financially but that he was still uncomfortable.
In April 2002 he agreed that he was sleeping better (as Mr Guest recorded). His back felt better and his mood had stabilised and he generally felt good. He said his sleep had got better because he was taking prescribed sleeping tablets.
After the tyre accident he underwent rehabilitation for the first time. Countrywide Injury Management ("Countrywide") formulated a plan for his return to work – a fit for work programme including hydrotherapy and neck and back strengthening. He returned to work on light duties on 7 April 2004.
Those light duties comprised checking consignment notes, checking cubic measurements, making sure the weights were on goods and teaching people on the door. He said that no‑one did that job when he was not doing it. Generally the office girls would fill out consignment notes and check that they were properly filled out and the balance of the work he was doing was the job of a doorman.
He said that he could not do the doorman's job permanently because he could not lift or pick things up. He could not lift, say, 20 or 30 kilograms and still cannot do so.
Countrywide continued with his return to work programme. He was performing truck driver and supervisor duties in May 2004 and also forklift driving and some work as a doorman. The driving involved truck driving locally.
He worked intermittently doing these duties on the return to work programme until September 2006 when he ceased work. He has not worked since.
In the plaintiff's updated particulars of damages dated 12 November 2009 counsel for the plaintiff set out in par 2.1 the payments made to the plaintiff since the accident.

Capability to work

He said that he was certified unfit for work by Dr Thomas and that he had made no endeavour to seek a job anywhere since September 2006. This was so notwithstanding that Dr Thomas certified him fit to work as a metropolitan truck driver on 18 August 2006, 8 September 2006 and 19 September 2006.
He said that since workers' compensation stopped funding his retraining he had not pursued the retraining because he did not have the money to do so and Centrelink would not help.
He said he would like to be retrained for something that pays the same money he was earning before he had the accident.
There was this exchange in the course of his cross‑examination:
"Q.…so if you couldn't do a job that pays you that much money that could pay you a little bit less, or half even, would you do that?
A.I – why should I be retrained as a checkout person when I was earning, you know, double the money; why should I take less?
Q.The situation is you're not really prepared to make any effort unless you can make as much money as you were making before the accident. Is that correct?
A.I'm prepared to be retrained to the same earning capacity as what I had, yes. That's what I think I should be entitled to. I didn't cause the accident."
He said that he could not do the job as a doorman because he was not supposed to lift anything over 5 – 10 kilograms through his fit for work programme.
He said he could not work as a forklift driver because bouncing around on a forklift was the worst thing for him. He conceded that apart from the few times that he drove a forklift in the yard from 2005 he had never tried it again. There was then this exchange:
"Q.And that [the accident] is the incident that you are asking the court to accept prevents you from working at all?
A.Yes.
Q.Ever again? And the reason is, because you don't see why you should try and make an effort, because it's someone else's fault?
A.Yes. And my doctor tells me not to."
Dr Thomas gave no evidence that he told the plaintiff not to work.
As to the work that he was undertaking in the return to work programme, insofar as it involved supervision of loading and unloading, office based paperwork, checking consignment notes etc, he said that there was no job or a person at his work who did just those types of activity prior to him being injured.
Christopher Love, the fleet manager for Nexus Freight gave evidence at trial.
He said that Nexus Freight had seventy employees of whom:
(a)About 30 were in administration.
(b)Nine were long haul truck drivers stationed in Perth.
(c)Eight drove one‑tonner trucks – some in Perth, some up north. Those trucks were involved in local deliveries and pick‑ups armed with trays and forklifts.
(d)Seven were mechanics/welders/washers.
(e)Six were forklift drivers/loaders who worked in the store room.
He said that the doormen at Nexus Freight received freight, weighed freight, stacked the freight where necessary and drove a forklift. Stacking the freight may involve stacking boxes weighing 20 – 30 kilograms and stacking them up to two metres in height.
Boxes were packaged to reflect the occupational health and safety standards which he understood to be 15 kilograms. The doorman required knowledge about the industry and was a valuable person in the company.
60 per cent of the pallets were already made up and could then be moved around by forklift or other equipment such as a pallet jack located on the floor of a trailer. Lighter freight was to be stacked on top of palleted freight.
He said that where there were boxes of produce in the warehouse, forklift drivers had to make them up. This meant that if the customer had boxes to be delivered to various locations up north then a pallet (for example) of the customer's boxes may be delivered to the warehouse and it might be necessary for the doorman to relocate some of the boxes on other pallets so that they could be loaded onto a trailer for delivery in order.
He said some doormen helped load trucks. In making up a load the loader/forklift driver was involved. Getting boxes from pallet to pallet may involve manual labour. A doorman normally worked 10 hours a day – up to 12 hours depending on the volume of freight. A forklift driver worked 10 to 12 hours per day. On a typical run there were 22 pallets on a trailer and there may be two or three trailers.
The thrust of Mr Love's evidence was that there was a component of the doorman's job which was manual in that it involved the moving of boxes from the freezer or a pallet onto a pallet and involved boxes weighing 15 kilograms or under but there may be an odd box at 25 ‑ 30 kilograms. There were four doormen employed by Nexus Freight.
Primarily the work would involve the use of a forklift to move pallets around and to stack them on trailers. There may be some stacking of lighter freight on the top of pallets.

Care of children

The plaintiff said that had it not been for the accident he would have continued to work as a long haul truck driver.
It was put to him in cross‑examination that even if he wanted to work as a long haul truck driver, after the separation from his de facto wife in September 2004, he could not do so because he had to look after the children. The arrangement with his former de facto wife was that they would share custody of the children, equally. At trial his daughter was 9 years old and his son was 7 (born 20 February 2002). He did not agree. He said that if he worked as a long haul truck driver he could look after the children because there would be after school care and his parents would help out. There was no evidence from his parents as to their ability or preparedness to do so. There was no evidence of any specificity as to the arrangements which the plaintiff proposed to make so that he could undertake the work regime required of him as a long haul truck driver.
There was this exchange in evidence:
"Q.You could leave the children with your mother three weeks out of four?
A.No, it wouldn't be three weeks. It would be five days. I was doing short trips, not long trips so it was only overnight if it had to be or whenever they weren't at school."
Clearly those arrangements related to metropolitan truck driving not long haul truck driving as the plaintiff had described.
The plaintiff did not say that he would forgo custody of his children in the event that their care would preclude him from driving as a long haul truck driver. I am satisfied that he would not do so.
I am satisfied on the evidence before me that the plaintiff, whilst he had joint custody of his children, would not have been able to work as a long haul truck driver. His evidence was that he would be required to work 112 hours per week, there needed to be flexibility in the rosters he was required to work and there was a need to be on call. This working regime would not allow him to have joint physical custody of his children. And, as I say, there was no evidence from his parents as to their ability to assist the plaintiff so that custody arrangements could be undertaken. There was also no evidence from which I could find that even if the plaintiff's parents could assist, the plaintiff's de facto would countenance custody arrangements where the children were, in the main, not in the plaintiff's physical care.
I am satisfied that for as long as he had joint custody of his children, he would not have worked or in the future will work as a long haul truck driver even if he had the capacity to do so. There was no evidence as to the age the children would likely reach before the plaintiff's physical custody of them would diminish sufficiently such as to allow him to work as a long haul truck driver. I am not satisfied that by reason of those custodial obligations the plaintiff would be able to work or would work as a long haul truck driver before the youngest child reached 16 years of age viz, 20 February 2018.

Medical evidence

Dr Ross Goodheart

Dr Goodheart, a consultant neurologist, first saw the plaintiff on 13 February 2003.
He provided reports dated 17 April 2003, 26 July 2004, 22 September 2004, 27 July 2006, 22 December 2006, 31 October 2007, 21 January 2008 and 8 April 2008 in addition to which he gave evidence at the trial.
In his report of 17 April 2003 Dr Goodheart said that the plaintiff suffered from significant soft tissue injuries in the accident, that he would not make a full recovery from his injuries, there was a significant psychological injury with which he suffered and he would require ongoing analgesic and anti‑inflammatory medication. He said that the plaintiff was limited in his capacity to lift and to maintain prolonged periods of static posture whilst driving. He said that it was possible that the plaintiff was troubled by mild carpal tunnel syndrome of both wrists.
In his report of 26 July 2004 he reported reviewing the plaintiff on 2 June 2004 being approximately nine months after the tyre accident. He said that the plaintiff told him that as a consequence of the tyre accident there was exacerbation of his headache, neck pain and lower back pain for a period of time and that those symptoms "returned to baseline". He agreed in cross‑examination that he relied upon the history related to him by the plaintiff.
He said that on examination the plaintiff suffered from significant limitation of neck movement in all directions and was tender over T11/12. There was some limitation of extension of the lumbar spine.
He confirmed that the plaintiff had developed significant symptoms of carpal tunnel syndrome, however, in evidence he said that he could not directly connect the carpal tunnel syndrome with the accident.
He observed that the plaintiff continued to suffer significant psychological reaction and opined that the plaintiff remained partially incapacitated for work activity with lower back pain limiting his ability to continue with long haul truck driving.
His opinion was that the plaintiff would be unable to return to that occupation and was limited in his ability to lift and his capacity to bend or sit for the long periods of time.
He opined that the plaintiff may develop degenerative changes in his cervical and thoracolumbar spine on the basis of his injuries and that degenerative change may increase his disability.
In his report of 27 July 2006 Dr Goodheart said that the plaintiff had by then undergone bilateral carpal tunnel release with some improvement of nocturnal paraesthesia but continued to experience symptoms in both arms which the plaintiff described as a generalised lack of feeling. He confirmed that the plaintiff suffered from ongoing neck pain and thoracic pain and continued psychological problems.
He said that the plaintiff ceased work in December 2005 at which time he was suffering from insomnia and fatigue and was not able to return to work following carpal tunnel surgery to his left hand.
He again confirmed that the plaintiff had pain limitation in his capacity to maintain prolonged periods of static posture and that the plaintiff's symptoms of depression were preventing his return to full‑time employment.
In his report of 22 December 2006 Dr Goodheart said that the plaintiff suffered from a permanent 12½ per cent loss of the full efficient function of the cervical spine, a 10 per cent loss of the full efficient function of the thoracolumbar spine and significant permanent psychiatric disability.
In his report of 31 October 2007 he opined that the plaintiff's psychological symptoms formed the major component of his ongoing disability and said that in his view the plaintiff remained totally incapacitated to work as a truck driver.
In his report of 8 April 2009 Dr Goodheart noted the plaintiff had reported to him that there had not been a significant change in his symptomology for a period of 18 months, he was still experiencing neck and thoracic discomfort, the neck pain was experienced in the midline but could radiate into both arms and there was intermittent paraesthesia in the forearms and fingers. The plaintiff confirmed to having headaches on a daily basis.
He said that there remained a limitation of movement in the plaintiff's neck with the symptoms being consistent with those reported in his report of 31 October 2007.
His opinion was that the neck disability with which the plaintiff suffered was accident related.
Essentially Dr Goodheart's opinion was that the symptoms suffered by the plaintiff since the accident had remained constant and that the psychological problems with which the plaintiff suffered comprised the major issues with the symptoms from the soft tissue injury having not changed dramatically over time.

Dr Joseph Thomas

Dr Thomas was the plaintiff's general practitioner and he had seen the plaintiff on 149 occasions since 2000.
Dr Thomas provided a number of reports which were exhibited (within Exhibit 4).
In his report of 21 November 2001 he said that he first saw the plaintiff on 11 June 2001 and reported a 2 centimetre by 1 centimetre scalp haematoma, bruising of the right shoulder, tenderness in the interscapular region and that movement of the plaintiff's cervical, thoracic and lumbar spines were limited by pain. There was no neurological deficit.
He referred the plaintiff for physiotherapy treatment and was aware that the plaintiff had been sent to a psychologist for counselling, organised by his employer. He continued medication for pain, stiff and sore muscles and disturbed sleep and reported there were no obvious signs of depression.
He certified the plaintiff fit for restricted truck driving on 16 July 2001 in the metropolitan area and certified him fit for long haul truck driving from 3 August 2001.
He said that since 3 August 2001 the plaintiff experienced intermittent symptoms but medication and physiotherapy had ceased. He said that the plaintiff presented on 8 October 2001 with soreness between his shoulder blades and pain with numbness of both arms on movement. When reviewed on 2 November 2001 the plaintiff was much improved with treatment. He opined that recovery would probably take 12 ‑ 18 months.
In his report of 14 February 2002 he said that the plaintiff had regressed with worsening pain in the interscapular region and neck, pins and needles down both hands, difficulty sleeping and the onset of depression.
He made an appointment for the plaintiff to see Dr Thrum, an orthopaedic surgeon, and certified him unfit to work until he saw Dr Thrum on 18 February 2002. He anticipated there would be no permanent disability.
In his report of 3 October 2003 Dr Thomas reported reviewing the plaintiff on 19 September 2003 being a short period of time before the tyre accident. He reported that the plaintiff told him that he had returned the day before from a trip complaining of nausea, loss of appetite and severe pain across his lower back. The plaintiff told Dr Thomas that he had not been that bad for a long time. He was suffering from headache, neck and shoulder pain, numbness in both arms and disturbed sleep. Dr Thomas opined that the plaintiff was suffering from features of post‑traumatic stress disorder and emotional disturbances associated with chronic pain. He said that it was by then more than two years since the accident and the plaintiff was still significantly symptomatic with some of his symptoms having actually worsened. His opinion was that the plaintiff was unlikely to make a complete recovery with no residual disability.
With respect to the tyre accident he said that the plaintiff reported on 3 October 2003 that he felt ill, had a splitting headache and was sore at the back of his neck across his shoulders and down his cervical and thoracic spine. Dr Thomas certified the plaintiff unfit for work.
He subsequently reviewed the plaintiff over the next month and was of the view that the plaintiff remained unfit for work during that time and required analgesics, physiotherapy and a TENS machine. His view was that the symptoms sustained in the tyre accident merged with the plaintiff's ongoing symptoms from the accident and as a consequence the new workers' compensation claim which was made following the tyre accident was, on 28 November 2003 closed to facilitate the ongoing claim in respect of the accident.
His view was that the accident caused the psychological problems with which the plaintiff suffered. His experience was that when the recovery period was protracted that was when the physical disability impacted upon the plaintiff's life and psychological problems. He said that if the plaintiff did not have post‑traumatic stress disorder he would not have developed the chronic pain with which he suffered.
He said in his evidence that he did not consider that the injuries sustained by the plaintiff in the tyre accident could cause the medical problems with which the plaintiff suffered by trial because the tyre accident was a straightforward uncomplicated injury whereas the accident was a rather horrific accident causing the two components of the plaintiff's symptoms namely physical and psychological.
He agreed that it was only after the tyre accident that he first referred the plaintiff for occupational rehabilitation and that he did not make that referral prior to the tyre accident because the plaintiff had been at work.
He agreed that there were a number of occasions in September 2006 in medical certificates provided by him that he recorded his opinion that although the plaintiff was not fit for long haul driving or forklift driving he was fit for local truck driving at 40 hours per week. He said that he thought that 40 hours per week of local truck driving was too much but he made reference to that duration because the plaintiff had to work.
In his report of 15 December 2006 Dr Thomas said that the plaintiff's condition had not appreciably improved over the years and chronic pain and post‑traumatic stress disorder had become entrenched.

Dr Frederick Ng

The plaintiff was referred to Dr Ng, a psychologist, who first saw the plaintiff on 14 September 2007.
Dr Ng provided reports dated 14 September 2007, 18 September 2008 and 8 April 2009 in addition to which he gave evidence at trial.
In his report of 14 September 2007 Dr Ng said that he was satisfied that the plaintiff had sustained two psychiatric symptoms namely pathological anxiety and pathological depressive symptoms in addition to which he had developed post‑traumatic stress disorder which was chronic and fluctuating in intensity.
He said that the collision with the cow did not constitute a relapse but a significant exacerbation of pre‑existing conditions which had not totally resolved from the accident.
He said that on top of the post‑traumatic stress disorder which he said was caused by the accident when the plaintiff saw the dismembered body of the deceased he was satisfied that the plaintiff had suffered a major depressive episode and that the chronic pain reported by the plaintiff would have acted both to precipitate and perpetuate the major depressive disorder. He said that the major depressive episode was by then chronic.
He said that the plaintiff may also have a pain disorder resulting in the pain with which he suffered being over and above what would be expected from the physical pathology itself.
He opined that the plaintiff would not make a full recovery from his psychiatric difficulties given that they had by then been present for some years. He considered the plaintiff incapable of undertaking long distance truck driving because he doubted whether the plaintiff would be able to trust a co‑driver and would be wary and cautious himself when driving trucks.
He considered that the plaintiff was unfit for any form of work due to the pathological anxiety and depressive symptoms.
In his report of 8 April 2009 Dr Ng said that in his view the plaintiff would not be able to return to long haul truck driving for the foreseeable future and that the collision with the cow exacerbated pre‑existing anxiety and mood difficulties from the accident. He opined that the anxiety and depressive symptoms largely resulted from the accident rather than an exacerbation from the collision with the cow and said that he would attribute 85 per cent of those symptoms to the accident and 15 per cent to the cow accident.
He said that he did not attribute any of the anxiety and depressive symptoms to the tyre accident relying upon the plaintiff's report to him that he already had pre‑existing psychiatric symptoms and that the tyre accident did not materially contribute to his psychiatric symptoms.
During the course of his evidence Dr Ng said that the longer the psychological problem existed for the plaintiff the more likely it was to be entrenched. He said that the plaintiff told him that after the cow accident he was confined to work in the yard for 18 months and was not then able to continue as a driver because of pain and anxiety. He agreed that if it was a fact that the plaintiff worked as a long haul truck driver after the cow accident and was not confined to yard duties then that would be at variance to what the plaintiff had told him.
He agreed that if in fact the plaintiff's functioning as a long haul truck driver after the accident was greater than he was led to believe then the prognosis of the possibility of the plaintiff returning to that work was likely to be greater.
He said, however, that the sleeplessness with which the plaintiff suffered would lead to fatigue and tiredness which would adversely affect concentration giving rise to dangers in long haul truck driving.

Dr Brian Dare

Dr Brian Dare, a specialist in occupational medicine was called by the defendant. He wrote three reports.
Dr Dare gave evidence at trial that he became an occupational physician in 1986 and undertook work with a variety of issues referable to the workplace including fitness to work. As part of his experience he worked with WorkSafe for four years and was on the WorkSafe Commission for four to five years dealing with developing codes of practice. In addition one of his jobs was to assess medical fitness to drive for the Department of Planning and Infrastructure for over 15 years on a consultancy basis so he had a good understanding of what was required for driving trucks and working in the trucking environment including long haul driving.
Dr Dare saw the plaintiff on 25 February 2004, 19 November 2004 and 6 May 2009.
In his report of 27 February 2004 Dr Dare said that in his view there was little abnormality on his clinical examination apart from minor tenderness of the lower cervical spine and opined that the plaintiff was physically fit to undertake his everyday duties with the capacity to perform his normal work as a truck driver. He did not consider that the plaintiff's capacity as a truck driver would be diminished as a result of the accident. He said that in his view the plaintiff suffered from a mild permanent disability involving the cervical and thoracic spines of approximately 5 per cent.
In his report of 25 November 2004 Dr Dare said that the plaintiff continued to experience constant neck and thoracic back pain as well as ongoing pins and needles in both arms occurring both at night and during the day involving his forearms and the whole of his hands in addition to pain on movement of his neck and thoracic spine and tenderness to palpitation. In addition the plaintiff described depressive/anxiety symptoms.
Dr Dare maintained that the plaintiff was fit to carry out his normal everyday activities of a truck driver from a physical perspective and did not consider that his future work capacity was affected.
In his report of 7 May 2009 Dr Dare said that his findings on clinical examination again demonstrated pain on movement of the plaintiff's neck and thoracic spine with some tenderness through palpitation with no evidence of nerve root impingement. He confirmed his previous assessment that the plaintiff had a 5 per cent permanent disability of his neck and a 5 per cent permanent disability of his thoracic spine.
He considered that the plaintiff was fit to work as a truck driver in a full‑time capacity. He also considered that the plaintiff had the capacity for normal social activities and had no restrictions in activities of daily living due to his injuries.
He considered that notwithstanding a permanent disability related to his neck and thoracic spine the plaintiff was fit to return to his pre‑injury occupation as a truck driver.
During the course of his evidence he said that in terms of what a person can and cannot do, pain was a major limiting factor. He also agreed that, in terms of fatigue, pain played a part and if a long haul truck driver was getting pain one would expect to see him more fatigued than a person who was pain free.
In addition a person's ability to sleep would have a major impact on fatigue levels and that the plaintiff was complaining of sleep disturbance.
Insofar as loading and unloading trucks was concerned his understanding was that with the use of pallets and containers there was much less physical loading than was the case in the past, however he did agree that manual lifting over his shoulder and pushing pallet jacks for extended periods may be a problem for the plaintiff.
He said he did take into account the fact that there would be some manual loading and he thought that the plaintiff would not have any difficulty with an hour or so of manual labour in a nine or 10 hour shift.
His view was that the plaintiff's difficulties were entirely due to the accident. He did say however that, as the tyre accident was concerned, the plaintiff had told him that the tyre came from a height and brushed down over his neck area ‑ with only the rubber part of the tyre and not the actual frame. He said that he did not see any problem with the plaintiff undertaking truck driving in the Perth metropolitan area.
He said that in his experience working was therapeutic with respect to the plaintiff's pain and psychological condition because it was the experience of occupational therapists that people who stay out of the workplace for a long time often have difficulty getting back to work because they get out of a routine and as a consequence occupational therapists tend to push for a return to work for therapeutic purposes.

Mr Cameron Thrum

Mr Thrum an orthopaedic surgeon saw the plaintiff on five occasions as and from 19 February 2002 and wrote seven reports.
In his report of 27 February 2002 he said that the plaintiff complained of pain in the upper and lower back which was constant but varied in intensity together with pins and needles in both arms. He said the plaintiff told him that it was worse when gardening for more than three or four hours, lifting more than 5 – 10 kilograms, coming up from a bent position and sitting for more than one hour. The pain was eased by heat and by the plaintiff moving around.
Mr Thrum said that he could see no objective evidence to suggest that the plaintiff had a severe long term problem. He said that his range of movement was good and there was no objective neurological loss.
Mr Thrum reviewed the plaintiff on 30 April 2004 and reported that the plaintiff had told him that he had pins and needles in both arms which was intermittent, he woke up with numbness in his hands, he had discomfort in sitting for more than 30 minutes, that discomfort being between the shoulder blades and in the mid to lower back.
He said that the plaintiff's clinical presentation suggested that he had some degree of facet joint pain particularly in the upper lumbar spine and around the T6 area between the scapulae. He was unable to confirm any major neurological loss in the plaintiff's arms.
He said that he would think that it would be somewhat difficult for the plaintiff, in view of his back pain, to continue as a truck driver particularly involving repetitive bending and lifting. In addition, he said that extended periods of sitting may be difficult for the plaintiff.

He considered the plaintiff's disability as being in the order of 10 per cent of the function of the spine as a permanent percentage disability. He believed that the plaintiff's medication intake ought to be reduced and that his rehabilitation would be best served by a swimming programme rather than by other intervention but he may require some intermittent physiotherapy.
In his report of 15 September 2006 he noticed that the plaintiff had callosities on his hands suggesting that he was able to use his hands for heavy work. To that end the plaintiff in his evidence said that the callosities were caused by him lifting weights at the gym, of 5 to 10 kilograms.
He confirmed that the plaintiff had soft tissue injuries to the cervical and thoracic spine and perhaps some facet joint problems with his lumbar spine. He said the fact that the plaintiff's hands felt numb and weak was inconsistent with the fact that he had callosities over his hands suggesting that he was able to use them.
He said that he considered it unlikely that the plaintiff would return to his employment as a full‑time long haul truck driver. He also said that the plaintiff would have difficulty in returning to full time employment as a metropolitan truck driver which he said was based upon the plaintiff's reporting to him that he needed to climb in and out of trucks.
Mr Thrum said that the plaintiff was fit to return to employment in a light manual or sedentary capacity. He said that the plaintiff ought to avoid repetitive bending and lifting and jumping in and out of trucks.
He considered that the plaintiff had a percentage disability of 10 per cent of the thoracolumbar spine. He said that he did not believe that the carpal tunnel syndrome was related to the accident or any work injury.
In his final report of 18 May 2009 he said that there was some limitation of movement in the plaintiff's cervical spine which was a different observation to that he made when he first saw the plaintiff in 2002 at which time the plaintiff had an almost full range of motion of his neck and a full range of motion in his back. Likewise he said that the physical examination was different from September 2006 when the plaintiff had some limitation of motion in his cervical spine and some limitation of extension in his lumbar spine.
He said that given the length of time from his original injury to the date of that report it was difficult to say what residual symptoms there were from the accident. His conclusion was that the likelihood was that the injuries from the accident were not particularly severe and would have left him with a relatively minor degree of disability as a direct result of that injury.
He still considered that the plaintiff would have some difficulty with full‑time employment or part‑time employment as a truck driver but there was no reason why he ought not be employed in a sedentary or semi‑sedentary occupation and there was no physical reason why he should not be able to indulge in activities of daily living.
During the course of his evidence he said that the plaintiff had a soft tissue injury given the absence of any objective evidence of bone injury. He would have expected the soft tissue injury to improve at the time usually within 12 ‑ 18 months. He said that the plaintiff had normal muscle bulk which ordinarily meant that the muscles are working normally.
From a medical point of view he did not know what had happened in the intervening years but based on a physical examination in February 2002 he could see no reason why there would be a progression to the level he saw when he met with the plaintiff on 13 May 2009. He said that an inability to shift around when uncomfortable may be an issue in work as a long haul truck driver. He said that maintaining a static position for a long period of time became more of an issue for a person who does not have a healthy spine.
Whilst if there was major degenerative change occurring as a result of an injury, that occurs within the first two years after injury, generally however he did not discount the possibility of degeneration.
In his report of 21 February 2008 he said that based on the pattern of time off work it appeared to him that the injury in the tyre accident seemed to have played a far more significant part in the plaintiff's problems than the accident.
He agreed that how the plaintiff was coping immediately before the tyre accident would be a very important issue to ascertaining how important that particular incident (tyre accident) was.

Dr Zdenek Srna

Dr Srna (psychiatrist) provided three reports and gave evidence.
He saw the plaintiff on three occasions being 12 September 2005, 19 September 2007 and 24 April 2009.
In Dr Srna's report of 25 May 2009 reference is made at p 4 to an offer made to the plaintiff that he would have accepted, but he would have to repay $225,000 to the workers' compensation insurer. Counsel for the plaintiff objected to the admission into evidence of that statement by Dr Srna on the grounds that that part of the paragraph related to without prejudice negotiations conducted between the parties concerning the settlement of the plaintiff's claim.
The defendant's counsel submitted that there was no privilege which attached to essentially the fact of the negotiations rather than their content and in any event any privilege had been waived. I made a ruling during the course of the trial that in order to maintain the flow of the proceedings I would determine the objection in due course.
I have, of course, read the part of Dr Srna's report to which objection has been taken. In the event I do not consider it necessary to deal with the issue of privilege, I do not consider that reference to the negotiations and Dr Srna's observations with respect to the amenability of the plaintiff to a rational and logical argument to which he refers, has any relevance in these proceedings. I take no account of the fact of the negotiations nor Dr Srna's comments in that regard.
In his evidence Dr Srna said that he did not build up a rapport with the plaintiff and as a consequence to a very large extent he was required to rely upon the extrinsic materials which he then compared to the history that he was able to obtain from the plaintiff. Those extrinsic materials consisted primarily of reports from other practitioners with whom the plaintiff had consulted or met.
He said that he did not, generally, discuss the history taken by other medical practitioners with the plaintiff and he relied on those histories to make a psychiatric assessment of the plaintiff.
In his report of 25 May 2009 Dr Srna said that he remained of the view that the plaintiff may have suffered from symptoms of a post‑traumatic stress nature immediately following the accident but that disorder allowed him to return to his pre‑accident employment in a very short period of time and those symptoms resolved with the appropriate psychological intervention.
He further said that in his opinion the plaintiff did not suffer from post‑traumatic stress disorder from the accident and that the further two accidents (cow accident and tyre accident) were of no psychiatric significance.
He was of the opinion that the plaintiff developed a major depressive disorder in the context of the breakdown of his troubled marriage and that that condition had been ineffectively treated.
With respect to the matter of post‑traumatic stress disorder he said that there was very little objective phenomenology and in all cases his view was that the diagnosis of post‑traumatic stress disorder rested on symptoms given by the plaintiff. He considered it most unlikely that the plaintiff, who was asleep at the time of the impact and who did not live through the actual accident would be suffering from a more severe degree of psychological trauma than the driver.
He said in his report of 30 October 2007 that the plaintiff's presentation in his rooms was inconsistent with the highly disturbing post‑traumatic symptoms with which the plaintiff alleged and with the severity of his alleged depressive symptoms. He added that there was no evidence of any clinical anxiety whatsoever.
He said in evidence that he had been aware that the plaintiff had been diagnosed with post‑traumatic stress disorder prior to the breakdown of his matrimonial relationship. He said, however, that whilst there were symptoms of acute stress reaction, the duration of those symptoms was nowhere near where one would expect for a post‑traumatic stress disorder. He said that it was the duration and severity of symptoms which made the difference even though the symptoms themselves may be similar. He confirmed his view to be that the symptoms experienced by the plaintiff were not of such a severity and duration to support a diagnosis of post‑traumatic stress disorder.
He did not however see the plaintiff in 2001 and could only rely upon the broad description of Mr Guest and other practitioners with whom he did not speak. He also acknowledged that Dr Hodgson in her opinion found symptoms of a post‑traumatic stress disorder and of depressive disorder before the break-up of the plaintiff's matrimonial relationship.
He said that the plaintiff's depressive condition would affect his psychological function, his concentration, his memory, his ability to interact with other people, his motivation and his perception of pain. In addition, he said, the reverse was also true ie, pain could exacerbate depressive conditions and it can be a vicious cycle. It can also affect his sleep in addition to which some antidepressants can make one drowsy.
He said depression was not curable, only treatable and that if a person remained in a deeply depressed state for a long period of time then his prognosis would certainly be worse than if one had it treated successfully.

Dr Andrew Marsden

Dr Marsden was a medical practitioner and an occupational physician. He had experience in the trucking industry. He saw the plaintiff on two occasions and prepared three reports.
In his report of 22 August 2005 he said that the plaintiff had sleep disturbance due to the development of carpal tunnel syndrome. He said that the plaintiff was getting sleep disturbance because of paraesthesia or pins and needles in his fingers which would wake him up. That was a typical story for individuals who suffered from carpal tunnel syndrome.
He did not consider that the carpal tunnel syndrome with which the plaintiff suffered was related to the accident.
He observed the plaintiff as having a muscular build which demonstrated no differential muscle wasting in his shoulders, arms or hands. He observed that the plaintiff had a good range of movement about his cervical spine with some wincing. He said the plaintiff's movements were reasonably readily undertaken. The same observation was made with respect to the plaintiff's thoracic spine.
With respect to the plaintiff's thoracic spine he reported that the plaintiff had a full range of movement in the rotation of his shoulders. The plaintiff reported no discomfort on rotating his shoulders fully where that movement did in fact stress, so Dr Marsden said, the thoracic spine significantly.
He said in his report of 18 October 2007 that the plaintiff presented as being tender all over his neck but not with simple distraction by which he meant that the plaintiff had apparent tenderness to palpitating his neck with his (Dr Marsden's) thumbs over the facet joints and the erecta muscle groups and the trapezius muscle groups but made no response when he was examining him further down the neck or into the shoulder whilst distracting him with his right hand. Dr Marsden considered there to have been an inconsistency in the plaintiff's responses to palpitation giving rise to a possible exaggeration of his symptoms.
Dr Marsden's view was that the injury sustained by the plaintiff in the accident was a soft tissue strain injury which ought to have by then recovered.
He said that he did not consider the plaintiff to be particularly depressed given that the plaintiff had an interest in his (Dr Marsden's) room, the artefacts in the room, was not negative and there was no hint of tears welling up in his eyes nor was he angry. In cross‑examination he agreed that he would, however, defer to experts in the area of psychiatry with respect to the plaintiff's depression.
He said that when he was undertaking the distraction test he did not draw attention to the fact that he was palpitating the plaintiff's spine and was not asking the plaintiff to verbalise any discomfort.
He said that the shoulder rotation without pain demonstrated to him that the soft tissue injuries to the plaintiff's thoracic spine had recovered. He agreed that he reported a negative axial load test and no tenderness over the sacral triangle. Both of those tests related to assessments of possible exaggeration and there was no sign of exaggeration on those tests.
He agreed that when one is looking at Waddell signs (testing bona fides) the accepted wisdom was that one is looking for three or four signs out of the five to demonstrate lack of bona fides and in the plaintiff's case there was only one of the five.
He agreed that depression had an impact on a person as a truck driver and his certification that the plaintiff could work as a truck driver was to an extent dependent upon his view that the plaintiff was not suffering from an acute depressive illness.
Further he agreed that medication which made the plaintiff drowsy would have an impact on a person as a truck driver given the impact on his level of concentration.
He concluded in his report of 22 August 2005 that the plaintiff was fit to work full‑time as a depot supervisor and as a truck operator on short metropolitan runs and that he was fit to operate a fork lift truck for short periods by which he meant that if a forklift truck was required to lift a pallet, shift it off a load and move it to another load etc, the plaintiff would be able to do that.
His conclusion in his report of 18 October 2007 was that he was certain that the plaintiff would end up back in his working role once the claim was resolved one way or the other, working on a full‑time basis either as a truck driver or in a supervisory role in a transport yard.
In that report Dr Marsden observed that the plaintiff had normal power in terms of his grip. In evidence he said that he got the plaintiff to grip with his hands and it felt strong enough to him but the plaintiff said that he felt that his grip would have been stronger in the past.
In that report he said that the plaintiff had suffered soft tissue strain injuries which in his opinion, in non‑compensable circumstances, would have long since settled and healed. In elaboration he said that the plaintiff did not suffer any sort of fracture of any nature and that his expectation of the recovery from soft tissue injuries would have been two or three months.
A number of medical reports were admitted into evidence without objection. These were as follows.

Dr Geoffrey Gee

He considered the residual disability suffered by the plaintiff would be in relation to his cervical spine in the order of 10 per cent and in relation to his thoracic and lumbar spines of 5 per cent.
On the basis of the plaintiff's EMG studies and CT scan Dr Gee did not see any indication for any form of invasive treatment and believed that the plaintiff needed to work at increasing his activity and essentially getting on with his life (report 23 January 2004). In his report of 22 March 2004 he revised the extent of the plaintiff's residual disability to 15 per cent (cervical spine) and 10 per cent (thoracic and lumbar spines).
He opined that the plaintiff's symptoms primarily related to the effects of the accident but an increase in the level of symptoms as a result of the tyre accident. He expected that the plaintiff would return to his pre‑accident employment within six to 12 months.
Ideally, he said, the plaintiff would be best suited to employment that did not involve long distance travelling or significant lifting.

Michael Halliday (orthopaedic surgeon)

He conducted the left carpal tunnel release on 15 November 2005 and a right carpal tunnel release on 7 February 2006. When he saw the plaintiff on 24 April 2006 the plaintiff was noted to have made a partial recovery from surgery although he still had decreased grip strength on the right side and some discomfort relating to the right and left wrists.

Dr Graeme Guest (clinical psychologist)

In his report of 19 April 2002 he said that on 27 June 2001 the plaintiff reported acute stress symptoms – feelings of agitation, intrusive thoughts about the accident, nightmares and other reliving experiences, numbing and anxiety.
In his report of 4 November 2002 Dr Guest said that on the psychological tests conducted by him the plaintiff scored in the moderate to severe range on the depression test and on the severe range on the anxiety test.
In his report of 22 September 2003 Dr Guest said that he did not consider that the plaintiff was depressed at the time of his last consultation (6 March 2003) and that his post‑traumatic stress disorder type symptoms had been successfully treated and that the plaintiff had largely made a full recovery from that disorder. He said that the plaintiff was struggling to cope with work and that there was a danger that his emotional state could deteriorate. He said that the plaintiff reported that it was his pain which made him struggle with work.
In his report of 3 December 2004 he said that the plaintiff was extremely agitated and expressed some suicidal ideations and was becoming increasingly depressed.
In his report of 1 June 2005 he said that from a psychological point of view the plaintiff was currently unfit for work and suggested that he ought to work with some rehabilitation people to locate a more suitable work venue.
In his report of 30 January 2008 he said that if the accident had not happened then the effects of the tyre accident would likely to have been minimal. Had the accident not happened the plaintiff's prognosis for employment would have been good.

Dr David Lord

He considered, in his report of 10 June 2004, that the plaintiff continued to experience symptoms of a partially treated major depressive mood disorder.
He said that the plaintiff experienced an acute distress disorder which condition responded well to treatment although there was a recurrence about eight months later when the truck hit the cow.
He considered that there was every chance that the plaintiff would make a full recovery from the psychological injuries suffered. He said that major depressive mood disorder was almost secondary to the ongoing pain. Once the pain problem was resolved recovery of that disorder was likely.
In his report of 16 December 2004 he referred to considerable stress being brought about by a recent family breakdown in which his partner left him because she could no longer cope with his moodiness and irritability. She had an affair with one of his children's best friend's father.
Dr Lord said that there had been a significant deterioration in the plaintiff's mental status. He said that there was worsening of major depressive mood disorder and that may well be related to the plaintiff's ongoing pain which had not improved. He also alluded to the impact of marital and family breakdown as a consequence of the plaintiff's deteriorating health.
He opined that the plaintiff was unfit for work and was likely to remain unfit for some considerable period of time. He said that recent deterioration of the plaintiff's mental health might well prevent the plaintiff from continuing in his usual occupation because the plaintiff and others may be at risk.
He said that the plaintiff had a serious psychiatric illness but did not appear to be responding at all well to treatment and intervention and he estimated the percentage of permanent disability at 15 per cent.

Dr Joseph Lee (consultant psychiatrist)

In his report of 29 April 2003 he said that the symptoms suffered by the plaintiff of post‑traumatic stress disorder had gradually resolved.
He said there were no psychotic symptoms or symptoms or a major depression event during the course of his conference with the plaintiff.
His conclusion was that the post‑traumatic stress disorder resolved with psychological treatment within eight weeks after the accident.
He said that the plaintiff was able to return to pre‑accident employment (as he had done) however if chronic pain and other symptoms persisted unabated the plaintiff's ability to continue in that employment was in doubt.

Dr Sharon Hodgson (psychiatrist)

In her report of 21 October 2003 Dr Hodgson said that the plaintiff presented with symptoms of post‑traumatic stress disorder and had developed symptoms of depressive disorder. She said that his continued involvement in long haul truck driving would be detrimental to his physical and emotional state.
In her report of 16 October 2004 she said that the post‑traumatic stress disorder resolved within six to eight weeks of the accident and recurred as a consequence of the truck striking the cow eight months later. After a few weeks those symptoms settled down.
She said that in the context of ongoing chronic pain the plaintiff had developed symptoms of major depressive disorder.
She said that the symptoms of major depressive disorder would not of themselves impair the plaintiff from driving however if he continued to experience chronic pain it was likely that he would continue to experience at least residual symptoms of major depressive disorder. Primarily the plaintiff's chronic pain, she said, would inhibit his return to driving – the major depressive disorder contributed but only in a limited way. From a psychological point of view she said that the plaintiff would be capable of returning to work and any work restrictions would relate to his chronic pain.

Dr S D Febbo (consultant psychiatrist)

In his report of 16 March 2006 he said that the plaintiff fulfilled the diagnostic requirements for both post‑traumatic stress disorder and major depressive episode.
He reported that in addition to the accident there was stress related to the deterioration of his matrimonial relationship, financial stress and stress related to the compensation/litigation process.
In his report of 11 January 2007 he said that there was no evidence to suggest an improvement in the plaintiff's mental state – continuing depressive symptoms in addition to his significant anxiety symptoms which would fall in the category of post‑traumatic stress disorder and a major depressive episode. He said that the plaintiff would be left with significant psychological symptoms into the long term.
He said, contrary to Dr Hodgson, that the plaintiff was incapacitated in relation to his loss of usual occupation from a psychiatric perspective.

The Law

Where there are multiple causes of damage the High Court in Shorey v PT Limited [2003] HCA 27 held that it is a basic principle of the law governing the recovery of damages that a claimant does not have to prove that an impugned event was the cause, in the sense of the one and only cause. It is enough that the claimant shows that the event is a cause of the condition for which damages are claimed.
In Henville v Walker (2001) 206 CLR 459 the High Court said:
"For the purpose of the law of negligence, where two or more events combine to bring about the result in question, the issue of causation is resolved on the basis that an act is legally causative if it materially contributes to that result."
And in Naxakis v Western General Hospital (1999) 197 CLR 269 Gaudron J said:
"If a wrongful act or omission results in an increased risk of injury to the plaintiff and that risk eventuates, the defendant's conduct has materially contributed to the injury that the plaintiff suffers whether or not other factors also contributed to that injury occurring."
The question which falls for determination is whether, and to what extent, the accident materially contributed to the loss alleged to have been sustained by the plaintiff.
An injured plaintiff recovers not merely because his earning capacity has been diminished but because the diminution of his earning capacity is or may be productive of financial loss (Graham v Baker (1961) 106 CLR 340 at 347).
In CSR Ltd v Eddy [2005] HCA 64 the High Court said that:
"Although the damages recoverable in relation to reduced future income are damages for loss of earning capacity, not damages for loss of earnings simpliciter, those damages are awardable only to the extent that the loss has been or may be productive of financial loss.. Hence 'the valuation of the loss of earning capacity involves the consideration of what moneys could have been produced by the exercise of the [plaintiff's] former earning capacity'."
Damages to compensate for reduced economic activity are by their very nature incapable of mathematical calculation and very much at large. In State of New South Wales v Moss (2000) 54 NSWLR 536 Heydon JA (as he then was) said:
"It rests on the hypothesis ‑ that the plaintiff will have undiminished capacity ‑ which has been rendered false by events. It does not depend on calculating the income from a particular career which is no longer possible, but in calculating the damage to a capacity to carry on various careers. It is an exercise in estimation of possibilities, not proof of probabilities. … The court is really being asked to estimate as best it can the future effect of the injuries from which the plaintiff had been proved to be suffering as a result of the defendant's wrongful act."
With respect to the extent to which the tyre accident was the material cause of damage and/or resulted in exacerbation of existing injury sustained by the plaintiff in the accident the principles in Watts v Rake (1960) 108 CLR 158 are appropriate.
Dixon CJ said at 160:
"… there is undoubtedly a presumptio hominis in the plaintiff's favour which any tribunal of fact should insist that the defendant should overcome. If the disabilities of the plaintiff can be disentangled and one or more traced to causes in which the injuries he sustained through the accident play no part, it is the defendant who should be required to do the disentangling and to exclude the operation of the accident as a contributory cause. If it be the case that at some future date the plaintiff would in any event have reached his present pitiable state, the defendant should be called upon to prove that satisfactorily and moreover to show the period at the close of which it would have occurred."
The plaintiff contends that the defendant bears an evidentiary burden of proving the alternative employment opportunities open to the plaintiff, including the state of the labour market and likely earnings. To that end the plaintiff relies upon Thomas v O'Shea (1989) A Tort Rep 80‑251 in which the court, relevantly, said:
"The question remaining is what was the appellant's residual earning capacity, if any. This was clearly a case where, as the learned trial Judge found, the appellant had lost the earning capacity he had before the accident. The legal onus of proof of loss of earning capacity rests, of course, on the plaintiff, but once the plaintiff has proved that he has lost his pre‑accident earning capacity and has been unable to find alternative employment, or that his condition has prevented him finding alternative employment, an evidentiary burden is cast on the defendant to show what alternative employment opportunities were open, including the state of the labour market and the likely earnings."
For the reasons to which I refer later I am not satisfied that, by reason of the injuries sustained by him in the accident the plaintiff has proved that he has been prevented from finding alternative employment. There is no evidentiary burden cast on the defendant as articulated in Thomas v O'Shea.

Credibility of the plaintiff

I do not consider the plaintiff to have been an entirely reliable witness.
For the reasons to which I have referred earlier I am of the view that the plaintiff in his evidence and in his presentation to various medical practitioners, understated the impact of the tyre which fell on him in the tyre accident and the effect on his symptomology. In my view the plaintiff attempted to minimise the effect of the tyre accident on him.
Having told medical practitioners that the tyre fell from 14 to 15 feet, in closing submissions his counsel on his behalf maintained that the tyre could only have fallen perhaps 50 centimetres – a vast difference, one which could not be explained by mere miscalculation or error.
Further the plaintiff maintained during the course of his evidence that notwithstanding the joint custody arrangements which he had with his ex de facto wife with respect to their two young children, he would have been able (save for the injuries sustained by him in the accident) to continue to work as a long haul truck driver when having regard to the required work regime that was patently impossible.
I consider that the plaintiff overstated his limitations. To that end I refer to the evidence of Dr Thrum in which, in his report of 15 September 2006 he noticed that the plaintiff had callosities on his hands suggesting that he was able to use his hands for heavy work. He said in evidence that the significance in the callosities was that they were usually associated with a great deal of hard manual work.
The plaintiff's explanation in his evidence that the callosities were caused by him lifting weights at the gym of 5 to 10 kilograms was in my view implausible and I do not accept that evidence. Alternatively, if the callosities were caused by the plaintiff lifting weights at the gym they demonstrated that he was able to use his hands and arms to a greater extent than he asserted.
Dr Thrum reported that the plaintiff presented differently to him over time. Specifically I refer to his report of 18 May 2009 where he said that the plaintiff presented with limitation of movement in his cervical spine which was a different observation to that which he made when he first saw the plaintiff in 2002 at which time the plaintiff had an almost full range of motion in his neck and a full range of motion in his back.
He further said that the physical examination was different from that in September 2006 when there was some limitation of motion in the plaintiff's cervical spine which he reported and some limitation of extension in his lumbar spine.
He said that given the length of time from his original injury to the date of that report (18 May 2009) it was difficult to say what residual symptoms were there from the accident.
As a number of the medical practitioners have accepted, the opinions expressed by them as to the plaintiff's physical and psychiatric condition are to a significant extent based upon what the plaintiff has told them. In view of my finding as to the plaintiff's reliability I find it appropriate to approach with some caution opinions based to a significant extent on the plaintiff's presentation and instructions.

Physical injuries and symptoms

In the accident the plaintiff sustained mild soft tissue injuries to his cervical and lumbar spines which affected his neck and back. I accept the evidence of Dr Thomas as to his observations when he first saw the plaintiff on 11 June 2001 where he reported a 2 centimetre by 1 centimetre scalp haematoma, bruising of the right shoulder, tenderness in the interscapular region and a restriction in movement of the plaintiff's cervical, thoracic and lumbar spines. There was no neurological defect.
I accept that the pins and needles sensation in the plaintiff's arms were referable to carpal tunnel syndrome and that the syndrome was unrelated to the accident. To that end I accept the opinions expressed by Dr Goodheart, Mr Thrum and Dr Marsden.
Although the plaintiff worked as a long truck driver between 1 August 2001 and 28 September 2003, I accept that he continued to suffer pain in his cervical and lumbar spines such that he intermittently required time off work.
In the main the medical practitioners opined that the expectation was that the physical symptoms would settle no later than 18 months from the accident. Be that as it may I find that the plaintiff at trial continued to suffer neck and back pain and headaches.
I accept that the plaintiff was not asymptomatic when Dr Thomas saw him on 19 September 2003 and that he was then suffering from the symptoms related to and reported by Dr Thomas in his report of 3 October 2003.

Tyre accident

As I have said, in my view the plaintiff understated the nature and effect of the tyre accident on him.
I find that the plaintiff's symptoms were exacerbated by the injuries which he sustained in the tyre accident, and that those injuries lengthened his physical recovery.
Whilst it may have been difficult for Dr Thomas to differentiate between the symptomology with which the plaintiff was suffering from the accident and from the injuries sustained in the tyre accident, the tyre accident did result in a substantial exacerbation of the plaintiff's existing physical symptomology which had, over the preceding two years, not prevented him, generally, from working as a long haul truck driver.
My finding is supported by the fact that following the tyre accident the plaintiff first underwent a rehabilitation programme, he made a workers' compensation claim with respect to that accident and was then not certified as being fit for work until April 2004. This was by far the longest period for which Dr Thomas had certified the plaintiff as unfit for work since the accident. He was then (April 2004) certified as being fit for light duties only.

Psychiatric issues – perpetuated disorder

I find that the post‑traumatic stress disorder with which the plaintiff suffered from the accident had resolved, essentially by the time that the plaintiff returned to long haul truck driving in August 2001. Be that as it may I do accept that the plaintiff thereafter suffered from chronic pain and depressive disorder.
Dr Lee's opinion, expressed in his report of 29 April 2003, was that the symptoms suffered by the plaintiff of post‑traumatic stress disorder had gradually resolved however he said that if chronic pain and other symptoms persisted unabated then the plaintiff's ability to continue in his pre‑accident employment was in doubt.
Those views are confirmed by Dr Lord who said that the plaintiff's major depressive mood disorder was almost secondary to his ongoing pain and once the plaintiff's pain problem was resolved, recovery of that disorder was likely.
In addition, Dr Ng said that the ongoing pain suffered by the plaintiff had manifested itself in a chronic pain syndrome which had both precipitated and perpetuated a major depressive disorder.
Finally, Dr Hodgson said in her report of 21 October 2003 that in the context of ongoing chronic pain the plaintiff had developed symptoms of major depressive disorder.
I accept the diagnoses of each of these practitioners and where there is conflict between their opinions and those expressed by Dr Srna, I do not accept Dr Srna's opinion.
Dr Srna was of the opinion that the symptoms experienced by the plaintiff were not of such a severity and duration so as to support a diagnosis of post‑traumatic stress disorder and that the plaintiff had developed a major depression in the context of the breakdown of his troubled marriage.
It was clear from Dr Srna's evidence that he did not build a rapport with the plaintiff and in the main was required to rely upon the extrinsic materials which he then compared to the history that he was able to obtain from the plaintiff but that he generally did not discuss the history taken by other medical practitioners with the plaintiff and as a consequence he could only rely upon the broad descriptions of those practitioners with whom he did not speak.
I do accept however that the plaintiff's major depressive mood disorder was also detrimentally affected by the family breakdown resulting in the plaintiff's separation with his then de facto partner in September 2004 (Dr Lord) and by the stress associated with the litigation process (Dr Febbo) neither of which are accident related.
I accept that the plaintiff will continue to suffer from depressive disorder which is both precipitated and perpetuated by chronic pain and that that condition is unlikely to resolve in the foreseeable future and then likely only when his physical pain diminishes.

Capacity to work as a long haul truck driver

After being off work as a long haul truck driver from 19 September 2003 to 26 September 2003, the plaintiff was working in that capacity when the tyre accident occurred on 28 September 2003. I accept the evidence of Dr Thomas that, upon presentation, he was satisfied that when the plaintiff was working as a long haul truck driver he was experiencing ongoing pain from the injuries sustained by him in the accident such that it was becoming progressively more difficult for him to cope in that capacity.
Dr Thomas' opinion was supported by Dr Guest who said in his report of 22 September 2003 that although he last saw the plaintiff in March 2003 and did not consider that the plaintiff was depressed at the time he opined that the plaintiff was struggling to cope with work and that there was a danger that his emotional state could deteriorate.
Until the tyre accident the plaintiff was having an ongoing battle to cope with the pain experienced by him driving as a long haul truck driver. Even though, as I have found, the plaintiff understated the effects of the tyre accident on him I am satisfied that in time the ongoing pain suffered by him as a result of the unresolved injuries sustained in the accident would have resulted, as Dr Ng opined, in chronic pain syndrome which both precipitated and perpetuated a depressive disorder which would have rendered the plaintiff incapable of continuing to undertake that line of work and would thereby be a material cause of that incapacity.
In my view the evidentiary burden falls on the defendant to demonstrate the extent to which the tyre accident caused or accelerated the condition of the plaintiff which resulted in him being incapable of working as a long haul truck driver. The plaintiff was suffering the symptoms to which Dr Thomas referred in his report of 3 October 2003 before the tyre accident.
The plaintiff then took no additional medication. The only evidence available from any medical practitioner who then treated him was from Dr Thomas who said that the symptoms sustained by the plaintiff in the tyre accident merged with the plaintiff's ongoing symptoms from the accident and as a consequence the new workers' compensation claim which was made following the tyre accident was, on 28 November 2003, closed to facilitate the ongoing claim in respect of the accident.
Dr Thomas said that it was becoming increasingly difficult to differentiate between the two (accidents) because the mechanism of injury was very similar and so the effects on the plaintiff's body from those two accidents was about the same. He said that when he closed the workers' compensation case, referable to the tyre accident, he acted in good faith because he considered that the plaintiff's symptoms had come back to the level that they were before (the tyre accident).
Whilst Mr Thrum considered that the tyre accident seemed to have played a far more significant part in the plaintiff's problems than the accident he agreed in cross‑examination that how the plaintiff was coping immediately before the tyre accident would be a very important issue to ascertaining how important that incident was.
It is the case, as I have found, that the plaintiff was suffering from symptomology, of the nature described by Dr Thomas, prior to the tyre accident. Whilst, as I say, I consider that the plaintiff understated the effects of the tyre accident on him I am left to speculate as to the extent to which the date from which the plaintiff could no longer work as a long haul truck driver was accelerated by the tyre accident.

I am not satisfied that the defendant has discharged the evidentiary burden on it of proving that by reason of the injuries sustained by the plaintiff in the tyre accident, he was rendered incapable of working as a long haul truck driver from a date later than 28 November 2003.
As a consequence I find that, as a material cause of the accident, the plaintiff was incapable of working as a long haul truck driver after 28 November 2003.
To that end I accept the evidence of Dr Goodheart, Dr Ng, and Mr Thrum. Dr Goodheart opined that the plaintiff continued to have limitation in his capacity to maintain prolonged periods of static posture and that his ongoing symptoms of depression and his condition of insomnia and fatigue would prevent him from working as a long haul truck driver. Whilst Dr Dare said in his report of 7 May 2009 that the plaintiff was fit to work as a long haul truck driver in a full‑time capacity he agreed that in terms of what a person can and cannot do, pain was a major limiting factor and that if a long haul truck driver was getting pain one would expect to see him more fatigued than a person who was pain free. In addition, he agreed that a person's ability to sleep would have a major impact on fatigue levels and that the plaintiff was complaining of sleep disturbance.
I accept the evidence of the plaintiff that his intention was to work to age 65 as a long haul truck driver, save for my finding as to the period during which he had and will have joint custody of his children viz, September 2004 to February 2018.
I am of the view however that the plaintiff was from September 2004 fit to work as a metropolitan truck driver. The plaintiff was certified by Dr Thomas on 24 September 2004 as being fit to do so. Thereafter whilst there were, subsequently, periods during which Dr Thomas certified the plaintiff as being unfit to work, I note that he was suffering from progressive symptoms associated with carpal tunnel syndrome in respect to which he underwent surgery in late 2005/early 2006. Those symptoms were not accident related. I am of the view that the plaintiff by his evidence demonstrated a distinct lack of motivation to work in any capacity where he was to earn an income significantly less than that which he earned as a long haul truck driver. I am of the view that the plaintiff overstated his limitations. I do not accept his evidence that he was unable and would be unable to work as a metropolitan truck driver.
I accept the evidence of Dr Dare and Dr Marsden, both of whom were experienced occupational physicians. Even though there may be some manual work associated with metropolitan truck driving as the plaintiff described it, Dr Dare took that into account when he opined that the plaintiff was fit to work in that capacity.
I accept that whilst there is a need for some manual work, in the main loading and unloading trucks involves primarily the use of forklifts to lift pallets and containers. Although Mr Thrum said that the plaintiff would have difficulty, in his opinion, in returning to full time employment as a metropolitan truck driver he said that that opinion was based upon the plaintiff reporting to him that there was significant bending and lifting involved and he needed to repeatedly climb in and out of trucks about which there was no evidence.
In September 2006 Dr Thomas certified the plaintiff as being fit to work as a metropolitan truck driver for 40 hours on a number of occasions. Although Dr Thomas said in his evidence that he thought 40 hours per week of metropolitan truck driving was too much and that he had made reference to that duration because the plaintiff had to work, I am satisfied that the plaintiff made no effort to continue to work as a metropolitan truck driver for which he had the capacity. I also consider that the plaintiff was capable of working as a forklift driver from at least September 2004. He made no effort to work in that capacity and I do not accept his evidence that he was unable to do so.

Loss of earning capacity

Past loss

The plaintiff is entitled to past loss of earnings as a long haul truck driver calculated from the date of the accident to 30 September 2004 being the date by which as best I can find on the evidence, the custodial arrangements for the plaintiff's children were in place following the plaintiff's separation from his then de facto wife.
To this end these calculations are based upon the payments reflected in the plaintiff's updated particulars of damages dated 12 November 2009 and in particular the schedule appearing at p 6 and Exhibit 8. The parties have agreed that Nexus Freight increased pay rates for its long haul truck drivers at the rate of 6 per cent per annum commencing 1 July each year. That percentage increase is reflected in that schedule to which is to be added the workers' compensation payments made to 30 September 2004 which are particularised in the analysis of payments from GIO dated 30 April 2009 attached to the plaintiff's closing submissions ("GIO analysis").
The calculation of the past economic loss as I can presently make it is set out in the schedule attached to these reasons. On the face of it the workers' compensation payments referred to in the GIO analysis are not consistent with those payments in Exhibit 8. That is a matter about which there is a need for clarification in order that the final figure may be determined. I propose that counsel confer having regard to my findings with a view to agreement being reached. If agreement cannot be reached then I will hear submissions.

Future loss of earning capacity

I have found that:
(a)the plaintiff intended to work as a long haul truck driver until age 65 (26 January 2037) save for the impact of the custodial arrangements;
(b)at the time of this trial the plaintiff, by reason of the injuries sustained by him in the accident, did not have the capacity to work as a long haul truck driver but was capable of working as a metropolitan truck driver and a forklift driver;
(c)the plaintiff, because of the custodial arrangements with his children would not have been able to work as a long haul truck driver until at least February 2018.
At trial the gross weekly earnings of a long haul truck driver amounted to $2,032 per week (gross) and $1,454 (net) per week together with superannuation benefits of $183 per week calculated at 9 per cent.
As to the income capable of being earned by a metropolitan truck driver and forklift driver I refer to Exhibit E2 being the relevant extracts from the Transport Workers' (General) Award No 10 of 1961 in which the relevant rates of pay appear in cl 4.2. Those rates of pay commenced on the first pay period on or after 1 July 2008. The relevant classification (cl 4.3) for the plaintiff as a metropolitan truck driver or forklift driver is grade 3. The total weekly payment as at 1 July 2008 is $614.20. For comparability I have added 6 per cent having regard to the annual increases agreed between the parties for long haul truck drivers which results in a figure at trial of $650 per week. The applicable tax rate (below $34,000 per annum being 15 per cent) results in a net weekly wage after tax of $552.50. The plaintiff's superannuation contribution is $58.50 per week.
Consequently the value of the plaintiff's lost capacity to work as a long haul truck driver after taking into account his capacity to work as a metropolitan truck driver or a forklift driver is to be calculated by reference to the net weekly loss of $1,454 less $552.50 viz $901.50.
Multiplier for 27.7 years (to age 65)
(715.05) x net weekly loss ($901.50) $644,617.00
Less multiplier for 8.75 years
(trial to February 2018) (357.5) x $901.50 $322,286.00
$322,331.00
Insofar as contingencies and vicissitudes of life are concerned it is appropriate in my view to take into account the fact that for a period of 13½ years (September 2004 – February 2018) the plaintiff will not have worked as a long haul truck driver and in addition to other usual contingencies which ought to be taken into account there is a degree of uncertainty as to the availability of that work for a person such as the plaintiff who has not worked in that capacity for that length of time.
In my view the appropriate discount for contingencies and vicissitudes of life is 7.5 per cent thereby reducing this sum to $298,159.

Value of lost superannuation

Net weekly loss of superannuation ($183 less $58.50) = $124.50
Multiplier for 27.7 years
(715.05) x weekly loss of
superannuation $124.50)  $89,023.00
Less multiplier for 8.75 years
(357.5) x $124.50  $44,509.00
Balance$44,514.00
Discount x 15 per cent (Jongen v CSR) and
7.5 per cent for contingencies  $10,015.00
$34,499.00

Past and future needs

I am informed that the parties have agreed the quantum of past treatment expenses, vocational rehabilitation expenses and travelling expenses albeit that agreement was reached on the basis that the question of whether or not some or all of the expenses were accident related remained in issue. Those expenses are detailed in the GIO analysis.
In the GIO analysis the payments for past treatment expenses total $67,088.61.
I am satisfied that save for the period 28 September 2003 to 23 November 2003 the injuries sustained by the plaintiff in the accident were a material cause of those treatment expenses being incurred.
I note that there are expenses in that period pertaining to psychological treatment which may be accident related having regard to the plaintiff's presentation to Dr Thomas on 19 September 2003. I will leave it to counsel to endeavour to reach agreement as to the amount to be awarded under this head having regard to my finding. If counsel cannot agree I will hear submissions.

Vocational rehabilitation expenses

I am satisfied that the injuries sustained by the plaintiff in the accident were a material cause of the vocational rehabilitation expenses claimed by the plaintiff being incurred and I allow the sum of $17,031.97 as claimed.

Travelling expenses

I am satisfied that the injuries sustained by the plaintiff in the accident were a material cause of the travelling expenses claimed by the plaintiff being incurred and I allow the sum of $1,569 as claimed.

Future needs

Future medical expenses

I consider that an appropriate allowance is $5,000. I am satisfied that the plaintiff is prone to over‑medication which results in unnecessary consultations with Dr Thomas for the purpose of prescribing medications. I accept, in that regard the evidence of Mr Thrum, Dr Dare and Dr Ng.

Future pharmaceutical expenses

As I say I am satisfied that the plaintiff is prone to over‑medication.
I consider that a reasonable allowance under this head is $20,000.

Future travelling expenses

I consider that the sum of $1,500 claimed by the plaintiff to be reasonable.

Interest

Interest on past loss of earnings and superannuation is awarded at 6 per cent per annum from trial to judgment.

Non‑pecuniary loss

I accept that the plaintiff sustained soft tissue injuries of the nature to which I have referred earlier in this judgment and that he suffered the psychological disorder to which I have already made reference which in the main has been precipitated and perpetrated by chronic pain. To some extent his psychological condition has been exacerbated by the breakdown of his de facto relationship and this litigation – neither of which was accident related.
I do not accept that the injuries sustained by the plaintiff in the accident and the consequent symptomology was a causative factor in the plaintiff's separation from his former de facto partner who, the evidence demonstrates, had a relationship with a family friend's father. I am not satisfied that the alleged loss of the plaintiff's sexual urge is accident related. There is no medical evidence to support the plaintiff's assertion. I am satisfied that the ongoing physical and psychological symptomology has been and will be both frustrating and distressing for the plaintiff and that there has been some interference with his social activities and overall enjoyment of life.
On the other hand I am satisfied that the plaintiff has demonstrated little motivation to undertake work for which he has been and is capable. That lack of motivation was demonstrated by the cross‑examination to which I have referred earlier and in which the plaintiff made it clear that he did not consider that he ought to work in a capacity which would result in him being paid an income far less than the income he previously earned as a long haul truck driver. In that respect, I accept the evidence of Dr Dare that working would likely be therapeutic for the plaintiff and may alleviate to an extent the physical and psychological symptoms with which the plaintiff suffers.
Damages under this head are to be assessed in accordance with the Motor Vehicle (Third Party Insurance) Act 1943. In my view an appropriate award is one whereby the plaintiff should be assessed at 15 per cent of the maximum amount that may be awarded under this head viz $327,000.
Allowing for the calculations set out in s 3C of the Act and the deductible that would apply, the net sum awarded to the plaintiff under this head is thereby $32,550.
For the reasons to which I refer above, having regard to my findings, I direct counsel to confer as to the appropriate calculation of:
(a)treatment expenses paid by the workers' compensation insurer referable to the tyre accident between 28 September 2003 and 23 November 2003;
(b)actual earnings (including weekly payments) and workers' compensation payments for the period 9 June 2001 to 30 September 2004.
If agreement cannot be reached then I will list these issues for further submission following which the damages awarded to the plaintiff will be finally determined.

SCHEDULE

Period	Expected Earnings	Actual Earnings (including weekly payments)	Loss of Earnings over and above weekly payments	Expected Superannuation	Actual Superannuation	Loss of Superannuation after discount of 15% on basis of Jongen v CSR	Interest at 6% per annum (to trial)
09.01.01 ‑ 15.07.01	$4,980.00	$3,220.00	$1,760.00	$662.30	Nil	$563.00	(8.8 yrs) $1,226.00
28.01.02 ‑ 17.02.02	$2,793.00	$2,159.00	$634.00	$363.00	Nil	$308.00	(7.2 yrs) $400.00
29.11.03 - 06.08.04	$36,460.00	$28,881.00	$9,579.00	$4,835.00	Nil	$4,110.00	(4.8 yrs) $3,900.00
07.08.04 - 30.09.04	8 weeks at $1,100.00 = $8,800.00	To be determined	To be determined	8 weeks x $145.00 = $1,160.00	Nil	$986.00	$986.00 x 6% x 4 yrs 8 mths = $275.00
Total	$53,033.00	To be determined	To be determined	$7,020.30	Nil	$5,967.00	$5,801.00
Workers Compensation Paid
09.06.01 - 15.07.01	To be determined
28.01.02 – 17.01.02	To be determined
29.11.03 – 06.08.04	To be determined
07.08.04 – 30.09.04	To be determined
Total