Dharamdas v Boateng

[2017] NSWDC 441

District Court

New South Wales

Medium Neutral Citation:

Dharamdas v Boateng [2017] NSWDC 441

Hearing dates:

9, 10, 11, 12, 13, 16 October 2017

Date of orders:

31 August 2018

Decision date:

31 August 2018

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

1. The plaintiff’s damages are assessed in the amount of $487,512.70;

 

2. After apportionment by 40 per cent on account of the plaintiff’s own contributory negligence, judgment for the plaintiff against the defendant in the sum of $292,507.62;

 

3. The defendant is to pay the plaintiff’s costs of the proceedings on the ordinary basis unless a party is able to identify the basis for a different cost order;

 

4. The exhibits may be returned;

 5. Liberty to apply on 7 days’ notice if further or other orders are required.

Catchwords:

TORTS – negligence – motor vehicle accident – pedestrian struck by taxi whilst crossing roadway – negligence and contributory negligence already determined; DAMAGES – assessment of claimed heads of damage

Legislation Cited:

Civil Liability Act 2002, s 5D
Evidence Act 1995, s 136
Motor Accidents Compensation Act 1999, s 126, s 136, s 141B
Uniform Civil Procedure Rules 2005, r 31.27(1)(c), Sch 7 cl 5(1)(c)
Workers’ Compensation Act 1987, s 151L

Cases Cited:

Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13
Boral Bricks Pty Ltd v Cosmidis; Boral Bricks Pty Ltd v DM & BP Wiskich Pty Ltd [2013] NSWCA 443
Brown v Lewis [2006] NSWCA 87
Coote v Kelly [2013] NSWCA 357
Cupac v Cannone [2015] NSWCA 114
Fox v Percy [2003] HCA 22; 214 CLR 118
Fox v Wood [1981] HCA 41; (1981) 148 CLR 438
Glen v Sullivan [2015] NSWCA 191
Larson v Commissioner of Police [2004] NSWCA 126
Majkic v Bonnano [2008] NSWCA 253
Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638
Manly Municipal Council v Skene [2002] NSWCA 385
Mason v Demasi [2009] NSWCA 227
Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383
Penrith City Council v Parks [2004] NSWCA 201
Pham v Shui [2006] NSWCA 373
Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164
Redbro Investments Pty Ltd v Ceva Logistics (Australia) Pty Ltd [2015] NSWCA 73
Sampco Pty Ltd v Wurth [2015] NSWCA 117
State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536
Strinic v Singh [2009] NSWCA 15
Strong v Woolworths Ltd [2012] HCA 5, (2012) 246 CLR 182
Waterways Authority v Fitzgibbon [2005] HCA 57
Watts v Rake [1960] HCA 58; (1960) 108 CLR 158

Category:

Principal judgment

Parties:

Martin Gabriel Dharamdas (Plaintiff)
Kofi Boateng (Defendant)

Representation:

Counsel:
Mr L Morgan (Plaintiff)
Mr J Guihot (Defendant)

  Solicitors:
Turner Freeman (Plaintiff)
Moray & Agnew (Defendant)

File Number(s):

2012/332645

Publication restriction:

None

Judgment

Table of Contents

Nature of case and factual background	[1] – [3]
Issues	[4] – [6]
Evidence overview	[7] – [12]
Credibility and reliability of testimony	[13] – [32]
Plaintiff	[25] – [26]
Plaintiff’s wife	[27] – [28]
Plaintiff’s daughter	[29] – [31]
Expert evidence	[32]
Facts	[33] – [256]
(1) Plaintiff’s background circumstances	[35] – [40]
(2) Plaintiff’s pre-accident health issues	[41] – [45]
(3) Accident circumstances	[46] – [49]
(4) Injuries and initial treatment	[50] – [64]
(5) Subsequent medical and allied reviews	[65] – [66]
(6) Video surveillance evidence	[67] – [91]
(7) Evaluation of expert commentaries on DVD material	[92] – [209]
(8) Evaluation of pivotal medical issues	[210] – [224]
(9) Evaluation of 1 December 2014 transcript	[225] – [231]
(10) Disabilities that remain	[232] – [235]
(11) Work effects	[236] – [247]
(12) Domestic effects	[248] – [249]
(13) Mitigation	[250]
(14) Plaintiff’s most likely circumstances	[251] – [256]
Assessment of damages	[257] – [1?3]
Actuarial factors	[258]
Past economic loss	[259] – [264]
Past loss of superannuation	[265]
Fox v Wood	[266] – [269]
Future loss of earning capacity	[270] – [271]
Future loss of superannuation	[272]
Past domestic assistance	[273] – [283]
Future domestic assistance	[284] – [291]
Future treatment expenses	[292] – [301]
Past out-of-pocket expenses	[302] – [310]
Summary of damages assessment	[311]
Disposition	[312]
Costs	[313]
Orders	[314]

Nature of case and factual background

1. At about 6:40am on Monday 31st January 2011, the plaintiff, Mr Martin Dharamdas, then aged 63 years, was walking across Potter Street, Waterloo, on his way to work when he was struck by a taxi driven by the defendant, Mr Kofi Boateng, and sustained multiple injuries. In these proceedings concerning those events, the plaintiff claims damages for his injuries.

2. The defendant’s liability for that accident has been determined in the plaintiff’s favour at a previous hearing, but with an apportionment against the plaintiff having been assessed at 40 per cent for his own contributory negligence: T1.22. It remains for the plaintiff’s entitlement to damages to be assessed in these proceedings and then apportioned for his contributory negligence.

3. The provisions of the Motor Accidents Compensation Act 1999 (“The MAC Act”) and the Civil Liability Act 2002 (“the CL Act”) apply to these proceedings.

Issues

4. The factual findings required in this case on disputed matters are largely dependent upon the resolution of matters of credibility and reliability of testimony. Essentially, those factual matters concern identification of the nature and extent of the plaintiff’s injuries, his accident-related disabilities, and the economic consequences of those matters. Those findings require the consideration and analysis of voluminous medical reports.

5. The plaintiff claims the following heads of damage:

1. Past economic loss;

2. Past loss of superannuation;

3. Fox v Wood damages;

4. Future loss of earning capacity;

5. Past domestic assistance;

6. Future domestic assistance;

7. Future treatment expenses;

8. Past out-of-pocket expenses

6. The plaintiff’s damages submissions identified a claim that totalled $1,299,223.10: MFI “8”. The defendant disputed the extent of the plaintiff’s entitlement to damages, and submitted that the plaintiff’s damages should be assessed at $82,848.76: MFI “15”.

Evidence overview

7. Oral evidence was given by the plaintiff, by his wife Mrs Philomena Dharamdas, and eldest daughter Ms Joan Dharamdas. The remainder of the evidence comprised medical records and reports, related documents, some DVD surveillance footage, and medical commentaries concerning that footage, all of which requires analysis.

8. The assessment requires consideration of numerous and voluminous medical materials, reports and opinions, in circumstances where the parties did not call any explanatory oral evidence from any of the authors of the medical reports. This raised disputes that persisted even after joint meetings were convened, and joint reports obtained from three sets of expert witnesses, as selected by the parties. Unfortunately, not all relevant experts participated in that process.

9. Those circumstances rendered the analysis of over 1000 pages of medical materials and reports more burdensome than would otherwise have been the case.

10. In cases where the authors of medical reports are not called to give explanatory evidence, the reports tendered in evidence must be analysed according to the persuasiveness of their content and underlying reasons. The task of reconciling disputed matters of opinion is well-recognised as being a more burdensome exercise where the opinions givers are not called or required to give oral evidence: Cupac v Cannone [2015] NSWCA 114, at [17] – [18]; Manly Municipal Council v Skene [2002] NSWCA 385, at [21] – [22].

11. In cases such as this, where the rational basis for expert evidence is either absent, or inadequately provided, the matters in dispute must be determined according to the onus of proof on any particular issue: Majkic v Bonnano [2008] NSWCA 253, at [26], following Larson v Commissioner of Police [2004] NSWCA 126, at [48].

12. The analysis is guided by the degree to which the expert opinions comply with, or fail to comply with, the requirements of UCPR r 31.27(1)(c) and UCPR Sch 7 cl 5(1)(c) when determining which aspects of that evidence should be either accepted or rejected. These are matters that must be grappled with in the course of the required analysis: Redbro Investments Pty Ltd v Ceva Logistics (Australia) Pty Ltd [2015] NSWCA 73, at [53]; Coote v Kelly [2013] NSWCA 357, at [39] following Waterways Authority v Fitzgibbon [2005] HCA 57, at [129] – [130].

Credibility and reliability of testimony

13. The defendant raised the credibility and the reliability of the evidence of the plaintiff as being the foremost significant issue in the case. The defendant claimed that the plaintiff had deliberately exaggerated his claim for compensation, including by overstating the effects that the accident had upon him, given his age, and his pre-existing medical and health history. Although the plaintiff claimed he was unfit for work since his accident on 31 January 2011, the defendant maintained that the plaintiff had been fit to return to his pre-accident work by the end of 2011: T220.30 – T221.4.

14. The defendant relied upon video surveillance footage of observations of the plaintiff as carried out by the defendant’s investigators in September 2015 and March 2017: Exhibits “1” and “2”. The defendant also relied upon a series of commentaries by medical experts on that surveillance footage in order to make credit-based criticisms of the plaintiff. I have found critical aspects of those commentaries to be unreliable for reasons I will identify.

15. The significance of the September 2015 timing of the video surveillance footage was that it was obtained after judgment had been entered in the plaintiff’s favour at the first trial of the proceedings, and before an appeal had been filed. That appeal was ultimately allowed, which has resulted in this further hearing. I remain unaware of the details of that first trial and appeal except in relation to the liability result, and in relation to a partial transcript of the plaintiff’s evidence in chief in those proceedings, which was tendered in these proceedings: Exhibit “13”.

16. The defendant’s attack on the plaintiff’s credibility in this hearing was that after the plaintiff had obtained the first instance judgment in his favour in 2015, he “thought … [he was] … free to go about normal activities” because the case was over and he no longer had to pretend to have a disability, as was submitted he had done after the accident and before that judgment.

17. In that attack, it was suggested that when the plaintiff went to see “the doctors” he had presented to them as someone who was only capable of walking very slowly, and it was suggested that he did so as a deliberate attempt on his part to claim a disability that he did not have. The plaintiff rejected that suggestion: T156.6 – T157.21.

18. The defendant’s attack on the plaintiff was not limited to the activity of walking. It also extended to the extent to which the plaintiff had use of his right arm (T157.43 – T157.50), his use of a walking stick for support (T158.12, T162.16 – T162.18), holding his right arm in front of his stomach in a fixed position (T158.15 – T158.27; T162.34), his history as given to a doctor on 28 November 2012, that he could only walk on level ground for brief periods, such as for 10 minutes: T159.35 – T160.14, T161.20 – T161.45; T162.5.

19. The tenor and the effect of that cross-examination of the plaintiff was the defendant’s contention that the plaintiff had intentionally deceived the examining doctors by presenting himself in a manner that suggested he was more disabled than he really was, as a deliberate exaggeration on his part. The plaintiff also denied those allegations. That position appears to have been based on medical opinions that I have found to be unsatisfactory and unreliable.

20. The plaintiff was cross-examined at length on the content of the DVD surveillance footage: T150 and following. At times, his defensive requests for clarification, and his attempts at giving over-inclusive answers, reflected an air of affront, frustration, and at times upset, that he plainly exhibited in the course of that cross-examination.

21. A difficulty faced by the defendant in relying on the cited medical commentaries on that DVD surveillance footage is that the medical opinions and commentaries on that material had inherent limitations, and raised questions of procedural fairness, which in one instance, it appeared, included material obtained in 2016 which was possibly viewed by experts, where that material was not tendered in evidence in these proceedings.

22. The tendered video surveillance material was not only not contemporaneous to any evidence of medical examinations at which clinical assessments had been made by those experts, but it was one side of the story, and the plaintiff’s explanations comprised the other, which was a relevant matter that could not be explored by the defendant’s experts.

23. Only one of the defendant’s medico-legal experts, Dr Robert Lewin, a consultant psychiatrist, identified that qualification and recognised that difficulty in formulating his comments on the significance of the surveillance material. He noted that he had not had the opportunity to put those matters to the plaintiff: Exhibit “3”, at p 1 76. Those matters will be taken up in the evaluation of the reliability of those medical opinions concerning the aptness of the interpretations that the experts have made of that surveillance footage.

24. For reasons that will be made plain in the course of my evaluation of the surveillance evidence, I considered that material and the related medical commentaries, to be unpersuasive insofar as they were said to support credit-based criticisms of the plaintiff. When those commentaries were considered in the proper context, they did not relevantly contradict the substantive elements of the plaintiff’s claims that call for assessment, particularly his claim for economic loss. I considered that for reasons that will be stated in my evaluation of that material, only limited weight should be given to significant aspects of the interpretations and conclusions of some of the expert commentaries concerning that DVD surveillance footage.

Assessment of the plaintiff’s evidence

25. I considered that the plaintiff generally gave his evidence in a reasonable and measured manner. On several occasions he showed difficulty remaining calm. He was relevantly attentive to the questions that were asked of him, although he appeared hypervigilant and suspicious in relation to questions asked in cross-examination, and frequently sought clarifications. I do not consider that attitude on his part should be weighed against his credit. He was plainly anxious when his evidence was challenged. I did not consider his answers to questions asked in cross-examination to be evasive, as was submitted by the defendant. He displayed a precise and pedantic disposition in that regard. He gave his answers thoughtfully, in a careful, precise and explanatory manner.

26. My assessment of the plaintiff was that he gave his evidence without exaggeration, contrary to what has been submitted on behalf of the defendant. As will be made clear in the appropriate context, I have accepted the plaintiff’s evidence on critical matters in contention, particularly concerning the predominant issue of his inability to resume his pre-injury employment. In my view, the defendant sought to make too much of the recorded variations of history, where over such an extended period of time, such variations would be unsurprising.

Assessment of the evidence of the plaintiff’s wife

27. Oral evidence was given by Mrs Philomena Dharamdas, the plaintiff’s wife: T284 – T313. She described the plaintiff as being physically and psychologically well before the subject accident. She also described significant changes she had observed in the plaintiff and in respect of his activities since that accident. Her evidence was focussed upon her perception of the changes in the post-accident domestic arrangements relating to the carrying out of tasks such as cooking, cleaning, washing, garden and home maintenance, and other related household chores, whereas before the subject accident, the plaintiff had undertaken the bulk of those activities because she was limited in that regard on account of her condition of health, rheumatoid arthritis and osteoarthritis.

28. Whilst I consider that in her evidence Mrs Dharamdas did her best to relate the nature and the extent of those domestic arrangements and chores, and whilst I had no concerns as to the credibility or the reliability of her evidence generally, that evidence was nevertheless vague on the particular amounts of time required to be provided to the plaintiff for domestic assistance, specifically arising from his injury-related needs.

Assessment of the evidence of the plaintiff’s daughter

29. Oral evidence was given by Ms Joan Dharamdas, the plaintiff’s eldest daughter: T315 – T338. She stated that before the subject accident, the plaintiff was a very active energetic, strong and fit man who undertook most of the household chores and activities because of her mother’s physical incapacity due to her rheumatoid and osteoarthritis: T316.41 – T318.2; T318.44 – T319.24; T322.49 – T323.11.

30. Ms Dharamdas said she had no knowledge of her father’s pre-accident absences from work for back or shoulder problems: T329 – T330. The defendant attacked that evidence as an exaggeration on her part, a suggestion which she denied: T336.30. I considered that although her evidence in that regard was unusual, it was not glaringly improbable. It was plausibly possible that she may have had no knowledge of such matters. In the absence of other contradictory evidence, I accept her denial of the suggestion that she exaggerated her evidence on that matter, as was put to her in cross-examination on behalf of the defendant.

31. Whilst I had no concerns over the accuracy, reliability or truthfulness of the evidence of Ms Dharamdas generally, her evidence to the effect that some 6 to 8 hours per week was in the past expended on assisting the plaintiff with domestic tasks, must be analysed in terms of whether this was in respect of an injury-related need of the plaintiff. That analysis is not dependent on her evidence.

Assessment of the expert medical and allied evidence

32. In this case I have found significant aspects of the expert evidence which commented upon the plaintiff’s probity and his genuineness, to be unsatisfactorily reasoned, unreliable, and unpersuasive. These matters will be identified, with reasons, in the context in which they arise for analysis.

Facts

33. I now turn to my findings of fact.

34. Unless otherwise qualified, in the following paragraphs, I set out my findings of fact concerning: (1) the plaintiff’s background circumstances; (2) his pre-accident health and injury history; (3) The accident circumstances; (4) his injuries and the initial treatment he obtained; (5) the subsequent medical and allied reviews of the plaintiff; (6) the video surveillance evidence; (7) my evaluation of the medical and allied commentaries of the video surveillance evidence; (8) my evaluation of the pivotal medical issues relating to damages; (9) my evaluation of a partial transcript of the plaintiff’s evidence given at a previous hearing on 1 December 2014; (10) the identification of findings as to the plaintiff’s remaining disabilities; (11) work effects; (12) domestic effects; (13), mitigation; and (14), the plaintiff’s most likely circumstances but for the subject accident.

(1) Plaintiff’s background circumstances

35. The plaintiff was born in India in 1947. He immigrated to Australia in 1976. At the hearing he was aged 70 years. He is married with two adult daughters.

35. The plaintiff left school in 1963. After completing an apprenticeship as a toolmaker in India, he obtained qualifications in that trade. He has always worked in that trade, in various countries, and for various employers from that time, until the time of the accident. The work was heavy, and often required the use of cranes and chains to position, manipulate, lift and separate metal moulds and plates, of varying weights and sizes. In the course of that work, the plaintiff on occasion sustained injuries, the effect of which have not been shown to have had any long term deleterious effect on his capacity to work.

36. For a relatively short period of time in 1997, the plaintiff had unsuccessfully attempted a period of self-employment. That endeavour proved financially unsuccessful for him. In those circumstances, the financial losses he incurred in that venture caused him to lose his home. He then returned to paid employment in his trade. He therefore had a very strong financial incentive to continue working in the area he knew best in order to recover from that financial setback.

37. From September 1998, until the time of the subject motor vehicle accident in 2011, the plaintiff was employed in full-time work as a precision toolmaker with HPM Industries, which has merged with another company, to become HPM Legrand. The result of that merger was that a significant number of toolmakers in its employ became redundant. In those events, it is significant that the plaintiff kept his job. I take that circumstance to mean that he was a valued employee.

38. Before the subject motor vehicle accident, the plaintiff had no apparent difficulty coping with the significant physical demands of his work, despite having some health issues and having sustained some previous work-related injuries from which he had recovered. At times, in the pre-accident period, this involved him working six days per week, including working overtime hours on three days per week.

39. Prior to the subject accident the plaintiff was physically active around his home, and he personally attended to many home maintenance, repair, cleaning and other chores and tasks.

(2) Plaintiff’s pre-accident health issues

41. Given that over many years the plaintiff had been engaged in heavy and physically demanding mechanical work, unsurprisingly, his tendered medical records revealed a number of pre-accident instances of medical and allied consultations for both work and non-work related matters that had affected his health from time to time.

42. In view of the defendant’s attack on the plaintiff’s credit, and in view of the critical content of certain commentaries made by some of the defendant’s medical experts, the available medical evidence relating to the plaintiff’s previous health and injury history that pre-dated the subject accident is summarised in the following 41 sub-paragraphs, as a prelude to further analysis of the elements of the plaintiff’s claims:

1. On 17 July 1997, the plaintiff was hospitalised for the investigation and management of atypical chest pain of four days duration, which was thought to be due to stress and tension associated with a business transaction that had been problematic for him: Exhibit “B”, pp 241-246;

2. On 19 November 1999, the plaintiff underwent an MRI scan of his right wrist for a queried triangular fibro-cartilage complex (TFCC) tear that followed a radial fracture. The scan showed minimal swelling in the triquetrum of that wrist, and no definite tear was demonstrated: Exhibit “B”, p 1 ;

3. In 1998, the plaintiff was assaulted and sustained a back and an arm injury when he was pushed: T70.40 – T71.3.

4. On 11 February 2000, at the request of Dr Sikkina Tejani, his general practitioner, the plaintiff consulted Dr Peter Katelaris, a gastroenterologist, regarding “long standing upper gut symptoms” which he had experienced for a number of years, including retro-sternal heaviness and acid regurgitation. A suggested diagnosis of reflux was made, and a gastroscopy procedure was suggested: Ex “B”, p 2;

5. On 6th March 2000, Dr Katelaris carried out an upper tract endoscopy procedure on the plaintiff which revealed gastritis, which was later described as significant pangastritus, with active chronic gastritis, requiring antibiotic therapy for eradication: Exhibit “B”, pp 3-4.

6. On 7 February 2001 the plaintiff injured his right forearm at work when that arm became jammed in a machine. At that time it was noted the plaintiff had fractured his right forearm two years earlier: Exhibit "4" p 37;

7. On 7 February 2001, the plaintiff had a diagnostic x-ray of the right forearm and wrist, which was reported as showing no abnormality: Exhibit “B” p 5;

8. On 11 October 2001 the plaintiff’s left thumb was accidently hit by a hammer and this required medical treatment: Exhibit “4”, p 38;

9. On 23 November 2001, the plaintiff was seen by Dr Sheik Habib for an orthopaedic review of a hammer strike injury to his left thumb, which occurred on 11 October 2001, and which resulted in a fracture of the distal phalanx of that thumb, requiring the use of a splint in the healing process: Exhibit “B”, p 6;

10. On 14 December 2001 Dr Habib again reviewed the plaintiff’s left thumb injury and recommended the continued use of a protective splint and the use of a padded finger stall: Exhibit “B” p 7;

11. In the year 2002, as shown in some poorly copied and not completely readable Workcover medical certificates, the plaintiff had some unidentifiable days off work: Exhibit “4”, pp 140-169;

12. On 14 May 2002 the plaintiff had an episode of experiencing pins and needles sensation on his right leg: Exhibit “4”, p 40;

13. On 1 December 2006, an abdominal ultrasound shown the plaintiff to have a large gallstone in his gallbladder: Exhibit “4”, p 113;

14. On 26 February 2007, the general practitioner’s notes record that the plaintiff complained of pain in both shoulders of six weeks duration due to heavy work: Exhibit “4”, p 171. It appears that as a result of that injury, he was left with some residual shoulder discomfort when carrying out some work tasks due to repeated and forceful hammering of metal moulds in order to manipulate and separate them;

15. On 26 February 2007, the plaintiff underwent on x-ray of a shoulder and his thoracic spine. The shoulder showed a little narrowing of the acromio-clavicular joints that were thought to be probably due to early osteoarthritis, and the thoracic spine showed some lateral osteophytes and anterior wedging of a few upper dorsal vertebral bodies: Exhibit “B”, p 8;

16. On 13 March 2007, it was noted that x-rays revealed the plaintiff to have wedging of a few mid-dorsal/upper dorsal bodies and early arthritis in the acromio-clavicular joint: Exhibit “4”, p 171;

17. On 20 March 2007, the plaintiff sustained a back straining injury when bending over to move a mould on a pallet. This was said to have involved a disc protrusion of the lumbar spine and it involved an injury management plan that was kept under review for at least 26 weeks: Exhibit “4”, pp 135-136;

18. On 20 March 2007, the plaintiff underwent an x-ray of his lumbar spine, which revealed anterior osteophytosis at L5/S1: Exhibit “B”, p 9;

19. Between 23 March 2007 and 7 November 2008, there were some 30 or so consultations with the plaintiff’s general practitioner about low back ache issues which related to physiotherapy and injury management: Exhibit “4”, p 183;

20. On 26 March 2007, a physiotherapy management plan was established and scheduled to conclude on 30 July 2007. The plan was directed at back strengthening exercises: Exhibit “4”, pp 140-143;

21. On 3 April 2007, the plaintiff’s treating physiotherapist noted slow improvement in lumbar mobility but suggested continued restriction of work duties until lifting capacity was upgraded: Exhibit “4”, p 111;

22. On 19 April 2007, the plaintiff’s treating physiotherapist noted the plaintiff had increased back pain following his return to work. He suggested a 5kg restriction on lifting and to continue on restricted duties for one week: Exhibit “4”, p 110;

23. On 26 April 2007, the plaintiff’s treating physiotherapist reported that the plaintiff’s back pain was not worse, and that he should stay on his current work duties and not upgrade just yet: Exhibit “4”, p 172;

24. On 11 May 2007, the plaintiff’s treating physiotherapist noted that the plaintiff was participating in stability and strengthening exercises and there were doubts about whether he was ready to upgrade for work duties at that time: Exhibit “4”, p 148;

25. On 31 May 2007, the plaintiff’s general practitioner indicated to the workers’ compensation insurer that the plaintiff’s shoulder pain required he should avoid excessive lifting and bending at work: Exhibit “4”, pp 144-146;

26. On 31 May 2007, the plaintiff’s treating physiotherapist noted that the plaintiff was still presenting with back pain and spasm after work but was slowly improving. Fortnightly physiotherapy for a strengthening programme was continuing: Exhibit “4”, p 139;

27. On 31 May 2007, an injury management plan was at that time developed for the plaintiff in respect of his shoulder pain, which included avoiding excessive lifting and bending at work: Exhibit “B”, pp 10-11;

28. On 17 July 2007, a physiotherapy management plan noted that the plaintiff was subject to functional restrictions limiting his return to work involving activities such as bending, sitting, walking, lifting or carrying: Exhibit “B”, p 12;

29. On 31 July 2007, the plaintiff underwent a CT scan of his thoracic and lumbar spines. The CT of the thoracic spine showed anterior osteophytes, but without disc protrusion or canal stenosis. The CT of the lumbar spine showed a mild loss of disc height and a broad based central disc protrusion resulting in mild canal stenosis and minimal foraminal stenosis bilaterally, with an L5/S1 broad based degenerative disc protrusion with mild bilateral foraminal stenosis and canal stenosis: Exhibit “4”, pp 137–138;

30. On 29 August 2007, the plaintiff received further physiotherapy treatment for a lower back injury. The presentation was thought by the physiotherapist to be due to annular tear of one of the lumbar discs. Post vertebral muscle spasm was present, with restructured forward bending; and tenderness over the left L5 facet joint; Soft tissue massage treatment improved the symptoms but there were still limitations noted at that time: Exhibit “4”, p 109;

31. In the year 2008, as shown in some incompletely readable and poorly copied Workcover medical certificates, the plaintiff had some unidentifiable days off work: Exhibit “4”, pp 123-126;

32. On 17 January 2008, at the request of Dr Tejani, the plaintiff was seen by Dr Paul Russell, a consultant cardiologist, for a stress test and CT angiogram, which revealed only very minor coronary artery disease, but with cardiac risk factors which were thought to be present: Exhibit “B”, p 15;

33. On 2 September 2008, the plaintiff was assessed as being fit for his work as a toolmaker: Exhibit “B”, pp 16-17;

34. On 7 November 2008, the plaintiff completed a Peak Conditioning training programme with the aim of upgrading his work abilities to his pre-injury duties. The programme addressed lifting and handling issues, and fear of entering and exiting forklifts: Exhibit “4”, pp 98-100;

35. On 9 November 2009, the plaintiff was assessed by Dr Chhaya Tangirala, a gastroenterologist, for management of his foregut problems comprising epigastric fullness, pressure and excessive belching. A gastroscopy was recommended to be carried out on 26 November 2009: Exhibit “B”, pp 18-19;

36. On 26 November 2009, Dr Tangirala carried out a gastroscopy procedure on the plaintiff. She found a sub-mucosal lesion in the fundus of the stomach, and mild central erythema. She recommended a follow-up gastroscopy in a further 3 years: Exhibit “B”, p 20;

37. On 16 December 2009, Dr Tangirala wrote to Dr Tejani to report that the plaintiff had a small oesophageal hiatus hernia, with mildly erythematous vocal cords, as well as a sub mucosal lesion of the stomach. He recommended dietary modifications, and a follow up appointment in 12 months, with a follow up endoscopy in 2-3 years: Exhibit “B”, p 22;

38. On 14 July 2010, the plaintiff underwent a hernia operation from which he appears to have recovered, as he has worked in the full duties of his job since then: Exhibit “B”, p 197;

39. On 16 January 2011, the plaintiff complained to his general practitioner, of a painful and tender right shoulder of a few weeks duration, with a restricted range of movement: Exhibit “4”, p 91. In cross-examination the plaintiff explained that the context was that of an old injury due to excessive use of his right shoulder at work: T93.12;

40. On 28 January 2011, which was just 3 days before the subject accident, at the request of Dr Russell, the plaintiff underwent a cardiac stress test in light of a history of his previous experience of mild angina in 2008. That stress test revealed an ischemic response to exercise and the perfusion test was consistent with a mild and small degree of ischemia of the apex of the heart: Exhibit “B”, p 32;

41. On 31 January 2011, which was the same day as the subject accident, Allianz, the workers’ compensation insurer, co-incidentally approved a physiotherapy treatment plan for the plaintiff’s right shoulder, neck, back and left thumb: Exhibit B, p 27. Whilst that approval bears the same date as the subject accident, I infer from the facts identified in sub-paragraph (39) above that this approval for physiotherapy related to the plaintiff’s pre-accident right shoulder condition, and it appears that it was not due to the accident that occurred on 31 January 2011. It seems the problem was due to the hammering requirements of his work: T19.28 – T19.42.

43. Despite his previous shoulder injury as described above, the plaintiff coped with the physical requirements of his work: T18.6 – T18.12. There is no convincing evidence to the contrary. He managed his pre-accident episodes of back pain and shoulder pain by taking painkilling medication and having massages: T18.40.

44. In addition to the matters outlined above, the plaintiff also had a longstanding unrelated but pre-existing health problem consisting of diabetes mellitus, which was apparently diagnosed when he was aged about 50 years. He has kept that condition under control by keeping physically active, including by swimming, and by taking medication. His general practitioner had also referred him for specialist cardiological management.

45. Having reviewed the matters outlined above, I find that none of those matters had any lasting effects on the plaintiff’s pre-accident capacity to carry out his work as a toolmaker in his pre-accident employment. That said, those earlier events and injuries undoubtedly predisposed the plaintiff to being vulnerable to suffering aggravations of those problems if he were to sustain injuries to those earlier affected areas.

(3) Accident circumstances

46. The only contemporaneous account describing the mechanism of the accident appears in the St Vincent’s Hospital trauma assessment form, which described a taxi having hit the plaintiff on his lower back whilst travelling at about 20 kph, spinning him around, and then hitting him for a second time, in a similar region, whereupon the plaintiff fell down, breaking his fall with his hands. According to those hospital notes, the plaintiff had initially denied neck pain, and had complained to an attending paramedic of low back pain, and hip pain: Exhibit “B”, p 104.

47. Shortly after the plaintiff was struck by the defendant’s taxi, when the ambulance attended him, the plaintiff was found laying prone on the roadway. The ambulance report of that attendance is difficult to read. It appears to make reference to the plaintiff having an injured left thumb, back pain, and bilateral hip pains: Exhibit B, p 100.

48. The St Vincent’s Hospital triage nurse assessed the plaintiff as being a major trauma case, and wrote a slightly more detailed note describing the accident circumstances. She described the impact speed at 20-30 kph resulting in a small dent on the bonnet of the taxi. At triage in hospital, the plaintiff was initially complaining of bilateral pelvic pain and lower back pain: Exhibit “B”, p 103.

49. By that stage, the plaintiff had been given some medication. It is not entirely clear from the evidence as to whether those medications could possibly have had a masking effect on the coherency and the detail of the plaintiff’s account and initial historical description of the accident at the time he was initially examined at the hospital: Exhibit “B”, p 101; p 104. It noted that the plaintiff was still shocked and confused when examined by his general practitioner the day after the accident.

(4) Injuries and initial treatment

50. The identification of the injuries sustained by the plaintiff in the subject accident became an important point of focus in the proceedings.

Injury assessment considerations

51. It was suggested that the plaintiff’s account of his post-accident problems should influence the assessment of the plaintiff’s credit as a witness because his injuries, as contemporaneously recorded, appeared to be of a narrower compass when compared to the details which have emerged in the descriptions cited in the later medical assessments, and in the plaintiff’s oral evidence.

52. In such circumstances, and according to well settled authority, but subject to qualifications of the kind identified at paragraph [49] above, the analysis of the plaintiff’s injuries should ordinarily place significant weight on matters recorded in contemporaneous documents where the person making the record did so in the course of fulfilling a relevant duty which mandated that professional attention be given to such matters: Fox v Percy [2003] HCA 22; 214 CLR 118. That is in contradistinction to where such matters are more peripherally noted less reliably and in more general background terms: Mason v Demasi [2009] NSWCA 227.

53. In taking that approach, it becomes relevant to examine the initial hospital records, refer to the matters of significance noted by those who have treated the plaintiff over the course of time for his presenting problems, and to then evaluate the opinions of medical experts, including in the light of the plaintiff’s evidence.

St Vincent’s Hospital records

54. At 07:45 hours, at the St Vincent’s Hospital records are noted to refer to the plaintiff’s history of right shoulder pain, pain to his lumbar spine, and pain in his pelvis: Exhibit “B”, p 109.

55. At 12:50 hours, the secondary assessment made of the plaintiff at St Vincent’s Hospital was that he had a 2 cm laceration of the left palm, on part of the left thumb, with a stable tendon and 2 cm diameter superficial abrasions to both knees. He was found to have tenderness over thoracic, lumbar and sacral spines and he was placed in a cervical collar pending clearance of any doubt over the nature and extent of his spinal injury. He had x-rays taken of his right elbow, right shoulder and left thumb: Exhibit “B”, p 106.

56. At 13:30 hours, a secondary survey was undertaken at St Vincent’s Hospital, which noted soft tissue swelling in the plaintiff’s right arm, the left thumb laceration, grazes over both patellae, tenderness of the right side of the lower back: Exhibit “B, pp 114-115. At that time, on x-ray, a minor disc bulge at L5/S1 was noted, with the presence of L1 osteophytes: Exhibit “B” p 115. The CT scans taken of the plaintiff at St Vincent’s Hospital showed osteophytes in the lumbar spine, with a minor disc bulge at L5/S1 and mild narrowing of the spinal cord, and degenerative changes in the thoracic and lumbar spines: Exhibit “B”, pp 127-128.

57. A physiotherapy assessment carried out at St Vincent’s Hospital on 31 January 2011 concluded that the plaintiff also had a likely sprain to the right acromio-clavicular joint: Exhibit “B”, p 117.

58. On the basis of the above survey, the plaintiff’s injuries were noted to have been occasioned to the lumbar spines, the right shoulder, the left thumb and abrasions to both knees: Exhibit “B”, p 116. It appears that the plaintiff used his left hand to try and stop the vehicle at the time of the accident: Exhibit “B”, 336. That description of events would explain the injury to his left thumb.

54. A matter requiring resolution in the evaluation of the plaintiff’s evidence and the medical evidence is whether it was likely that he had a head injury of some kind that might explain the fact that, at some time after the accident, in 2013, he developed seizures, a matter that was the subject of conflicting medical opinions by consultant neurologists. There was no convincing evidence that the plaintiff has sustained a period of loss of consciousness in the subject accident.

General practitioner’s assessment on 1 February 2011

60. When Dr Tejani saw the plaintiff on the day following the accident she described the plaintiff as being still in shock from the accident, as well as being confused and in a lot of pain. That contemporaneous account accords with the plaintiff’s oral evidence: T25.20 – T26.11. She identified the areas of injury as a lacerated and sutured left thumb, grazes to both knees, thighs and the right elbow, very restricted right shoulder movements, very painful knees, low back pain, neck pain, and feeling miserable. Dr Tejani related the plaintiff’s accident involved him having landed on his right shoulder with his hands outstretched to cushion his fall. The resultant painful right wrist was ultimately imaged on an MRI scan to show a full thickness tear of what was elsewhere identified as being the TFCC: Exhibit “B”, p 603.

Plaintiff’s evidence given on 1 December 2014

61. The transcript of the plaintiff’s evidence in chief as given in a previous hearing on 1 December 2014 will be separately analysed. However, at this point it is relevant to note that the plaintiff’s unchallenged evidence was of having sustained a big impact to his right hip when his back and his body came into contact with the vehicle’s bonnet, and of having had a hard hit to the right shoulder, and having been struck twice by the vehicle, whereupon he rolled on the road with his face on the road and his hands in front of his face. He also described his ears as buzzing, having sharp pains in his back, shoulder, and significantly, his head. He also added that he lacked the strength to speak to those who attended to assist him: Exhibit “3”.

62. The plaintiff described his post-accident circumstance of finding himself on the road, with the left side of his face being in contact with the hot road surface, and being unable to turn his head, as his neck felt as if it was locked, and would not move: T24.45 – T24.50.

Findings as to injuries

63. The above survey of the evidence persuades me that the plaintiff sustained the series of bodily injuries he described, namely to his face, neck, right shoulder, hips, low back, right wrist, right elbow and arm, left thumb, and grazes to both of his knees. I therefore record those findings.

64. The extent to which the plaintiff received an injury to his face, insofar as that might have involved a contusional head injury, has arisen for analysis in the context of seeking to identify the most probable cause of the plaintiff having developed epilepsy in February 2013, which was some time after the subject accident: T31.47 – T32.25. There were differing medical opinions on that matter, which must be analysed when determining the plaintiff’s disabilities.

(5) Subsequent medical and allied reviews

65. Before identifying my findings as to the plaintiff’s accident–related disabilities, at this point I will set out some findings on my consideration of the medical and allied evidence, video surveillance evidence, and my findings on matters of conflict within the medical and allied evidence.

66. The salient features of the plaintiff’s post-accident medical and allied attendances, and the related assessments that ensued are extracted and summarised from the Exhibits and re-arranged in chronological order, in the following 143 sub-paragraphs:

1. After being attended by ambulance personnel (Exhibit “B”, p 100), the plaintiff was taken to St Vincent’s Hospital for assessment and treatment: Exhibit “B”, pp 103-128. The details of the notes and the assessments undertaken at that hospital have been summarised at paragraphs [46] to [49] and [51] to [58] above;

2. On 1 February 2011, Dr Tejani saw the plaintiff and noted that he was still in shock after the accident, and in a lot of pain. She noted the plaintiff’s lacerated left thumb, which was in plaster, grazes to both knees, thighs and the right elbow. She noted the plaintiff had restricted right shoulder movements, very painful and stiff knees, lower back pain and neck pain; and that he felt miserable: Exhibit “B”, pp 603-604;

3. On 1 February 2011, Dr Tejani issued the plaintiff with a Workcover absence from work certificate valid to 11 February 2011: Exhibit “B”, p 292;

4. On 11 February 2011, Dr Tejani issued the plaintiff with a Workcover absence from work certificate valid to 14 March 2011: Exhibit “B”, p 291;

5. On 17 February 2011, at the request of Dr Tejani, the plaintiff underwent an ultrasound examination of the right shoulder, which revealed a high grade tear along the anterior/mid supraspinatus tendon insertion, likely to be a full thickness tear: Exhibit “B”, p 24;

6. On 23 February 2011, the plaintiff first saw Dr Daniel Biggs, a consultant orthopaedic surgeon, for assessment of his painful right shoulder. Dr Biggs noted that the plaintiff gave him no prior history of right shoulder injury, Dr Biggs considered that the plaintiff landed heavily on his right shoulder in the accident, and subsequently developed a painful and weak right shoulder. He was of the opinion, on the balance of probabilities, that the rotator cuff tendon tear of that shoulder was due to the accident: Exhibit “B”, pp 50-52.

7. On 11 March 2011, at the request of Dr Biggs, the plaintiff underwent an MRI scan of his right shoulder, which revealed a number of tears, thickening, effusions and mid acromio clavicular joint arthrosis of the right shoulder joints Exhibit “B”, p 25;

8. On 14 March 2011, Dr Tejani issued the plaintiff with a Workcover absence from work certificate valid to 15 April 2011: Exhibit “B”, p 290;

9. On 17 March 2011, Dr Tejani referred the plaintiff for physiotherapy treatment to the neck, back, right wrist, knees and left shoulder: Exhibit “B”, p 41;

10. On 20 March 2011, an x-ray of the plaintiff’s lumbar spine was reported as showing anterior osteophytosis at L5/S1: Exhibit “4”, p 122;

11. On 31 March 2011, Dr Biggs reviewed the plaintiff’s MRI scans and confirmed the presence of a right rotator cuff tendon tear: Exhibit “B”, p 26;

12. On 12 April 2011, Dr Tejani identified the plaintiff’s injuries as comprising a deep laceration to the left thumb, grazes to both knees, thighs and right elbow, a painful right shoulder, and back pain: Exhibit “B”, p 28;

13. On 15 April 2011, Dr Tejani issued the plaintiff with a Workcover absence from work certificate valid to 17 May 2011: Exhibit “B”, p 289;

14. On 11 May 2011, Dr Biggs undertook an arthroscopy and repair procedure of the plaintiff’s right rotator cuff. At that time the plan was for rehabilitative exercises and soft tissue releases with physiotherapy: Exhibit “B”, p 30.

15. On 11 May 2011, at the request of Dr Tejani, the plaintiff had an x-ray of his left thumb which showed chronic spurring of his fifth metacarpal. He also had an unremarkable x-ray of the right wrist: Exhibit “B”, p 32;

16. On 16 May 2011, Dr Tejani issued the plaintiff with a Workcover absence from work certificate valid to 27 May 2011: Exhibit “B”, p 288;

17. On 27 June 2011, Dr Tejani issued the plaintiff with a Workcover absence from work certificate valid to 29 July 2011: Exhibit “B”, p 287;

18. On 29 June 2011, at the request of Dr Biggs, the plaintiff underwent an x-ray of his right shoulder, which showed two post-operative suture anchors in the humeral head: Exhibit B, p 29;

19. On 29 June 2011, seven weeks post-operatively Mr Vukovic, a physiotherapist, commenced the plaintiff on a program of post-operative physiotherapy: Exhibit “B”, pp 30-31;

20. On 27 July 2011, Mr Vukovic commenced the plaintiff on physiotherapy treatment eleven weeks post operatively: Exhibit “B”, pp 33-34;

21. On 28 July 2011, Dr Tejani issued the plaintiff with a Workcover absence from work certificate valid to 30 August 2011: Exhibit “B”, p 286;

22. On 1 August 2011, a physiotherapy management plan noted the plaintiff’s condition of chronic shoulder capsulitis: Exhibit “B”, p 36;

23. On 11 August 2011, at the request of Dr Yee, a hand and wrist surgeon, the plaintiff underwent an ultrasound of the left thumb, which revealed a post-operative fluid collection or cystic structure, and an MRI of the right wrist revealed a full thickness tendon tear, some capsule thickening, and some tendinopathy of a tendon sheath: Exhibit “B”, pp 37-38;

24. On 17 August 2011, Dr Yee reviewed the plaintiff again and identified the need for a procedure to release the plaintiff’s left trigger thumb abnormality, and recommended the full thickness triangular fibro-cartilage complex tear be left for a while to see if the symptoms resolved spontaneously: Exhibit “B”, p 39;

25. On 30 September 2011, Dr Tejani issued the plaintiff with a Workcover absence from work certificate valid to 15 November 2011: Exhibit “B”, p 285;

26. On 4 November 2011, Dr Yee performed a trigger release procedure and tenolysis on the plaintiff’s left thumb: Exhibit “B”, p 42;

27. On 9 November 2011, and again on 21 November 2011, Dr Yee noted the plaintiff’s left thumb flexor tendon was significantly adherent; and would require a lot of physiotherapy: Exhibit “B”, pp 43-44;

28. On 11 November 2011, Dr Tejani issued the plaintiff with a Workcover absence from work certificate valid to 20 January 2012: Exhibit “B”, p 284;

29. On 22 November 2011, a four month psychological management plan was established to assist the plaintiff with his psychological problems of post-traumatic stress, anxiety and depression; Exhibit “B”, pp 45-49;

30. On 27 November 2011, at the request of Dr Tejani, the plaintiff was assessed by Dr Yee, who requested radiological investigations: Exhibit “B”, p 35;

31. On 8 December 2011, at the request of the workers compensation insurer, the plaintiff was examined by Dr Robert Drummond a consultant orthopaedic surgeon. Dr Drummond was provided with unspecified documentation for that purpose. Dr Drummond stated (at p 69), that his opinion and report “is based entirely upon the evaluation of objective findings today”. He identified his diagnosis (at p 74), as a right shoulder rotator cuff tear, injury to the left thumb involving the flexor tendon, TFCC injury to the right wrist, soft tissue injuries to the cervical and lumbar spine, and a direct injury to the patello-femoral joints of both knees. He also stated it was possible that the accident had aggravated pre-existing spondylosis to the cervical and lumbar spines by the nature of the impact of the accident. He also noted the slow recovery. He believed the ganglion on the plaintiff’s right wrist was not accident-related. He predicted that it was unlikely the plaintiff would return to full work duties, and identified anxiety and an attitude to work that needed to be overcome with psychological treatment to avoid a chronic situation developing. He considered the plaintiff had lost the motivation and attitude required to undertake the heavy nature of his work as a toolmaker. He predicted a poor prognosis for full recovery because of anxiety, motivation, and attitude, for which he considered that the plaintiff required psychological help: Exhibit “3”, pp 69-76;

32. On 14 December 2011, five weeks post-surgery, Dr Yee re-assessed the plaintiff’s left thumb, and recommended continued hand therapy: Exhibit “B”, p 53;

33. On 19 December 2011, Dr Tejani issued the plaintiff with a Workcover absence from work certificate valid to 21 January 2012: Exhibit “B”, p 283;

34. On 25 January 2012, Dr Yee reviewed the plaintiff and noted that the plaintiff’s left thumb was not likely to improve; that the presenting right wrist problem was due to a TFC tendon tear seen on MRI, and that the plaintiff should have his shoulder surgery before any wrist surgery: Exhibit “B”, p 54;

35. On 18 February 2012, a psychologist noted the plaintiff had been suffering from injury-related emotional difficulties due to multiple sites of chronic pain, and recommended massage therapy to foster endorphin and oxytocin release: Exhibit “B”, p 55;

36. On 21 February 2012, Dr Tejani issued the plaintiff with a Workcover absence from work certificate valid to 23 March 2012: Exhibit “B”, p 281;

37. On 7 March 2012, at the request of Dr Biggs, the plaintiff underwent a right shoulder ultrasound which revealed glenero-humeral capsulitis and an intact surgical repair of the mid to anterior right supraspinatus insertional rotator cuff tear: Exhibit “B”, p 56;

38. On 23 March 2012, Dr Tejani issued the plaintiff with a Workcover absence from work certificate valid to 26 April 2012: Exhibit “B”, p 280;

39. On 4 April 2012, Dr Tejani issued the plaintiff with a Workcover absence from work certificate valid to 16 January 2013: Exhibit “B”, p 318;

40. On 19 April 2012, at the request of Dr Biggs, the plaintiff underwent an MRI scan of the right shoulder which showed an intact surgical repair, with low grade post surgical tendonitis: Exhibit “B”, p 57;

41. On 26 April 2012, Dr Tejani issued the plaintiff with a Workcover absence from work certificate valid to 27 May 2012: Exhibit “B”, pp 278-279;

42. On 24 May 2012, Dr Tejani issued the plaintiff with a Workcover absence from work certificate valid to 28 June 2012: Exhibit “B”, p 277;

43. On 31 May 2012, at the request of his solicitor, the plaintiff was examined by Dr John Harrison, a consultant orthopaedic surgeon. Dr Harrison noted the plaintiff’s physical complaints as comprising problems with his right wrist, left thumb, right shoulder pain, which limited his reaching ability, base of neck pain in the interscapular distribution, pain with shoulder and arm movements, lumbo-sacral pain with radiation to the lower limbs, aggravated by activity, pain in both knees and walking with a limp. He also noted the plaintiff had phobias and fears about driving and being outdoors. Dr Harrison’s examination of the plaintiff was impeded by psychological factors and the plaintiff’s apprehensiveness. Dr Harrison nevertheless concluded that the plaintiff was not fit for work and would not be safe to work around machinery: Exhibit “B”, pp 320-335;

44. On 6 June 2012, at the request of his solicitor, the plaintiff was examined by Dr Richard Deveridge, a consultant surgeon. His assessment of the plaintiff’s right shoulder, neck, right wrist, left limb, low back and bilateral knee disabilities, which he listed in detail, were accident-related. He considered the plaintiff to be permanently unfit for work as a toolmaker, and for labouring work generally, including tasks such as repetitive bending, heavy lifting, carrying, twisting, pushing and dragging actions. He also considered the significance of the plaintiff’s neck problems. He went on to explain why the plaintiff’s upper limb and lower limb problems would limit his work activities and his activities of daily living, the latter issue requiring an occupational therapy assessment. He also made significant recommendations for further treatment, noting that the plaintiff’s condition had not yet stabilised: Exhibit “B”, pp 367-372;

45. On 14 June 2012, the plaintiff’s solicitor received an undated letter from Dr Tejani in which she summarised the history of the plaintiff’s accident, the injuries he sustained, and the course of treatment. Dr Tejani also noted that the plaintiff was in constant pain, was getting very anxious and depressed, and was referred for counselling, noting also that the plaintiff may need psychiatric intervention and medication for his depression and his anxiety: Exhibit “B”, pp 603-604;

46. On 21 June 2012, the plaintiff underwent a gastroscopy performed by Dr Tangirala, for GORD, which recorded fundal polyps in the stomach. A colonoscopy was recommended: Exhibit “B”, pp 58-60;

47. On 25 June 2012, Dr Tejani issued the plaintiff with a Workcover absence from work certificate valid to 6 August 2012: Exhibit “B”, p 276;

48. On 5 July 2012, at the request of the workers’ compensation insurer, Dr Margaret Gibson, an occupational physician, assigned to the plaintiff an impairment assessment of 4 per cent. Her letter which incorporated that assessment did not indicate when she had examined the plaintiff for that purpose: Exhibit “3”, pp 126-128. This gives rise to a question of whether a full portfolio of Dr Gibson’s reports had been tendered by the defendant. As the parties did not address that question I will not give it further consideration;

49. On 15 July 2012, at the request of the workers’ compensation insurer, the plaintiff was examined by Dr Gibson. Dr Gibson took the approach that if the plaintiff’s injuries were not mentioned in the medical documentation provided to her, it would not be reasonable for her to accept the accident as the cause of the plaintiff’s complaints of injury. On that basis, she “was not convinced that there was a right wrist injury as this was not mentioned in the certificate of the general practitioner. There should have been some complaint much earlier on after the accident”. She stated there was no evidence of pre-accident conditions or injuries that would impact on the activities of daily living or work. She accepted the plaintiff had an “ongoing partial incapacity”. She summarised the plaintiff’s accident-related injuries as laceration to the left thumb, grazes to both knees and thighs, soft tissue injury to the right shoulder and a musculo-ligamentous strain to the lower back. The documents that were provided to her were apparently listed and identified as Attachment “A” to her report, but that attachment was not included in the tender bundle. This leaves uncertain the question of what material she relied upon for the purpose of preparing her report: Exhibit “3”, pp 129-140;

50. On 29 August 2012, Dr Yee saw the plaintiff and noted ongoing pain in the right wrist and noted the plaintiff’s wish for arthroscopy and TFC repair. Dr Yee suggested waiting a while longer for surgery to the plaintiff’s frozen (right) shoulder: Exhibit “B”, p 61;

51. On 29 August 2012, the plaintiff was reviewed by Dr Tangirala, who noted ongoing right shoulder, neck and back pain, and within his specialty, ongoing heartburn, probably from reflux oesophagitis: Exhibit “B”, p 62;

52. On 5 September 2012, at the request of the CTP insurer, the plaintiff was examined by Dr Raymond Wallace, a consultant orthopaedic surgeon. Dr Wallace noted that the plaintiff had been certified as being unfit for work since the accident, and his employment had been terminated in July 2012. Dr Wallace accepted that the plaintiff’s neck, right shoulder, right wrist, left thumb, lumbar spine and bilateral knee conditions were caused by the subject accident. He considered that the plaintiff remained unfit to return to his pre-accident work. In contrast to the opinion of Dr Harrison, Dr Wallace did not consider that any of the plaintiff’s problems were as a result of aggravation of a pre-existing condition: Exhibit “B”, pp 348-357;

53. On 11 October 2012, Dr Tejani issued the plaintiff with a Workcover absence from work certificate valid to 11 November 2012: Exhibit “B”, p 319;

54. On 15th October 2012, Dr Wallace was asked by the solicitor for the plaintiff to clarify his opinion. Dr Wallace agreed with Dr Drummond’s view that the ganglion on the plaintiff’s right wrist was not accident-related, but he confirmed his view that the triangular fibrocartilage injury to the right wrist was as a result of the plaintiff’s fall in the accident, and this was consistent with the pathology. He disagreed with Dr Drummond’s view that the plaintiff would not benefit from surgery to the right wrist. He was of the view that the plaintiff was unable to drive a motor vehicle at that time: Exhibit “B”, pp 360-361;

55. On 22 November 2012 at the request of the CTP insurer, the plaintiff was examined by Dr Ben Teoh, a consultant psychiatrist. Dr Teoh noted the plaintiff reported significant anxiety symptoms, avoidant behaviour, hyper-arousal and agitation. He considered the plaintiff to have a significant psychiatric condition involving anxiety, which was consistent with the DSM IV diagnosis of chronic post-traumatic stress disorder, and that the subject accident was the substantial contributing factor to that condition: Exhibit “B”, pp 362-366;

1. On 30 November 2012, Mr Vukovic noted the plaintiff was making steady progress with physiotherapy and hydrotherapy in his rehabilitation programme. Allianz was requested to renew the plaintiff’s hydrotherapy pool pass: Exhibit “B”, p 63;

2. In either November or December 2012, Dr Tejani wrote a short but detailed letter to the insurer, Allianz, outlining the plaintiff’s accident circumstances, noting amongst other things, that “no head or spinal injuries were noted” and that on examination the day after the accident, the plaintiff “was very confused and still in shock from the accident”. She also noted the plaintiff was not capable of driving at the time of writing, that the prognosis was uncertain, and that it would be months before he would be able to start work on restricted duties: Exhibit “B”, p 98;

3. In December 2012, Dr Virk, another of the plaintiff’s treating general practitioners, was treating the plaintiff for his right shoulder tear, a cartilage tear of the right wrist, an injury to the left thumb, post traumatic stress disorder, and depression; Exhibit “4”, pp 102-108;

4. On 8 January 2013, Dr Tejani issued the plaintiff with a Workcover absence from work certificate valid to 17 February 2013: Exhibit “B”, p 317;

5. On 21 January 2013, at the request of Dr Tejani, the plaintiff was reviewed by Dr Tangirala for PR bleeding, which was not suggested to be accident-related: Exhibit “B”, p 64;

6. On 21 January 2013, at the request of his solicitor, the plaintiff was examined by Dr Bruce Westmore a consultant psychiatrist Dr Westmore noted that the plaintiff had numerous stressors arising from the multiple injuries he sustained in the accident, including ongoing concerns about his current and future health, and the impact on his career and lifestyle in general, which had led to a decline in his functioning. He stated that in his opinion, the plaintiff developed chronic pain symptoms and a post-traumatic stress disorder with high levels of stress and anxiety, which required treatment: Exhibit “B”, pp 387-394;

7. On 23 January 2013, at the request of his solicitor, the plaintiff was assessed by Ms Carolyn Grinter, an occupational therapist. She assessed him at his home on that date. She reviewed the plaintiff’s history, his physical activities, his household activities, his outdoor domestic activities, his driving and his need for domestic assistance. She made recommendations as to the plaintiff’s need for past and future domestic assistance. I will review those recommendations in my reasons for the assessment of the plaintiff’s damages concerning those issues: Exhibit “B”, pp 410-415;

8. On 31 January 2013, at the request of the solicitor for the defendant, the plaintiff was re-examined by Dr Drummond. In his report that followed this, his second examination of the plaintiff, Dr Drummond again stated that his opinion and report were “based entirely upon the evaluation of objective findings today”. He considered that the plaintiff had reached a state of recovery. He commented upon the plaintiff’s symptoms of pain and disability as exceeding the pathology in the right shoulder, left thumb, right wrist and both knees. He described the plaintiff’s presentation as being exaggerated and non-compliant with clinical testing of the involved joints, and suggested, pejoratively, the plaintiff “is happy to project a disabled image”. He suggested that psychological symptoms have developed, and the plaintiff needed to be assessed and treated by a psychiatrist. He suggested that whilst the plaintiff was not fit for his pre-injury duties, he was fit to work full hours involving sedentary work, with rest breaks and stretch breaks during the day. At that time the plaintiff was aged 66 years. He noted the plaintiff was unable to drive because of anxiety, because of subjective stiffness in the cervical spine, and an inability to comfortably use his right arm to turn the steering wheel due to shoulder stiffness and pain, as influenced by psychological factors. Dr Drummond concluded that : “the only objective pathological finding is the tear of the rotator cuff in the right shoulder. The effect of the peripheral tear of the TFCC in the right wrist would not become symptomatic unless strenuous manual tasks were performed using the right wrist and hand”: Exhibit “3”, pp 77-89. In my view, only limited weight should be placed on Dr Drummond’s opinion because a focus on only objective findings without a consideration of the plaintiff’s subjective complaints is an incomplete assessment;

9. On 8 February 2013, the plaintiff was admitted to Westmead Hospital in relation to an episode of unconsciousness. The assessment was that this was due to blood sugar changes and a hypoglycaemic seizure due to him fasting for a colonoscopy: Exhibit “B”, pp 221-240;

10. On 27 February 2013, the plaintiff was taken to Westmead Hospital because of a seizure episode with loss of consciousness. The ambulance officer who attended the scene noted that the plaintiff had a clonic toxic seizure, with eye rolling, full body shaking and a post-ictal Glasgow Coma Score of 7: Exhibit “B”, pp 215-220;

11. On 27 February 2013, in response to an email from the solicitor for the defendant, Dr Drummond provided a clarification letter which further explained his earlier assessment. The solicitor for the defendant had queried Dr Drummond’s comment that several of the plaintiff’s injuries had “resolved”. He explained that he did not mean by his use of that description that the plaintiff’s injuries had resolved to a normal state, but rather, they had healed to a level that was not likely to change, so that the stage had been reached for an impairment assessment to be made. In his report, he hinted that, without surveillance films, he was bound to report the clinical findings. He also wrote: “… I have provided you with an argument to reduce the permanent impairment relating to the right shoulder”. He also reminded the solicitor for the defendant that the plaintiff “was hit by a car producing significant injuries from which he is likely to have some ongoing impairment”: Exhibit “3”, pp 90-91;

12. On 28 February 2013, the plaintiff had an abnormal EEG result which supported a diagnosis of focal seizure disorder, but this was said to need co-relation to neuroimaging: Exhibit “B”, pp 264-265;

13. On 1 March 2013, the plaintiff’s diagnosis of focal seizure disorder was confirmed, first, as being secondary to hypoglycaemia and second, as a simple partial seizure of temporal lobe onset. That confirmation followed CT and MRI head scans which showed no abnormalities on neuroimaging: Exhibit “B”, pp 266-275. The Westmead Hospital clinical notes dated 1 March 2013 recorded a history of the plaintiff having “spells” since his accident in January 2011, the duration being for about 30 seconds each time: Exhibit “B”, p 225. This was recorded again on 8 March 2013: Exhibit “B”, p 247. The plaintiff did not give that evidence. The cause of the plaintiff’s epilepsy will be the subject of analysis upon consideration of the whole of the medical evidence;

14. On 14 March 2013, at the request of his solicitor, the plaintiff was examined by Dr Neil Berry, a consultant surgeon. Dr Berry considered that the medications the plaintiff was taking have increased his pre-existing but not accident-related gastrointestinal symptoms and this is the cause of his constipation with related haemorrhoidal PR bleeding. He therefore supported the recommendation for colonoscopy to exclude other causes for that bleeding: Exhibit “B”, pp 416-421;

15. On 2 April 2013, and again in November and December 2013, the plaintiff was seen by Dr Hugo Gonzales, a psychologist for unspecified psychological treatment: Exhibit “B”, p 65;

16. On 4 April 2013, at the request of the solicitor for the defendant, the plaintiff was examined by Dr Robert Lewin, a consultant psychiatrist. Significantly, in my view, Dr Lewin noted the plaintiff had not experienced anxiety, depression or post-traumatic symptoms of anxiety before the accident. Dr Lewin noted the plaintiff had disuse features in his right arm, he was fearful of re-injury, and has allowed pain to become his guide. He found evidence of intense anxiety in the plaintiff. He noted the plaintiff had a driving phobia. He diagnosed a chronic post-traumatic stress disorder. He did not consider the diagnostic criteria for major depression were satisfied. He found no evidence of exaggeration. He stated that the plaintiff needed to have psychiatric treatment: Exhibit “3”, pp 141-152;

17. On 22 April 2013, at the request of the solicitor for the defendant, Dr Drummond provided a supplementary commentary on the plaintiff’s shoulder injuries. Dr Drummond noted that he had been provided with reports relating to a previous right wrist injury dating back to 14 May 1999, a right shoulder injury on 28 June 2007, and a lower back injury in February and March 2007. He said the materials provided did not cause him to change his previously expressed views: Exhibit “3”, pp 92-93;

18. On 14 May 2013, at the request of the solicitor for the defendant, the plaintiff was examined by Dr Brian Zeman, a consultant in rehabilitation medicine. Dr Zeman considered the plaintiff was not a reliable historian with regard to his prior medical history. It is difficult to ascertain the aptness of that statement without the elements of purported unreliability being identified for evaluation. I therefore place little weight on that aspect of Dr Zeman’s conclusion. Dr Zeman commented that the plaintiff’s stated intention to have worked past his retirement age if the accident had not occurred was “not consistent with the background of his complaints, or his assertion that his wife’s disabilities affected her ability to do things at home which would require his assistance”. Unlike Dr Gibson, Dr Zeman accepted the possibility that the plaintiff’s TFCC tear in the right wrist could have occurred in the fall in the accident. Dr Zeman considered that the accident caused minor soft tissue injuries to the knees, neck and back which have resolved, but that his complaints of pain and impaired function were not consistent with organic pathology. He conceded that the diagnosis of “depression or PTSD etc if present are likely to be factors in his complaints and impaired function”. There is an apparent inconsistency in Dr Zeman’s report (at p 282), where he stated his diagnosis of “Soft tissue injury to knees, low back and neck unrelated to the accident”. [Emphasis added] I am unable to determine whether this was a typographical error or an unexplained inconsistency within the report. That matter remains unexplained as Dr Zeman was not called to give oral evidence: Exhibit “3”, pp 272-284;

19. On 27 May 2013, the plaintiff was seen by Dr Andrew Bleasel, a neurologist at Westmead Hospital in relation to a seizure following taking carbazine medication. At that time, it was not suggested that the plaintiff’s seizures were due to the subject motor vehicle accident: Exhibit “B”, p 66; p 261;

20. On 12 June 2013, at the request of the solicitor for the defendant, the plaintiff was examined by Ms Kathryn Caukill, a consultant occupational therapist. Her brief (as is evident from the copy of her letter of instruction at p 44) was to examine the plaintiff at his home, obtain a full account of his history, and provide her opinion regarding first, the plaintiff’s care needs, and secondly, whether he was capable of driving a motor vehicle. In the opinion section of her report (at p 33), she noted that the plaintiff reported an inability to perform tasks in his usual manner “including driving” but she appears not to have addressed the second question asked of her, on that topic, by the solicitor for the defendant. She noted her view that the plaintiff was very fearful and avoidant of movement which he perceives would exacerbate pain, and that his activities have become contained to a minimally demanding routine. She also stated “with respect to personal and instrumental activities of daily living, I was not able to obtain a clear understanding of the nature of Mr Dharamdas’ functional limitations”. Her subsequent recommendations were “aimed at maximising Mr Dharamdas’ capacity for functional independence. Recommendations are made in the context of a response to the opinion and recommendations of Ms Carolyn Grinter”. That was not quite the question that she was asked to address. Ms Grinter’s report was not in existence when Ms Caukill was instructed on 7 January 2013 (pp44-46). It was later sent to her “for her assistance” by a letter dated 27 February 2013, without identifying any further questions or comments (p47). The comparative analysis of the respective views of Ms Caukill and Ms Grinter will be undertaken in connection with the assessment of the plaintiff’s claim for domestic assistance. At this point, as will later emerge in this chronology, it is relevant to note that Ms Caukill subsequently withdrew her recommendations concerning domestic assistance in light of some DVD observation material, which will also be analysed: Exhibit “3”, pp 1-49;

21. On 14 June 2013, Dr Tejani issued the plaintiff with a Workcover absence from work certificate valid to 27 July 2013: Exhibit “B”, pp 293-295;

22. On 13 July 2013, a further physiotherapy programme was prepared for the plaintiff to have five treatments up to 1 October 2013 with the aim of enabling him to become fit for suitable part time duties: Exhibit ‘B’, p 162;

23. On 15 July 2013 at the request of Dr Tejani, the plaintiff was examined by Dr Peter Puhl, a consultant neurologist for an unexplained loss of consciousness, which was thought to represent a focal dyscognitive seizure or focal seizure with secondary generalisation. Dr Puhl considered this could have been triggered by bowel preparation for a colonoscopy, or from a head injury in the accident with a probable brief loss of consciousness: Exhibit “B”, pp 163-164; pp 429-430. The latter explanation can be discounted as there was no convincing evidence of the plaintiff having sustained a head injury involving a loss of consciousness.

24. On 16 July 2013, Dr Tejani issued the plaintiff with a Workcover absence from work certificate valid to 20 August 2013: Exhibit “B”, pp 296-298;

25. On 22 July 2013, Dr Tejani issued the plaintiff with a Workcover absence from work certificate valid to 20 August 2013: Exhibit “B”, pp 169-170;

26. On 8 August 2013, MAS Assessor Dr Philippa Harvey-Sutton issued a MAS Certificate which certified that the plaintiff’s left trigger thumb, which required flexor tendon tenolysis, the plaintiff’s right shoulder, which required rotator cuff repair, and the soft tissue lumbar spine injury, gave rise to a permanent impairment of 11 per cent: Exhibit “G”;

27. On 13 August 2013, Dr Tejani issued the plaintiff with a Workcover absence from work certificate valid to 20 September 2013: Exhibit “B”, pp 177-178; pp 299-301;

28. On 16 August 2013, Dr Tejani issued the plaintiff with a Workcover absence from work certificate valid to 20 October 2013: Exhibit “B”, pp 168-173; pp 302-304;

29. On 27 August 2013, at the request of Dr Tejani, the plaintiff underwent MRI scanning of his lumbar spine, which was reported as showing at L5/S1 broad based disc bulge and a right paracentral protrusion which impinged on the right S1 nerve root on weight bearing. Disc bulges were also noted at other levels, but not associated with nerve impingements: Exhibit “B”, p 67;

30. On 28 August 2013, MAS Assessor Dr Hunter Fry, a plastic surgeon, assessed the plaintiff’s scarring to the left thumb, and his abdominal endoscopy scars, at 2 per cent: Exhibit “H”;

31. On 6 September 2013, a further physiotherapy plan was established, the fourth in a series of such plans: Exhibit “B”, pp 68-70;

32. On 9 September 2013, MAS Assessor Alex Apier, a consultant psychiatrist, assessed the plaintiff’s post-traumatic stress disorder with depression, at greater than 10 per cent impairment: Exhibit “J”;

33. On 14 September 2013, at the request of the solicitor for the defendant, Ms Caukill provided a supplementary occupational therapy commentary based on a MAS Certificate from Dr Harvey-Sutton and the report of Dr Zeman. Based on those opinions, which suggested the plaintiff’s gastro-intestinal and right wrist problems were not related to the subject accident, Ms Caukill revised her earlier opinions. In my view, that approach was flawed for reasons that will be identified when analysing the reliability and acceptability of opinions on matters of dispute in the medical and allied evidence: Exhibit “3”, pp 50-57;

34. On 15 October 2013, Dr Tejani issued the plaintiff with a Workcover absence from work certificate valid to 21 November 2013: Exhibit “B”, pp 181-183; pp 305-307;

35. On 7 November 2013, at the request of Dr Tejani, the plaintiff was examined by Dr Randolph Gray, a spine surgeon, in relation to his problem of continuing and increasing lower back pain radiating down the posterior aspect of his thighs and calf, the left leg being more affected than the right. Dr Gray noted the MRI signs of degeneration at L5/S1 with broad based disc herniation causing stenosis. He suggested the plaintiff had not yet had a proper course of rehabilitation and physical therapy to manage those problems, and he also suggested that a decompression procedure at L5/S1 would only relieve the leg symptoms, and not the mechanical backache: Exhibit “B”, pp 160-161;

36. On 14 November 2013, Dr Tejani issued the plaintiff with a Workcover absence from work certificate valid to 20 December 2013: Exhibit “B”, pp 165-167; pp 184-186; pp 308-310;

37. On 5 December 2013, the plaintiff was re-examined by Dr Drummond. He was provided with further material for consideration at this time. He commented that examination revealed the plaintiff was not compliant with examinations of the left thumb and right wrist. Whether or not this could have been due to an apprehension of pain was not stated. He commented that the 27 August 2013 MRI of the plaintiff’s lumbar spine revealed a significant lumbosacral disc prolapse, with degenerative and age related changes. How much of that degeneration could have been due to the subject accident was a matter that was not evaluated. He identified abnormal illness behaviour in the plaintiff in the context of “exaggerated pain” and restriction of movement, not compatible with pathology. He suggested psychiatric treatment to improve the plaintiff’s perception of disability, otherwise the plaintiff’s current physical symptoms (which he recorded at pp 95-96) would continue indefinitely. He considered the plaintiff was unfit for work. He agreed (at p 102) with Dr Harvey-Sutton’s assessment that the plaintiff’s right wrist should be excluded from the consideration. For reasons that will be made plain, I do not accept that opinion: Exhibit “3”, pp 94-105;

38. On 5 December 2013, at the request of the solicitor for the defendant, the plaintiff was examined by Dr Peter Slezak, a consultant physician. Dr Slezak focussed upon the plaintiff’s gastrointestinal and diabetes problems, his medications (at pp 250-251), and on life expectancy issues. He used his access to the life tables maintained by Hannover Life Reinsurance of Australasia Limited, to assess the plaintiff’s life expectancy to be a further 10 – 13 years, from December 2013. The agreement of the parties has made it unnecessary to further analyse that opinion: Exhibit “3”, pp 249-252;

39. On 20 December 2013, Dr Tejani issued the plaintiff with a Workcover absence from work certificate valid to 29 January 2014: Exhibit “B”, pp 311-313;

40. On 30 January 2014, Dr Tejani issued the plaintiff with a Workcover absence from work certificate valid to 28 February 2014: Exhibit “B”, pp 314-316;

41. On 2 February 2014, at the request of the solicitor for the defendant, Dr Slezak provided a commentary in which he stated that, on viewing workers’ compensation records and general practitioner’s records, he did not alter his previously stated opinion: Exhibit “3”, p 253;

218. In coming to the conclusion that the effects of the accident have rendered the plaintiff unfit for employment, I have not overlooked the opinions of Dr Sekel as cited at sub-paragraph (106) of paragraph [66] above, which not only suggested the plaintiff would have had a restricted earning capacity in any event, even if the accident had not occurred, and as cited at sub-paragraph (132) of paragraph [66] above. Dr Sekel’s opinion was to the effect that the plaintiff’s physical problems ought not have prevented him from returning to his work within 2 months of 4 November 2011 as a maximum.

219. I do not accept Dr Sekel’s views as cited in the preceding paragraph. In my view, it is an incomplete appraisal as it does not take into account the obviously relevant psychological and psychiatric considerations, as he has acknowledged. Also, I consider that Dr Sekel did not sufficiently deal with an evaluation of the physical requirements of that work to render his opinion reliable in that regard: UCPR r 31.27(1)(c); Sch 7 cl 5(1)(c).

220. Furthermore, I consider that Dr Sekel’s dismissal of the plaintiff’s gait as “bizarre”, should not be accepted in light of Dr New’s more considered analysis that the plaintiff exhibited an antalgic gait. I infer from the descriptions in the evidence that Dr Sekel and Dr New were considering similar presentations. I find Dr New’s analysis more considered and persuasive than Dr Sekel’s dismissive commentaries.

221. I have considered Dr Sekel’s evidence that seeks to describe much of the plaintiff’s disabilities, such as right shoulder, neck, back and right wrist problems, as being pre-accident problems that were not caused or influenced by the subject accident. In my view, Dr Sekel’s commentary in that regard is not sufficiently reasoned to permit a finding to that effect. Furthermore, his reasons fail to reflect the fact that whatever pre-accident injury-related problems the plaintiff had, he was coping with his work. In that regard, the defendant must take the plaintiff as he is found, including any underlying vulnerabilities to further injury: Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383, at [18]. The defendant has not provided satisfactory evidence to rebut the plaintiff’s case on this point. The plaintiff has satisfied the requirements of s 5D of the CL Act as to those matters: Watts v Rake [1960] HCA 58; (1960) 108 CLR 158, at [8]; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164, at [4]; Glen v Sullivan [2015] NSWCA 191, at [43] – [47]

222. In coming to my conclusions on the plaintiff’s work incapacity I have not overlooked the opinions of Dr Zeman. I have already identified at sub-paragraph (73) of paragraph [66] above, an inconsistency in the 14 May 2013 report of Dr Zeman which casts doubt upon his opinion that the plaintiff’s soft tissue knee, low back and neck problems were accident-related. I do not accept Dr Zeman’s views on the absence of a relationship of the plaintiff’s gastro-intestinal and right wrist problems to the accident. I consider the preponderance of the medical evidence indicates the contrary view as already explained. Dr Zeman was of the view that the psychological factors of depression or PTSD were likely factors in the plaintiff’s complaints of impaired function. I accept that latter view in relation to the plaintiff’s work incapacity.

223. I find that the plaintiff’s work incapacity consequent upon his residual accident-related physical problems also has a flow-on effect which interferes with his ability to carry out his pre-accident domestic tasks. My consideration of that topic will be taken up in my assessment of the plaintiff’s claim for damages for domestic assistance.

(9) Evaluation of 1 December 2014 transcript pages 31 to 69

225. The defendant tendered pages 31 to 69 of the transcript of the plaintiff’s evidence in chief given at a previous hearing of this case on 1 December 2014: Exhibit “3”. The transcript references in the ensuing 6 paragraphs are references to that 1 December 2014 partial transcript.

226. The early part of that transcript dealt with the circumstances of the accident, in which the plaintiff described his right hand coming into contact with the bonnet of the vehicle: T33.1 – T33.5; a big impact with his right hip: T33.7 – T33.11; his back and his body coming into contact with the bonnet of the vehicle: T33.13 – T33.18; hitting the road with his right shoulder after a hard hit by the vehicle: T33.44; being hit by the vehicle again in those events: T34.9; and then rolling on the road with his hands in front of his face but with his face on the road: T34.30 – T34.50.

227. In those events, the plaintiff said he was aware of his ears buzzing, sharp pains in the back, the shoulder and head: T35.19 – T35.23. His left thumb was torn and bleeding: T36.2 – T36.6. He had no strength to speak to those who came to assist him: T36.43.

228. I infer from the above descriptions, which were not challenged or contradicted by the defendant, that in addition to the other identified parts of his body, the plaintiff experienced some kind of force applied to his head in those described events, either directly or indirectly. That said, the evidence does not reasonably support the contention that the plaintiff had sustained either a concussive head injury with a loss of consciousness, or a contusional brain injury.

229. In that earlier transcript of evidence, the plaintiff described the left thumb injury and its related treatment: T43 – T44. He also described his right wrist as hurting: T43.50 – T44.10. His right wrist injury later caused him to have difficulty with lifting weights of more than 2.5kgs and taking the tops off bottles: T46.34 – T46.46. He described the pain in his right wrist as stopping him writing: T47.1 – T47.36.

230. The plaintiff also described how his lower back problems had levelled off by about early 2012, but sometimes it gets worse, and he had to take care how he moved: T47.42 – T48.2. He described nerve pain from the back to the right buttock, leg and foot if he walks too long, that is, for about 20 minutes: T48.30 – T49.5. He takes Endone for neck, shoulder and back pain: T49.12. His knee pains appear to have stabilised by early 2012: T49.2.

231. That transcript went on to describe the different ways in which the plaintiff experienced physical and emotional sequelae from the accident, and his inability to carry out his former level of domestic activities: T54 – T64.

(10) Disabilities that remain

232. On reviewing the evidence of the plaintiff, and following my assessment of the credibility and the reliability of his testimony, aided by the medical opinions that I have accepted, I find that the plaintiff continues to suffer from a series of accident-related physical disabilities, as summarised below:

1. Restricted use of his left thumb, with associated scarring and lessened dexterity following a repaired laceration, including to a tendon;

2. Pain, discomfort and restricted movement of the right wrist, which was superimposed on an earlier, but symptomatically resolved, wrist injury, but now adversely affecting the plaintiff’s manual dexterity in his dominant hand;

3. Pain and discomfort in the right elbow;

4. Pain, discomfort and restriction of movement in the right shoulder, with reduced function in the right upper limb;

5. Discomfort in the left shoulder due to compensatory overuse of the left upper limb consequent upon disability of the right shoulder;

6. Pain and discomfort in the cervical spine superimposed upon pre-existing degenerative changes;

7. Pain and discomfort in the lumbar spine superimposed upon pre-existing degenerative changes;

8. Bilateral knee pain, which has stabilised;

9. Antalgic gait, and the occasional need to use a walking stick for support;

10. Reliance on analgesic medications, which cause gastro-intestinal symptoms, including gastritis, superimposed upon previous gastritis, but now requiring closer monitoring and medical management;

11. Depression, and resultant altered interpersonal relations;

12. Impairment of earning capacity;

13. Reduced capacity to perform common-place pre-injury domestic tasks;

14. The requirement to pursue medical, pharmaceutical, and possible surgical treatments, as recommended.

233. The plaintiff’s epileptic seizures have receded but vigilance is required in case of recurrence. I am not satisfied the plaintiff’s diabetes condition has materially altered since the subject accident.

234. It is not necessary for me to describe those matters in further detail except as to work and domestic tasks, and future treatment needs, as there is no claim available to the plaintiff for damages for non-economic loss for pain, suffering and the loss of amenity of his life.

235. The practical effect of the plaintiff’s disabilities is that his day to day activities have been adversely affected, including his ability to work and his ability to carry out day to day domestic tasks.

(11) Work effects

236. The plaintiff said, and I accept, that he could not have worked since the accident: T61.7 – T61.17. This is mostly because of the condition of his right shoulder, his right wrist, his lower back, and his left thumb, which are all accident-related disabilities.

237. Dr Slezak and Professor Chan offered no opinion on the plaintiff’s employability: Exhibit “7”. Dr Puhl and Dr Walker agreed that following a diagnosis of epilepsy, this would stop the plaintiff from driving and operating heavy machinery, although Dr Puhl thought the plaintiff would otherwise be able to be employed in full time alternative duties: Exhibit “8”.

238. On 15 July 2012, Dr Gibson considered the plaintiff would have difficulty with work tasks requiring fine manipulation using his left thumb and with tasks requiring heavy lifting or carrying objects at or above shoulder heights. She was not able to identify any appropriate alternative light duty avenues of employment: Exhibit “3”, p 139.

239. On 5 December 2012, the unchallenged opinion of Dr Wallace was that the plaintiff remained unfit for his pre-injury duties as a toolmaker and was at that time not fit for gainful employment: Exhibit “B”, p 355.

240. I do not accept the views of Dr Sekel and Dr Zeman as to the plaintiff’s work capacity, for the reasons already identified.

241. Dr Drummond believed that the plaintiff was fit for employment in his pre-injury job with restrictions for not working with his hand above shoulder height, no repetitive flexion of the spine, and not for lifting more than 10kgs: Exhibit “2”, p 2. I do not accept that view for the reasons identified in my earlier analysis of Dr Drummond’s opinions. Dr Harrison shared the view that the plaintiff could do bench work but his employability was constrained by the factors of age, lack of condition, and the psychological aspects of injury: Exhibit “6”, p 3. Dr Harrison also considered that the plaintiff’s incapacity included a diminished confidence in his mobility: Exhibit “6”, p 4. That evidence, raised the procedural question of whether, realistically, the plaintiff had any earning capacity.

242. Dr New reiterated his view that the plaintiff is not fit for work as a toolmaker and that his age was a barrier to retraining, therefore rendering him unfit for employment: Exhibit “6”, pp 3-4. In light of my findings as to the plaintiff’s ongoing disabilities, I consider Dr New’s cited opinion to be the most insightful and practical assessment of the plaintiff’s work incapacity.

243. I also consider that the plaintiff’s identified psychological and psychiatric problems of depression and loss of confidence serve to exacerbate the impact of his physical problems. This represents a further barrier to the plaintiff exercising an earning capacity since the subject accident.

244. In that regard, I accept as reasonable the opinions of Dr Westmore to the effect that since the accident the plaintiff has been unable to work: Exhibit “B”, p 408.

245. On 24 January 2017, the unchallenged opinion of Dr Deveridge was that the plaintiff’s injuries have rendered him permanently unfit for his pre-accident employment and he did not expect the plaintiff would be returning to gainful employment for which he was qualified or experienced. He placed many practical restrictions on alternative duties: Exhibit “B”, p 385.

246. Having reviewed the array of medical evidence tendered in the proceedings, I find that the preponderance of that evidence, and on the basis of the plaintiff’s evidence which I accept on this point, the plaintiff has remained unfit for work since the subject accident. Any suggestion of him being fit for light work or alternative duties is, in my view, theoretical.

247. The dispute over the extent of the plaintiff’s claim for economic loss will be analysed and determined in my assessment of the plaintiff’s most likely circumstances but for the subject accident, and with regard to his claim for damages for economic loss.

(12) Domestic effects

248. The plaintiff has undoubtedly been left with a much reduced level of activity as a consequence of his accident-related disabilities. This has affected his ability to carry out commonplace domestic tasks which he performed without difficulty before the subject accident.

249. That change in the plaintiff’s circumstances was recognised by his employer’s workers’ compensation insurer by it funding the provision of paid domestic assistance for 6 hours per week. That expense will be incorporated into the assessment of the claim for past out-of-pocket expenses. The plaintiff’s claim for the cost of additional domestic services will be assessed concerning the claim for damages for future domestic assistance.

(13) Mitigation

250. In this case, the plaintiff was under an obligation to mitigate the deleterious effects that his injuries had upon him. That obligation arose pursuant to s 136 of the MAC Act, as well as pursuant to s 151L of the Workers’ Compensation Act 1987. I am satisfied from both the evidence of the plaintiff, from the workers’ compensation records and from the medical evidence, that the plaintiff has discharged his duty to mitigate under both of those regimes. There was no submission made by the defendant to the contrary.

(14) Plaintiff’s most likely circumstances but for accident

251. It is necessary that I identify my findings as to the plaintiff’s most likely circumstances but for the subject accident before making findings on future economic loss: s126 of The MAC Act. Those findings also have a bearing on the assessment of the plaintiff’s claim for past economic loss in light of the number of years that have passed since the accident.

252. It is clear from the chronology of the plaintiff’s pre-accident health and injury history, as extracted from the evidence and summarised at paragraph [42] above, that the plaintiff’s work history had made him vulnerable to incurring injuries from time to time in the course of his work. His pre-injury work was of a heavy nature. In particular, his previous left thumb, right wrist, right shoulder and low back injuries were vulnerable to further disabling effects, if re-injured.

253. Those matters, the plaintiff’s pre-existing type 2 diabetes, and his cardiovascular issues, when taken together, in my view represented an ever-present prospect that he may not have been able to continue to carry out the heavy work of a toolmaker indefinitely. Those pre-accident vulnerabilities to the effects of further injury, whilst quiescently in the background, meant that a tortfeasor such as the defendant had to take the plaintiff as he was found, including with those underlying vulnerabilities: Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383, at [18].

254. Whilst I accept that the plaintiff had a sound incentive for continuing to work beyond the usual retirement age because of his experience of an earlier financial setback, and the inability of his wife to work due to her own health problems, I very much doubt that the plaintiff, at age 63, would have been continuing to carry out the heavy work of a toolmaker well into his seventies, as he envisaged would have been the case, and as was submitted on his behalf: T21.9; T23.33.

255. Taking into account the plaintiff’s pre-accident health, his previous injury and disability history, his heavy non-sedentary work, I consider it more probable than not, that uninjured, the plaintiff would have ceased his pre-accident work at the age of 70 years: Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638.

256. I find that until that time, the plaintiff would have continued to work in his pre-injury employment. There was no evidence to suggest that his pre-accident work, or similar work, would not have been open or available to him.

Assessment of damages

257. In the paragraphs that follow, I set out my assessment of the heads of damage claimed by the plaintiff.

Actuarial factors

258. Following a meeting of the expert physicians, the parties are agreed that, for the purpose of assessing damages in these proceedings, the plaintiff’s most probable life span is a further 10 years plus or minus one year: Exhibit “7”. The 5 per cent projection multiplier for 10 years is 412.9.

Past economic loss

259. The plaintiff makes a claim for past loss of earnings over the period of 346 weeks from the date of the accident to the date of the hearing at the average rate of $1235.80 per week net: MFI “14”, par 144. I consider that figure to represent a reasonable overall undiscounted average rate for the period of the claim. Applying this rate to that period of claim, the plaintiff’s submission as to his past loss of earning amounts to $427,586.80.

260. In contrast, the defendant has conceded an amount for past loss of earnings at the initial rate of $960.54 per week net, over a limited period of 52 weeks, namely $58,555.64. In my view, the defendant’s submission must be rejected as being somewhat arbitrary, and being without reasonable foundation in the evidence.

261. The defendant submitted that the plaintiff’s loss of income should only be calculated up to the age of 65 years, by which time, it was submitted, the plaintiff would most probably have retired from work. For the reasons already identified as the plaintiff’s most likely circumstances but for his injury, I do not accept that submission. Although not determinative, the workers’ compensation insurer continued to pay the plaintiff weekly compensation until he was aged 66 years: Exhibit “3”, at T50.9. Perhaps the defendant’s submission was based on a variant of that evidence.

262. In light of my findings as to the plaintiff’s most likely circumstances but for his accident, I find that the plaintiff would have continued to work in his trade beyond the age of 65 years. There is no evidence that his employer would not have continued to employ him if he had not been injured. He was obviously skilled in a trade that was in demand. I consider that health permitting, the plaintiff would most probably have continued to work to the age of 70 years if he had not been injured. He had a strong financial incentive for doing so.

263. In making that finding, having regard to potential adverse vicissitudes, and in favour of the defendant, I consider that a discount could be applied to the plaintiff’s claim on account of the plaintiff’s pre-accident health history as outlined at paragraphs [41] to [43] above, together with the fact that the pre-accident work in which he was engaged was heavy, and he was vulnerable to injury in that work, or that he may have found that he had a reduced capacity to continue with such heavy work on account of his age, and due to the effect of his prior injuries which rendered him vulnerable to aggravation of underlying conditions of his right shoulder, back and right wrist: Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638.

264. In applying that discount broadly, I assess it at 30 per cent. I therefore assess the plaintiff’s claim for past loss of earnings in the net discounted amount of $299,310.

Past loss of superannuation

265. The plaintiff’s damages for past loss of employer funded superannuation benefits are assessed at 9 per cent of $299,310, namely $26,937.

Fox v Wood

266. The plaintiff claimed an amount of $15,377 estimated by rule of thumb to represent the tax paid on his weekly workers’ compensation payments of $76,886.14, this being 20 per cent of those payments: Fox v Wood [1981] HCA 41; (1981) 148 CLR 438. The defendant initially made no concession concerning this component of the plaintiff’s claim: MFI “13”, par 248. The defendant later conceded an amount of $3000 for this head of damage: MFI “15”.

267. Exhibit “16” sets out the total payments made by the workers’ compensation insurer to or on the plaintiff’s behalf. Those payments total $206,679.43, as listed in the 50 pages of that exhibit. As best as I can interpret that document from the way it has been set out, it appears that the amount of tax paid on the plaintiff’s weekly workers’ compensation payments as set out between pages 28 to 39 of that document, are in the total sum of $1317.20. However, that amount seems on its face to be inherently inaccurate.

268. The plaintiff’s employment was terminated on 4 July 2012. His workers’ compensation payments also ceased to be made to him on that date. The historical record of weekly payments of workers’ compensation to the plaintiff from the time of the accident until the termination of his employment appears in a more reliably detailed form between pages 463 and 471 of Exhibit “B”. The tax paid by the plaintiff on such workers’ compensation payments is identified in that exhibit. The total amount of tax is calculated at $10,842.

269. I therefore assess the plaintiff’s Fox v Wood damages in the amount of $10,842.

Future loss of earning capacity

270. The plaintiff submitted that his future loss of earning capacity should be assessed at the current increased CPI rate of $1344.50 per week from the time of the hearing, for 5 more years, until the age of 75 years as a minimum: MFI “14”, par 151. That projection on the 5 per cent tables (x 231.5) discounted by 15 per cent, yields the claimed amount of $293,666.02. In contrast, the defendant submitted that there should be no allowance for future economic loss, consistent with the defendant’s submission that the plaintiff would have retired by the age of 65 years.

271. Consistent with my finding that the plaintiff would not have worked beyond the age of 70 years, I decline to assess any damages for future loss of earning capacity.

Future loss of superannuation

272. Consistent with my findings and reasons for not assessing damages for future economic loss as identified in the immediately preceding paragraph, I decline to assess any damages for future loss of employer funded superannuation benefits.

Past domestic assistance

273. The plaintiff’s submissions made a claim for the value of past gratuitous domestic assistance provided to him by his wife and his two adult daughters “at a minimum of 8 hours per week”, at the rate of $24.50 per hour from the date of the accident to the date of the hearing, at $203.20 for a period of 349 weeks, calculated at $70,916.80: MFI “14”.

274. The defendant submitted that claim was grossly excessive for the assistance alleged, especially since it was in addition to the 6 hours per week of paid assistance that was funded by the workers’ compensation insurer, as well as for gardening and yard maintenance assistance: MFI “15”, par 259.

275. The state of and the detail of the evidence given by the plaintiff and the plaintiff’s daughter on what services were actually provided to him on account of an injury caused need was imprecise. In my view, that evidence did not provide a reliable basis upon which to ascertain the number of hours per week required by the plaintiff as an accident-related need for domestic assistance, as distinct from companionship, including assistance with outings for shopping, and in relation to social visits.

276. In this case, I consider that the array of reports from medical practitioners who have assessed the plaintiff and considered the extent of any need he may have for domestic assistance is not sufficiently qualified on that subject to render the opinions reliable concerning the estimated number of hours per week required for such assistance: Sampco Pty Ltd v Wurth [2015] NSWCA 117; Boral Bricks Pty Ltd v Cosmidis; Boral Bricks Pty Ltd v DM & BP Wiskich Pty Ltd [2013] NSWCA 443.

277. It is therefore necessary to look to the expert reports of the occupational therapists for guidance on this head of damage as, prima facie, those experts are suitably qualified by their training and experience to make reliable estimates of the need for such assistance.

278. The evidence of Ms Grinter, the plaintiff’s occupational therapist who provided a report on such matters, estimated the plaintiff’s needs for vacuuming, mopping, bathroom cleaning, dusting, changing bed linen, window cleaning, garden maintenance, lawn mowing, car washing and transport to medical appointments, to be an aggregate of 5.5 hours per week. If one were to add some time for weekly shopping to that set of tasks for which assistance was required, the revised aggregate would appear to exceed 6 hours per week.

279. That said, I consider that the tasks described by Ms Grinter, and the time estimates for those tasks, are not all of a character that could reasonably give rise to recurring precise estimates of the kind put forward by Ms Grinter, even if a benevolent view of average times was to be adopted. Her evidence is not prescriptive. It is only a guide to assessment, and for reliability, it should be limited to specific inabilities in the plaintiff in this case. Those criteria remain unsatisfied on the evidence.

280. It should be observed that the calculation of damages for past domestic assistance as put forward on behalf of the plaintiff is in any event inaccurate. In that regard, for example, the claim could not reasonably relate to the periods when the plaintiff was away from home for several months when he travelled to India.

281. The defendant’s occupational therapist Ms Caukill, initially proffered an estimated need for domestic assistance at 1.75 hours per week, which she subsequently withdrew after seeing the DVD footage referred to at paragraphs [67] to [91] above. Her estimate does not assist the plaintiff.

282. On the above survey of the evidence concerning this head of damage, I am not persuaded that the plaintiff has discharged the evidentiary onus of demonstrating that the statutory threshold for the provision of domestic services of 6 hours per week for a minimum of 6 months has been satisfied in this case: s 141B of the MAC Act.

283. Accordingly, I decline to assess any damages for past gratuitously provided domestic assistance.

Future domestic assistance

284. The plaintiff makes a claim for future domestic assistance, on a commercially paid basis, at the rate of $38.50 per hour for 6 hours per week, being $232.80 per week for 10 years (x 412.9) without any further discount, in the total amount of $96,123.12” MFI “14”. In contrast, the defendant submits no such allowance should be made: MFI “13”, par 280.

285. Although I have found that in this case, the opinions of the medical experts are not reliably prescriptive of the amount of hours of domestic assistance required by the plaintiff, those reports are relevant to the question of the identification of whether or not there is an identifiable accident-related need for such services.

286. Of the array of medical opinions that reviewed and expressed opinions on the need for future domestic assistance, I consider Dr New’s discussion as set out in the joint report dated 4 October 2017, comprising Exhibit “6”, is in my view the most analytical and the most insightful. I find his views as to the need for the plaintiff to have domestic assistance the most reliable and informative.

287. As to the quantification of the hours required for such services, I infer from the fact that the workers’ compensation insurer was persuaded to pay for 6 hours per week for such services in the past, that those hours may be taken to represent a reasonable guide to the quantification of the plaintiff’s need for such services, but with some necessary qualifications.

288. However, on the state of the evidence, it is not possible to approach this head of damage with such mathematical precision. Given the indoor and outdoor activities comprising the domestic tasks formerly undertaken by the plaintiff, but which he is no longer able to perform comfortably and on a sustained basis, I consider that a conservative approach to that task is warranted. My assessment is that 4 hours per week represents a reasonable lifetime average approach.

289. In quantifying that approach for the assessment of future paid care, 4 hours per week, at $38.50 per hour is the equivalent of $154 per week. The projection of that weekly sum over 10 years on the 5 per cent tables (x 412.9) yields $64,664.

290. That calculation is not the end of the analysis because the plaintiff’s pre-existing health problems, and his advancing age, indicates that a discount on account of potential adverse vicissitudes should be applied to the calculation of commercially provided domestic assistance over the plaintiff’s estimated statistical life span of 10 years. In light of those factors, I consider that a reasonable discount on that account would be 25 per cent of the calculation identified in paragraph [289] above.

291. I therefore assess the plaintiff’s damage for future commercially paid domestic assistance in the discounted sum of $48,498.

Future treatment expenses

292. The plaintiff makes a claim for future treatment expenses in the total sum of $239,188.75 comprising one-off costs of $67,955, recurring medical treatment costs of $138,201.76, and recurring medication costs of $33,032. The recurring costs are claimed for a projection over a further 10 years: MFI “8”; MFI “14”, paragraphs 161 to 186. In contrast, the defendant submitted that there should be no allowance made for future treatment expenses: MFI “13”, paragraphs 179 to 233.

293. The plaintiff’s claim for future treatment expenses comprised the following one-off cost elements which total $67,955 as follows:

1. Right wrist arthroscopy and TFC tendon repair: $10,700;

2. Decompression laminectomy, discectomy and lumbar neurolysis: $36,155;

3. Perineural neck and back injections: $4000;

4. Colonoscopy and gastroscopy: $5000;

5. Pain management: $7000;

6. Psychiatric and psychological treatment: $4800.

294. In addition to those one-off cost estimates totalling $67,955, a claim was also made for ongoing treatment needs for consultation with a general practitioner for 10 visits a year, specialist consultations, physiotherapy, hydrotherapy, remedial massage, and related transport costs. Those recurring costs were submitted to be in the annual sum of $17,405, which is the equivalent of $334.71 per week. The submissions made on behalf of the plaintiff then sought to project that analysed weekly sum over 10 years on the 5 per cent discount tables (x 412.9) to yield the undiscounted amount of $138,201.76.

295. The combined total of the claimed one-off costs of $67.955 and the projected 10 years claim of recurring costs of $138,201.76 combine to a total claim of $206,156.76.

296. In my view, on the evidence adduced, that pseudo-mathematical approach is not the appropriate method by which to quantify this component of the plaintiff’s claim. I am of that view because, at the plaintiff’s age of 70 years, I consider it unlikely that he will be submitting himself to future treatment to such an elaborate and extensive degree.

297. Insofar as the surgical treatment is concerned, it is significant that he has not had or sought to have the full extent of that treatment to date. The suggested surgery carries risks as well as having potential benefits. It is by no means clear the plaintiff will submit himself to the risks of wrist and back surgery. Accordingly, the capital costs of those treatment modalities should be significantly discounted for the prospect that not all of the suggested treatment is likely to be undertaken by the plaintiff.

298. Similarly, the claimed recurring treatment costs, whilst reasonable as to the suggested modalities as recommended by the expert evidence, need to be discounted to reflect likely variations in the frequency and intensity that would be undertaken over time, and that consideration would necessarily influence the extent to which the plaintiff is likely to incur future treatment costs.

299. In those circumstances, I consider that the pseudo-mathematical approach as was contended on behalf of the plaintiff is not justified, and instead, a lump sum buffer amount is the most appropriate method of assessment, albeit imprecise.

300. The fact that a precise mathematical assessment of this head of damage may be difficult to achieve does not mean that an attempt at assessment should not be made in the form of a buffer amount: Penrith City Council v Parks [2004] NSWCA 201, at [5]; State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536, at [72]; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13, at [7], [25] – [27].

301. Doing the best I can on that approach, I assess the appropriate buffer amount to meet the plaintiff’s future treatment needs in the discounted lump sum of $45,000.

Past out-of-pocket expenses

302. The plaintiff claimed past out-of-pocket expenses for medical and hospital treatment totalling $59,681.50 of which he had paid $2755.70. The balance, $56,925.80 was paid by his employer’s workers’ compensation insurer: MFI “9”. The defendant submitted that the award of out-of-pocket expenses be limited to the sum of $8544: MFI “8”.

303. On the last day of the hearing, the list of payments made by the workers’ compensation insurer was tendered: Exhibit “16”; T355.20. The defendant made a separate submission on the plaintiff’s claim for out-of-pocket expenses: MFI “12”.

304. The effect of MFI “12” is that the defendant concedes that the amounts referred to in the schedule produced by the workers’ compensation insurer, namely $54,796, were paid, but disputes that all of those items should be allowed because, it was argued, that they relate to matters not caused by the accident, specifically the claim of post-traumatic epilepsy, travelling expenses and taxis fares, and amounts paid to the plaintiff’s treating neurologist, Dr Bleasel, consistent with its contention that investigation and treatment for epilepsy was not an accident-related item of expense. The defendant made similar submissions relating to expenses paid to Dr Yiannikas, Professor Dwyer, Dr Gomes, Dr Khoo, Dr McKay and Dr Puhl.

305. The parties provided little assistance to the task of determining those matters. I therefore have to do the best I can with the information that is available.

306. The starting point in the analysis is to infer, as I do, that it was unlikely that the workers’ compensation insurer would make payments for medical investigation and treatment that was unrelated to the subject accident. That said, it is still necessary to scrutinise the schedule for matters that might be inherently improbable as accident-related expenses, absent other explanations being made available.

307. Exhibit “16” at p 50, makes it clear that the unrecoverable items of expenditure that the workers’ compensation insurer expended for medico-legal investigations and the like, have been deducted from the amount claimed.

308. As to the balance, I consider all the items are recoverable for the reasons stated at paragraphs [211] to [217] above. It is plain that the plaintiff’s gastritis, which emerged following the accident to the extent that it required treatment, due to his medication intake, needed to be the subject of medical investigations. I therefore decline to accept the defendant’s submissions in that regard. The remainder of the defendant’s submissions on the amounts to be deducted from the claim for out-of-pocket expenses, as listed at paragraph 24 of MFI “12”, seem to me to be arbitrary, and I do not accept those submissions.

309. On the basis of the extent and the detail of the payments made by the workers’ compensation insurer in respect of the plaintiff’s treatment costs, I find that the plaintiff’s claim for past out-of-pocket expenses should be assessed as being in that amount, namely $54,796, plus an amount of $2129.70 which was paid by Medicare. The total amount is assessed at $56,925.70.

310. I therefore assess the plaintiff’s out-of-pocket expenses in the amount of $56,925.70.

Summary of damages assessment

311. My assessment of the plaintiff’s damages is summarised as follows:

(a) Past economic loss	$299,310
(b) Past loss of superannuation	$26,937
(c) Fox v Wood	$10,842
(d) Future loss of earning capacity	Nil
(e) Future loss of superannuation	Nil
(f) Past domestic assistance	Nil
(g) Future domestic assistance	$48,498
(h) Future treatment expenses	$45,000
(i) Past out-of-pocket expenses	$56,925.70
Total	$487,512.70

Disposition

312. The plaintiff’s damages have been assessed in the amount of $487,512.70. Applying the already determined apportionment of 40 per cent against the plaintiff for his own contributory negligence, he is entitled to a judgment in his favour in the commensurately apportioned sum of $292,507.62.

Costs

313. The plaintiff is entitled to have his costs paid by the defendant on the ordinary basis unless a party is able to demonstrate an entitlement to some other costs order.

Orders

314. I make the following orders:

1. The plaintiff’s damages are assessed in the amount of $487,512.70;

2. After apportionment by 40 per cent on account of the plaintiff’s own contributory negligence, judgment for the plaintiff against the defendant in the sum of $292,507.62;

3. The defendant is to pay the plaintiff’s costs of the proceedings on the ordinary basis unless a party is able to identify the basis for a different cost order;

4. The exhibits may be returned;

5. Liberty to apply on 7 days notice if further or other orders are required.

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Decision last updated: 03 September 2018