Dojcinoski v Aleksovski - [2015] ACTSC 357

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Dojcinoski v Aleksovski & Anor
Citation:	[2015] ACTSC 357
Hearing Dates:	13, 14, 15 and 16 July 2015
DecisionDate:	18 November 2015
Before:	Mossop AsJ
Decision:	See [181]
Catchwords:	PERSONAL INJURY – Injury sustained as front seat passenger in single motor vehicle accident – liability admitted – assessment of damages – self-employed painter – reliance on contemporaneous records of treating general practitioner and treating psychologist – no issue of principle
Legislation Cited:	Civil Law (Wrongs) Act 2002 (ACT) s 45 Court Procedures Rules 2006 (ACT)
Cases Cited:	Pangallo v Smith [2015] ACTSC 313
Parties:	Ilo Dojcinoski (Plaintiff) Trajce Aleksovski (First Defendant) Insurance Australia Limited trading as NRMA Insurance (Second Defendant)
Representation:	Counsel Mr A Bartley SC and Mr F Tuscano (Plaintiff) Mr J Pappas (First and Second Defendants)
Solicitors Ken Cush & Associates (Plaintiff) Moray & Agnew (First and Second Defendants)
File Number:	SC 43 of 2013

Introduction

The plaintiff was involved in a motor vehicle accident that occurred on Kuringa Drive in Fraser in the Australian Capital Territory on 13 February 2010 when the car driven by the first defendant ran off the road and hit a tree. Liability was admitted and the hearing involved an assessment of damages.

The plaintiff prior to the accident

The plaintiff was born in 1979 and was 35 years old at the time of the hearing. He was born in Canberra. Both parents had migrated from Macedonia. He lived with his family in Kaleen. He went to primary and secondary schools up to year 10 in Kaleen. He attended Dickson College but left halfway through year 12.

After he left school he was employed as a painter by Canberra Homes. He had obtained that employment through a friend of his brother. He was trained on-the-job. The work that he did involved the painting of new homes. He stayed in that employment for around 12 months. He next worked for Kenro Services doing painting. That involved repainting houses and painting of extensions to houses. He also worked for other contract painters at that time.

In 1998 he was involved in a car accident in Braddon or Ainslie.

In order to save money he also worked as a cleaner at night for an entity referred to as Rose Cleaning. He worked there for three to six months. While working for Rose Cleaning he suffered an injury to his right knee and back. He received workers’ compensation for the period that he was off work. He also worked as a security officer for Group 4 for a period of two to three years doing security screening at the Canberra Airport. In 1999 he had another car accident in Braddon where a police car side swiped the vehicle that he was driving.

In June 1999 his right knee was injured in a shop when a picture frame fell off the rack and onto his knee. He was off work for around six months. He then worked for Wai Wurri Furniture doing light labouring work. He also worked for a Mr Joe Gilmeyer who was also a painting contractor. He was next employed by Varga’s Painting. That involved painting new homes and a few repainting jobs. He returned to work at Wai Wurri Furniture because his brother-in-law worked in the business and there was an opportunity for the plaintiff to be employed there.

In 2004, when he was about 25 years old, he travelled to Macedonia and lived there for around 18 months. He met his wife, Sanja, during this time. They were married in February 2006 and then had a wedding in May 2006.

In July 2006 the plaintiff and his wife returned to Australia and the plaintiff obtained a job at CC Wholesale through a friend. He was employed as a storeman doing heavy packing work. While working there he suffered an injury to his shoulder when a barrel of cooking oil fell from the shelf and he tried to grab it. He had a few months off work. He received workers’ compensation payments and a dispute about his workers’ compensation entitlements led to a settlement as part of which he received $10,000. He next worked for a business known as RAZ Painting Contractors owned by a friend, Chris Ristevski. The work in that business involved painting new homes, apartments and some commercial buildings.

In March 2007 the plaintiff established a business called Superb Painting Services. He was, at that stage, living at his parents’ house in Kaleen. He promoted his business by handing out business cards and advertising through notices and flyers. He had the necessary equipment to undertake painting work including a large trailer with everything inside. He worked five and sometimes six days per week.

In January 2010 he set up a business called Yellow Car Detailing. That was intended to be a business that would permit his wife to earn some income detailing cars which were picked up from and delivered back to a Braddon car yard. However his wife only worked on six cars and then did not pursue that business further.

In February 2010 he commenced work for GPDS No 1 Pty Ltd, an operating company of Glendening Painting & Decorating Services (Aust) Pty Ltd which was a painting company of some size employing, at that stage, around 40 painters. He had been working there for a week when he had the accident the subject of these proceedings.

Accident

The accident occurred on 13 February 2010, a Saturday. The plaintiff had been at a pub at Eaglehawk, just outside Canberra, with two friends, Steve Stojkoski and the first defendant who was referred to by the plaintiff as Tony. The first defendant was driving the vehicle. It was raining. The vehicle was travelling along Kuringa Drive shortly after 8.00 pm when, as a result of braking and swerving to avoid a kangaroo, the vehicle ran off the road and hit a tree. The plaintiff was a front seat passenger and recalled sitting back and relaxing when he heard someone yell immediately prior to the impact. He was thrown around a bit and hit his head on something. He recalled smoke from somewhere in the car and being unable to get out. He was helped out. The fire brigade came first and police and ambulance also attended. He was examined by an ambulance officer at the scene. No injuries were reported by any occupants of the vehicle to any of the ambulance and fire brigade personnel who attended.

History following accident

The plaintiff was driven home by the police who attended the scene of the accident. The next day, Sunday, he said that he had a sore neck, shoulders, chest, head and right knee and he took Panadol or some other painkiller. On the Monday he attended his general practitioner Dr George Guirguis. Dr Guirguis’ notes record that the plaintiff complained that on the Sunday he suffered from “sore and stiff neck and pain to the R side of the lower back”. At the time of the consultation he complained that the “lower back pain is worse and also neck movements are painful”. The doctor examined him and recorded: “diffusely tender over cervical spine and lumbosacral spine (esp on the R) .. restricted mobility of the cervical spine and the lumbosacral spine.” He recommended physiotherapy.

The information provided by the plaintiff in a Motor Accident Medical Report on 3 March 2010 described his injuries as “pain in neck + back, headaches, right knee pain inability to work as a painter”.

The plaintiff got assistance from a physiotherapist that was paid for by the second defendant. The physiotherapist focused on his neck, back and right knee and also gave him exercises to perform at home.

Notwithstanding the accident and the information in the Motor Accident Medical Report referred to above, the plaintiff continued to do some painting work. He did two small painting jobs in March 2010 and painted a new house in April 2010. In May 2010 he did another medium-size job involving painting parts of a house in Bruce.

The plaintiff’s oral evidence about what occurred after that was rather vague and elicited at a high level of generality. The manner in which the oral evidence was led and the structure of the documentary material that was tendered were such as to increase the difficulty of recording any coherent narrative of the plaintiff’s circumstances after the accident.

Although he said that he resumed some work in July 2010 that appears to be inconsistent with the documentary material which indicates that he did work up until May 2010 and then only recommenced in June 2011.

The plaintiff received assistance with his rehabilitation from the Commonwealth Rehabilitation Service and an organisation paid for by that service called Accelr8. He also saw a psychologist, Todd Lattimer, and Dr Guirguis, his general practitioner. He saw a consultant neurologist, Dr Ram Malhotra.

The plaintiff gave evidence that when he attempted to work for a company known as AMK he suffered pain in his neck, shoulders and back and could not keep up with the other painters. He only worked for the company for a few days. He ceased because there were some complaints about his work from the other workers and Tony Gavron who was identified in the evidence as the company owner. The documentary material indicates that he did two days’ work for AMK in July 2011. He also gave evidence that he worked for a week for Monarch Building Solutions. The documentary evidence indicated that he worked for that entity in September 2014 and did not provide a reason for not continuing with that employment. In evidence, the plaintiff said that he had difficulty keeping up and other workers complained to the supervisor on the site. The plaintiff did state to his psychologist, Mr Lattimer, that he had a work trial for a week in about September 2014 during which the boss accused him of “standing around” and not doing any work. Those notes recorded that the plaintiff had “[d]ecided back was causing too many issues and didn’t take job”. His evidence was that since then he has only worked for himself.

He gave oral evidence that:

(a)he has not been required to take Panadeine Forte for a few years;
(b)he has been on antidepressants for two or three years;
(c)he and his wife had marital difficulties and lived separately under one roof for about a year;
(d)his daughter was born on 1 August 2014;
(e)his last paid work was about four months prior to the hearing in July 2015.

He described his current neck and back pain as continuing. Sitting, taking long walks, carrying items or looking up or down for a period all aggravate his pain.

Following the accident there are several sources of contemporaneous records which indicate what the plaintiff was doing. The first source comprises the records of his general practitioner and the certificates which he signed. The second source comprises the invoices that the plaintiff generated for the purposes of his painting business. The third source comprises the records of a psychologist, Mr Lattimer, to whom the plaintiff was referred by Dr Guirguis.

Invoices and medical certificates

Following the accident the plaintiff did continue doing painting work. He was paid for work done for CPI Painters and Instyle Constructions. The last of the invoices was dated 21 May 2010. After that the invoices do not disclose any income from painting until 20 June 2011. That history is consistent with the fact that the plaintiff saw Dr Guirguis on seven occasions between May 2010 and May 2011 during which he had certified the plaintiff unfit for work. Nonetheless the plaintiff’s quotes for painting work that were put into evidence indicated that during September, October and November 2010 he was quoting for substantial painting jobs. Notwithstanding seven quotes totalling approximately $94,000 there is no record in evidence disclosing that he was successful in obtaining any of these jobs or earned any money from any of them.

On 31 May 2011 Dr Guirguis certified the plaintiff fit for a gradual return to work from 1 June 2011. In June 2011 he returned to contract painting work, issuing nine invoices for a total of $18,645 between June and December 2011.

On 29 March 2012 Dr Guirguis certified him fit for a graduated return to work. Between January and September 2012 the plaintiff did six small painting jobs and earned a total of $6,400.

From April 2012 through until March 2013 the plaintiff was, with the exception of one month, certified as fit to work 14 hours per week. In early 2013 the plaintiff’s records show that he was quoting on substantial painting jobs but there is no record that he did any painting work between September 2012 and May 2013.

In April and May 2013 the plaintiff was certified as fit to work 20 hours per week, dropping to 16 hours in July 2013 and then increasing to 20 and then to 30 hours by October 2013.

Notwithstanding this certified fitness for work the plaintiff only earned a total of $11,750 from four painting jobs between May and July 2013 and $21,375 from seven painting jobs between March and September 2014.

So far as the plaintiff’s invoices demonstrate he has not worked since then, I note that this is inconsistent with his oral evidence which indicated that he last worked some four months prior to the trial in July 2015.

The pattern of quotations and earnings is unusually patchy. The fact that he undertook work following the accident in the first half of 2010 is inconsistent with what he told a number of doctors who examined him and to whom he reported that he only returned to work in June 2011. Further, the pattern of substantial quotes from September to November 2010 is inconsistent with him being certified as unfit for work during that period.

It is significant that after September 2014 his consultations with Dr Guirguis are attributed to counselling and obsessive compulsive disorder. The issues with which the doctor is dealing involve his relationship with his wife, obsessive compulsive disorder and weight gain. It is notable that none of the expert evidence in the case addressed the significance of this psychological condition which appears to be the principal condition from which he now suffers.

There was very little evidence about how the plaintiff actually spends his time, having regard to the absence of evidence that he is undertaking work through his business, the absence of evidence from him about how he spends his day and the absence of any other evidence that might disclose how he spends his time.

The financial records that were tendered in relation to the plaintiff did not shed a great deal of light on the extent to which the plaintiff was capable of work. The evidence derived from his banking records was not such as to demonstrate that he was working more than the other documentary evidence disclosed. The plaintiff did however agree that he maintained a substantial amount of cash at home rather than in the bank. His evidence was vague but disclosed an amount between $3,000 and $10,000.

The records of Dr Guirguis and Mr Lattimer

These records are important because, although they are largely dependent upon reports by the plaintiff of his own condition, they provide a detailed record of the plaintiff’s medical complaints and of his actions over most of the period since the accident. The records of Mr Lattimer in particular are useful because they incorporate a summary of the issues that were discussed and hence give a useful insight into the mental state, experience of pain and activities of the plaintiff. The records were made in a context where they are likely to accurately disclose the plaintiff’s activities and perceptions in that they were made in a sympathetic environment and not obviously in a forensic context. Similarly, the records of Dr Guirguis, while less detailed in some respects, provide a reasonably fine grained perspective on the progress of the plaintiff’s condition over time. They are particularly useful in a case such as this where the plaintiff’s oral evidence was vague and plagued by a lack of recollection of detail. It is for these reasons that I have set out my findings based upon these records in what might otherwise seem unnecessary detail.

In 1999 the plaintiff was referred for an x-ray of his right knee which found no bone or joint abnormality. In February 2002 he attended Dr Guirguis complaining of a painful right knee for the previous five days. That recovered within a week. Later in February 2002 he was complaining of lower back pain with radiation into his frontal abdominal area. That continued until March 2002 and he was referred to Dr Hughes, a sports medicine doctor. He did not see Dr Hughes, the recorded reason was that he could not afford the specialist fees. In June 2002 he continued to complain of pain in his lower back and right knee and was referred for an x-ray of his lumbosacral spine as a result of his complaint of “[l]ower back and right knee pain”. The x-ray disclosed no relevant abnormality.

The entry on 15 February 2010 records, in relation to his complaints after the accident:

.. was a bit dizzy and shaken after [the] accident .. woke up the following morning with sore and stiff neck and pain to the R side of the lower back .. pain has persisted until now .. today lower back pain is worse and also neck movements are painful .. on examination —> diffusely tender over cervical spine and lumbosacral spine (esp on the R) .. restricted mobility of the cervical spine and the lumbosacral spine ..

He was referred to physiotherapy and prescribed painkilling drugs.

On 23 February 2010 he continued to complain of “neck and back pain” and also made a complaint of pain in the right knee.

On 29 March 2010 he reported that the pain level was the same. He was prescribed Panadeine Forte.

He next saw Dr Guirguis on 24 June 2010 when he reported “pain [comes] and goes .. mainly in the lower back but also in the neck .. can [interfere] with sleep”. He was prescribed more Panadeine Forte.

In September 2010 he reported “pain is now mainly in the neck but also the lower back .. physiotherapy fortnightly helps .. awaiting to have rehab”. He was prescribed more Panadeine Forte.

In November 2010 Dr Guirguis gave him a prescription for Di-Gesic tablets because of the side-effects of the Panadeine Forte.

In February 2011 he reported “pain is the same”. Dr Guirguis recommended physiotherapy and rehabilitation.

In May 2011 he saw Dr Guirguis in relation to his hypertension. Dr Guirguis recorded that he was “keen to go back to work”.

In July 2011 Dr Guirguis recorded: “no much change .. had his neck manipulated and caused severe pain and headache .. no further [manipulations] ! .. exercises and gentle massage”.

In August 2011 Dr Guirguis recorded: “neck pain ++ … unable to sleep some nights .. describes pain at 6-7/10 .. lower back pain is being helped by exercise and physiotherapy .. the benefit [he] gets from physiotherapy is more for the lower back than for the neck .. works for someone else is not the same as he has to work under orders and is not “as flexible””. He was given a referral to the Canberra Injury Management Centre for pain management.

In September 2011 he consulted Dr Guirguis who recorded: “condition more or less the same .. has treatment with G Eaton and Craig Honeybrook .. helps .. carry on”.

In October 2011 Dr Guirguis recorded: “Panadeine Forte helps a bit .. exercises re-enforced .. pain management .. discussion about feedback from Eaton”.

In January 2012 the doctor recorded:

.. pain is fluctuant in the neck and lower back .. exercises helps the back more than the neck .. ergonomic advice .. try soft pillow and firm mattress .. awaiting response from Canberra Injury Management Centre .. counselled about pain modulation ..

He was prescribed Lyrica for the first time.

In February 2012 the doctor noted that he was still awaiting assessment and treatment at the Canberra Injury Management Centre.

In March 2012 the doctor noted that the plaintiff was able to manage his workload but that his back and right knee pain had worsened since he ceased using Panadeine. Although it is not entirely clear, it appears that the doctor advised him that he could use Panadeine but only sparingly.

In April 2012 the doctor recorded that the plaintiff could do 14 to 15 hours a week of work, that he was still awaiting approval for a multidisciplinary pain management program and that his spinal condition was more or less the same. The doctor discussed pain management with him.

On 11 May 2012 he saw the doctor because of an increase in neck pain. He was suffering from poor sleep and still awaiting approval of the funding of a pain management program. The doctor discussed with him pain management, increased his dosage of Lyrica and also added a prescription for Endep tablets (amitriptyline).

On 18 May 2012 he saw the plaintiff who was complaining of lower back pain, more on the left side, as well as right knee and right ankle pain. He suggested the use of Celebrex and gave another prescription for Panadeine Forte.

On 31 May 2012 the doctor saw the plaintiff again and recorded that the Canberra Injury Management Centre was still waiting for treatment approval from the NRMA. He recorded that the plaintiff slept poorly and had more pain at night. He increased the dosage of Endep.

On 28 June 2012 he saw Dr Guirguis again and it appears at this stage that the pain and inability to access treatment were having broader consequences. The doctor’s notes record:

long session re current situation .. neck, back and knees pain ++ .. v frustrated due to delay in approvals for treatment and this affects relationship with wife and family .. poor sleep .. DASS21 Depression: 6 (Normal); .. DASS21 Anxiety: 16 (Severe); .. DASS21 Stress: 32 (Severe) .. CBT, psychoeducation .. counselled & reassured .. for reassessment of anxiety and change of treatment and mental care plan ..

On 5 July 2012 he saw Dr Guirguis and a mental health care plan was prepared. He was advised to cease taking Endep and start taking Cymbalta, an antidepressant, and he was referred to Mr Lattimer with a mental health care plan.

The plaintiff saw Mr Lattimer for the first time on 10 July 2012. The plaintiff reported relationship issues because of pain and anger and that he was doing “suitable duties” with another painter. A report of such work is not consistent with the documentary material that was available to the Court.

The next week he saw the doctor again and the doctor recorded that he was better on Cymbalta, that he slept better and was more relaxed. The doctor increased the dose.

By letter dated 25 July 2012 Mr Lattimer reported to Dr Guirguis that the plaintiff had reported having experiences of dizziness, disorientation and feeling as if he was falling or being pressed into his seat when he closed his eyes. Mr Lattimer’s notes of that day record that the plaintiff felt like things were crawling on him and he needed to take a shower to make that sensation go away.

He was seen by Dr Guirguis again on 31 July 2012 and reported that he felt that his eyes spun when they were shut. He was referred to Dr Malhotra for a neurological assessment. He was given a further prescription of Cymbalta.

By letter dated 8 August 2012 Mr Lattimer reported to Dr Guirguis that the plaintiff had been hearing voices for approximately six months and that those voices were getting worse to the point where he was hearing them on a daily basis. Mr Lattimer’s notes record the plaintiff as reporting that the voices were threatening and mocking.

On 14 August 2012 the plaintiff reported to Dr Guirguis losing balance and falling once and hitting a wall. Either the plaintiff or the doctor was worried that this could be a side-effect of psychotropic medicine. The doctor recorded that he used too much Panadeine/Panadeine Forte, that his use of these should be ceased and that the plaintiff should also reduce his use of Lyrica.

On 20 August 2012 the plaintiff reported to Mr Lattimer that his pain was very high and that he was unable to drive because of his pain and blurred vision. He once again complained of feeling as though bugs were crawling on his skin and reported that he had planned a trip away but cancelled it because of the pain. He reported that he had stopped taking Panadeine but the pain had increased as a result.

On 3 September 2012 he reported to Mr Lattimer that he had tried riding his bicycle but the pain was very bad afterwards and he was required to remain in bed for the next three days. He reported disturbed sleep.

On 17 September 2012 the plaintiff saw Dr Guirguis and reported that his pain had increased since ceasing use of Panadeine Forte. The doctor advised him that he could use Panadeine Forte sparingly and gave him another prescription. On 21 September 2012 he saw the doctor and reported interscapular pain and severe neck pain. The doctor prescribed Endone 5 mg. On 2 October 2012 Dr Guirguis reviewed the plaintiff’s mental health care plan and his DASS 21 scores indicated severe depression, extremely severe anxiety and moderate stress. He made another referral to Mr Lattimer.

Mr Lattimer saw him on 24 September 2012 and the plaintiff reported that his pain was still quite bad, being 9/10, but with the use of Endone being reduced to 6/10. He reported that he had been working in the garden when he could and walking the dogs. He still had difficulty sleeping. He reported that he wanted to return to work and get on with his life. He reported being unhappy with his solicitor.

On 15 October 2012 the plaintiff saw Mr Lattimer and reported that he has no motivation to do anything and that he stays in bed all day and sleeps. The plaintiff continued to report pain in his shoulder and neck as well as his lower back.

On 19 October 2012 the plaintiff reported to Dr Guirguis that he was suffering pain “on and off” and using Panadeine Forte and Endone “very sparingly”. A similar report was made on 26 October 2012.

On 29 October 2012 the plaintiff reported to Mr Lattimer that his pain was very high, that he had not been doing anything and could not sleep.

On 5 November 2012 the plaintiff reported to Dr Guirguis right sided thoracic spine pain and right shoulder pain. In December 2012 the plaintiff reported that his condition was the same, namely, neck and right shoulder pain. He complained that it affected his sleep and the doctor prescribed some sleeping tablets. The plaintiff appears to have been taking at this stage Cymbalta, Endone and Lyrica.

In November 2012 Mr Lattimer gave the plaintiff some modules to complete in relation to health anxiety but they were not completed. The plaintiff reported on 12 December 2012 that there had been a period where he did not sleep for four days. Mr Lattimer recorded that the plaintiff was ruminating on situations and discussed with him ways to prevent that by keeping active.

On 31 December 2012 the plaintiff saw Mr Lattimer and reported that things had been the same. He again reported that he went up to four days without any sleep and also that he worries about having not done his tax and about money.

Another referral to Mr Lattimer was made by Dr Guirguis on 22 January 2013. Later in January 2013 the plaintiff reported “pain ++ unable to work”. In February 2013 the plaintiff told the doctor: “tried some casual work but every time he goes on the ladder [he] gets back pain .. thinks if he gets a bit of money he can plan his way slowly and gradually back into working life .. counselled & reassured”.

On 19 February 2013 the plaintiff saw Mr Lattimer and reported that things have “turned to shit”. He reported attempting to get work in the security industry but being told that he was not suitable for security work because of his injuries and health. He also reported trying to help a friend with gyprock work, working two hours on one day and seven hours on the following day but then suffering a painful neck and back. He reported difficulties in the relationship with his wife. He agreed with Mr Lattimer that he would try to do some painting to see how the pain was and that if he was able to work without too much pain then he would cold canvass employers for some work.

On 21 February 2013 the doctor’s notes record: “tried some casual work but every time he goes on the ladder [he] gets back pain .. thinks if he gets a bit of money he can plan his way slowly and gradually back into working life .. counselled & reassured”.

On 20 March 2013 the plaintiff saw Mr Lattimer and reported that the ATO was pursuing taxes that were owed and that he was finding that stressful. He reported issues with Centrelink and difficulties in his relationship with his wife. Mr Lattimer discussed the possibility of him doing volunteer work.

On 10 April 2013 the plaintiff saw Mr Lattimer and reported that he had separated from his wife and though they were still living together the marriage was over. He reported having seen Dr Doron Samuell, a consultant psychiatrist engaged by the second defendant, and that he had an argument with him towards the end of the interview. He reported getting headaches which go down his neck and upper back and that he did not know what kept him going.

On 23 April 2013 things appear to have been somewhat better, the doctor’s notes recording: “will to up hours and duties .. certificate issued”.

On 29 April 2013 the plaintiff saw Mr Lattimer and reported that he was arguing with his wife and that their fights had been very bad. He had seen his general practitioner as he would like to work more and was now permitted to work 20 to 24 hours per week and the lifting restriction had been increased to 25 kg. (The medical certificate actually issued on 23 April 2013 was for light duties up to 20 hours per week and a lifting restriction of 15 kg.) He reported that he had been working doing painting but would like to do more. (While the report of having been doing painting is earlier than the date of the earliest invoice for 2013, namely 9 May 2013, the job was a substantial one which the oral evidence given in the case indicates took some time to complete.)

On 22 May 2013 the plaintiff reported to Mr Lattimer fear at the prospect of doing an MRI scan because he was claustrophobic and needed to be anaesthetised in order to have it done. He reported that his relationship with his wife was improving now that he was working more and was out of the house. He reported feeling good about his future now that he was working more because he had some direction. The plaintiff’s invoices do disclose that he was working in May 2013.

On 30 May 2013, the end of a month in which the plaintiff is demonstrated by his invoices to have done a considerable amount of work, the doctor recorded: “condition same .. just copes with 20 hours .. sees Todd [Lattimer] 2-3 weekly and is [helpful]”.

On 4 June 2013 when the plaintiff saw Mr Lattimer he reported that he was doing well and that his mood was improving overall. The cancellation of the MRI scan was a source of frustration to him because of his anxiety about it. He reported an improvement with his relationship with his wife.

On 24 June 2013 the plaintiff reported to Mr Lattimer that he was slightly better but still flat and irritable. He had coped with the MRI scan by taking drugs. He advised that things overall were better.

On 11 July 2013 Dr Guirguis’ notes indicate that he was given counselling in relation to his marriage. Brain and cervical spine scans were discussed and the notes include a record: “reduced work to 2 days a week”.

On 25 July 2013 the plaintiff saw Mr Lattimer and reported a variety of complaints. He said that he had “had a few days off work because of pain” and that his general practitioner had reduced the hours for which he was certified fit for work. He said he was “[g]oing to Sydney tomorrow to do a day’s work”. There is no documentary record in his invoices of any such paid work in Sydney.

On 13 August 2013 the doctor discussed with the plaintiff his work duties and increased the number of hours per week for which he was certified fit for work from 16 to 20. On the same day he saw Mr Lattimer and reported having panic attacks which were discussed with Mr Lattimer.

On 25 September 2013 he reported to Mr Lattimer that he had been doing some work but had had “[a] lot of dramas with clients”. He reported having started with a new employer in June where he was supposed to be doing 20 hours a week. He reported disgruntlement amongst colleagues because he had to take regular breaks and was only working two and a half days a week. There is, however, no evidence in his invoices of any paid work between 18 July 2013 and 5 March 2014.

On 14 October 2013 the doctor’s notes recorded that the plaintiff “feels depressed due to lack of employability .. financial strain .. seeing Todd Lattimer helps”. On 23 October 2013 he was recorded, using the DASS 21 scale, as having severe depression, extremely severe anxiety and extremely severe stress.

On 28 October 2013 he saw Mr Lattimer and reported that he had no regular work. He said that people do not call back when he tells them of his injury and restrictions. He said that he was unable to find any work of any kind whatsoever.

On 12 November 2013 the doctor recorded that he had “eased off restrictions” and his medical certificate certified him as fit for work up to 30 hours per week.

On 18 November 2013 the plaintiff reported to Mr Lattimer that he could not get any work and that he had “called every painter he knows and there is nothing available”. He said he had been told that he could get some work if he had a full painting licence and a TAFE certificate which would cost about $1,400 to get. He reported that his relationship with his wife was up and down. He was encouraged to continue job seeking and to keep his morale up.

On 12 December 2013 he reported to Mr Lattimer that he had been able to find some work, that he was working with a friend and was enjoying it very much. He reported that his back was still playing up, causing pain and interrupting sleep. He reported his opinion that his relationship with his wife was getting better because he was getting out and doing some work. There is no invoice relevant to this period which would be consistent with these reports of working with a friend.

By February 2014 the main problem appears to be psychological. Dr Guirguis’ notes record anxiety, anger, rage, frustration, insomnia and aggressive outbursts. He prescribed further medication which had to be changed because of its effects in March 2014.

On 3 March 2014 the plaintiff reported to Mr Lattimer that he had not been doing as well as previously. He reported being unable to afford a particular anti-depression medication and that the insurance company would not reimburse him for the cost. He reported not working very much because his pain was too high and that prevented him from taking on too much work. There are some invoices from March 2014 which would be consistent with this report. It is clear from the recorded notes that there were a number of matters that were weighing on the plaintiff and that his feelings were summarised in his recorded statement that “everything is bullshit”.

On 8 April 2014 his complaint to his doctor was of lower back pain and Celebrex capsules were prescribed.

On 28 April 2014 he saw Mr Lattimer and complained that his back had been causing him pain. Amongst a variety of difficulties discussed on that occasion the plaintiff reported that he had been looking for work and that he had been doing some work but found it difficult to work with people because of his anger and the fact that he got easily frustrated.

On 4 June 2014 the plaintiff saw Mr Lattimer and again reported that he had been doing some work. He reported experiencing symptoms like a panic attack and hearing voices.

On 19 June 2014 the doctor’s notes record that the plaintiff uses Endone “very occasionally”. A further prescription was issued with the note that it should be taken for severe pain and used sparingly.

On 30 June 2014 the plaintiff reported to Mr Lattimer that he had been looking for work but had had no luck. He reported that he found it difficult because he cannot do many of the tasks required. He reported that his back was causing him pain. He reported that the pain increased the day after having done any work. He reported that although the doctor had prescribed Endone for the pain it did not help very much and instead just made him sleepy.

On 12 August 2014 the plaintiff saw Mr Lattimer again. He reported the birth of his daughter and that he was very happy about this. He reported that he was: “Not getting much work. 1-2 days per week at most. Struggles for days after having worked. Migraines and back pain.” These reports were consistent with the evidence of invoices from August 2014.

On 22 September 2014 he reported to Mr Lattimer that his back was still hurting and reported on a one week work trial with “Monarch” that did not go well. He reported that he could work on the Monday and Tuesday but was getting bad headaches and could not go to work on the Wednesday. On the Thursday the boss accused him of standing around and not doing any work. The plaintiff decided that his back was causing too many issues and did not take the job. He was disappointed about this because he was looking forward to having regular work. He reported that while he was loving being a dad he was having problems holding the baby because of his back pain. The notes record: “Extremely disappointed job didn’t work out. Desperately wants to work.” He told Mr Lattimer that he was considering retraining so that he could work in an office environment.

On 26 September 2014 he saw the doctor again in relation to back pain, the doctor’s notes recording: “back pain .. tried to work for a company as a painter but was unable to due to severe back/neck pain pain management discussed .. self administered exercises”. This report is consistent with the evidence relating to an attempt to work for Monarch Building Solutions in September 2014.

Between October 2014 and December 2014 the plaintiff saw Dr Guirguis nine times. The consultations related to mental health issues including obsessive compulsive disorder, anger, low motivation and his relationship with his wife.

On 3 December 2014 the plaintiff saw Mr Lattimer and reported that he was feeling “pretty shit” and reported problems with anger and some obsessive behaviour.

On 23 December 2014 the plaintiff saw Mr Lattimer and described feeling very unwell. He reported “doing a small bit of work for a friend” but that “[p]ain increases after having worked”.

On 29 December 2014 the doctor recorded that the plaintiff uses Endone sporadically for severe low back pain. He provided another prescription. Between January 2015 and the end of the notes in May 2015 the reason recorded for the visits to the doctor in all but one instance was obsessive compulsive disorder.

On 13 January 2015 the plaintiff reported to Mr Lattimer feeling disgusted with himself because everybody else had gone back to work except for him. He reported that pain made driving long distances difficult and that going to Sydney was difficult on his back. He reported some thoughts of self harm and worrying about his court case.

On 17 March 2015 he saw Mr Lattimer and reported that “everything’s gone to shit” and that he had moved back in with his parents due to financial issues. He said that he was not working at all because his back was too painful, that his sleep was disturbed and that he was staying at home.

On 22 April 2015 the plaintiff saw Mr Lattimer and reported that he was finding it difficult living with his family, discussed a road rage incident in which he was involved and reported poor sleep and symptoms of obsessive compulsive disorder. On the same day Mr Lattimer reported to Dr Guirguis that the plaintiff was reporting ongoing feelings of depression and a distressing increase in the symptoms of his obsessive compulsive disorder.

On 5 May 2015 the plaintiff saw Mr Lattimer for the last time recorded in the notes that were in evidence. He reported that he had been okay but was having a bad day. He reported instances of obsessive compulsive behaviour. He reported that he was not working at all and that he had put out flyers but no work was coming in.

General assessment of the plaintiff

As pointed out above the plaintiff was not a particularly impressive witness. On the other hand he did have a degree of frankness about his evidence and was prepared to give answers which did not assist his case. While counsel for the defendants described the plaintiff’s financial records as being like a Swiss cheese and while there are clearly discrepancies and inconsistencies in that material, when considered in the context of the records of the plaintiff’s doctor and psychologist, they present a reasonably acceptable picture of a fluctuating capacity to obtain work due to the plaintiff’s ongoing complaints of pain, his inability to work as fast as he could prior to the accident, market fluctuations in the demand for painters and his mental state.

Medical evidence

The expert medical evidence tendered by the plaintiff included:

(a)two medical reports from Dr Gerard Barold, a member of the American College of Occupational and Environmental Medicine and “associate” at the Occupational Health Assessment Centre, dated 6 February 2012 and 14 January 2015;
(b)two reports of the plaintiff’s general practitioner, Dr Guirguis, dated 12 October 2012 and 12 December 2014;
(c)a report of Mr Lattimer, the plaintiff’s psychologist, dated 16 December 2014.

The medical evidence tendered by the defendants was:

(a)two reports of Dr Anthony Smith, an orthopaedic surgeon, dated 16 October 2012 and 25 October 2012;
(b)a report of Dr Samuell, a clinical and forensic psychiatrist, dated 1 July 2013;
(c)a report of Dr Matthew Paul, a consultant occupational physician, dated 20 May 2014.

Apart from Mr Lattimer and Dr Guirguis, none of the experts gave oral evidence or was cross-examined. This resulted from an agreement between the parties which no doubt reflected their separate forensic judgments.

The medical evidence led on both sides was not without its difficulties. I will deal with the evidence of each of the experts separately.

Dr Barold

Dr Barold is a general practitioner who since 1998 has been a member of the American College of Occupational and Environmental Medicine and a member of the Australian and New Zealand Society of Occupational Medicine. He has been in general practice since 1974 and is an “associate” of the Occupational Health Assessment Centre.

His report of 6 February 2012 records, as part of the history of the injury, being told that the plaintiff “hit the side of his head on the passenger’s pillar as well as [struck] his right knee on the dashboard.” It also records that the plaintiff “returned to work, on reduced hours and restricted duties, on or about June 2011”. It records the plaintiff’s then current complaints which included complaints of headaches, neck pain, pain between the shoulder blades, tingling in both arms, lower back pain, right knee pain and swelling, the right knee occasionally giving way and disturbed sleep.

Upon examination he recorded: “tender left cervical paraspinal spasm extending into the upper border of the left scapula”. There were some restrictions on lumbar flexion and extension and on left lateral flexion and left rotation. The right knee was tender but there was no overt muscle wasting in his legs below the knees.

The doctor recorded his opinion that the plaintiff “suffered mechanical straining injury to the neck and lumbar spine as well as soft tissue injury to the right knee” in the motor vehicle accident. He noted that treatment had been conservative and although appropriate the plaintiff “continues to experience disability and impairment which in part is due to him developing severe deconditioning”. He also recorded:

Separate to his physical injuries, he has also developed what appears to be an adjustment to injury disorder for which he has not been provided with any specific counselling or active treatment.

He therefore recommended a full psychiatric assessment. Because it had been almost two years since the accident the doctor expressed the view that the plaintiff’s symptoms were unlikely to totally resolve and that they were likely to continue “in a waxing and waning fashion for an indefinite period”. He referred to some limitations which he suggested on the type of work that the plaintiff should undertake. He also then provided a range of measures that should be undertaken (and their costs). Those measures were:

(a)counselling sessions;
(b)formalised functional and vocational assessments;
(c)a gym programme;
(d)physiotherapy;
(e)additional general practitioner consultations;
(f)annual supervision by an orthopaedic surgeon; and
(g)future investigations including x-rays and scans.

He also estimated the cost of future medications. He provided estimates of the domestic assistance of various types which was required by the plaintiff in the first three months following the accident (11½ hours per week) and then a further estimate of the domestic assistance required on an ongoing basis (7½ hours per week). In relation to his earning capacity the doctor concludes: “There has therefore been a significant functional restriction which has adversely impacted on his capacity to work and, as such, I consider there to have been impairment to both his past and future earning capacity.”

The report of Dr Barold dated 14 January 2015 largely repeats the terms of his earlier report. He recorded that as at January 2015 the plaintiff was working between three to four days a week sometimes limited to three to four hours per day. This is not reflected in the plaintiff’s evidence or his invoices. The complaints made by the plaintiff included:

(a)pains in the neck, lower back and right knee; periodic pain between the shoulder blades and infrequent pain in the left knee;
(b)occasional headaches;
(c)depression and anxiety.

In contrast to the examination in 2012 there was no paraspinal spasm and his lumbar spine movement was unrestricted and symmetrical. Thus, the examination appeared to be normal. The doctor’s conclusion made the following points:

(a)the sensory changes described by the plaintiff, mostly paraesthesia when in bed at night, were non-verifiable in nature, did not satisfy the criteria for radiculopathy and in fact were more likely to be somatic in nature;
(b)there was no evidence of physical impairments seen in the neck, shoulders, lumbar spine or knees;
(c)the plaintiff has developed symptoms of secondary straining in the thoracic spine;
(d)the plaintiff continues to have symptoms of an adjustment disorder with an associated pain focus which has limited his functional and work capacities.

He repeated his opinion that it was unlikely that his injuries would totally resolve but instead would continue in a waxing and waning fashion indefinitely. He repeated his list of additional measures which should be undertaken and provided a statement as to the current domestic assistance from which the plaintiff would benefit, at least until completion of his psychiatric treatments. The assistance totalled 5½ hours per week.

In my opinion the following points are significant in assessing Dr Barold’s reports:

(a)It is not clear precisely what is the extent of his experience beyond that of a general practitioner in relation to the assessment of the injuries and condition of the plaintiff.
(b)It is not clear what is required to become a member of the professional associations recorded on the doctor’s curriculum vitae.
(c)The doctor’s reports do not clearly articulate the causal link between the accident and the plaintiff’s ongoing pain and do not identify the biological cause of that pain. His second report appears to suggest that the plaintiff’s complaints of pain arise from a psychiatric condition. The second report does not explain whether the apparent diagnosis of “secondary straining in the thoracic spine” was based on anything other than the report of pain from the plaintiff.
(d)The second report is consistent with the plaintiff having a normal presentation on physical examination.
(e)The reports do not disclose any factual basis for the statements as to the amount of domestic assistance required.

Dr Guirguis

I have referred to the doctor’s contemporaneous records of his consultations with the plaintiff in some detail above.

The two reports of Dr Guirguis responded to an identical set of questions from the plaintiff’s solicitors. He recorded the history of complaints and that the plaintiff subsequently “succumbed to depression and this further compromised his physical and mental well-being”. He also recorded that: “His relationship with his wife and family has been strained. He developed suicide ideation.” He recorded that the motor vehicle accident resulted in pain and restricted mobility to the plaintiff’s neck, lower back and right knee, associated depression due to chronic pain and compromised quality of life. He recorded that in his opinion the plaintiff suffered from reduced endurance and mental fatigue. He recorded that treatment should ideally include physical therapy, a supervised gym programme, psychological counselling and pharmacotherapy with an approximate cost of $30,000. He indicated that the plaintiff suffers from a permanent impairment as a result of the motor vehicle accident and that the prognosis was guarded.

He was cross-examined on his evidence and accepted that, because there were not objective signs of injury, he had relied totally on what he was told by the plaintiff.

In relation to the evidence of Dr Guirguis:

(a)he had the significant advantage of having been the plaintiff’s general practitioner over a number of years;
(b)insofar as he was treating the plaintiff for depression and anxiety he is plainly not a specialist psychiatrist but a general practitioner with a substantial amount of experience in treating patients with psychiatric conditions.

Mr Lattimer

I have referred to Mr Lattimer’s contemporaneous notes of his consultations with the plaintiff in some detail above.

In his report Mr Lattimer diagnosed the plaintiff with Adjustment Disorder with Anxiety and Depressed Mood as set out in the DSM-5. He was of the view that participation in meaningful employment would result in a good prognosis for the plaintiff. He recorded that from a psychological point of view he saw no reason why there should be any restrictions on the plaintiff’s employment.

In cross-examination he agreed that the manner in which he conducted his consultations was to ask questions and take the answers at face value rather than challenging them in order to test the information that he was being given.

Dr Smith

In his report of 16 October 2012 Dr Smith recorded that his examination found nothing wrong with the plaintiff’s neck, low back or either knee. He concluded: “He has an unphysiological history. There is nothing wrong with him on clinical examination that I can find.” He did not recommend any restriction on his employment and stated: “He is fit to work on a full time basis. He is choosing not to work.”

In his report of 25 October 2012 he comments on the report of Dr Barold of 6 February 2012 and states that Dr Barold “does not describe anything on the clinical examination that represents objective evidence of disability”. He therefore says that he “cannot explain Dr Barold’s conclusions”.

Dr Smith’s somewhat didactic statements concerning the plaintiff did not appear to countenance the possibility that the doctor’s specialisation may not cover the whole of the relevant enquiry. The doctor does not seem to countenance the possibility that a person might experience pain even if an orthopaedic surgeon cannot detect an objective cause on clinical examination. Although the doctor clearly had regard to Dr Guirguis’ notes in some respects it is not clear from his reports what, if anything, he made of the continuing complaints of pain made to Dr Guirguis. As a consequence, although the implication of his reports is that the plaintiff is malingering, he does not:

(a)explain how that conclusion is consistent with the records that appear to have been available to him;
(b)properly expose the reasoning for that conclusion; or
(c)identify or explain any limitations that might properly be placed on the opinion expressed.

Dr Samuell

Dr Samuell in his report recorded:

His manner was somewhat unsophisticated. There was no external evidence of psychiatric illness. His psychomotor functioning was normal.
His speech was normal in form. His complaints were somatically-based. Although he used the terms ‘depression’ and ‘anxiety’, the explanations were largely existential in nature.

His opinion was:

There is no compelling evidence that [the plaintiff] experienced shock as a result of this incident. His difficulties appear to be predominantly of a physical nature. This is outside of my area of expertise.

His diagnosis was as follows:

There is no current psychiatric diagnosis. His complaints are better understood with the framework of existential difficulties. He has reality-based worry rather than anxiety per se.

He recorded that “his prognosis is excellent as he is psychiatrically well”.

Although identified in his report as a clinical and forensic psychiatrist, it is clear that Dr Samuell’s activities go substantially beyond that of a psychiatrist in the traditional sense. His curriculum vitae (exhibit 22) describes him as follows:

Dynamic, results-oriented consultant and corporate strategist. A demonstrated track record in integrity-based cost saving innovations. Skilful negotiator and a proven capacity for successful change implementation. A diverse base of skills with intimate working knowledge of state and federal legislation and regulations. Designed and delivered advanced communications and negotiation workshops for corporate clients. A reputation for sophisticated, complex data analysis and the generation of deliverable policy outcomes. A lengthy association with entities to develop media and political campaign strategies. Integrated professional networks through community and alumni based associations.

His areas of expertise are listed as follows:

Strategic analysis and planning
Program services and products
Large scale change management
Public policy analysis and development
Strategic human resource planning
Workshop and seminar design and facilitation
Profitability and cost analysis
Contract negotiations and strategic partnerships
Business process restructuring
Public relations, campaign strategy and media affairs
Communication management and mediation.

Unusually, in the circumstances, there is no mention in this list of expertise that he is a doctor. The curriculum vitae also identifies that he is the chief medical officer for two large insurance companies, a “strategic advisor” with another as well as holding or having held various other positions and being a consultant psychiatrist in private practice.

The company through which his expert report was prepared, “Professional Opinions”, is an entity of which he is the director and is described in his curriculum vitae as follows:

PO was created as a bespoke provider of high level medical risk management services and strategic in-house innovation and consultancy for Worker’s Compensation, CTP and Government clients. PO has commercial relationships with all WC panel providers and is a preferred provider to 4 of the panel members and all TMF providers. PO has held substantial contracts with the ATO, AXA, Commsuper and corporate and government entities. Currently PO has 260 medical specialists Australia-wide in all areas of expertise. It is a sole-Director, Australian owned company.

The information disclosed in exhibit 22 leads me to treat Dr Samuell’s opinion with some caution. That arises from the fact that much of his expertise appears to be in areas other than psychiatry and also because of the heavy emphasis upon his association with the insurance industry and other organisations concerned to reduce the cost of claims arising out of workplace or personal injury. That is information which might suggest that he is, at least, a conservative reporter of psychiatric conditions. Of course, because he was not required for cross-examination, these matters could not be raised with him and hence I do not have the benefit of any additional evidence that he might have given in response. However the evidence that is before me and upon which I must consider the case leads me to treat his opinion with some caution.

The other point to note is that his opinion is now more than two years old and in the intervening period the records of Dr Guirguis and Mr Lattimer indicate that the psychiatric circumstances of the plaintiff have changed in that period.

Finally, I do not accept that his opinion from July 2013 can be extrapolated backwards and forwards so as to accurately reflect the status of the plaintiff over the whole of the relevant period. The period when he examined the plaintiff was a period during which the plaintiff, according to the records of Dr Guirguis and Mr Lattimer, was functioning more effectively and hence likely to give a more favourable picture of his condition than throughout the whole of the period covered by the contemporaneous medical notes of Dr Guirguis and Mr Lattimer. The report of Dr Samuell gives no indication that he considered or gave any weight to the facts disclosed in the medical records of Dr Guirguis or Mr Lattimer with which he appears to have been briefed. For example, he does not appear to have taken into account or given any weight to the reports of Mr Lattimer and Dr Guirguis that the plaintiff heard voices over a period of many months. Similarly there does not appear to be any consideration of whether there was then or had been a link between the plaintiff’s perception of pain and his mental state.

Dr Paul

Dr Paul reported to the solicitors for the defendants on 20 May 2014. He was briefed with an enormous volume of file material which he reviewed and commented upon at great length. Perhaps because of his previous position as Director of Training, New South Wales with the Australasian Faculty of Occupational and Environmental Medicine, his report places particular emphasis on the absence of formal specialist training held by Dr Barold. He also placed emphasis on inadequacies in the history taken by other doctors when compared with what appears in the ACT police, ambulance and fire brigade reports. He referred in a number of places to that history being “corrupted”. Dr Paul also recorded that the plaintiff told him that his date of return to work was 1 June 2011, that the plaintiff was vague about his return to work activities and that he was currently working 15 to 20 hours per week. The doctor noted the difference between Dr Guirguis’ notes, when he saw him on 15 February 2010, recording neck and lower back pain and the description given to him of complaining of right knee pain, neck pain, lower back pain, chest pain and pain in his head.

Dr Paul in his summary and assessment said:

... I do not believe that the current knee pain or head pain/ache is related in any way to the motor vehicle accident. There appears to be a temporal disconnect. His GP initially assessed him as having neck and back pain and diagnosed him with a strain or sprain type injury. There appears to be a pre-existing history of lower back [sic] as well and I do not believe the lower back pain that he is currently reporting is related in any way to the accident.
His examination today other than diffuse and inconsistently reported pain showed no abnormality.
Diagnosis: As a result of the motor vehicle accident, I believe he suffered a musculoskeletal strain/sprain type injury to the cervical spine and lower back which would have expected to have recovered by now.

His ongoing pain in my opinion is possibly related to a chronic pain disorder and this appears to pre-date the motor vehicle accident (there is a pre existing history of chronic pain developing and persisting in different sites following minor injury). It is possible he is exaggerating symptoms for the purpose of secondary gain, as there are many inconsistencies in his presentation without a clear cause of his pain.

Later in his report he recorded a diagnosis of chronic pain disorder. He said that he had not found any indicator of physical pathology that would result in significant impairment and that ongoing symptoms were unrelated to any injury sustained in the accident. He said: “There appears to be a well established history of chronic pain and therefore I would anticipate for him to have chronic pain in the future.” He indicated his agreement with the report of Dr Smith and took issue with Dr Barold’s qualifications.

Dr Paul’s curriculum vitae does not disclose the extent, if any, of his current clinical practice.

Conclusion

The plaintiff gave evidence and was cross-examined over three days. He gave evidence in a relatively straightforward way. I agree with Dr Samuell’s characterisation of his manner as “somewhat unsophisticated”. He answered questions when he could and in cross-examination appropriately answered questions even where the answers did not assist his case. The most significant feature of the plaintiff’s evidence was his extremely poor recollection of events or the order in which they occurred. This was an ongoing feature of his evidence. It indicated to me that on most matters of detail the plaintiff’s evidence would be unreliable and hence depended upon corroboration from elsewhere. However I did not form the view that he was dishonest.

For the reasons that I have indicated above, I consider that the contemporaneous medical records of Dr Guirguis and Mr Lattimer are significant in determining both the plaintiff’s condition over the period since the accident and issues of causation.

Notwithstanding the patchy nature of the medical, lay and documentary evidence I am satisfied, principally having regard to the documentary records kept by Dr Guirguis, that the plaintiff did suffer an injury to his neck and lower back which reduced his earning capacity in the period following the accident. Insofar as the injury was to his lower back, it is not necessary to determine whether that was an aggravation of the condition that had been symptomatic many years earlier or whether it was separate and distinct. Having regard to the recurrence of the right knee condition in the week following the accident I find that there was also an aggravation of his earlier right knee injury. Notwithstanding the report of Dr Paul, in the absence of some proper medical explanation as to why the gap of nine days in reporting the complaint to his general practitioner renders a causal connection medically improbable, I act on the basis that the temporal connection is indicative of a causal connection. I am satisfied that the neck, back and knee pain continued until at least June 2012 and that after that the neck and back pain continued up until the hearing.

Since 2012 he has demonstrated minimal or no objective signs of impairment. A current physical cause of his complaints of pain cannot be identified. So far as he now complains of suffering from pain there is no objective medical evidence demonstrating a physical basis for that complaint. I am satisfied however, having regard to the records kept by Dr Guirguis and Mr Lattimer, that he does continue to experience pain in his back and neck and that such pain is aggravated by working as a painter.

So far as the pain might have a psychiatric cause, the evidence of Dr Paul supports the existence of a pain disorder. The evidence of Dr Samuell does not support any psychiatric diagnosis, at least as at July 2013. The evidence of Dr Guirguis involves instead a diagnosis of depression although it is not clear whether in Dr Guirguis’ view the pain is physical or psychiatric in origin. There was no evidence of a pain specialist to explain how the plaintiff might be suffering from pain due to some increased experience of pain arising out of the physical injury involved in the accident.

The finding that the plaintiff continued to suffer pain over the period disclosed in the records of Dr Guirguis and Mr Lattimer, my acceptance of the expert opinion that there is no objectively demonstrated physical cause of that pain and the limited psychiatric evidence that is available leave open the question of causation not only of the pain but also of the psychological difficulties that the plaintiff suffered from. Given that I have accepted the plaintiff’s complaints of pain, in my view the temporal connection between the accident and the onset of the pain and the continuity of the pain thereafter lead me to the conclusion that the pain has been caused by the accident for the purposes of s 45 of the Civil Law (Wrongs) Act 2002 (ACT) (CLW Act). Although the expert evidence does not clearly characterise the pain the plaintiff has suffered from, some form of pain syndrome has continued, notwithstanding the absence of an objectively demonstrated physical cause. Further, his psychological difficulties and the need for antidepressant medication have in my view been caused, for the purposes of s 45 of the CLW Act, by that pain and hence by the accident either directly or as a consequence of the financial and psychological impact on the plaintiff arising from his reduced capacity to work. I recognise that the absence of any clearly diagnosed condition expressly identified in the expert evidence as causally linked to the accident is a less than satisfactory basis for a finding of causation, however in my view it is required by the history disclosed in the medical records. The alternative theory is either that the plaintiff has fabricated his complaints of pain over a substantial period or that those complaints of pain are genuine but are causally unrelated. I have found that the complaints are not fabricated and, having regard to the records in evidence, consider that it is more likely than not that the ongoing complaints of pain are causally linked, in the sense required by s 45, to the accident.

The medical records of Dr Guirguis and Mr Lattimer give rise to a rather complex picture of the plaintiff’s psychological state and the relationship with his complaints of ongoing pain. While Dr Guirguis and Mr Lattimer recognised that they were dependent upon what they were told by the plaintiff, the long history that each had with the plaintiff appears to me to reinforce the reliability of their observations of him. I consider it unlikely that the plaintiff embarked on a systematic course of deception or overstatement of his condition to Dr Guirguis and Mr Lattimer. The records however disclose that there are clearly factors unrelated to the accident which affect the plaintiff’s ability to work and cope with life more generally. It is apparent that some of the complaints made by the plaintiff are indicative of psychiatric disturbance with no demonstrated connection to the accident. One example is the record in Mr Lattimer’s notes of hearing voices, consistent with some form of psychosis. Similarly there is no expert evidence to connect the plaintiff’s obsessive compulsive disorder to the accident. Thus, while I accept that the plaintiff’s depression is a causally related consequence of the accident either directly or by reason of the effect on the plaintiff’s capacity to work and earn money, I do not consider that either the psychiatric symptoms suffered in the six months prior to August 2012 or the obsessive compulsive disorder or symptoms have been established to be causally related to the accident. It is difficult to assess the causal impact of the accident on the plaintiff’s relationship with his wife. That is particularly so having regard to the fact that she gave no evidence and his evidence was vague. The notes of Dr Guirguis and Mr Lattimer disclosed a relationship between the plaintiff’s capacity to work and his relationship with his wife. In my view it can be said that the accident and its consequences have had an effect on the plaintiff’s relationship with his wife but it is not possible to quantify that in any meaningful way.

General damages

The plaintiff was involved in a moderately significant car accident. Following that he has continued to suffer from pain which has substantially interfered with his capacity to work. There have been other consequences flowing from that incapacity including depression. In my view an award of $110,000 is appropriate with $85,000 attributable to the past. In making this award I take into account two matters which would indicate that the plaintiff may have had some difficulties in this period in any event. First, he has a history of suffering complaints of pain from relatively minor incidents and because of that predisposition may well have suffered some other adversity during the period. Second, a number of aspects of the evidence indicated to me that he has some difficulties in his relationships with other people which lead him to fall out with others and that is a matter that I have taken into account in assessing the baseline from which general damages must be assessed.

If interest was awarded for the whole period then that would result in an award of $9,775 ($85,000 × 0.02 × 5.75). I will however only award half that amount as there does not appear to be any necessity for a matter like this to have taken 5.75 years from the date of the accident to be resolved. Therefore the award is $4,887.

Past economic loss

The assessment of the plaintiff’s past economic loss is made more difficult by the indications that the plaintiff’s records as to the income that he earned are not completely reliable. He said in his evidence that if there was no invoice then he did not work. That, however, was inconsistent in some respects with what he reported to Dr Guirguis and Mr Lattimer (see [59], [87], [89] and [94] above). There was certainly documentary evidence that he was quoting on substantial jobs during periods when he was not otherwise demonstrated to be working but was apparently unsuccessful in obtaining that work for reasons not associated with the accident.

Prior to the accident in the 2008-2009 financial year the plaintiff had earned taxable income of $84,076 and been liable for $20,891.54 in tax. This gave a net weekly income of $1,215. Had the plaintiff continued to earn income at the pre-accident rate then the plaintiff’s earning capacity over the five-year period would have been $363,285 (5.75 × $1,215 × 52).

According to the plaintiff’s tax returns, he earned taxable income from painting (as distinct from Commonwealth benefits) over the period of approximately $45,000 and paid little or no tax on that amount. If the loss is treated as wholly attributable to the injury then the past economic loss would be approximately $318,285.

In final submissions the plaintiff contended that damages should be awarded for past loss of earning capacity at the rate of 50% of a weekly earning capacity of $1,300 over the whole of the period since the accident. The defendants contended that a 50% loss of earning capacity over a two-year period was appropriate although the precise rationale was not outlined in oral submissions.

The defendants’ contentions as to past economic loss are inconsistent with the findings that I have made in that I have accepted that there has been an impact upon the plaintiff’s earning capacity over the whole of the period and that that has extended to the pain that continues to be experienced by the plaintiff to date and to at least the more obvious psychological consequences of pain, lack of work and the financial consequences of lack of work.

I do, however, accept that the plaintiff’s evidence as to the completeness of his documentary records should not be accepted and I do not accept that the plaintiff had no capacity for work beyond those jobs which he actually obtained. Therefore I cannot find on the balance of probabilities that the whole of the difference between earnings at the pre-accident rate and the amount actually earned should be awarded as damages.

Senior counsel for the plaintiff accepted in the light of the evidence given by the plaintiff in cross-examination that he had a work capacity of three to four hours per day three or four days a week. This concession appears to be based upon the report of Dr Barold on which the plaintiff was cross-examined. Senior counsel said (at T330):

I would concede, your Honour, not because of any demonstrated falsity in the invoices but because your Honour has to look at earning capacity, that if one took $1,300.00 a week net to be his uninjured earning capacity the line of questioning which my learned friend put to the plaintiff, namely, that on the plaintiff’s own account of things three or four hours a day, three or four days a week. That represents a residual earning capacity of about 50 percent. Not the 20-odd percent for which the plaintiff contends in his particulars.

An alternative to such a rough and ready approach, that is available on the evidence, is to award damages based on the working capacity assessed by Dr Guirguis in his various medical certificates in the period February 2010 until March 2014 which are in exhibit 11. That approach leads to an average working capacity somewhat less than 50% and hence the adoption of the approach contended for by the plaintiff is more favourable to the defendants than adopting the capacity assessed by Dr Guirguis.

A further alternative would be to award damages in some amount less than the difference between past earning capacity and the amount earned during the period either on the basis that the plaintiff was earning some identifiable greater income from painting work than disclosed by his invoices or on the basis that the plaintiff has not proved that his incapacity is because of the accident or because the evidence discloses that his incapacity is due to something else. However there is insufficient evidence to demonstrate identifiable income generation on a large scale beyond that which is disclosed in the invoices. Further, it has not been established that some of the conditions from which he suffers, such as the hearing of voices or his obsessive compulsive disorder, have caused a loss of earnings in addition to that caused by the pain and causally related psychological sequelae. Even accepting that there is some unreliability in the records of the plaintiff and that some aspects of the plaintiff’s condition have not been demonstrated to be attributable to the accident, I do not consider that these matters could demonstrate a work capacity in excess of 50% of pre-injury capacity.

Recognising in the circumstances of this case that the evidence is less than satisfactory, I consider that it is appropriate to assess the causally related loss arising from the plaintiff’s loss of working capacity in the manner contended for by senior counsel for the plaintiff, namely, that the accident has been productive of a 50% loss of income when compared to his pre-accident capacity and income. Notwithstanding that this method of assessment involves, in contrast to an assessment on the basis of the certificates of Dr Guirguis, a broad brush approach to past economic loss, it is a method of assessment more favourable to the defendants than the alternative and it is the manner of assessment contended for by the plaintiff.

However the evidence does not establish the appropriateness of a figure greater than $1,215 as the net weekly earning capacity. The submission of the plaintiff that $1,300 should be adopted as the weekly earning capacity involved a 7% increase in income over the period from 2009 to 2015. There is no evidence that a self-employed painter would have achieved that increase in income over the period. I therefore find that damages for the past should be awarded on the basis of a 50% loss of earnings when compared with his pre-injury earnings of $1,215 net per week, namely, $181,642 ($607.50 × 52 × 5.75).

Interest on that past loss calculated in accordance with the Court Procedures Rules 2006 (ACT) would be $39,552. However, because of the delay in prosecuting the action, I will only award 50% of that amount, namely, an amount of $19,776.

Future economic loss

In relation to the future in my view it is likely that the plaintiff will be able to address causally related disabilities through additional medical treatment. He has consistently indicated to Mr Lattimer his desire to return to work. There has in the past been a correlation between returning to work and an improvement in the plaintiff’s mental state (see [82] above). He has been frustrated in that goal by the inability to access a proper programme of rehabilitation. That frustration is particularly evident in the entries between April and June 2012 (see [53] to [57] above). It is in my view likely that with the benefit of an award of damages which includes funding for a proper pain management program and any other treatment that is necessary, the plaintiff will be able to return to work either as a painter or in some other capacity. I think that Dr Guirguis’ notes of 21 February 2013 (see [77] above) accurately record the position, namely, that if the plaintiff “gets a bit of money he can plan his way slowly and gradually back into working life”. I do not accept the plaintiff’s submission that an award of damages should be made on the basis of a permanent 50% incapacity when compared to his pre-injury capacity. Rather, in my view the plaintiff is likely to be able to either return to painting in a more businesslike fashion than he has been able to previously or explore alternative employment from a position of more robust health.

I will therefore make an award of damages equivalent to 18 months’ loss of income over a three-year period. That amount is really a buffer as there can be no certainty that the income loss will be at that rate over that period. Once again the evidence does not in my view justify a rate of loss of earnings greater than $1,215 net per week.

A 50% loss of income over a three-year period would result in an amount of $91,003 ($1,215 × 0.5 × 149.8) and I will award a buffer of that amount.

Past out-of-pocket expenses

Past out-of-pocket expenses were agreed at $10,142.

Future out-of-pocket expenses

The claim for future out-of-pocket expenses was particularised in a manner which did not include any amount for a pain management program. Ultimately the claim made in submissions was based upon the estimate provided by Dr Guirguis of $30,000. This was a wrapped up figure which included a pain management program. There appeared to be no objection to a departure from the particulars in this respect. The manner in which I have assessed future economic loss is based upon the proposition that with access to funds the plaintiff will be able to obtain treatment for his pain condition. In the past he has benefited significantly from the psychological treatment provided by Mr Lattimer. He has also been frustrated at the inability to obtain funding for a more comprehensive pain management program. Having regard to the plaintiff’s history in my view he is likely to continue to need treatment even if successful with a reasonably prompt return to work. For these reasons I accept the estimate of future treatment costs made by Dr Guirguis which was relied upon by the plaintiff. In my view, it reflects a reasonable sum for a combination of a pain management course, psychological treatment, additional attendances at his general practitioner and medication.

Griffiths v Kerkemeyer

Although a substantial claim for Griffiths v Kerkemeyer damages was made in the statement of particulars, the only claim made in the schedule of damages provided by senior counsel for the plaintiff at the conclusion of the case was for an amount relating to a period of three months after the accident at the rate of 11.5 hours per week. This was based upon the report of Dr Barold dated 6 February 2012. Dr Barold simply noted that during the first three months following the accident the plaintiff required assistance for specified numbers of hours per week in various categories which were then set out. The plaintiff did not give evidence of requiring any such assistance. No other person such as the plaintiff’s wife gave evidence that would support a finding that he required such assistance. While hearsay statements contained in the doctor’s report can be treated as evidence of the fact (see Pangallo v Smith [2015] ACTSC 313 at [70]), in the present case the report of Dr Barold does not in fact disclose the evidentiary basis for his statement. In the period following the accident up until the end of May 2010 the plaintiff continued to be able to do commercial painting work as disclosed in his invoices. In those circumstances I do not accept that evidence and hence do not make an award of Griffiths v Kerkemeyer damages for the past.

Summary of damages

The damages that will be awarded to the plaintiff are summarised in the following table.

General damages $110,000

Interest on past component $4,887

Economic loss – past $181,642

Interest on past economic loss $19,776

Economic loss – future $91,003

Griffiths v Kerkemeyer – past $0

Out-of-pocket expenses – past (agreed) $10,142

Out-of-pocket expenses – future $30,000

Award of damages $447,450

Conclusion

The orders of the Court are:

1.   Judgment be entered for the plaintiff against the second defendant in the sum of $447,450.
2.   The second defendant is to pay the plaintiff’s costs of the proceedings as agreed or assessed.
3.   The usual order as to interest.
4.   Order 2 does not take effect for a period of 14 days and, if any party notifies my associate in writing in that period that it wishes to be further heard in relation to costs, does not take effect until further order of the Court.

I certify that the preceding one hundred and eighty-one [181] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Associate Justice Mossop.

Associate:

Date: 18 November 2015

General damages	$110,000
Interest on past component	$4,887
Economic loss – past	$181,642
Interest on past economic loss	$19,776
Economic loss – future	$91,003
Griffiths v Kerkemeyer – past	$0
Out-of-pocket expenses – past (agreed)	$10,142
Out-of-pocket expenses – future	$30,000
Award of damages	$447,450