Doyle v Webb

[2021] NSWDC 581

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Doyle v Webb [2021] NSWDC 581

Hearing dates:

20 – 22 October 2021

Date of orders:

28 October 2021

Decision date:

28 October 2021

Jurisdiction:

Civil

Before:

Abadee DCJ

Decision:

See paragraph 221 – 223

Catchwords:

MOTOR ACCIDENTS – assessment of damages – nature and extent of physical injuries caused by breach – claims for past and economic loss – whether any altered earning capacity productive of financial loss

Legislation Cited:

Civil Liability Act 2002 (NSW) s 5D

Motor Accidents Compensation Act 1999 (NSW) ss 83, 84A, 125, 126

Cases Cited:

Chapman v Hearse (1961) 106 CLR 112

Graham v Baker (1961) 106 CLR 340

Husher v Husher (1999) 197 CLR 138

Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522

Texts Cited:

H Luntz & S Harder, Assessment of Damages for Personal Injury and Death (5th ed, 2021, LexisNexis)

Category:

Principal judgment

Parties:

Warren Doyle (plaintiff)
Tammy Webb (defendant)

Representation:

Counsel:
Mr F Curran for the plaintiff
Mr J Guihot for the defendant

Solicitors:
Carters Law Firm for the plaintiff
Moray & Agnew for the defendant

File Number(s):

2017/00241964

Judgment

INTRODUCTION

1. On 29 August 2015, the plaintiff (Mr Doyle) was driving his Mitsubishi magna motor vehicle in the left side lane north along Hume Street, in Goulburn and approaching a roundabout at the intersection with Ducks Lane. At about this time, the defendant (Ms Webb) who, at that time was a learner driver, was driving her Jeep Panel vehicle, initially behind Mr Doyle’s vehicle. Mr Doyle asserts that as he was proceeding through the roundabout, Ms Webb negligently lost control of her vehicle causing her vehicle to collide with his side view mirror, on the driver side of the vehicle.

2. By his statement of claim filed on 9 August 2017, Mr Doyle sues Ms Webb for damages for personal injuries he claims he suffered from Ms Webb’s negligent driving. By his Amended Statement of Particulars (filed 26 November 2020), Mr Doyle asserts that he suffered an array of injuries to his right side: to his elbow, arm, shoulder, wrist, and neck and also to his left shoulder; and complains of many disabilities. His claim for damages specifically identified as heads of loss, past and future economic loss.

3. Although she admits that her vehicle collided with Mr Doyle’s vehicle, by her Defence (as amended), in its original iteration, Ms Webb formally disputed liability. However, by her Amended Defence, breach of duty of care was admitted and her insurer has paid the sum of $26,301.01 for hospital and medical and such like expenses (under s 83 of the Motor Accidents Compensation Act 1999 (NSW) (‘MAC Act’) ^[1] ) and has also made payments in the sum of $22,500 (under s 84A) to alleviate hardship to the plaintiff. At the date of the accident, Mr Doyle was a disability support worker. Ms Webb denies that Mr Doyle has any entitlement to damages for non-economic loss.

   1. Hereafter, unless indicated otherwise, reference to statutory provisions are taken to be a reference to this legislation

4. There have been several disputes about heads of damage treatment that have been the subject of certificates issued under the MAC Act. By the end of the hearing, the parties agreed as to the quantum of the claim for past medical and treatment expenses and Counsel for the plaintiff indicated that no claim was brought for future treatment expenses.

5. The parties identified the following issues as arising for the Court’s determination:

1. The nature and extent of injuries that were sustained as a result of the subject accident (as distinct from injuries sustained by other causes, before and after the accident); and

2. whether the plaintiff’s injuries have caused the plaintiff to suffer past and future economic loss and if so, the quantum of such loss.

HOW THE ACCIDENT OCCURRED

6. In his evidence, Mr Doyle said that he was driving his motor vehicle, in the company of his 10 year old son, to obtain some groceries.

7. He recalled that there was hardly anyone on the road, and was driving at about 40kmh as he approached the roundabout. He said he was on the outside lane and another vehicle (driven by the defendant) was on the inside lane. He asserted that his vehicle was ‘T-boned’ by the defendant’s vehicle. He said that the impact had sufficient force as to cause his vehicle to deflect to the left. He said that at the time of the impact, he had his right hand on the steering wheel and his left hand on the gear stick handle. He said that his right elbow was impacted by the door when the outside of the door was struck by the defendant’s vehicle which (being a 4 wheel drive) was much heavier than his own.

8. He said that following the impact, his own vehicle was damaged on its right side (including damage to the right wheel) and the defendant’s vehicle had risen up on its left side.

9. The plaintiff took photographs of his vehicle after the collision (Exhibit C). They depicted clear contact between another vehicle and the right side, driver’s door of the plaintiff’s vehicle, and, albeit less clearly, to the front wheel on the driver’s side. On the other hand, the indentation on the driver’s side door was not, to the naked eye, all that significant and not inconsistent with the defendant’s case that there was contact that occurred when the defendant vehicle came up alongside the plaintiff’s vehicle from behind on the side.

10. As Counsel for the plaintiff noted, the defendant did not give evidence and Mr Doyle’s account of what occurred was not challenged. Nevertheless, it is not clear what the defendant, or the male passenger in the defendant’s vehicle, might have said about the effect of the impact of the collision on Mr Doyle, including whether the force of the impact was such that the right side of Mr Doyle’s door impacted with Mr Doyle’s right elbow.

11. However, it appeared to me that Mr Doyle’s description of how the collision occurred conflicted with his pleaded assertions, which indicated relatively minor contact with the driver-side front mirror.

12. I find that in all likelihood, the contact with the defendant’s vehicle was side to side contact. I do not accept that the plaintiff’s vehicle was ‘T-boned’ in the sense that the front of the defendant’s vehicle collided with one of the sides of the plaintiff’s vehicle. There is no physical evidence, in the form of demonstrable damage to the plaintiff’s car that would support that account. If the plaintiff’s vehicle was struck, front on, by the defendant’s vehicle, I also expect that the plaintiff’s physical injuries would have been much more severe than they were. Further, if his vehicle was ‘T-boned’ it is highly improbable that he would have been capable of exchanging details with (at least) the male occupant of the defendant’s vehicle. In other words, contact with the vehicle was relatively minor. This was especially in a context where it occurred at a roundabout; even if the defendant was driving at an excessive speed, at the point of impact, it was not suggested she was driving as if she were on a freeway.

13. Nevertheless, I accept that the plaintiff’s vehicle was deflected to the left, and further, that at the point of impact, the plaintiff’s right hand was on the steering wheel prior to the point of impact. I agree with the defendant’s submission that it is unnecessary to determine whether, as the plaintiff recalled, his elbow actually contacted the door in circumstances where the complaint was a medial injury.

THE PLAINTIFF’S PRE-ACCIDENT INJURIES

14. The parties jointly produced a three-volume Court book which contained a voluminous series of reports concerning the plaintiff’s health, including physical injuries, before and after the accident. Neither Counsel indicated any inclination to exercise discrimination as to which parts of that joint court book should be tendered to the Court. For their convenience, the joint court book was admitted (Exhibit B1-B3 ^[2] ) but not without the Court warning Counsel that they should not assume that the Court would consider the contents of the Court book which were not specifically adverted to by Counsel in their (written and oral) closing submissions.

    2. Exhibit B1 contained pp 1 – 409 of the Joint Court Book; Exhibit B2 contained pp 410 – 769 of the Joint Court Book and Exhibit B3 contained pp 770 - 1159 of the Joint Court Book. For the sake of convenience, where reference is made to the Joint Court Book, reference will be made to “JCB” followed by the relevant page numbering.

15. To a very substantial degree, Mr Doyle’s evidence in chief consisted of his being led through a written Chronology (Exhibit A), the content of which he adopted. There were several changes that were made to that document (even after the correctness of the chronology had been attested to). At any rate, the weight to be given to the content of the chronology is just as affected by credit considerations (which I will later return to) as the part of his testimonial evidence arising under cross-examination. As it happens, by and large, the content of the chronology was not seriously challenged and what follows substantially draws upon it.

16. In 1995, the plaintiff sustained a back injury (at L4-5) whilst laying concrete, resulting in a proceeding against his employer that was settled. However, symptoms in his back persisted up to the date of the accident. Indeed, his back problem contributed to the plaintiff’s receipt of a disability support pension.

17. In 1997, the plaintiff said he commenced receiving a disability support benefit; although it might be the case that he began to receive it from 2001. Nothing turns on this point of difference.

18. In March 1999, he commenced seeing a psychologist (Ms Anna Crichton) for anxiety and depression. In November that year, he received a diagnosis from a psychiatrist (Dr Malcolm Dent) of chronic pain condition, panic disorder, social phobia and a chronic depressive condition Dysthmic Disorder.

19. In 2001, he received a diagnosis of agoraphobia.

20. On 6 June 2007, a CT scan indicated a disc protrusion (L5-S1). An application for a carer’s allowance (brought by Mr Doyle’s then partner) was supported by Dr Davis on the basis of his suffering back pain.

21. By 2010, Mr Doyle engaged in a detoxification programme at Arcadia House to help him address his substance abuse. In his evidence, Mr Doyle explained that his addiction to marijuana was developed to help him address his pain.

22. In 2011, his partner of 12 years died. Mr Doyle was suspected and charged in relation to her death, although later was exonerated. His partner had died of a drug overdose and his children were placed under the care of the Department of Community Services. This episode contributed to anxiety, depression and his mental health and in that year, he received a referral to the psychiatrist, Dr Marwat, of St Vincents Hospital, for mental health treatment.

23. In 2012, he went to Waratah House (Campbelltown Hospital) to deal with his drug abuse. From August 2012, he was treated by Dr Marwat. He was referred back to that psychiatrist in 2016.

24. In 2013, he received treatment for his mental health from Dr Ansary, a general practitioner.

25. In 2014, Mr Doyle was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD). He continued to see a psychiatrist up to the date of the subject accident.

26. In March 2014, Mr Doyle sustained injuries to his neck and right arm during the course of his employment with the Department of Family and Community Services (‘FACS’), as a Disability Support Worker. He was trying to assist a patient to get ready for a shower. He received treatment and was off work for a period of a couple of months. He made a workers compensation claim. There were several WorkCover certificates referable to his neck injury, the last of which was dated 25 July 2014. Mr Doyle was receiving treatment for his neck symptoms from Dr Ansary and from a physiotherapist. In May 2014, he had a CT of his neck.

27. In June 2014, Mr Doyle was reported as experiencing numbness in his right foot. He had an MRI.

28. On 23 February 2015, Mr Doyle rolled his left ankle at home; which caused him to limp and alter his gait. He was unable to attend work between 24 and 27 February 2015.

29. On 1 March 2015, he suffered further work-related injuries when transporting some clients home in the process of lowering a ramp from a bus. He rolled his ankle on an uneven road service. Contemporaneous reports (at least up to the end of March 2015) referred to Mr Doyle’s left ankle, however, Mr Doyle also asserted that he sustained injuries to his left foot, left knee and right knee. Counsel for the plaintiff referred to a certificate by Dr Imran, the plaintiff’s treating practitioner, referring to successive injuries to the plaintiff’s left ankle, dated 2 March 2015.

30. On 30 March 2015, Dr Imran sent a referral to Dr Ihsheish, to review the plaintiff’s continuing concerns about his left ankle and foot.

31. On a separate subject matter, on 21 April 2015, Dr Imran sent a referral to Mr Cottoril, of the Rex Street Group Home in which he commented upon the plaintiff’s improved mental state (with his ADHD) in the light of certain medication and expressed the hope that he might perform better at work as he recovered from his left ankle injury.

32. On 14 June 2015, he was referred to an exercise physiologist not only in relation to pain in the left ankle, but also pain in in his right knee. Three days later, Mr Doyle had an MRI of his right knee, which confirmed a tear of the posterior horn of the medial meniscus with mild associated degenerative change.

33. Arising from the incident on 1 March 2015, Mr Doyle lodged a workers compensation claim; which claim was accepted. He also commenced a proceeding for a common law claim for damages against the local council.

34. On 30 June 2015, Dr Ihsheish referred Mr Doyle to Dr Sved for treatment on his right knee.

35. He returned to work in July 2015; though was restricted by his left ankle and right knee symptoms. Later that month, his employer offered him a return to work on pre-injury hours of 84 hours a month.

36. By late July 2015, Mr Doyle accepted that he was having problems with his ankle.

37. On 6 August 2015, Dr Imran referred Mr Doyle to another psychologist, Ms Milatos, for hydrotherapy. Further referrals of the plaintiff were made to Ms Milatos on 21 January 2016 and January 2017.

38. On 14 August 2015, Dr Imran sent a further referral to Dr Ihsheish in respect to the plaintiff’s left ankle injury. On the same date, he sent a referral letter to a rehabilitation physiologist, for the purpose of management of both the left ankle and right knee pain, which he indicated had gradually gotten worse and which was limiting the plaintiff’s daily activities.

39. Throughout August 2015, and up to the date of the subject motor vehicle accident, Mr Doyle was having further investigations into his complaints in relation to his left ankle and both knees.

40. Further, prior to the motor vehicle accident, there were the early steps taken to what became an investigation into the neurological disorder known as ‘restless leg syndrome’ and for symptoms in his feet.

41. Assessor Samuels recorded Mr Doyle acknowledging to him that by the date of his motor vehicle accident (29 August 2015), the plaintiff:

“was in terrible shape, no support from the employer, struggling with kids, working night duties on and off…. was not in a relationship, he was taking lots of painkillers and he could not do anything.”

Aftermath to subject accident

42. Mr Doyle said in his evidence that shortly before the point of impact, he had his right hand on the steering wheel. This, it appears, is what he also reported to Dr Stubbs.

43. No ambulance attended the scene. Mr Doyle did not go to hospital. But he complained of pain, principally in the region of his right elbow and also (possibly) his right knee.

44. In his evidence in chief, Mr Doyle said that he noticed bruising on his right arm (around the region of his elbow) a couple of days after the collision. He said he felt pain in his right elbow and arm, which he said worsened over time.

45. Mr Doyle saw Dr Imran on 31 August 2015. He says he informed Dr Imran about his right elbow, but did not wish to make anything of it at the time.

46. It was put to Mr Doyle that the only reason for his consulting Dr Imran was to obtain the work cover certificate and not because of any need for treatment following the subject accident. It was put to Mr Doyle that he made no mention to Dr Imran of being involved in a motor vehicle accident or injuring his right elbow. Mr Doyle disagreed with both propositions. It was also suggested that the first time he mentioned any injury to the elbow arising from the subject accident to anyone was on 30 November 2015; and, further, that it took him ten visits to Dr Imran before he mentioned the accident. Mr Doyle disputed these propositions. It was put to Mr Doyle, but he again disputed, that on the ten occasions he saw Dr Imran, from the date of the accident to 30 November 2015, it was only about relatively minor complaints. Asked (effectively) to account for why there was no reference to (right-sided) golfer’s elbow in Dr Imran’s notes, up to 30 November 2015, Mr Doyle explained that he and Dr Imran had entered into a ‘pact’ for the latter not to disclose the injury.

47. It was also put to Mr Doyle that when he saw his psychologist, Linda Tuovinen, on 13 October and 10 November 2015, he did not mention to her any motor vehicle accident, or suffering injury as a result of it. To this, Mr Doyle appeared to try to diminish her responsibility for his care.

48. The notes of Ms Tuovinen which were in evidence (JCB 946-7) indicated that the limit of Mr Doyle’s complaints of physical injuries touched upon in his discussions with Ms Tuovinen, on 13 October 2015, concerned his ankle and knee; and on 10 November 2015, they concerned (indirectly or implicitly) his ankle.

49. On 24 December 2015, Dr Imran administered the first of two cortisone injections to the plaintiff’s right elbow.

Events post-dating the subject accident

50. On 2 January 2016, he sustained another work-related injury. This concerned a scuffle with a client and resulted in Mr Doyle suffering further injury to his right arm. Mr Doyle told Dr Imran that his right elbow had flared up after he had used it extensively. A workers compensation form which was later completed stated that Mr Doyle had had his right arm twisted and grabbed and ‘aggravated’ a prior injury to his right elbow.

51. From 8 March 2016, WorkCover certificates provided by Dr Imran contained the following notation:

“The severity of injury was moderate to severe. He developed pain in the right knee over the last few weeks which gets worse with extension and flexion of right knee. Warren has disclosed that the Department of Family Community Services/ADHC have suggested that this job is not suitable for him anymore and he would be better off in a different line of work which he now acknowledges that he would take the department up on the offer suggesting retraining or a more suitable within the department.” (sic)

52. On 23 March 2016, Dr Imran administered another cortisone injection. The next day, Mr Doyle signed his motor accident claim form.

53. The plaintiff’s motor vehicle claim form (Exhibit D) dated 24 March 2016 identified, as alleged injuries, tendon damage to the right elbow with symptoms in the right knee, neck, shoulder blades and head and psychological injury. An accompanying medical certificate from Dr Imran referred to inflammation of the right elbow medial epicondyle (golfer’s elbow), which had flared up off and on with repetitive heaving lifting and flexion.

54. Dr Imran’s letter to Dr Ihsheish, dated 8 April 2016, sought review of the plaintiff’s left ankle sprain and bilateral knee joint pains. No reference was made to elbow pain.

55. On 19 April 2016, Dr Ihsheish wrote to Dr Sved, foreshadowing the need for treatment of the plaintiff’s right knee.

52. On 10 May 2016, Dr Ihsheish wrote to Dr Sved again, and reported to him on x-rays performed on the plaintiff’s right knee. Dr Ihsheish adverted to increasing pain in the right elbow on the medial side which had increased since a bump to the elbow by one of his clients in January 2016.

53. On 12 May 2016 – 3 days after he had lodged his workers compensation claim in relation to the work injury from 2 January 2016 – Dr Imran certified him as being unfit for any work from 11 May 2016. Mr Doyle’s injury was described as comprising his ‘ankle, knee and elbow...’

54. In a report of Dr Ihsheish, the orthopaedic surgeon, dated 31 May 2016, which was sent to the workers compensation insurer, the practitioner stated that he could not predict when Mr Doyle was likely to be able to return to full pre-injury duties. Express reference was made to his ankle and knee symptoms, complicated by his history of lower back and neurological symptoms, as well as ADHD. No reference was made to his right elbow

55. On 15 July 2016, Dr Ihsheish wrote again to the workers compensation insurer. On this occasion, he did refer to ongoing pain from elbows and functional issues.

56. On 17 August 2016, Dr Ihsheish referred Mr Doyle to Dr Jain, at the ACT Pain centre. In the referral, he referred to Mr Doyle’s problems with his ankle and right knee, his ADHD and noted that, at the time of the referral, he had developed pain in his right elbow suggestive of medial epicondylitis (‘golfer’s elbow’) or an atypical cubital tunnel syndrome.

57. On 13 October 2016, Dr Colin Andrews, a consultant neurologist reported to Dr Tonkin on a nerve conduction which occurred that day, which diagnosed carpal tunnel syndrome.

58. Dr Imran’s letter to Dr Ihsheish dated 31 October 2016 referred to problems with the plaintiff’s right knee and right elbow, and also bilateral carpal tunnel syndrome; and also pain from his left ankle.

59. From October 2016 through to November 2018, Mr Doyle underwent various investigations of his right knee and left ankle and several surgical procedures on his knees. His left knee struck the dashboard when he was involved in another motor vehicle accident on 4 January 2019.

60. On 1 December 2016, Mr Doyle fell at home.

61. On 24 January 2017, Dr Ihsheish wrote to Dr Jain, asking him to reschedule an earlier appointment with Mr Doyle which had been missed, to investigate his right elbow.

62. In January 2017 and January 2018, the plaintiff also had investigations of his brain. He received a diagnosis of a sinus disease and he suffers headaches.

63. On 1 August 2017, Dr Jain wrote to Dr Ihsheish, reporting on his review of the plaintiff on 20 July 2017 and reported upon the plaintiff’s complaints of pain in his bilateral knee, left ankle and right elbow. When describing his impressions, Dr Jain specifically commented upon the plaintiff’s pain issues in the left ankle and bilateral knee, but did not comment on the elbow injury. Dr Jain wrote to Dr Ihsheish again on 5 September 2017, following his review of the plaintiff on 28 August, but this letter was directed to the management of the plaintiff’s knee.

64. On 18 September 2017, Ms Helen Spiteri, an occupational therapist, wrote to Dr Jain and reported on her assessment of the plaintiff on 1 August. She reported the plaintiff’s complaints of pain from his left ankle, bilateral knee pain and his right elbow pain; all of which affected his function, mood and sleep. She described the plaintiff at this time as being overwhelmed and exhausted from his experience of living with chronic pain. It was too soon for him to benefit from occupational therapy.

65. Dr Jain saw the plaintiff again on 29 November 2017 and reported to Dr Ihsheish on 4 December 2017. In this report, Dr Jain observed that a right knee arthroscopy had alleviated pain to some extent, but not all of it. Mr Doyle indicated that his major stress, at this point, was his right elbow pain.

66. Dr Jain saw Mr Doyle again on 27 April 2018 when the latter commented positively on the impact of neuropathic agents in reducing pain. Mr Doyle emphasised continuing pain including his bilateral knee and left ankle.

67. On 16 May 2018, the neurologist, Dr Andrews saw Mr Doyle. Dr Andrews reported to Dr Imran that Mr Doyle was complaining about many headaches, occurring daily.

68. Dr Jain reviewed Mr Doyle again on 20 June 2018, commenting on Mr Doyle’s continued frustration with pain and indicated to Dr Ihsheish his attempts to have Mr Doyle referred to Dr Taylor, a pain physician at the RNSH Hospital.

69. On 30 September 2018, Mr Doyle was admitted as an involuntary patient in the psychiatric ward of Shellharbour Hospital for 9 days. It appears that during that stay, the diagnosis that Mr Doyle had hitherto received for ADHD was disputed and dismissed and his medication altered.

70. On 18 December 2018, Dr Ihsheish supplied a report to the plaintiff’s solicitors. This addressed Mr Doyle’s complaints about his ankle and knee, but also alluded to his past lower back complaint and ADHD. At that point in time, Dr Ihsheish summarised Mr Doyle’s complaints as comprising “pain in his ankle, with underlying tears of the lateral collateral ligament complex, pain in his right knee with underlying, imaging-confirmed tearing of the medial meniscus and chrondromalacia and irritability of his right ulnar nerve with imaging confirmation of a bifid ulnar nerve and positive nerve conduction studies, improved with a nerve release.”

71. On 2 January 2019, Mr Doyle was involved in another motor vehicle accident. He said he sustained no injuries as a result of this incident.

72. On 15 March 2019, Mr Doyle’s general practitioner, Dr Moffitt, referred Mr Doyle to a psychiatrist, Dr Thazahtaveetil, at Shellharbour Private Hospital. Dr Moffitt reported on Mr Doyle’s recent involuntary admission in the hospital’s private health clinic, but also significant difficulties and stressors on a personal level, concerning apprehended violence orders taken out against him by his eldest son and ex-partner, and difficulties managing his eldest son and also driving an unregistered vehicle.

73. On 2 December 2019, an ultrasound was carried out on the plaintiff’s left elbow, and on the same day an x-ray and ultrasound was performed on his right shoulder. This was the first investigation of his shoulder.

74. On 4 February 2020, Mr Doyle informed Dr Home, an MAS Assessor, that he commenced feeling right shoulder pain in 2017.

75. In March 2020, an x-ray of his chest and left ribs occurred following a suspected left rib injury.

76. Throughout 2020, the plaintiff has had continued problems with both of his knees. He recently had surgery on his left knee, which resulted in his use of a crutch. He plans to have further surgery on his right knee.

77. When he was recently examined by Dr Lee in June 2021, the plaintiff identified pain in the neck as being the cause of headaches.

78. It was curious that when Mr Doyle ‘attended’ (remotely) on the second day of the hearing, he did so wearing a neck brace, when he had not done so on the first day of the hearing. On the first day, he apparently utilised a crutch; which was visible on the screen when he gave his evidence that day.

Medico-legal evidence – physical injuries

83. A large array of reports from medico-legal experts was amassed by the parties. None of the medico-legal experts were required to attend for cross-examination. Although some of the experts addressed the reports of others in their reports, when they did, it was not for the purpose of critiquing them. The only instance in which there was any real joinder of competing views occurred when Dr Guirgis (for the plaintiff) and Dr Stephen (for the defendant) engaged in an expert conclave.

84. It is not necessary to canvass at length all of the findings and observations of the array of treating practitioners and medico-legal experts. What follows is reference to the salient parts of the reports as emphasised by Counsel for the parties in their respective submissions.

Dr Moffitt

85. Dr Moffitt is a general practitioner. He commenced having Mr Doyle as a patient on 7 September 2018, at which point he joined the Windang Beach Family Medical Practice. He prepared no less than 6 reports for the plaintiff. However, the reports which are specifically directed to the subject motor vehicle accident were those of 22 July 2019, 12 April 2020 and 12 June 2021.

86. There was little that Dr Moffitt could say in his first report about the effects of the subject accident other than to report what Mr Doyle had told him. In the first of the reports, he recorded Mr Doyle’s complaint about a recent exacerbation of his right elbow pain and request for a cortisone injection. Nevertheless, in the second of his aforementioned reports, he did usefully describe the results of an examination of his right shoulder even if, as the defendant pointed out, he was in no real position to comment meaningfully as to the extent to which the subject motor vehicle accident, in contradistinction to other work incidents, was the cause of his problems.

87. In Dr Moffitt’s last report, the practitioner updated the plaintiff’s solicitor about the plaintiff’s reported discomfort in his right elbow, right shoulder, left ankle, both knees.

Dr Geoffrey Stubbs

88. Dr Stubbs is an orthopaedic surgeon. He assessed Mr Doyle in relation to one of his pre-accident injuries, in July 2015, shortly before the subject accident. He supplied to the defendant’s insurer a report dated 2 August 2016, which followed his consultation with Mr Doyle on the same date. It was relied upon at trial by the plaintiff, however. The consultation, and report, occurred nearly a year after the subject accident.

89. On examination, Dr Stubbs remarked that the presentation of the plaintiff’s upper limb was ‘excellent’, subject to marked local tenderness over the right medial epicondyle. Mr Doyle did not, however, have any weakness in grip or signs of ulnar nerve compression, and no restriction of movement of the right elbow, in comparison with the left.

90. Dr Stubbs was asked to comment upon the relationship of the right elbow injury said to have been suffered by the motor vehicle accident and the work injury sustained subsequently. His opinion was that he did not think that the workplace incident caused any significant change in the already existing medial epicondylitis suffered; nor generated any additional need for further treatment; nor contributed to prolonged duration of his pain. He later opined in his report of 2 August 2016:

“My view is that if he is incapable of work, it is as a consequence of the motor vehicle accident because I really could not see that the work injury of December 2016 (sic) had caused any fundamental change in his right elbow, he had an injection in his elbow just once month before this occurred for problems with his elbow.”

91. Dr Stubbs also opined that a wrenching injury from the steering wheel of the plaintiff’s motor vehicle was a plausible cause of his problems (with his right elbow).

Dr Deveridge

92. Dr Deveridge was qualified by the plaintiff. He prepared multiple reports for the plaintiff in December 2016. In his main report of 8 December 2016, Dr Deveridge diagnosed golfer’s elbow in the right elbow; although he described it as a moderate ongoing disability. He observed that there was no objective evidence of associated ulnar neuropathy at the elbow. Mr Doyle’s complaint of bilateral carpal tunnel syndrome, a constitutional condition unrelated to the accident, emerged only later.

93. Dr Deveridge attributed the right elbow injury to the motor accident, but considered that the injury was aggravated by the work injury incident of January 2016; opining that, by January 2016, it had been “well established”. Dr Deveridge also prepared a report of 15 December 2016, but as was acknowledged in the report, he did not consider the need to repeat what he had said about Mr Doyle’s right elbow but in the latter report, instead, addressed Mr Doyle’s other complaints about his ankles and knees.

Dr Guirgis

94. Dr Guirgis, a consultant orthopaedic surgeon qualified by the plaintiff, prepared multiple reports. In his first report, dated 6 August 2019, Dr Guirgis opined that Mr Doyle suffered injury to his right elbow joint. Dr Guirgis observed ultrasound and MRI scan evidence indicating right medial epicondylitis.

95. Dr Guirgis acknowledged that his presentation was complicated by Mr Doyle’s development of chronic pain syndrome which, as I understood him to mean, was a neuro-psychological event analogous to anxiety and depression.

96. In a subsequent report, dated 9 June 2020, and with reference to a raft of reports from other practitioners, Dr Guirgis altered his opinion; explaining that he had not been made aware of Mr Doyle’s problems with his neck, right (C6/7) arm radiation, right shoulder and right carpal tunnel syndrome.

97. Whilst maintaining his earlier opinion regarding Mr Doyle’s right elbow, Dr Guirgis also diagnosed subacromial impingement of his right shoulder joint and a sprain or strain of his neck with possible intervertebral disc involvement; which was causing radiation down to the right upper limb to his fingers; and minor right carpal tunnel syndrome.

Dr Stephen

98. Dr John Stephen is an orthopaedic surgeon qualified by the defendant, with a specialty in spinal surgery. He examined Mr Doyle on 21 November 2017.

99. Dr Stephen diagnosed ongoing right medial epicondylitis, which he expected to continue into the indefinite future. He observed that Mr Doyle’s complaints in relation to his left ankle and both knees were unrelated to the accident.

Dr Keller

100. Dr Keller is an occupational physician, qualified by the defendant, who reported to the defendant on 24 October 2019. Whilst he accepted that Mr Doyle suffered injury to his right elbow as a result of the motor accident, he did not consider that the injury persisted.

Dr Walker

101. Dr Grant Walker is a neurologist, who examined Mr Doyle on 16 March 2021. He found it difficult to “understand” how the plaintiff could have sustained golfer’s elbow in the accident, and did not consider that this particular injury was causing the plaintiff any continuing (or future) problem. He regarded Mr Doyle’s current issues to be referable to accidents occurring before and after the subject motor vehicle accident.

Assessor Rosenthal

102. Thomas Rosenthal conducted a MAS assessment of the plaintiff on 26 June 2019. Assessor Rosenthal conducted a thorough review of documentation as well as conducting his own examination focussing upon Mr Doyle’s right elbow and shoulder. On his examination, he found that the plaintiff could not fully extend the elbow and observed tenderness over his ulna groove and medial epicondyle.

103. Assessor Rosenthal considered that Mr Doyle sustained medial epicondylitis of the right elbow following the accident; and that this condition was apparently settled, following an initial cortisone injection; only for it to become aggravated by work injuries, including the incident that occurred in early January 2016. He opined that epicondylitis is normally a self-limiting condition that would ordinarily resolve and, but for the work injury, would have resolved. He considered that it had resolved in December 2015.

Assessor Home

104. Dr Alan Home, a MAS Assessor, carried out an assessment on 4 February 2020. He was satisfied that in the way that Mr Doyle described the accident occurring, it could have strained his medial epicondyle and opined that it was probable that the motor vehicle accident caused this particular complaint.

105. Further, Assessor Home considered that the work incident of January 2016 significantly aggravated the injury, leading to an increase in symptoms, he was satisfied that the motor vehicle accident was a more than negligible cause of the plaintiff’s right elbow condition; even if he considered that the work incident of January 2016 was the ‘major’ cause. Nevertheless, he assessed the plaintiff as having a permanent impairment in his right elbow, albeit at the low level (1% WPI).

Assessor McGrath

106. David McGrath undertook a further medical assessment, on Mr Doyle’s application, arising from his complaint that new information had emerged which warranted assessment of whether injuries to his neck and right shoulder were attributable to the motor vehicle accident. Assessor McGrath supplied a certificate on 30 March 2021.

107. As the defendant emphasised, although the reason for his assessment of Mr Doyle was consideration of his neck and right shoulder concerns, Assessor McGrath ventured conclusions regarding Mr Doyle’s right golfer’s elbow. He expressed his view that there were ‘major difficulties’ accepting that golfer’s elbow could have been caused by the motor vehicle accident at all. He elaborated:

“…

Golfer’s elbow is nearly always the outcome of repetitive biomechanical stress strain arrangement of the forearm. Only on very rare occasions is it the result of acute trauma.

It is difficult to understand from a biomechanical perspective how an injury to the medial epicondyle could occur with the accident as described. There was no direct blow to the inside of the elbow. A torsional movement of the steering wheel, is probably insufficient and unlikely cause of pathology later visualised by high resolution imaging. Had this been caused by the MVA, Mr. Doyle, in all likelihood would have brought it to his doctors’ the attention with pain and symptoms.

There is no contemporary record of any symptoms arising from the right elbow following the accident. There is no written acknowledgment of MVA contribution in the original PICF certificate by his GP, other than a circling of the elbow on a diagram, months after the MVA. Nor is there any explanation for the inconsistency between Mr. Doyle and himself.

….” (emphasis supplied)

108. Assessor McGrath also opined that the motor vehicle accident was a no more than negligible contributor to Mr Doyle’s right golfer’s elbow.

Joint report of Dr Guirgis and Dr Stephen

109. The two experts, Dr Guirgis and Dr Stephen, participated in a conclave on 13 October 2021. Their joint report was at JCB 468-472. They agreed that Mr Doyle sustained an injury to his right elbow which was caused by the collision of the motor vehicles. They agreed on the diagnosis of medial epicondylitis. They also agreed that Mr Doyle’s right carpal tunnel syndrome and right shoulder symptoms were not attributed to the accident.

110. But they disagreed on whether Mr Doyle sustained a neck injury because of the accident; but Dr Guirgis did not elevate his opinion in this regard above the level of a possibility. Dr Stephen noted Dr Guirgis’ own view, expressed on 6 June 2019, that there was no complaint of neck pain. This coincided with Dr Stephen’s finding in his examination on 21 November 2017, where Mr Doyle did not complain about neck pain (or pain to his shoulders).

Psychological injury

111. Reports from Dr Tonkin indicated that prescription medicines were given to the plaintiff to treat his ADHD from May to August 2016.

112. On 16 August 2016, Dr Tonkin, a general practitioner, sent a referral to Dr Marwat, the psychiatrist who had treated Mr Doyle in August 2012. Dr Tonkin referred to Mr Doyle suffering significant psychological distress exacerbated by social stressors; especially his ongoing workers compensation case following the work incident in March 2015.

Medico-legal opinions

Assessor Samuels

113. On 17 May 2019, Anthony Samuels assessed Mr Doyle’s psychological injuries and he certified reasons on 21 May.

114. Pertinently, Assessor Samuels noted that prior to a work incident on 1 March 2015, Mr Doyle’s persistent depressive condition, ADHD, substance abuse and dependence were reasonably under control. He was off medication but still receiving counselling. However, Assessor Samuels considered that the incident on 1 March 2015 exacerbated his persistent depressive condition. Assessor Samuels reported Mr Doyle as saying that he was concerned that no-one would believe that he had suffered persistent pain after the subject motor vehicle accident.

113. Assessor Samuels opined that he had sustained a recurrence of depressive and anxiety symptoms following the work injury in March 2015 and this continued after the subject motor vehicle accident.

114. Assessor Samuels considered it likely that the subject motor vehicle accident had a more than negligible effect in worsening his Persistent Depressive Disorder, but considered that his functioning was back at the level it was at following the work injury in March 2015.

Dr Lewin

117. Dr Robert Lewin is a psychiatrist qualified by the defendant, who assessed Mr Doyle on 16 September 2019 and reported on that date. Dr Lewin comprehensively reviewed documentation relating to Mr Doyle’s mental health, took a history from him and conducted a mental state examination of Mr Doyle.

118. In terms of the structure of Dr Lewin’s report, there was a division of consideration of Mr Doyle’s mental health condition prior to the subject accident, then after the accident. As to the former, Dr Lewin noted chronic psychiatric disability going back many years, and found evidence of chronic depressive condition. He generally diagnosed Persistent Depressive Disorder, with Anxious Distress, which had been present for at least two decades.

119. As to the latter, Dr Lewin indicated that Mr Doyle did not describe post traumatic symptoms, such as anxiety, or nightmares. Dr Lewin observed Mr Doyle’s complaint of persistent pain and sense of outrage and injustice regarding his treatment by the insurer and a pattern of chronic persistent symptoms of anxiety and depression.

120. But Dr Lewin found no evidence of any worsening of his clinical condition after the motor vehicle accident. His depressive symptoms had waxed and waned over a period of two decades. That was consistent with Persistent Depressive Disorder. Dr Lewin did not diagnose any specific psychiatric condition consequent upon the motor vehicle accident; nor any evidence of exacerbation or worsening.

Dr Lee

121. Dr Leonard Lee is a consultant forensic psychiatrist, who was qualified by the plaintiff. He assessed Mr Doyle on 15 June 2021. It is not apparent that Dr Lee was provided with the same reservoir of documentation that Dr Lewin was supplied; or even Dr Lewin’s report. (Dr Lee did refer to some reports of Dr Guirgis, Dr Deveridge, Dr Ihsheish, Dr Jain and Dr Imran Dr Andrews and the general practitioner, Dr Moffitt; which mainly concerned the plaintiff’s physical injuries). His method was to take a history from the plaintiff, whom Dr Lee acknowledged was ‘difficult’ in the circumstances (JCB 146) prior to conducting the mental state examination. The difficulty with this methodology, self-evidently, is that Dr Lee was not furnished with all relevant information. Thus he was dependent upon Mr Doyle’s own perception that “life was good until the work accident on 1 March 2015” even with the latter’s acknowledgment of his ADHD diagnosis from the middle of 2014.

122. Dr Lee’s conclusion was, with no disrespect, rather sparse. He considered Mr Doyle suffered from a depressive condition secondary to his physical injuries. Further, he could not determine the relevant contribution of the subject accident to Mr Doyle’s ability to work.

Submissions on the injuries caused by the motor vehicle accident

123. Both Counsel helpfully furnished the Court with detailed written submissions. The defendant’s written submissions are MFI #1 and the plaintiff’s written submissions are MFI #2.

The defendant’s submissions

124. The defendant submitted that, at most, the plaintiff suffered only minor medial epicondylitis to the plaintiff’s right elbow which may have been sustained by him as a result of the motor vehicle accident. If he suffers from any injuries to his neck, either shoulder or right wrist at all, these injuries were not caused by the motor vehicle accident. Nor did he suffer any psychological injury as a result of the accident.

125. The defendant refers only to the possibility that medial epicondylitis resulted to the plaintiff’s right elbow. There were doubts that it did in fact result. There was no recorded complaint about his right elbow until November 2015; notwithstanding visits, on 10 occasions, to Dr Imran’s practice; and when it was mentioned by Dr Imran on 30 November 2015, there was no linkage of his golfer’s elbow to a motor vehicle accident. He continued to work for FACS two days after the accident. He did not mention problems with his right elbow to his psychologist, Ms Tuovinen.

126. Contrary to the submission which the plaintiff later made about the right elbow flaring up in October 2015, the certificate which the plaintiff received from Dr Imran at that time referred specifically to a left ankle sprain and did not refer to the right elbow. The problems that the plaintiff experienced from October 2015 to early January 2016 had nothing to do with the plaintiff’s right elbow but were generally referable to the condition of the plaintiff’s knees. Indeed, the defendant submitted that the Court should reject the plaintiff’s evidence of any disclosure of the problem with the right elbow until later, from 8 March 2016 (after the work incident causing injury in January 2016).

127. The defendant apparently submitted that the Court should find that the right elbow injury resulted from his work incident on 2 January 2016. There was no contemporaneous treatment record of an elbow complaint before this incident. This accorded with the opinions of Assessors Home and Rosenthal. It was on the WorkCover medical certificate which Dr Ihsheish prepared (12 May 2016) which referred, among other things, to an elbow injury. In that practitioner’s report of 17 August 2016, when reference was made to pain in the plaintiff’s right elbow, no mention was made to any motor vehicle accident.

128. Nevertheless, the defendant accepts that the plaintiff did develop medial epicondylitis; for which he received surgical treatment on 17 May 2017. Dr Jain, the specialist pain medicine physician, reported significant improvement in the plaintiff’s right elbow after this. The next treatment that the plaintiff received for his elbow was an injection at Shellharbour in January 2020.

129. As to the plaintiff’s case of psychological or psychiatric injury, the defendant noted that Mr Doyle did not seek to have his psychological symptoms assessed at MAS for WPI. Nevertheless, the defendant pointed to his extensive pre-accident history of having been diagnosed and treated for a range of symptoms and referred, at length, to the views of the Assessor Samuels, and the psychiatrists, Drs Lewin and Lee. Dr Samuels’ evidence did not support a case of aggravation, or exacerbation of a pre-existing condition. Dr Lewin could not distinguish the plaintiff’s symptoms before and after the accident and Dr Lee’s diagnosis was vaguely limited to depression secondary to unspecified physical injuries and with no attribution as to what, if any contribution, any physical injuries sustained in the motor vehicle accident made to the psychological illness. The plaintiff did not call treating mental health professionals, or rely upon the reports of Dr Tuovinen, Ms Malatos or Dr Malat who, collectively, saw the plaintiff over an extended period.

The plaintiff’s submissions

130. Counsel for the plaintiff acknowledged the plaintiff’s multiple health issues prior to the accident.

131. Counsel submitted that when he saw Dr Imran two days after the accident, Mr Doyle downplayed the effects of what had occurred. He had only just recovered from the effects of his work injury from March 2015 and on a return to work programme. He had personal and domestic responsibilities and wanted to return to work. He hoped that the problem with his elbow would go away. He should be accepted in his evidence that he and Dr Imran had reached a pact that nothing would be made of his elbow. This explains why he made no further reference to Dr Imran about his right elbow until 30 November 2015, at which point it could no longer be ignored, when Dr Imran identified the problem as right arm ‘golfer’s elbow’.

132. The plaintiff submitted that the reference to the right elbow injury in his claim form of 24 March 2016 was significant, in the context of the work injury on 2 January 2016, in which he also injured his right elbow. The work injury would have caused him to expect that he would receive treatment for the right elbow as part of a prospective workers compensation entitlement. Nevertheless, he still claimed that the injured right elbow was caused by the motor vehicle accident. But the workers compensation claim he lodged on 9 May 2016 was not based upon injuries to his right arm and elbow.

133. Further, the preponderance of medical evidence supports the injuries and disabilities claimed by Mr Doyle in his statement of particulars (as amended) being caused by the subject motor vehicle accident. The Court should prefer the views of the plaintiff’s doctors over the defendant’s doctors.

134. At the very least, it should be found that the subject motor vehicle accident caused the plaintiff’s injuries to his right elbow and right shoulder. Further, it should be found that the motor vehicle accident caused or aggravated the plaintiff’s psychological condition.

Consideration

Credit

135. I accept that Mr Doyle tried to tell the truth. As his Counsel correctly emphasised, Mr Doyle did not seek to conceal the considerable health issues affecting him before (and after) the subject accident.

136. Nevertheless, making allowances for issues concerning his mental health, which existed prior to the subject accident, and also his sinus issues and headaches, which developed after the subject accident, I had great difficulty accepting his reliability as a witness. Much of his evidence, in chief, was led through his Counsel in the form of leading questions (without objection) and often Mr Doyle became side-tracked. Even when he gave evidence in chief, he appeared significantly distressed.

137. Under cross-examination, Mr Doyle was, by turns, emotive or melodramatic and angry and he almost continually interrupted, or intercepted questions raised of him by Counsel for the defendant (despite multiple warnings by myself to him about the disruption caused to the Court’s procedures by his doing so). He generally appeared not to understand the process of cross-examination and thought that it presented another forum for him to put his narrative of events across even after he had given his evidence in chief. He appeared to treat the process of answering questions as a form of combat with Counsel and very often punctuated his answers to questions, which were apt to elicit yes or no answers, with speeches and the addition of irrelevancies. Many times under cross-examination, he evidenced an embittered sense of resentment towards the defendant’s insurer. Sometimes he took the opportunity to challenge Counsel for the defendant to disprove what he was saying. Often he exhibited self-pity. He had a palpable sense of victimhood: he appeared to attribute his predicament entirely to the occurrence and consequences of the subject motor vehicle accident when there was ample evidence that, both before and after the subject accident, he had been involved in multiple incidents causing him personal injuries. He was prone to exaggeration.

138. My observations of Mr Doyle broadly coincide with Dr Stephen’s comments about his being a difficult historian (JCB 787). Not dissimilar comments were expressed by other medico-legal experts, such as Dr Lewin (JCB 1060).

139. It might be thought that some of the matters that I have described reflect a ‘fight or flight’ response of a man belatedly diagnosed with ADHD, when presented with the alien, or hostile, environment of a court hearing and, the pain from numerous physical ailments and his headaches. But whatever was the source, or sources, of these difficulties, the matters I have referred to impinged upon his general reliability and generally served to undermine the cogency his testimony where it concerned subjective matters, such as his attribution of injuries to the subject accident and his self-assessment of his capacity to earn. I accept the force of Counsel for the defendant’s submission that the plaintiff tended to ‘blend’ or perhaps conflate, recollections of the symptomology from a miscellany of disparate events into a view that this defendant’s insurer was to blame for all his problems.

140. I am unable to accept unreservedly his evidence on contentious factual questions unless consistent with contemporaneous evidence or consistent with the objective probability of events.

Evaluation of evidence

Physical injuries

141. I note that Dr Guirgis accepted that Mr Doyle’s right carpal tunnel syndrome and symptoms concerning his right shoulder were not caused by the subject accident.

142. As to Mr Doyle’s complaints about his neck injury, I prefer the evidence of Dr Stephen over Dr Guirgis, and that concerns about his neck were not attributable to the subject accident. Dr Guirgis’ evidence that the neck injury may be attributable to the accident was weak: he spoke only in terms of ‘possibility’ and not probability. It was belated, and not very convincingly explained, beyond his observation of the reports of other practitioners. This expert’s opinion appeared to assume that Mr Doyle’s vehicle was ‘T-boned’; when I do not accept that this was so. As I have indicated earlier, the contact between the defendant’s vehicle and Mr Doyle’s vehicle was side to side. As Dr Stephen pointed out in the report from the expert conclave, Dr Guirgis himself observed no complaint of neck (or shoulder) pain when he examined the plaintiff in August 2019, which was consistent with Dr Stephen’s own findings.

143. No reference was made to contemporaneous complaints about injury to Mr Doyle’s neck, either shoulder, or his right wrist caused by the motor vehicle accident. Nor was any reference to these other injuries made by Dr Deveridge, following that orthopaedic surgeon’s examination of Mr Doyle in December 2016 or July 2017. No reference to neck, right shoulder or right wrist pain was made by Dr Stubbs, when he saw the plaintiff in August 2006. The first written reports of pain in these other regions came later: 30 September 2017 (for the neck); 4 February 2020 (for the right shoulder) and October 2016 (for the wrists). I agree with the defendant’s submission that the issue with Mr Doyle’s right wrist was mainly constitutional and not referable to the subject motor vehicle accident.

144. The contemporaneous reports by Mr Doyle do not suggest injuries other than the right elbow being affected by the accident.

145. I find, on the probabilities, that Mr Doyle did suffer a right elbow injury as a result of the accident, being to his medial epicondyle. The preponderance of the vast medico-legal evidence supports that view. Assessors Home and Rosenthal accepted causal attribution of this particular injury to the motor vehicle accident. I acknowledge that Assessor McGrath did not. Assessor McGrath cited points now raised by the defendant, but also made the point that Mr Doyle’s occupational experience, as bricklayer and disability worker, both of which required manual handling, lent itself to this type of injury. Nevertheless, with respect, it seemed to me that Assessor McGrath somewhat strayed beyond the apparent breadth of his expertise when venturing opinions from a ‘biomechanical perspective’. Even when he did, he acknowledged that it remained possible that the injury could result from ‘acute trauma’.

146. In this regard, I place significant weight, first, upon the occurrence of the cortisone injection and ultrasound of the plaintiff’s right elbow in December 2015, prior to the work incident on 2 January 2016. The defendant could not identify any other incident in the period from August to December 2015 which would have warranted that treatment. I also place some significant weight upon the view of Dr Stubbs, who was qualified by a workers compensation insurer, that the right elbow injury was plausibly explained by the plaintiff’s account of the motor vehicle accident. In this, he was joined by Assessor Home and the joint view of Drs Guirgis and Stephen.

147. Notwithstanding that the linkage between the elbow injury and the motor vehicle accident may not have been contemporaneously recorded, as might have been expected, I accept, on the probabilities, that it was caused by it. Although the defendant pointed out that no report of the motor accident and its linkage to the right elbow concern was apparent before 30 November 2015, as I have indicated, the defendant did not point to any specific incident in the period from the date of the motor vehicle accident to 30 November 2015 which would dissuade the Court from drawing the natural inference that Mr Doyle – who had not hitherto sustained this type of injury – suffered it because of the accident. The plaintiff’s Counsel’s theory as to why it was not disclosed, or minimised, prior to late November 2015 was not altogether convincing, but I accept as plausible that with all the other problems and difficulties in the plaintiff’s life, he had a natural motivation to try to get on with working even in the face of certain pain emanating from his right elbow until he could not withstand it any longer; or the subject to some further incident at work, such as that which occurred on 2 January 2016.

148. I also place some, albeit limited weight upon Dr Imran’s certificate accompanying the personal injury claim form for the subject accident, even if, by the time that certificate had been prepared, the plaintiff may have had it in his mind that a workers compensation claim could be brought (and was later, in May 2016, brought) on the same basis. What was perhaps of greater significance, in assisting the plaintiff’s case (although again in a limited away) as demonstrating the consistency of his conduct was, when in the workers compensation claim, he alluded to the prior injury to his right elbow sustained in the motor vehicle accident.

149. The issue of some greater difficulty is whether, as Assessor Rosenthal concluded, the injury had resolved itself prior to the subsequent work injury in early January 2016. This view appeared to be shared by Assessor Home. Curiously, this question was not specifically addressed by Drs Guirgis and Stephen in their conclave. I place greater weight on the evidence of Dr Stubbs, which was more contemporaneous than that of Assessor Rosenthal. Further, I did not regard Assessor Rosenthal’s conclusion, in this respect, to be convincing or even properly explained. It is also implicit from the joint expert report that they do not consider that Mr Doyle’s concerns with his right elbow have gone away. I find that even if the effects of the injury had reduced, especially because of the administration of the cortisone injection in December 2015, the injury had not fully resolved itself prior to the work injury in early January 2016.

150. The next question of causation, pertinent to the scope of liability element to the statutory test of causation in s 5D(1)(b) of the Civil Liability Act 2002 (NSW), is whether the defendant is liable for any aggravation or exacerbation caused by the work injury incident occurring on 2 January 2016. I find that the right elbow injury was settling down but then stirred up again through the course of his arm being twisted and pulled during that incident. In my view, with reference to the authority of cases such as Chapman v Hearse (1961) 106 CLR 112 and Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522, it was not only foreseeable that the plaintiff’s injured elbow would be aggravated in this way but, further, that such conduct did not serve as a supervening event severing the causal connection.

151. I find, on the probabilities, that the subject motor vehicle accident not only caused golfer’s elbow in the plaintiff’s right arm, but further, that the disabilities associated with that injury have persisted. I am unable to accept the defendant’s submission that the incident from early January 2016 entirely eradicated the effect of the right shoulder injury sustained in the motor vehicle accident such as to remove causal attribution.

141. The statutory test of causation under s 5D is established insofar as concerns the defendant’s negligence causing Mr Doyle to sustain an injured right elbow.

Psychological condition

153. As to Mr Doyle’s psychological condition, I prefer the views of Dr Lewin over Dr Lee. Dr Lewin undertook a much more thorough review of the documentation, and especially that concerning Mr Doyle’s mental health, than the latter. Whilst I take into account Assessor Samuels’ view that the motor accident exacerbated a pre-existing mental condition, especially considering his independence, the reasoning for that view was not very transparent. I am not persuaded that it is correct. There was a dearth of contemporaneous evidence from psychologists or counsellors like Ms Tuivenen, Ms Malatos or Dr Marwat indicating any spikes, or ‘red flags’, as concerned the plaintiff’s mental health condition after late August 2015 which manifestly set that condition apart from the fairly gloomy picture painted by Assessor Samuels’ description of the plaintiff as at the date of the accident.

154. I am not persuaded that the plaintiff’s pre-existing psychiatric or psychological condition(s) was (were) materially exacerbated by the motor vehicle accident.

CLAIMS FOR ECONOMIC LOSS

The claims

155. In his schedule of damages (MFI 3), Mr Doyle’s claim for past and future loss of earning capacity was predicated on his receiving earnings of $471.50 each week. As to the claim for past loss, from 16 April 2016, up to trial, the claim is quantified at $134,839. Thereafter, the claim until he turns 72 is quantified at $403,145.

156. But in Counsel for the plaintiff’s written submissions (MFI 2), the Court was invited to make an award based upon net weekly earnings on a figure somewhere below $625.88 which was what the plaintiff earnt in the financial year ended 30 June 2015.

157. The defendant contends that Mr Doyle has no entitlement to damages for past or future economic loss. The defendant submits that the motor vehicle accident did not interfere with his past or future earning capacity.

Mr Doyle’s evidence

158. As indicated, most of the following is derived from the plaintiff’s documented chronology (Exhibit A).

159. Mr Doyle is now 53 years of age. He finished his secondary education at the conclusion of Year 10. After a period of about 5 years, he trained and received a tertiary qualification as a bricklayer. He subsequently worked as a bricklayer for 20 years.

160. He was employed as a construction worker, with Fugen Holdings, for two years (1996-7).

161. In 2013, after some troublesome domestic matters, Mr Doyle changed course in relation to his career direction. He undertook a course in mentoring at the Goulburn TAFE. Thereafter he commenced employment as a disability support worker with the FACS. This featured assistance to physically and sometimes mentally disabled people. He described his duties as including bathing, grooming and dressing clients; helping them with their medication; making their beds and getting them to excursions and other organised activities. As indicated, he sustained certain work-related injuries during his employment.

162. Mr Doyle said that prior to the subject accident, he was doing full duties comprising 152 hours a month. Under cross-examination, it was put to him that in the period of approximately 6 months leading up to the subject accident, he had only worked on 4 shifts. It was also suggested that he had reduced his hours (to 84) each month because of his custody of and desire to be with his children. Mr Doyle disputed this proposition.

163. Following the accident, he continued to work through September to December 2015. He worked 32 and a half hours in the fortnight from 11 September and 39 hours in the fortnight from 29 September. He worked through to 2016, He said he used painkillers to manage his pain. He reported to Dr Stubbs that he had kept working but experienced pain on the inside of his right elbow (for which the cortisone injections were arranged) and his problem flared up before Christmas 2015, a week or so after the first of the injections, after he was grabbed on the right forearm, adjacent to the elbow. This was actually a reference to the incident at work on 2 January 2016.

164. In his chronology, which he corrected when he gave his evidence in chief, he said he discontinued work from 10 March 2016. He attributed stopping work to the pain in his right elbow and arm and pain in his knees and left ankle. (It was the reference to pain in his knees and left ankle which was made when he gave his evidence in chief).

165. In his evidence in chief, Mr Doyle mentioned, more than once, that he has the care and custody of two children, at least one of whom (without elaboration) he indicated had ‘special needs’.

166. On 9 May 2016, Mr Doyle made a claim for workers compensation in connection with his work injuries sustained from the incident on 2 January 2016. He has been in receipt of workers compensation since then.

167. When he gave his evidence, Mr Doyle expressed his belief that he was unsuitable for any remunerative work. This, he said, was because of a constant sense of fatigue and absence of energy. When asked by his Counsel to nominate his physical impediments, Mr Doyle referred to his right elbow, shoulder and neck; although he said he was still receiving treatment for his knees and left ankle. Mr Doyle also acknowledged that he tended to break down with regularity. This last observation was demonstrated when he gave evidence at the hearing.

168. Under cross-examination, Mr Doyle accepted that he told Dr Lee in June 2021 that he regarded his neck as presenting his main problem. It was put to him that if this was so, he would not be able to work at all. Mr Doyle said he thought that there was hope for him, given rehabilitation. It was also put to Mr Doyle that if his right shoulder was causing problems for him, this would be another reason for his not wanting to work. He did not strongly dispute this. It was further suggested that the condition of his knees was further reason why he may not be able to work. Mr Doyle acknowledged that this might be so, but said he thought his knees were strong. He accepted, however, that he had always had knee pain since the pre-accident work-related incident in March 2015 and that his pain had only gotten worse since then.

FACS payslips & Workcover certificates

Pre-accident

169. As a result of the work incident on 31 March 2014, the Plaintiff became totally incapacitated for work from 1 April 2014 until 2 May 2014 by which date he had recovered and was certified fit to resume employment which he did (JCB 517, 520 and 523). Between the 17 May and 11 July 2014 he was certified fit to work with restrictions on lifting up to 5 kg (JCB 529, 533 and 536).

170. On 21 June 2014, the plaintiff was certified up to 11 July 2014 to be able to work 16 hours a week (JCB 536) and this regime was increased to 25 hours per week on 12 July 2014 with the lifting restriction being increased to 7 kgs.

171. The last Workcover Medical Certificate consequent to the neck injury covers the period 26 July to 8 August 2014 with the Plaintiff certified to undertake work duties of 25 hours a week with lifting restriction of between 7 and 10 kgs if tolerable (JCB 543).

172. On 23 July 2015, when Dr Stubbs examined the plaintiff at the workers compensation insurer’s request, the practitioner recommended that the plaintiff be sent back to work as soon as possible, on clerical duties, leaving him at his prior hours, which he understood to be in the region of 65 hours a fortnight.

173. The plaintiff was certified from 16 hours a week up to 21 hours a week by Dr Imran on 6^t August 2015, being 7 hours a day on 3 days a week. The Plaintiff then worked a shift of 5 hours on 15^t August 2015 (JCB 372) this being 14 days prior to the subject motor vehicle accident.

Post-accident

174. On 31 August 2015, the plaintiff attended on Dr Imran, two days after the subject accident. On that day the GP provided a WorkCover Certificate stating the plaintiff was fit to work 24 hours per week from 31 August 2015 to 27 September 2015 performing ‘suitable duties and one additional shift of 10 hours night shift per week as per Warren’s capacity.”

175. The payslip for the period 28 August 2015 to 10 September 2015 discloses the plaintiff worked 11 hours, comprising an 8 hour shift on 31 August 2015 and a 3 hour shift on 1 September 2015.

176. In the following fortnight, from 11 September 2015 to 24 September 2015 the plaintiff’s work hours worked increased to 32.5 hours for the fortnight. In the following pay period, for the fortnight 25 September 2015 to 8 October 2015 the plaintiff worked 39 hours.

177. On 15 October 2015 Dr Imran certified the plaintiff as totally unfit for any work between 15 October 2015 and 1 November 2015. In addition to describing the relevant “injury” as “left ankle sprain” as he had done in all previous certificates since 1 March 2015, Dr Imran stated in the certificate:

“Warren is fatigued, mentally & physically with the overwhelmingly hectic schedule to have his appointments, work and look after his two children with medical conditions needing extra care. He has been living & managing things at home and outside home by himself. The psychologist has also recommended him stress leave for two weeks with which I agree.”

178. For the fortnight from 6 November 2015 to 19 November 2015 the plaintiff worked 39 hours. For the period 20 November 2015 to 3 November 2015 the plaintiff worked 28 hours. For the period 2 December 2015 to 17 December 2015 the plaintiff worked 40.5 hours. For the fortnight from 15 January 2016 to 26 January 2016 the plaintiff worked 33.5 hours. For the fortnight 29 January 2016 to 11 February 2016 the plaintiff worked 38 hours.

179. The plaintiff performed no work in the fortnight 11 March 2016 to 24 March 2016. In the fortnight 25 March 2016 to 7 April 2016 the plaintiff performed 25 hours and in the fortnight 8 April 2016 to 21 April 2016 he worked 20 hours.

180. He last performed work on ANZAC Day 2016 when he worked a 7 hour shift.

Medico-legal opinions

Joint expert report

181. Both Dr Guirgis and Dr Stephen agreed that, in a physical sense, the plaintiff is able to perform most of his duties as a disability support carer; though he should avoid heavy, repetitive activities involving lifting his right arm. They did not consider that his situation was likely to improve or deteriorate until retirement age.

182. They also indicated that, whilst acknowledging that psychiatric issues were outside their expertise, the issues which led to the plaintiff obtaining a disability pension in 2001 (his back injury and psychiatric issues) were also likely to affect his capacity to work now.

Dr Keller

183. Dr Andrew Keller is an occupational physician qualified by the defendant. He examined Mr Doyle on 24 October 2019.

184. On examination, he found a full range of motion in Mr Doyle’s right elbow. He did not consider that there was any persisting injury. He would have expected the soft tissue injury to the right elbow to resolve in less than 3 months. Dr Keller opined that the accident would not have affected Mr Doyle’s capacity for employment.

Dr Walker

185. Dr Grant Walker is a neurologist qualified by the defendant. He reviewed Mr Doyle on 16 March 2021. He considered that Mr Doyle had no fitness for current or future employment (for the foreseeable future) but attributed this condition to pre-accident and post-accident events.

Dr Jain

186. When writing his report to the referring practitioner on 3 August 2017, Dr Jain commented upon the multiple issues concerning Mr Doyle’s left ankle and bilateral knee which had a marked effect on his life, his functional capacity, mood and sleep.

Dr Moffitt

187. In Dr Moffitt’s last report (12 June 2021), the plaintiff’s general practitioner opined that the range of the plaintiff’s physical injuries continued to significantly impact upon his ability to function in any workplace environment because of Mr Doyle’s reliance on strong narcotic analgesia to control his pain. This contributed to increased tiredness and fatigue and potentially impaired his ability to concentrate. All in all, he considered him permanently unfit for any gainful future employment.

Notices of Assessment

188. These were in evidence for the financial years ended 30 June 2014 to 30 June 2019. They disclosed that Mr Doyle’s taxable income in those years was as follows:

YE 30 June 2014:   $57,004

YE 30 June 2015:   $35,911

YE 30 June 2016:   $32,135

YE 30 June 2017:   $7,724

YE 30 June 2018:   nil

YE 30 June 2019:   $19,415

Submissions on claims for loss of earning capacity

Defendant’s submissions

189. The defendant’s Counsel accepted during the course of closing argument that the plaintiff has no residual earning capacity. In this regard, I understood Counsel for the plaintiff indicated his agreement with this contention.

190. The defendant submitted that the subject motor vehicle accident did not cause any incapacity for the plaintiff’s work. The defendant submits that any incapacity he has for work has been caused by other matters: (a) his pre-existing physical disabilities, including a pre-existing back and neck condition and worsening of injuries to his ankles and knees caused by his work injury on 1 March 2015; (b) the work injury sustained in early 2016; and (c) the development of unrelated disabling symptoms in Mr Doyle’s neck, shoulders and bilateral carpal tunnel syndrome. The defendant also noted the agreement between Dr Guirgis and Dr Stephen that the factors leading the plaintiff to cease work at intervals between 2001 and 2013 – including his psychiatric condition – would still be operative if he attempted to go back to work now.

191. The defendant emphasised that before the subject accident, the plaintiff already had reduced his work capacity. The defendant noted that by the date of the subject accident, the plaintiff had not returned to the level of work he was performing prior to 1 March 2015. From that date, until 29 August 2015 (a virtual 6-month interval), Mr Doyle had only worked 4 shifts for a total of 18 hours.

192. After the accident, Mr Doyle returned to work. The plaintiff’s payslips did not indicate that he had lost any time off because of the motor vehicle accident. From 9 May 2016, when he lodged his workers compensation claim arising from his 2 January 2016 incident, he asserted incapacity to work on the basis of work injuries on 1 March 2015 and 2 January 2016. Statements made by Dr Ihsheish in support of Mr Doyle’s workers compensation claim did not indicate any alteration to the plaintiff’s work capacity due to the subject accident. His earning capacity was impacted by the work injuries sustained on 1 March 2015 (before the motor vehicle accident) and 2 January 2016 (after the motor vehicle accident).

193. Whilst the plaintiff’s medial epicondylitis had improved, his troubles with his left ankle, both of his knees and issues in his neck, right shoulder and both forearms – which troubles were not caused by the subject accident – continued to deteriorate. He has also developed other significant, but unrelated symptoms, including headaches. The defendant submitted that any incapacity for work has resulted from the deterioration in symptoms in Mr Doyle’s knees, neck and shoulder and his pre-existing lower back condition; and the post-accident development of bilateral carpal tunnel syndrome. All of these conditions rendered Mr Doyle incapable of performing the work of his pre-accident duties. For example, the plaintiff told Dr Home that he could not stand or walk for more than 10 minutes.

194. Generally, the defendant submitted that the presence of other factors means that to the extent that he had any ongoing impairment in his right elbow, it had not been productive of economic loss; nor was established as being likely to cause financial loss in the future.

195. As to the future, the defendant submitted that the Court should find that Mr Doyle is not capable of performing any work, including work as a disability support worker, even if he had not been injured in the subject motor vehicle accident. The multitude of other physical and mental health complaints overwhelmed any lingering impairment in Mr Doyle’s right elbow.

The plaintiff’s submissions

196. Counsel for the plaintiff emphasised the hard nature of the plaintiff’s pre-accident employment; which involved close contact with persons with physical and psychological disabilities. FACS would not have employed him in 2013 if they did not consider him physically capable of undertaking the work. There was a vigorous component of physical labour, involving washing, showering, toileting and dressing these people. Necessarily, the work required Mr Doyle to have a high level of physical capacity. But Mr Doyle said he ‘loved’ doing the work. He was a dedicated and competent disability support worker.

197. Granted that he sustained work injuries from an incident on 31 March 2014, the plaintiff’s Counsel submitted that from 8 August 2014, the plaintiff was able to resume his prior work activity following problems with his neck and right foot, and worked for the remainder of 2014 and until March 2015 without incident.

198. The plaintiff acknowledges having difficulties with his knees, left ankle and feet following the work incident sustained on 1 March 2015. But on 1 June 2015, he was certified by Dr Imran as being fit for work. As at the date of the subject accident, Mr Doyle was on a trajectory to return to work to the situation he had been in as at 1 March 2015.

199. After the accident, the plaintiff increased his hours of work through August to October 2015. By October 2015, he was working 39 hours a fortnight. The plaintiff submitted that the increase in his fortnightly hours caused his right elbow condition to flare up and rendered him totally unfit to work, for the period 15 October to 1 November 2015.

200. The plaintiff submitted that the work injuries sustained in January 2016 did not disqualify the plaintiff from entitlement to past economic loss.

201. The plaintiff submitted that the motor vehicle accident caused a significant restriction on his capacity to work as a disability support worker and otherwise significantly disadvantaged him on the open labour market. Counsel for the plaintiff accepted that the plaintiff was totally and permanently incapacitated; at least in relation to work involving constant repetitive lifting and use of the upper arms.

202. Counsel for the plaintiff acknowledged that the Court may take into account other disabling injuries or conditions adversely affecting the plaintiff, but nonetheless, the injury to the plaintiff’s right arm itself performed a very important bodily function for the manual occupation that the plaintiff was capable of performing. This entitles him to awards for both past and future losses.

203. By reference to his tax returns, his net earnings prior to the accident were $625.88 per week. The financial year 2014-15 was the appropriate benchmark. But Counsel for the plaintiff, diverging from the way the claims for earning capacity were particularised and then summarised in the schedule of damages, submitted that the Court should identify some figure for weekly earnings which reflected the component referable to the loss of capacity generated by the impairment of the plaintiff’s elbow.

204. An award for future loss, up to the retirement age of 67 (not up to age 72, as had been claimed in the plaintiff’s schedule of damages) should be made on the basis of the incapacitating effects of the injuries caused. What those incapacitating effects were not identified. But Counsel submitted, that the future assumptions (but for the accident) that the Court should make to justify this award, is that he would have gone to work and received treatment to deal with his other complaints, relating to his knees, his ankles. Counsel emphasised that in the circumstances that occurred, the plaintiff’s concerns about his neck and shoulders were not quite so severe.

Defendant’s submission in reply

205. Since there was movement in the formulation of the plaintiff’s claims for past and future economic loss, the defendant’s Counsel was granted the opportunity to make oral submissions in reply.

206. The defendant’s Counsel reiterated that the claims failed on account of the medical issues. But alternatively, they should also fail for want of proof of the hours that the plaintiff would have worked, and the earnings he would have made, when he stopped work in April 2016.

Consideration

Principles

207. It is trite that the object of compensation in tort is to place the injured plaintiff in the position he would have been in as if he had not been injured by the defendant’s tortious conduct. The plaintiff brings claims for past and future economic loss under ss 125 and 126 of the MAC Act. The plaintiff is relevantly to be compensated for the financial consequences flowing from the injury to his right elbow caused by the defendant’s negligence. That is to say, what is being compensated is a diminution in the capacity to earn because of his injury to that elbow. Further, no damages are recoverable for loss or diminution of earning capacity unless the loss or diminution is productive of financial loss (Graham v Baker (1961) 106 CLR 340 at 347; Husher v Husher (1999) 197 CLR 138 at 143 [7]).

208. The comparison to be considered is Mr Doyle’s capacity to earn prior to his injuring his right elbow in the motor vehicle accident and his capacity to earn after that accident. The defendant is not responsible for loss of earning capacity that the plaintiff would in any event have suffered as a result of other, non–wrongful factors (assuming that the hypothetical occurrence of those other factors was certain): H Luntz & S Harder, Assessment of Damages for Personal Injury and Death (5^th ed, 2021, LexisNexis) at [2.2.32].

Analysis

209. The capacity to earn is a form of loss that is indivisible. There may be one, or many, factors which impair someone’s capacity to earn, but the nature of this harm is such that the contribution to the harm from different causes is not easily to be pinpointed.

210. I find that the injury to the plaintiff’s right elbow is permanent and prima facie, not knowing anything else about the plaintiff’s medical history and psychological profile, accept that conceivably, for a disability support worker, the injury could impede him in his performance of work of that kind. I place weight on the views of Dr Guirgis and Dr Stephen in this regard. I further accept that this could disadvantage the plaintiff on the open labour market.

211. Contrary to the plaintiff’s submission, I do not accept that the plaintiff’s right elbow flared up in the period from October to November 2015. Dr Imran’s certificate referred only to his sprain of the left ankle. The plaintiff had the capacity to work after injuring his right elbow in the accident on 28 August 2015 and continued to exercise that capacity, even after the incident from 2 January 2016, up until April 2016. Any incapacity in the use of the right elbow did not have financial consequences, in the sense of generating financial loss, up to April 2016. If the plaintiff did not work as much as he would have liked, or was capable of working, it was not because of the elbow injury he sustained on 28 August 2015. As I indicated in my earlier treatment of the issue of causation, I do not consider that the incident on 2 January 2016 removed the defendant’s responsibility for the injury to the right elbow injury.

212. The problem for the plaintiff is that, on the premise – which is common ground – that the plaintiff has no residual work capacity, there are a raft of other matters and circumstances that have actually occurred (and are therefore certain and not simply hypothetical or to be conjectured) which are not referable to the subject motor vehicle accident, which have produced that result. In short, the plaintiff’s total loss or earning capacity would have occurred in any event even without any incapacitating effects from the motor vehicle accident. Another way of expressing the same result is to say that the plaintiff has not proven that any impairment in earning capacity specifically attributable to his injured elbow caused by the accident is actually (as distinct from potentially) productive of financial loss.

213. Numerous events have occurred, before and after the subject motor vehicle accident, which individually, or in combination, have effectively destroyed the plaintiff’s capacity to earn even if the elbow injury was caused by the accident. Those physical injuries are to the plaintiff’s neck, his lower back, both of his knees and his shoulders. Sadly, the plaintiff was then afflicted by further misfortune in terms of sinus issues and headaches which, again, had nothing to do with his accident. (It may be the case that the headaches were also attributable to the neck injury). None of those physical injuries were caused by the subject motor vehicle accident.

214. As previously indicated, I am also unable to accept that the plaintiff’s psychological condition was exacerbated by the motor vehicle accident. The plaintiff’s position in relation to his mental health after the accident was, as Dr Lewin found, more or less what it was before the accident.

215. Further, the plaintiff was also afflicted by a strong dependence on analgesia. Whilst I do not altogether exclude the possibility of the effects of pain from his right elbow as contributing to this dependence, in my view, the drugs and medication are almost entirely attributable to pain in other regions of the plaintiff’s body. I find that the use of the drugs has caused the fatigue which, of itself, has been severely debilitating.

216. Finally, and I again emphasise the sadness of the plaintiff’s predicament that with all of these physical and psychological difficulties, the stressors that he has encountered in his life have been compounded by the plaintiff’s personal difficulties in the management of at least one, if not both of his sons through special needs, and the general misfortune of enduring the breaking up of his family.

217. My conclusion concerns not only his past but also his future loss of earning capacity. A sign of the plaintiff’s difficulties was borne out when his Counsel valiantly, but unconvincingly, tried to persuade the Court of the assumptions that the Court should make when applying s 126(1) of the MAC Act, if the injury to the right elbow had not occurred. Counsel’s response was that all of the other unfortunate circumstances concerning the plaintiff’s physical and psychological condition could have been treated in a way which meant that the only incapacitating factor on his earning capacity was his elbow. In relation to the claims of past and future economic loss, Counsel gamely tried to persuade the Court (in the absence of the views of an occupational or rehabilitation therapist) that but for the elbow injury, there might be some sedentary role which a person with this particular plaintiff’s profile could perform.

218. Because the plaintiff’s capacity to earn has been destroyed by a combination of factors unrelated to the accident, it is unnecessary to try to wind the clock back and try to value the contribution the injured elbow made to the total loss of earning capacity.

219. It follows that I reject the plaintiff’s claims to past and future economic loss.

CLAIM FOR PAST OUT OF POCKET EXPENSES

220. Ultimately, the plaintiff agreed with the defendant’s calculation of the quantum of the claim for past out of pocket expenses. This was the sum of $27,474.02, which figure comprised:

• Section 83 payments $26,306.01

• Medicare         $1,016.11

• Medication         $151.90

SUMMARY & ORDERS

221. The defendant’s payments under s 83(1) of the MAC Act are a defence to the claim of past out of pocket expenses: s 83(5). The plaintiff is entitled to an award of past out of pocket expenses of $27,474.02, out of which sum the s 83 payments in the aggregate sum of $26,306.31 is to be deducted. The payments made under s 84A also need to be recognised.

222. I have found that there is no entitlement in the plaintiff for past or future economic loss.

223. The parties should prepare short minutes of order to reflect these reasons within 7 days, and which should also address the question of costs. If the parties agree in the short minutes of order, they can be made in Chambers. If the parties are in dispute about short minutes, then the plaintiff is to notify my Associate of the dispute within that period and further directions will be made for argument.

**********

Endnotes

Amendments

28 October 2021 - Fixed typo

Decision last updated: 28 October 2021