Evans v Dawson - [2012] TASSC 19

[2012] TASSC 19

COURT: SUPREME COURT OF TASMANIA

CITATION: Evans v Dawson [2012] TASSC 19

PARTIES:  EVANS, Mark Alexander
  v
  DAWSON, Reginald

FILE NO/S:  740/2009
DELIVERED ON:  26 April 2012
DELIVERED AT:  Hobart
HEARING DATE:  27 - 30 June 2011
JUDGMENT OF:  Tennent J

CATCHWORDS:

Damages – Difficulty of assessing damages – Number of options put to court by plaintiff as to outcomes – Evidence not necessarily supporting all outcomes.

Aust Dig Damages [8]

Damages – Measure and remoteness of damages in actions for tort – Measure of damages – Personal injuries – Other matters – Approach to assessment where pre-existing vulnerability.

Donjerkovic v Adelaide Steamship Industries Pty Ltd (1980) 24 SASR 347, followed.
Partridge v Hobart City Council [2010] TASSC 62, referred to.
Aust Dig Damages [37]

REPRESENTATION:

Counsel:
             Plaintiff:  B R McTaggart and J McGrath
             Defendant:                  S Brown and S Gehner
Solicitors:
             Plaintiff:  McGrath & Co
             Defendant:                  Bartletts

Judgment Number: [2012] TASSC 19
Number of paragraphs: 115

Serial No 19/2012
File No 740/2009

MARK ALEXANDER EVANS v REGINALD DAWSON

REASONS FOR JUDGMENT TENNENT J

26 April 2012

On 30 June 2008, the plaintiff was involved in a motor vehicle accident on the Bass Highway at Somerset. At the time, he was a floor finisher by trade and driving his work van along the highway. The defendant backed his vehicle out of a driveway onto the highway, and collided with the plaintiff's Mitsubishi van. The point of impact to the plaintiff's vehicle was the front driver's side. Photographs showed that the steering column of the vehicle was pushed back into the foot-well. The plaintiff's right foot and ankle became caught between the steering column housing and the driver's seat. He suffered injuries to his foot and ankle. The plaintiff suffered no other physical injury for which he sought to be compensated. The defendant admitted his negligence caused the accident, but disputed the particulars of that negligence and raised issues of contributory negligence. At the conclusion of the opening of counsel for the plaintiff, by consent, judgment was entered for the plaintiff against the defendant for damages to be assessed.

The plaintiff claims damages in respect of the injury to his ankle. He also claims damages in respect of the impact of the accident and its consequences on his mental health. The defendant does not dispute that the plaintiff suffered both physical and psychiatric injuries as a consequence of the accident. It is the extent of those injuries and the extent to which their consequences produce compensable loss which is in issue.

The plaintiff's personal circumstances prior to the accident

The plaintiff was 38 years old at the time of the accident. He was divorced and had no children. He was, as I have already said, a floor finisher by trade, having been self-employed in that capacity since about 1990.

When he first left school, the plaintiff had considered a career as a motor mechanic. He did some pre-vocational courses and got some work. He then decided that was not for him and obtained work in a retail store which sold floor coverings. He developed an interest, and was encouraged to begin an apprenticeship. He completed it and went to work. He was able to acquire the business he had been working for. Initially, he took over a housing department contract from his former employer. By about a year later, most of his work came from word of mouth referrals. He initially specialised in floor sanding and parquetry, having obtained extra training in relation to parquetry work. He later obtained a contract with the mine in Rosebery and travelled there regularly. He did the floor coverings for the mine site and the houses the mine owned. His business generally involved floor sanding, installation of timber floors, carpet laying and the laying of vinyl. He also laid surfaces on bench tops.

As far as his health was concerned, the plaintiff described some difficulties when he was younger which are of no relevance now. He did however tear the Achilles tendon in his left leg in 2005 which has resulted in some difficulties since.

In the early 1990s, the plaintiff's parents gifted an investment property they owned at Sulphur Creek to him. It comprised approximately 1.9 hectares of land. It had sea views. There was a house and a separate unit on the block. When the plaintiff took possession of the property, it was run down and close to being demolished. He moved into the unit on the block and, over about 10 years from the mid 1990s, renovated the house substantially. He completed the work in 2005. He did most of the work himself, engaging tradesmen only for things like electrical work which he was not qualified to do. In particular, he used his skills as a floor finisher with extra training in parquetry to design and install parquetry floors in the house.

When the plaintiff was given the property, it had no mortgage. He initially used the property as security to borrow $80,000 to enable him to start renovating, and to assist with his business. The property was then valued at about $90,000. Over the years after that, he borrowed more money from time to time in part to assist with the renovations, increasing his loan as work was done and the value of the property increased. The plaintiff's plan was to ultimately subdivide and develop the land, although the evidence he gave about the possibilities was fairly general. He described the property as his superannuation.

In or about 1999, the plaintiff met the lady he ultimately married. She apparently suffered from a mental illness, believed to have been bi-polar disorder. The parties began to live together about six months after their relationship began. She moved into the unit on the Sulphur Creek property where the plaintiff had been living while renovating the house, and they made their home there. The couple married on 14 February 2005, but separated in November of the same year. She then left the property.

Throughout their relationship, it seems the plaintiff's wife struggled with her mental illness. The plaintiff described her as often being suicidal. The plaintiff provided support and assistance for her. He took a lot of time away from work to be with her and to take her to doctors' appointments. He dealt with the Spencer Clinic (a psychiatric clinic) because of his wife. The plaintiff said that the time and effort involved in assisting his wife and renovating the house placed a big burden on the profitability of his business. As a consequence, he came to be under financial pressure, and when his wife left, he also had the added financial pressure of having to pay her out in a settlement if he wanted to keep his house.

The plaintiff and his wife sought counselling in the course of their separation, and attended a Dr Linda MacKay, a counsellor with the Sisters of Charity Outreach centre at Devonport for that purpose. Dr MacKay described herself as the manager and a trauma therapist. She held a Bachelor of Counselling degree from the University of New England, certificates in couple and family therapy and a doctorate in Critical Psychology (Trauma & Psychotherapy). The plaintiff and his wife attended together and separately, ultimately to no avail. Christmas 2005 was to have been their first Christmas in the renovated house. At or around the time of the final separation, the plaintiff's mother was diagnosed with terminal bowel cancer. The plaintiff was, as a consequence of the separation and the news about his mother, feeling very down as at Christmas 2005. He began seeing Dr MacKay alone. The plaintiff knew from his dealings with his wife that there was pressure on psychiatric services at Christmas. He believed he might have been at risk of self-harm at this time and so, as a pre-emptive strategy, he went to the Spencer Clinic and went through a pre-admission check just to get himself into the system in case he needed it. He did not. His mother ultimately died in November 2006.

The plaintiff continued to see Dr MacKay for counselling. At some stage after the plaintiff's relationship with his wife had ended, she wished to marry again. However, because of the requirements of the Catholic Church, if she wished to do so within the church, her marriage to the plaintiff had to be annulled. The plaintiff was affected not only by the separation but also by the annulment process. His depression continued, and he continued to use the services of Dr MacKay as a counsellor to deal with these issues. The plaintiff had counselling with Dr MacKay from early 2006 through to about February 2008. He used her not only to deal with personal issues, but also as a means of de-briefing in respect of some counselling he was doing. In 2007, the plaintiff had, as a consequence of his own involvement in counselling following his marital separation and financial difficulties, decided to become a volunteer counsellor with Life Line. He began training and completed stage one, a three month course, at the end of March 2007. He then began doing some telephone counselling so that he could work towards being a fully accredited telephone counsellor. He was still doing this telephone counselling at the time of the accident.

By the time therapy with Dr MacKay ceased, the plaintiff said he had turned his life around. He was exercising regularly and, was, as a consequence, fitter. He said that he weighed about 101 kilos just before the accident. His weight had been as high as 114 kilos when he became depressed. He had regained his full capacity to work only a matter of weeks before the accident. This involved working between 50 - 55 hours per week, sometimes working seven days a week. His plan was to have a good year financially so he could reduce his debt. He was also considering moving into the human services/psychology area, although that was a long-term plan. At the time of the accident, the plaintiff had significant forward bookings for work, and he was employing only one casual employee. He also had a friend who helped out on occasions.

There was no evidence the plaintiff had been treated by any psychiatrist prior to the accident.

The injury to the plaintiff's foot and ankle

Immediately after the accident, the plaintiff was able to pull his foot out of his shoe and free his lower leg. He was in pain and, after turning off the ignition of his van, he remained in his vehicle until an ambulance arrived. He was taken to the North Western General Hospital. He had an x-ray of his right foot and ankle, and no fractures were apparently seen. The plaintiff was sent home on crutches with pain medication. Examination did reveal some lacerations to the area just above the ankle on the back of the leg, and the area around the foot and ankle became swollen and developed obvious bruising. Physiotherapy was recommended. Subsequently, the plaintiff was treated by his general practitioner. The plaintiff had physiotherapy and the continuing pain he complained of was managed with pain medication.

On 31 July 2008, the plaintiff's general practitioner referred him for further imaging of the foot and ankle. At that point, fractures to the plaintiff's right foot were identified, being fractures of the second through fourth metatarsals and a comminuted fracture of the medial cuneiform bone. The plaintiff at some stage saw an orthopaedic surgeon, Mr Fletcher. There was no evidence as to when, and he gave no evidence on the trial. The plaintiff was then referred to another orthopaedic surgeon, Dr Penn, in November 2008, that is nearly five months after the accident. The plaintiff continued to complain of ongoing pain in, and instability around, his right ankle. Dr Penn then diagnosed a "significant crush injury to his right foot and ankle". By that time however, the fractures in the plaintiff's right foot had united. When counsel for the plaintiff opened his case, and indeed when counsel for the defendant responded, I understood the term "crush injury" to be some sort of term of art. Having read Dr Penn's reports and heard his evidence, that does not seem to be the case. All that is being described is injuries caused to the foot and ankle when it became caught, ie crushed, between the steering column housing and the driver's seat in the accident.

As to the nature of any injury to the ankle, Dr Penn noted on examination in November 2008 that there were signs of lateral ligamentous ankle instability. He then recommended a program of physiotherapy to strengthen the ankle, provided a referral for an ankle brace, recommended a regular exercise program and weight loss, and suggested the use of a single point walking stick. Dr Penn then saw the plaintiff another five times before producing a report dated 23 June 2009. At that point, the plaintiff reported ongoing right ankle pain which had improved. The ankle was becoming more stable, it had a good range of motion and there was no tenderness. Dr Penn reported to the MAIB early in 2009 however that the plaintiff had not been compliant with the conservative treatment regime he had recommended in 2008. The plaintiff did not attend all physiotherapy sessions he was supposed to, and did not adequately address weight loss. Dr Penn was convinced that if the plaintiff could lose 10 to 15 kilos, then his ankle pain would be a lot less.

As a result of continuing complaints, Dr Penn became concerned that the plaintiff may have what he described as an "intra-articular" injury. A bone scan showed increased activity in the ankle joint which might have been due to damage to the joint surface. Dr Penn recommended an arthroscopy to look for evidence of any injury to the joint surface and debridement, or the removal of any loose fragments of cartilage or debris which might be catching and causing the pain. As at the time of a second report by Dr Penn dated 16 September 2010, that procedure had not been undertaken. The plaintiff told Dr Penn that he could not afford the time off work which might be required. Dr Penn said in his September 2010 report that the plaintiff described persistent ankle pain and swelling, made worse with prolonged weight bearing and manual labour. He also noted that the plaintiff had problems in the past with depression and anxiety which had complicated his recovery. The plaintiff, he said, had undergone significant financial, emotional and social stress since the accident.

Dr Penn told the Court that the worst scenario for the plaintiff, if he had damaged articular cartilage, was that, in time, he might develop arthritis which might result in the need for an ankle fusion. However, he also said that none of his investigations had shown any evidence of arthritis or post-traumatic arthritis. He had last seen the plaintiff about six months prior to the trial in relation to his right ankle. Under cross-examination, Dr Penn was asked if he was able to make a firm diagnosis of what injury the plaintiff suffered to his right ankle. He said that the description of how the injury occurred, combined with the description of the location and distribution of the pain, suggested an injury to the ligament complex on the outside of his ankle, probably a tearing of those ligaments. This had led to pain and instability. The current problem however was pain, not instability, which led Dr Penn to conclude any ligament problem had settled. Given that attempts had been made by corticosteroid injections to assist with the pain, which had worked for periods, his view was something inside the ankle was the cause of the pain. Hence, the advice to undergo an arthroscopy.

In about April 2011, Dr Penn saw the plaintiff about a problem with his left ankle. At the beginning of January 2011, the plaintiff had played golf using a cart. The next day his left ankle was causing him a great deal of pain. He visited the emergency department of the North Western General Hospital on 8, 11 and 25 January 2011 and then again on 17 February. He additionally attended his general practitioner and had bone scans done. He also attended the hospital fracture clinic twice. He was treated with anti-inflammatories and rest. By the time Dr Penn saw him, the ankle was alright. He suspected the plaintiff had had an acute attack of gout, and suggested further investigation of that possibility.

When the plaintiff saw Dr Penn in April 2011, a bone scan done in respect of the left ankle had coincidentally included a scan of the right ankle. Dr Penn described the scan of the right ankle as being "cold". In explanation, he said that, when a joint is arthritic or inflamed, it shows "hot" on a bone scan. This scan was different from earlier scans. He concluded there was no active inflammation of the right ankle joint. He would have expected, in those circumstances, for the pain complained of to have improved. Dr Penn noted that one pleasing aspect of this scan was that it suggested that the plaintiff was not getting post-traumatic arthritis in his right ankle.

Dr Penn also said that one of the problems he noted with the plaintiff was that he was "quite a heavy chap" and so quite a small amount of damage would cause him more discomfort than someone much lighter. Dr Penn also believed that the plaintiff's non-medical problems had a "big play" in the plaintiff's injury. He reported the plaintiff crying on his first visit and describing fights with the MAIB and his rehabilitation provider, a past history of depression, depression because of the injury, a risk of losing his home and that he was struggling to pay debts. As to the issue of the recommended arthroscopy, Dr Penn said he did feel that the plaintiff needed to get the court proceedings and all his other problems out of the way and then focus on his ankle. If the plaintiff did that, Dr Penn would clinically assess him again. If the plaintiff was still complaining of pain, he would do the procedure. The best case scenario would be the ankle was normal with a good joint surface which would mean the long-term prognosis was good. He agreed that this scenario could still see continuing non-specific pain but it would be much improved.

The MAIB arranged for video surveillance of the plaintiff to be conducted at different times. The recordings of this surveillance were tendered to the Court. In particular, they showed the plaintiff working on a job at the end of April/early May 2010. The job required the plaintiff to drive to a site, unload equipment and take it upstairs and into a house. He was shown to be working with a second person. The surveillance showed the plaintiff working for long hours into the night. It showed him to be moving apparently without restriction and operating sanding equipment. He was also seen carrying equipment downstairs while the man with him looked on, and to then help that man carry another piece of equipment. The plaintiff was seen to walk up and downstairs without any apparent difficulty. The recordings also showed the plaintiff walking in Penguin with a walking stick. At times, the plaintiff was moving the stick between hands and he did not appear always to be using it to weight bear. The plaintiff can be seen to be wearing what appears to be an ankle brace.

The surveillance footage was shown to Dr Penn. He was specifically asked to comment about that recorded in April/May 2010. He agreed it showed the plaintiff working with no apparent reactions to pain. Dr Penn was asked if what he saw in the recorded surveillance was consistent with the complaints made by the plaintiff of his symptoms and the pace at which the plaintiff said he could work. He said that the impression he gained from the plaintiff was that his level of function was much worse than that shown. He was also questioned about the plaintiff's continued use of a walking stick. As to the stick, he said the plaintiff seemed to be able to walk well without it but the plaintiff had said it feels better to use it. He accepted there might be a psychological element in his continued use. He noted the plaintiff, when shown with the walking stick in the surveillance, appeared to be holding the walking stick rather than bearing weight on it. As to the surveillance, he accepted that the plaintiff seemed to demonstrate a good level of function. However, he still complained of pain. Dr Penn ultimately confirmed that there was at the time of trial no complaint of ankle instability or any issue in relation to the plaintiff's mid-foot.

The plaintiff did not dispute that he worked at his job as a floor finisher at the time shown in the surveillance footage. He said however that he had to take a great deal of pain medication to manage the pain which followed long hours of work.

I accept that the plaintiff continues to suffer some pain in his right ankle, and that that pain increases with weight bearing. However, I am not satisfied the level of pain is as great as the plaintiff asserts. There is neither evidence nor complaint of ankle instability, and the evidence did not explain why there was a continued need in those circumstances for an ankle brace. The plaintiff's use of a walking stick is not consistent with any physical need for it. The most recent scan showed no inflammation in the ankle joint and no evidence of post-traumatic arthritis. There is a possibility the plaintiff may develop arthritis but it is no more than that. The plaintiff's weight has an impact on his pain, and that is a matter he has been advised to address.

Psychiatric injury

There is no dispute that, prior to the accident, the plaintiff had suffered a period of depression as a result of a marital separation and his mother's death, and that he had been placed under some financial pressure. At the time of the accident, according to both the plaintiff and his therapist, that depression had resolved. The defendant accepted that, at that time however, the plaintiff was susceptible to suffering from depressive symptoms when he was subjected to stress. The defendant also did not dispute that the plaintiff became depressed as a result of the accident and its consequences for him, and that that situation is on-going.

As to the defendant's liability for the consequences of a psychiatric injury to a person already susceptible, the defendant does not dispute that he must, in effect, take the plaintiff as he finds him, and that this will mean an allowance needs to be made for future treatment and for the impact of the plaintiff's depressive state on his capacity to work. As Porter J noted in Partridge v Hobart City Council [2010] TASSC 62 at par[262]:

"It is trite that a defendant must accept the consequences of negligent acts upon a plaintiff who has a pre-existing condition, predisposition or vulnerability. Of course this extends to psychosomatic disorders triggered by a predisposition to neurosis or a pre-existing state of, or vulnerability to, depression: Donjerkovic v Adelaide Steamship Industries Pty Ltd (1980) 24 SASR 247 (sic); Hoffmueller v Commonwealth (1981) 54 FLR 48; Lisle v Brice [2002] 2 QD 168. A defendant thus remains liable for disabilities arising from a distorted reaction to, or perception of, a physical condition caused by the negligence, including any neurotic reaction, although even in that case, allowance can still be made for what is obvious exaggeration: Parker v Commonwealth (1979) 49 ALJR 221 at 222."

However, counsel for the defendant submitted that in assessing the plaintiff's capacity to work and assessing his damages generally, despite his depressive propensity and his depressive condition, I should have regard to the comments of White J in Donjerkovic v Adelaide Steamship Industries Pty Ltd (1980) 24 SASR 347 at 354 - 355. His Honour said:

"I do not think that the law requires from this plaintiff the objective standard of fortitude of 'the reasonable man' nor the clear perspective of such a man standing on his feet in the real world. Nor do I think that the law can afford to pander entirely to the subjective standard of any particular victim and any distorted perspective which his psychologically disturbed condition conjures up as the standard of behaviour which he ought to follow. I think that the law requires some intermediate standard of fortitude and reasonableness; on the one hand, allowing fully for his personal idiosyncrasies and the effects of the accident thereon when assessing his credibility (including the presence of any conscious exaggeration); and on the other hand, when assessing the reasonableness of his efforts to mitigate his damage, allowing for his personal idiosyncrasies and the effects of the accident thereon, but only to some extent, while at the same time requiring some objective standard of reasonableness from him. By introducing an objective element, some brake is put upon the extravagance of unreal claims by persons inclined to exaggerate consciously and to profit therefrom. I think that the legal process adopts a more generous approach in the assessment of credibility than in assessing the plaintiff's efforts at mitigation, although, even in the latter exercise, some reasonable allowance must be made for the difficulty of recovery by an injured person already, as it were, on his hands and knees, especially when self help is made more difficult from psychological causes. Accordingly, a predisposition to be 'fractured' in personality by a misfortune such as this accident must be borne fully in mind. Recognition of this aspect of the case, however, raises difficulties for the plaintiff on the subject of discount for adverse contingencies. The very existence of the predisposition which earns him sympathy and understanding in relation to credibility and rehabilitation efforts at the same time calls attention to the likelihood of other adverse non-accident events likewise incapacitating him at some time."

It is necessary to look at the plaintiff's circumstances post-accident for the purpose of assessing the extent of the plaintiff's psychiatric injury and its impact on his capacity to work. At the time of the accident, the plaintiff had been a self-employed floor finisher for a number of years. That work involved a large degree of physical labour, in particular moving round heavy floor sanding equipment. Not only was the plaintiff required to move this equipment during its use on a job, but also to transport it from job to job. That involved lifting the equipment into and out of his van, and often carrying it up and down stairs on sites. Prior to the accident, the plaintiff said that while he had had employees in the past, he then had only one casual employee. Due to the injury he suffered to his foot and ankle, the plaintiff, for a period, could not undertake any of his usual work. He said he did no actual physical work on job sites for about six weeks. However, he had a lot of forward bookings for work, and so made the decision to employ two staff to keep the business going. They did the physical work he could not do and, after that initial period off work altogether, he went back to work, but in a supervisory role.

As to the staff he employed, the plaintiff told the Court that he had been unable to recover from the MAIB the costs associated with the two employees, notwithstanding that the need to employ them was a direct consequence of the accident. Ultimately, he was able to recover 80% of the cost of one. He said the delay in his being able to recover even that allowance from the MAIB was because various people, including MAIB representatives, had told him he was not entitled to it. He also said that an MAIB representative had told him that if he shut the business down, it would pay him a wage. The plaintiff closed his business down at the end of 2008. He said he did so because he could not afford to continue to pay workers compensation premiums and public liability insurance, and the delays in the recovery process from the MAIB and the business' increased wages bill caused significant financial pressure on him.

As to the comments by the plaintiff about the failure of MAIB to pay allowances he should have got contributing to the demise of his business, I do not accept that. In July 2008, about three weeks after the accident, the MAIB wrote to the plaintiff advising that he may be entitled to an allowance as a self-employed person. The plaintiff was sent with that letter a fact sheet about entitlements and how to claim them. He made no such claim until 30 September 2008, and was paid an amount almost immediately, even though it appears not to have been what he wanted. As far as the evidence allows such a finding, it seems this might have been the start of what it was suggested were the plaintiff's difficulties with MAIB which have ultimately weighed very heavily on his mind.

The plaintiff began to see Dr Mackay again for counselling in the second half of 2008. He said he became depressed following the accident as a result of on-going pain in his ankle and financial pressures.

On 8 January 2009, the plaintiff was also seen by a psychiatrist, Dr Ian Sale, I infer by arrangement through the MAIB. Dr Sale reported that the plaintiff was understandably depressed about his circumstances, and diagnosed an Adjustment Disorder with depressive symptoms. He noted the plaintiff was being treated with anti-depressants which could also assist with the pain he was experiencing in his foot. He saw no psychological impediment to the plaintiff then returning to work.

The plaintiff did not return to work as a floor finisher until July 2009. During the second half of 2008 and into 2009 he did however undertake other activities. The plaintiff had begun training as a Life Line counsellor early in 2007. He continued that, with further training in the second half of 2008 about how to deal with possibly suicidal clients, gaining certification as a counsellor in November of that year. He continued telephone counselling, assisted in the Burnie office of Life Line and became involved in a number of committees associated with that organization. In March 2009, he applied for a position as a supervisor with Life Line. He was notified some weeks later that he had been unsuccessful with his application, and thereafter stopped doing telephone counselling, save for one shift many months later.

Prior to ceasing work with Life Line, the plaintiff had already decided to explore the possibility of re-training in the counselling area. He enrolled in a Graduate Diploma in Family Therapy through the Gilead Downs Family Therapy Centre in Victoria. The course was a part-time course run over two years. The first year's fees were $3,500, to be paid by way of a deposit of $300, and two further payments of $1,600 each. On 16 January 2009, the plaintiff paid a deposit of $1,000 for those fees. The course was to start in early February. It is unclear from the evidence whether the plaintiff actually took part in the start of the course. However, he very quickly withdrew from it. He said that initially the MAIB said that they would fund re-training, but would not pay for the course, and so he withdrew. It was not clear from the evidence whether the term "re-training" meant that the MAIB had agreed to pay for this particular course or not. The plaintiff explained his ceasing the telephone counselling with Life Line as being a consequence of his being at a low ebb, both mentally and physically, after he had to withdraw from the therapy course.

Once the plaintiff had ended his relationship with Life Line and withdrawn from the therapy course, he made the decision to recommence operating his floor finishing business. He had received advice from Dr Penn to the effect he was unlikely to cause any further damage to his foot or ankle if he resumed work. He did so effective 1 July 2009. He said he could not afford to pay employees, and so did all the work himself, save for some assistance from friends. He was only able to average about 25 - 30 hours per week work. His hours of work immediately prior to the accident averaged, he said, between 50 - 55 per week.

Dr MacKay wrote a report dated 13 July 2009. In that report, she outlined that the plaintiff had suffered depressive symptoms in 2006 and 2007 relating to his grief over the end of his marriage. He then saw her for a follow-up session in February 2008, by which time he had shown a great improvement in his level of physical and personal wellbeing. He looked leaner and fitter. He reported that he had an exercise regime, that financially his business was improving, and that he felt he could refocus on consolidating it. He reported he had also begun training as a telephone counsellor (something that had in fact begun almost 12 months before). Between 30 June 2008 and 11 June 2009, Dr MacKay said the plaintiff had discussed a number of things with her. She described those as being:

"• Experienced terrible pain and after a misdiagnosis, finding out that he had 6 broken bones in one foot that he has been told 'will never heal';

·     Experienced severe bouts of depression, sleeping uncharacteristically 3 hours in afternoon;
·     Suffered feelings of frustration and feelings of hopelessness that he cannot manage his depressive moods through the physical exercise regime he had in place prior to his accident because of the extent of his physical injuries;
·     Gained weight due to inability to maintain any physical activities and more importantly, not being able to work in usually physically demanding job because of injuries;
·     Experienced a critical sense of confusion and feelings of powerlessness related to receiving many mixed messages received from different health and rehabilitation professionals as to his prognosis;
·     Suffered feelings of anxiety that he is going to lose everything he has worked for which includes his business and his home due to his inability to work to meet his debts since the accident (October/November 08);
·     Experienced feelings of suicidal ideation which I am of the opinion are directly related to the probable loss of his home which he has lovingly renovated and in which he has lived the past 15 years;
·     Suffered a loss of enjoyment in life, in particular his love of music;
·     Experienced feelings of worthlessness that he cannot continue in his chosen trade for which he was a highly respected craftsman;
·     Experienced suicidal thoughts to the point of disclosing this to his GP Dr Stephen Gaggin who increased Mark's medication; consequently, Dr Gaggin has written to Spencer Clinic in case Mark needs to take himself there if he becomes actively suicidal (December 08);
·     Become aware that his love of life is inextricably attached to his home – if he has to lose this, Mark believes he has nothing worth living for;
·     Continuing chronic pain;
·     An inability to organise his thoughts or maintain concentration;
·     An inability to make himself available at Lifeline as he would wish given his own depressed and anxious mental state;
·     Persistent and recurrent feelings of suicidality (January 09): Mark admitted that he had talked to father and brother about possibility that he could commit suicide and that they were not to blame themselves – as a result of this Mark was again referred immediately to his GP for assessment."

Dr MacKay said in that report that the plaintiff was suffering symptoms which put him at high risk of developing a depressive or anxious traumatic disorder. She expressed concern that the symptoms might persist if there was no amelioration of his situation. She also highlighted a particular difficulty the plaintiff was having in his dealings with the MAIB. The plaintiff had said he was continually frustrated in his attempts to deal with the MAIB. As to that, there was little independent evidence of what those difficulties were, save a suggestion that the MAIB had not paid benefits to him when they should, and his belief the MAIB had interfered with his application to Life Line for a job. The plaintiff admitted in Court that that last belief was wrong, and I have already expressed the view that the first belief was also inaccurate.

The plaintiff's counselling sessions with Dr MacKay continued. They were held on a face-to-face basis at Devonport until early March 2010. Dr MacKay then resigned from her position there, and moved to New South Wales. After that, her sessions with the plaintiff were conducted by teleconference and then video link or Skype.

Late in March 2010, the plaintiff sent an email to Dr MacKay in which he inferred he intended to take his own life. She called police who went to see the plaintiff. It does not seem an actual attempt was made.

The plaintiff was seen again by Dr Sale on 1 June 2010. Dr Sale then formed the view that much of the plaintiff's psychological stress appeared to arise out of his continuing financial problems and the associated risk of losing his home. He said it would be expected that an eventual settlement would be helpful in ameliorating those problems. He also commented then on the need for further counselling. Dr Sale indicated that it would be preferable for any psychological component of management of the plaintiff's situation to be co-ordinated through his general practitioner, and he made reference to the federal government plan which would allow up to 12 sessions a year with a clinical psychologist. He believed that would be adequate for the plaintiff, and would be unlikely to be needed beyond settlement.

The plaintiff said in relation to his work in the 2009/2010 year, that he had a very successful year. He said that he started the 2009/2010 financial year with trade debts of about $40,000. He was able to pay them off, and also make a profit. The plaintiff described the heavy equipment he had to use by reference to some photographs tendered. He estimated weights of each piece of equipment shown, and described one sander as being a lighter one he had begun borrowing from a friend in July 2009. The plaintiff told the Court that he had friends, or at times clients, who would help him lift the various pieces of equipment. By July 2010, however, he was exhausted. He said he had been working flat out for 12 months, taken a lot of medication to get him through, and at other times taken time off.

Dr MacKay wrote a second report in relation to the plaintiff dated 17 July 2010. That report listed the same types of issues being reported by the plaintiff as had been listed in the report a year earlier and also referred to a suicide attempt in April 2010. Dr McKay referred again to difficulties with the MAIB. She said:

"... it has been the psychological damage that he has suffered as a result of the failure of MAIB to respond with openness to his attempts to rebuild his life that have been grossly detrimental to his recovery, any sense of well-being and interfered with his pain management.
…
I remain of the opinion that Mark has emotionally and psychologically suffered damage as a result of persistent and chronic physical injuries … and the loss of income that has resulted, in particular related to the threat of losing his home in Penguin. Whilst Mark continues to make progress in therapy in challenging his feelings of worthlessness, managing his pain through mindfulness exercise and using cognitive behavioural strategies to reduce his level of depression, the physical symptoms of his injury continue to persist leaving him debilitated and exhausted for days."

The plaintiff saw a psychiatrist of his own choice, Dr Chambers, for the first time on 19 July 2010. The plaintiff then reported a history of depression. The plaintiff also reported that in May 2010 he had been subject to major financial stress which led to suicidal ideation. Dr Chambers understood that police had been involved. Dr Chambers diagnosed the plaintiff as suffering from a Major Depressive Disorder. He saw him again on 23 August 2010 and has continued to see him.

The plaintiff said he did not work in August and September 2010. However he went back to work after that, but at a much reduced level. He became burnt-out and was stressed because of the upcoming trial. However he kept working until 27 May 2011. He then ceased work altogether and applied for Centrelink benefits which he had just started receiving when the trial began. The plaintiff said he closed his business down because he could not continue to work as he was. He had ongoing pain and significant depressive symptoms. He also said that he needed to be able to concentrate on the upcoming trial.

Dr MacKay wrote a third report just before the trial which was dated 3 June 2011. It was written at a time when the plaintiff had just applied for Centrelink benefits, and indicated an increase in stress levels and depression as a consequence. Dr MacKay was asked what, in her opinion, were the biggest factors in the plaintiff continuing to suffer from depression. She said:

"The delay in receiving um financial or rehabilitative support, its three years I believe almost, since the accident. And this has meant that Mr Evans has been um faced with having to, to, a number of times, deal with the bank around foreclosure."

She also said in relation to the role of his ankle pain, that the role that had played in his situation was:
"His inability to work for any long sustained periods at all at his usual profession."

Dr Chamber's view as to the plaintiff's long-term prognosis was that, assuming the plaintiff received a reasonable financial outcome from this trial, he, Dr Chambers, would expect an improvement in the plaintiff's depression. He also indicated the plaintiff would remain vulnerable to further depressive episodes. He said that, post the finalisation of the plaintiff's claim, the plaintiff was likely to need ongoing support for a minimum of 12 months and possibly for up to three to five years. That support would include regular general practitioner visits, anti-depressant medication, counselling two to four weekly, and seeing a psychiatrist once every three months. Dr Chambers was unable to be more precise about the duration of treatment, saying that would need to be assessed during the course of therapy and by reference to how the plaintiff was progressing.

Dr Sale saw the plaintiff on at least three occasions, the most recent prior to the trial being on 20 April 2011. He described the focus of the plaintiff's discussions changing over time from the emphasis being on his pain and restrictions that placed on him at the beginning, to it being more prominently his issues with the MAIB at the most recent visit. He accepted that focus on the MAIB might not have been unusual given the imminence of the trial, but clearly thought it excessive. Dr Sale described the plaintiff's behaviour in relation to the MAIB as follows:

"Oh at times he's been quite vehement, there's almost been a crusading quality about some of his remarks and a determination that he was going to have his day in court, seeking vindication. It was no longer about the money but it was about some matter of principle, involving MAIB. He had taken his concerns as far as trying to speak with the minister who had been responsible for the MAIB but was refused access to her, but I thought that was pretty unusual."

As to the plaintiff's prognosis, the following exchange occurred between Dr Sale and counsel for the defendant:

"Well there are two aspects that will come to an end hopefully with the end of litigation. One of his difficulties and it's been evident from the beginning is that he has had significant financial strains and I suppose that at the end of this these may be, to some degree, addressed. And secondly, there is this issue involving the MAIB which has become quite a pre-occupation for him during the course of this litigation and once this is over and he no longer has that particular grievance to pursue I would have thought that would also have been beneficial for him. So I thought with both of those issues likely to be addressed by the end of litigation that that would have a beneficial affect upon his mental state.
And what would you say as to the, the significance of that is, would it be a minor improvement or significant or what would you say?.....Oh no I think it would be more than minor. I think it would be a considerable improvement. I think he will always have some degree of grievance about what had happened, he won't forget that um but if those, if the issues are fuelling this unhappiness and that is the battle with MAIB as he sees it and he's been on the financial brink at various times over these last few years, if they're settled I think his mental state will improve considerably.
And if that were to be the case, how would he cope with, what do you say as to his ability to cope with and develop strategies to deal with the pain and discomfort that might come with his leg and working with his leg?.....If you're less angry and less depressed um it's likely to have a beneficial affect upon pain as well because pain tends to be amplified by unpleasant affects such as anger, grievance and depression so his problems with pain may become somewhat more manageable as a direct affect of improvement in his mood. Also if the pre-occupation about this case and MAIB is removed perhaps there'll be more room in his mind for him to develop other activities and he does have some. He has, for example, been involved in counselling services which he, last time I saw it I think he dropped out of but, he could always revive that and revive studies and aspirations associated with that. He also has an interest in golf and the last time I saw him he'd actually started to resume playing golf and obviously that would be of benefit to him as well."

Dr Sale was also asked to specifically comment on Dr Chamber's views about the need for medication and other treatment. As to the time-frame spoken of, Dr Sale believed that a more appropriate one was to the bottom end of that suggested by Dr Chambers. He felt that, in the context of a three to five year time-frame, it would be difficult to predict the situation that long away. He suggested, given the plaintiff's history, that it might become difficult to determine what if any problems might relate to the accident and what might relate to other things. As to the use of anti-depressants, he saw the need for current dosage to be maintained for about a year, and for it then to be tapered off over about another six months.

As to ongoing counselling with Dr MacKay, Dr Sale, having already expressed concerns about the nature of the relationship between her and the plaintiff, expressed the view that there were reasonable psychologists in the local area who would have a greater capacity to liaise with the plaintiff's general practitioner and Dr Chambers. He did not see as reasonable the plaintiff's wish to continue a long-term relationship with Dr MacKay in the context of a third party paying for it. He referred, as a good benchmark, to the recent arrangements introduced by the Federal Government which would allow a referral to a psychologist for up to 12 consultations in a year. As to seeing a psychiatrist as often and for the period suggested by Dr Chambers, Dr Sale believed it was unnecessary. He did not see the need for a regular attendance. His view was that it was appropriate to allow for a couple of consultations and then leave the plaintiff's general practitioner to refer again if it were needed.

The evidence leads to a number of conclusions. The plaintiff's depressive symptoms are likely to reduce once he receives a financial settlement. The extent of that reduction may depend on whether the plaintiff considers that whatever settlement he achieves is what he should get. The extent of any reduction may also depend on whether he believes that the trial afforded him an opportunity to air his grievances about the MAIB, and whether my decision vindicates the complaints that he has made about the MAIB. As to both matters in relation to the MAIB, I doubt the plaintiff will be satisfied about either, given the evidence at trial and the findings I have made.

The difficulty I perceive with the plaintiff's position is that his expectations as to what he should be awarded, and what he wanted to be said about the MAIB may be unrealistic. If his depression continues because of that, the question becomes should the defendant be liable for the consequences. In my view, he should not be. In reaching that conclusion, I am mindful of the words of White J in Donjerkovic.

Damages – relevance of the plaintiff's financial history

The plaintiff's financial history up to the date of the accident is relevant to a consideration of his claims in respect of past economic loss and loss of future earning capacity. Counsel for the plaintiff, for example, submitted that the performance of the plaintiff's business prior to the accident was not a true indicator of the plaintiff's pre-accident earning capacity, and that it should be considered by reference to his earnings in the year or so post-accident. Counsel tendered the plaintiff's financial statements and taxation returns covering the financial years ended 30 June 2002 to 2010, and a cash book for the period 1 July 2010 to 31 May 2011.

It was apparent from the plaintiff's evidence that his book-keeping skills were sadly lacking, that he had relied on his mother prior to her death to an extent to help him with financial records, that neither she nor he had coped with the financial record keeping associated with the introduction of the GST and that, as a consequence, his records had been in disarray. At some stage, he obtained the services of a bookkeeper to get his records in order. He also incurred a debt in the region of $20,000 to the Australian Taxation Office in about 2008.

Counsel for the plaintiff handed to the Court in the course of his opening address a summary of the plaintiff's financial records. What should first be remembered is that it was supposed to be a summary of the plaintiff's business financial statements. What is apparent however is that it was, to a degree, a blend of business and personal finances. For example, the balance sheet for each year incorporated the plaintiff's home mortgage as a non-current liability of his business, when, on the plaintiff's own evidence, the borrowings were largely not used for wholly business purposes.

The records disclose the following:

·In the financial years ended 30 June 2003, 2004 and 2005, the plaintiff's net operating profit was at its highest, $6,000 pa and usually far less.
·In the financial year ended 30 June 2006, the net operating profit was $14,247, while in 2007 and 2008 there was, in each year, a small loss.
·In the financial years ended 30 June 2003 to 2008 inclusive, drawings were made by the plaintiff from the business which far exceeded any profit made. For most of those years, these appear to have been funded by borrowings.

The plaintiff's explanation for the low income levels was that he had taken time away from work to care for his wife and to renovate his home, and that both these activities had impacted adversely on the profitability of his business. While these activities may very well have impacted adversely on the profitability of the plaintiff's business, the plaintiff ceased to have any role in the care of his wife prior to Christmas 2005, and the renovations to his house had also been completed by then. Neither of these factors could have had any impact in the financial year commencing 1 July 2006 and thereafter.

It is also relevant that, while time out to care for his wife may have been an obligation the plaintiff could not avoid, time out to renovate his home to the detriment of his earning capacity was a conscious choice. That is, the plaintiff chose not to earn as much as he might have. It is difficult not to conclude that the plaintiff was in a situation where he had equity in his home against which he could borrow and he chose to do that and live on the proceeds. It was suggested to the plaintiff that his records showed that he was less than energetic in pursuing his business activities and that his business had been making consistent losses over the years. He denied this. However, as I have indicated, the records indicate, in my view, a choice not to earn at any higher level than is shown.

The records also disclose that the plaintiff's home loan increased from $63,528 at the end of the 2002 financial year, to $308,162 at the end of the 2010 financial year. It must be assumed that the Sulphur Creek property had sufficient equity during those years to support those borrowings. The plaintiff provided no evidence as to the current value of the property. The only evidence was to the effect that when his wife left him, the G E Money loan he then had was $200,000, and that he increased the loan by $80,000 about a year later to pay her out. At that time, he said the property was worth about $400,000. The financial records show that, in the financial year ended 30 June 2005, the plaintiff increased his borrowings by about $80,000, such that his mortgage was $199,366 by that date. It did not increase the following year but did so in the financial year ended 30 June 2007. By the end of that year, the borrowings had increased by $90,532. That was the year the plaintiff said he had to pay his former wife a settlement of $50,000. The plaintiff said initially he only borrowed $80,000, and used the extra $30,000 to keep the business going. In fact the "spare" borrowings were about $40,500. Borrowings did not increase in the year ended 30 June 2008. By the end of the financial year ended 30 June 2009, the plaintiff's bank borrowings increased by a little over $6,000, and he borrowed $20,000 from family. Bank borrowings increased again in the 2009/2010 year.

The obvious conclusion from an examination of the plaintiff's records is that, absent borrowings, the plaintiff over these years had little or no net income upon which he could live. The plaintiff reached a point, prior to the accident, where his outgoings, excluding personal expenses but including mortgage interest, could not be met from money he earned and without resort to money borrowed. At some point, his capacity to borrow would have been exhausted and, unless he significantly increased his work and income stream, the inevitable result would have been loan default and the sale of his Sulphur Creek property. Because of the length of time over which the plaintiff operated in this manner, the only conclusion which can be drawn is that the plaintiff made a conscious choice to continue in this manner, namely largely rely on equity in his home to live. Obviously when the accident caused an immediate cash flow problem in the second half of 2008, the plaintiff's position became critical. The accident precipitated the inevitable if the plaintiff decided to continue as he had.

I have dealt with these factors simply because they demonstrate the plaintiff's approach to earning income prior to the accident, and that he had already placed himself in a precarious financial position by then. The financial pressure to which the plaintiff was subsequently subjected was to a large degree of his own making, and indeed already in existence prior to the accident.

The plaintiff's records also show that he purchased a new work vehicle in July 2008, the vehicle he was driving at the time of the accident having been written-off. The depreciation schedule in his 2010 tax return shows the business then owned two other vehicles, one purchased in 2007 and the other in June 2008. No evidence was given about those. The plaintiff closed his business down at the end of the 2008 calendar year, and did not work again until July 2009. In the financial year ended 30 June 2009, the plaintiff made a net loss of $25,485, but again subsidised drawings by increasing his borrowings. In the year ended 30 June 2010, the records disclose the plaintiff made a profit of some $38,161. His evidence was that that figure was not an accurate reflection of his profit that year. He said he earned another $40,000 which he used to reduce trade debts he had acquired from the previous year. That information is not apparent in the plaintiff's records, save that his trade creditors were reduced by just over $20,000 in that year. No accounting assistance was provided to the Court to resolve this difficulty, and the plaintiff's acknowledged difficulties with record-keeping and understanding records, makes it impossible to accept that he in fact made a profit of some $78,000 that year.

The plaintiff's cash book for the period 1 July 2010 to the end of May 2011, when the plaintiff closed his business down, was also relied on for the purpose of calculating the plaintiff's economic loss up to the time of trial. No evidence at all was given to explain that cash book. I will make further reference to it when I deal with counsel's submissions.

Damages – approach generally

In relation to past economic loss and loss of future earning capacity, counsel for the plaintiff initially produced in his written submissions some precise calculations in support of the plaintiff's claims. To a degree he resiled from those figures when it came to loss of future earning capacity, suggesting the Court in fact had a number of options when determining what approach to take to this head of damages. However, it seems to me, as counsel for the defendant suggested, that this case does not wholly lend itself to precise mathematical calculations. This is because of:

·the plaintiff's historical approach to the operation of his business;
·the plaintiff's pre-disposition to suffering depressive symptoms in response to stressors in his life;
·the plaintiff's apparent mindset in relation to the MAIB which, to a degree, is unrealistic;
·the financial pressures complained of by the plaintiff were not wholly caused by the accident;
·the possibility that future stressors entirely unrelated to the accident may cause an onset of depressive symptoms;
·the plaintiff's expectations from this trial may be unrealistic, and if he does not get what he wants, that in itself may contribute to ongoing depression.

These factors suggest the words of White J in Donjerkovic's case quoted in par[28] need to be kept very much in mind.

Specific heads of damage

Past economic loss

In his written submissions, counsel for plaintiff claimed the following amounts after allowances for tax:

2008/2009      $44,552.20
2009/2010      Nil
2010/2011      $36,750

Dealing firstly with the 2008/2009 year, counsel submitted that he calculated that figure by adding the actual loss suffered in that year of $25,485 to what it was argued the plaintiff could have earned but for the accident, namely the profit he made in the following year of $38,161. Counsel submitted that the plaintiff had, in the 2008/2009 year, paid creditors some $40,000 and was, as a consequence, out of pocket that $25,485 loss because of that payment. When queried about that, counsel submitted that the plaintiff had given evidence he paid creditors $40,000 and the amount was shown "in the financials as between 2008/2009". This calculation was the subject of some discussion during closing submissions which resulted in a level of frustration being demonstrated by counsel. I was then, and remain, unable to fully appreciate counsel's argument in relation to this even with the benefit of a transcript of the discussion. In the absence of any form of accounting assistance, I will do the best I can.

The evidence the plaintiff gave of having paid debts of $40,000 related to the 2009/2010 financial year. It appears at 112 of the trial transcript. As to the financial statements for the year 2008/2009, they show the proprietor's funds went further into the red by an amount of $40,361. There was however no evidence at all to explain precisely why that was so, save the records show the plaintiff drew $47,637 from the business that year.

Counsel for the plaintiff eventually submitted that, whether I accepted his argument about bringing the loss of $25,485 into account or not, the plaintiff's loss for the 2008/2009 financial year should at the very least be equal to his net profit the following year of $38,161. It should not be calculated by reference to the year immediately prior to the accident. As to precisely why that should be the case was not explained.

The accident occurred, conveniently from an accounting point of view, on the last day of a financial year. According to the financial records tendered, the plaintiff, in the financial year ending the day of the accident, made a net loss of $2,296. In that year, his gross profit was the highest it had ever been. He also had the highest wages bill he had ever apparently had (notwithstanding his evidence that at that time he only had one casual employee). In the 2009/2010 year, being that upon which I am being asked to base the calculations as to loss, the plaintiff's gross profit was some $23,527 less than that in the 2007/2008 year. However, the wages bill was also down by some $46,491. It is largely the differences in these figures which produced the profit. That is the profit accumulated in the 2009/2010 year largely arose because the plaintiff did not pay wages. There is no basis in the evidence to conclude that, but for the accident, the plaintiff would have operated in 2008/2009 any differently than he had the year before, but instead would have operated in the manner he operated in 2009/2010.

I accept that the plaintiff suffered a loss in the 2008/2009 year and that he should be compensated for that loss. I also accept it is unlikely that the plaintiff would have been able to work at his business for some time after the accident in the 2008/2009 financial year, and that his inability to do so was prolonged by the initial misdiagnosis of his injury. It is reasonable in the circumstances to allow for a loss in that year on the basis the plaintiff could not have worked. However, accepting, as I do, that there is no evidence the plaintiff would have structured his operations differently in 2008/2009 from the previous year had the accident not occurred, the plaintiff's loss is reflected in the increase in his loss between the 2007/2008 year and the following year, a figure of approximately $22,500. I so find. I make no allowance for tax since none would have been paid.

As to the 2010/2011 financial year, any loss can only be calculated by reference to the cash book tendered. The loss claimed in the written submissions, allowing for tax, was $36,750. Counsel for the plaintiff adjusted the figure in his written submissions during the course of his oral submissions to produce a loss after tax of $14,000 for this particular year. He calculated this by predicting the cash receipts for the year would be $86,598, a reduction of about $20,000 on the year before. With an allowance for 30% tax, the figure was reduced to $14,000.

There remains a difficulty however, given the manner in which the plaintiff has structured his business over a number of years and his reasons for not working for part of the 2010/2011 year, in calculating any precise amount for loss to the time of trial. The plaintiff clearly had a capacity to work by the time of trial, and his reasons for not doing so after May 2011 are questionable. What I propose to do is allow a figure of $36,500 ($22,500 plus $14,000) for the period prior to trial. I will deal with the difficulties I have identified when dealing with loss of future earning capacity.

Future loss of earning capacity

To determine an allowance to be made for the plaintiff under this heading, I need to make an estimate of what the plaintiff could have earned for the remainder of his working life but for the accident, and set off against it an estimate of what the plaintiff may in fact earn. Counsel for the plaintiff effectively submitted that, as far as this head of damages was concerned, the Court had options. These were the following:

·It could accept that the plaintiff would be unable to work at all for the rest of his anticipated working life, and that his loss should be calculated by reference to his earnings of $38,161 in the 2009/2010 financial year. This option would produce an allowance of $491,799.21.
·It could, using the same figures, assess that the plaintiff had lost only half of his capacity. The option would produce an allowance of $245,899.60.
·It could accept that the plaintiff could work at his trade as a floor finisher for four to five years if he acquired a new van and other equipment at a cost of some $76,000, but that he would only work at a reduced capacity for that period similar to that he said he worked in the 2009/2010 year. This, it was submitted, would be productive of some loss still because the plaintiff could earn more if he worked at full capacity. Precisely what working at "full capacity" might produce was not clear.
·It could then make an allowance for loss thereafter having regard to the possibility of re-training in the welfare field and obtaining work in that area.

As far as the first option is concerned, I do not accept that the plaintiff has no capacity at all for work for the rest of his working life. The plaintiff has actually demonstrated a capacity to work since the accident and proposes he does so again. As to the second option, there was no evidence to the effect that the plaintiff's earning capacity had been reduced by half by reference to the accident.

As to the third and fourth options, the evidence of Dr Rowe, the occupational physician, who saw the plaintiff once in 2011, was that the plaintiff would have to give up his work as a floor finisher and be re-trained in a sedentary field. Dr Rowe provided a report dated 11 May 2011. With respect, neither that report nor the evidence Dr Rowe gave were particularly useful. The doctor was relying on reporting from the plaintiff not consistent with the evidence before this Court. He also gave opinions having not seen the most recent scan of the plaintiff's right ankle. He wrote his report having not seen the video surveillance of the plaintiff, and was obliged to concede some of his conclusions were inconsistent with observations in the footage.

However, in any event, notwithstanding Dr Rowe's evidence that the plaintiff would have to give up his work as a floor sander, the plaintiff said that he wanted to continue with his floor finishing business for four or five years but at a reduced capacity. He said he could do that if he was provided with a settlement which would enable him to buy a new van and other equipment, the estimated cost of which was some $76,000. The items the plaintiff wanted to buy were a new van at an approximate cost of $60,000, a tailgate lifter or ramp system (no cost supplied), a stair climbing motorised trolley at a cost of approximately $6,000 (acknowledged as perhaps not always being of much assistance) and a new lighter sander at a cost of about $10,000.

I infer that, if the plaintiff receives an amount by way of damages sufficient to enable him to buy these items, he will immediately return to work at a reduced capacity. When his counsel was re-examining him, the plaintiff said that his level of work would be 50% of what he was capable of. I also infer that, unless the plaintiff receives enough to allow him to purchase these items, his position is that he cannot work at all With respect, the plaintiff's estimates of his capacity were fluid in the extreme and I am not satisfied they are particularly reliable. I say that simply because it is difficult to determine, having regard to my findings about the plaintiff's approach to work prior to the accident and what he actually did after, just what normal capacity might be.

Counsel for the plaintiff submitted that the plaintiff's exertions in the 2009/2010 year left him burnt out, and unable to work thereafter. That was not in fact the evidence before the Court. The plaintiff said he did not work in August and September 2010 because he was exhausted but that he worked from then through until almost the end of May 2011. That the plaintiff did not work in August and September is not supported by his cash book entries, although it is accepted the plaintiff did not appear to have done much. The evidence the plaintiff gave as to why he stopped work in May 2011 was essentially that he had too much on his plate in preparing for the trial. It was not that he was burnt out. There was also evidence of problems with the plaintiff's left ankle through the first half of 2011, which were unrelated to the accident, which might also have contributed to the plaintiff's wish to stop work.

There is of course the question of any allowance for the plaintiff to re-train himself in an occupation other than floor finishing. What seems to have been almost ignored by counsel for the plaintiff in his submissions about re-training, was that the plaintiff gave evidence he had a plan, prior to the accident, to continue with his floor finishing business for a period, and then eventually move out of that and into the welfare/human services area. He described it as a long-term plan. No time-frame was spoken of. It can only be assumed that this plan was contingent upon the plaintiff ensuring some level of financial security before he abandoned what could be a reasonably reliable source of income. It must follow that, if the plaintiff intended in any event to move out of floor finishing and re-train, any step to do so cannot be a consequence of the accident. Therefore the cost of re-training and the extent to which any loss of income might arise while the plaintiff retrains is not a responsibility of the defendant.

Future loss of earning capacity should therefore be assessed by reference to the degree to which the plaintiff has lost a capacity to earn income from his business of floor finishing and the time over which that loss can be predicted to continue. From a physical point of view, I do not accept that the plaintiff cannot work at all as a floor finisher without the equipment he wants. He has demonstrated a capacity to do so since the accident. A new and larger van cannot be said to be a necessary expense. The plaintiff appears to have in the past relied on relatively inexpensive second-hand vehicles and had three. His reason for a larger van, as I understood it, was so that he would not have to have equipment stored in different vans because it might all fit in one large one. The plaintiff has had a lighter sander on loan from a friend since 2009, although his evidence at trial was that that would have to go back. I accept a lighter sander will no doubt make the plaintiff's ability to work easier and in line with what it was in the 2009/2010 year.

I accept, as I have said, that the plaintiff suffers a degree of ankle pain. I am not however satisfied it is as disabling as the plaintiff suggests. I am satisfied it can be managed by pain medication. An award for pain and suffering would accommodate the situation, rather than an award for lost earning capacity. However, I also accept that the plaintiff should be entitled to pursue the option of an arthroscopy procedure if the advice he receives from Dr Penn, post- decision, is that such a procedure may provide some further relief. If he does that, there will be a period during which he will be physically incapacitated for work as a floor finisher. I have no evidence upon which to assess the length of this period, and can only in the circumstances estimate it may extend to possibly six months.

The nature of the plaintiff's present incapacity is, in my view, more psychological than physical, in that he suffers from depressive symptoms which affect his ability to get on with his life. As to those depressive symptoms, there is no real dispute that the plaintiff is presently suffering from depression and that he will remain vulnerable to further depressive episodes. However, that vulnerability existed prior to the accident. While the accident has resulted in the activation of that depressive vulnerability, it cannot be said to be a consequence of the accident that it might be activated again as a consequence of something unrelated to the accident which might happen in the future. The defendant should not be liable for symptoms which might occur as a result of events which might have occurred anyway.

Counsel for the plaintiff submitted that there was a possibility that the trial may not produce a sufficient financial outcome for the plaintiff such as to achieve financial security for him. In those circumstances, according to Dr Chambers, the plaintiff's depressive symptoms will continue. However Dr Chambers expected improvement with a reasonable financial outcome. There is a significant difficulty with this approach. I have concluded that the plaintiff was in financial difficulties prior to the trial. In effect, what the plaintiff now wants is that those difficulties be remedied, even though to a degree they were not caused by the accident. He wants a level of financial security now which he had already, by his own actions, placed at significant risk before the accident. This is, in my view, an unrealistic expectation on the part of the plaintiff and the defendant should not be potentially penalised for that unrealistic expectation.

It is likely these depressive symptoms will be significantly improved as a consequence of a financial settlement and the end of the need for the plaintiff to have any dealings with the MAIB. It is also likely that with continuing psychological treatment for a period, the plaintiff's symptoms will resolve and any diminution of earning capacity will finish. It is reasonable however to allow for a reduction in earning capacity as a result of the impact of depressive symptoms upon the plaintiff for a period of time post-settlement. I have already commented upon the plaintiff's evidence that his capacity to work would be reduced by 50% even with all the equipment that he wants. Apart from the difficulty in determining a benchmark against which a percentage reduction might be gauged, I am satisfied the plaintiff has exaggerated his disability. In the circumstances, I would allow a 25% reduction for a period of, say, four years from the time of trial. That accommodates the type of period during which Dr Chambers said the plaintiff might need treatment.

I propose to determine an allowance under this head of damages on the basis that:

·the plaintiff has had the capacity to resume work as a floor finisher effectively since the trial, but at a reduced rate having regard predominantly to his depressive symptoms;
·there is an allowance for a complete loss of earning capacity for a period of, say, six months to allow for an arthroscopy.

Consistent with much of the submissions of counsel for the plaintiff, I will use the 2009/2010 income figure as the base figure for the purpose of any calculations. Given the relatively short period to which the calculations will relate, I do not propose to allow for any discounting or contingencies, although I will allow an amount of 30% for tax consistent with the plaintiff's calculations in his written submissions. I allow an amount of $37,000.

Past expenses

The plaintiff claims that he is entitled to recover:

-the sum of $1,000 paid by him as a deposit on a counselling course;
-the costs of counselling services with Dr MacKay from 13 August 2010 to 30 June 2011, not paid by the MAIB, in the sum of $5,306;
-an amount of $1,355.05 owed to Medicare;

a total of $7,661.05.

As to the counselling course, the plaintiff's evidence was he signed up for this and then the MAIB would not pay for it and so he withdrew. There is no evidence the MAIB agreed to pay for this particular course, and then reneged on that agreement. The entry into and exit from this course appear to have occurred in quick succession, and there is no evidence as to precisely what it was intended to achieve. Consistent with my conclusion that re-training would have occurred in any event, this is not a cost which should in any event be met by the defendant.

As to the costs associated with attendances upon Dr MacKay, there was no dispute they had been incurred. The evidence of Dr Chambers was they were of therapeutic use to the plaintiff. The plaintiff said he gained benefit from them. There was no serious challenge to the need for the plaintiff to undertake counselling in some form. The issue was the appropriateness of that counselling being provided by Dr MacKay and the length of time over which such counselling should be subsidised by the defendant. In those circumstances, the plaintiff should be entitled to recover this amount. There was no serious dispute as to the Medicare amount.

I would in the circumstances allow the claim in respect of Dr MacKay's costs and Medicare at a total of $6,661.05.

Future expenses

The plaintiff claims amounts to cover the cost of a possible ankle arthroscopy and debridement, a further arthroscopy and ankle fusion in the event the plaintiff develops osteoarthritis, repeat scans and surgical reviews, renal function reviews for life, general practitioner visits for a number of purposes, medications, visits to a psychiatrist, attendances on a psychologist, replacement walking sticks, orthotics, ankle braces and modified shoes.

As to the arthroscopy and debridement, there is no certainty this will even occur. However, given the recommendation of Dr Penn in 2010, it is not unreasonable to allow for the likelihood it will take place. As to the ankle fusion, that is only likely to be necessary if the plaintiff develops arthritis in his ankle. There is no evidence of it three years after the accident and Dr Penn, the treating orthopaedic surgeon, sees it only as a possibility. I do not place any weight on Dr Rowe's assessment given the comments I made about his evidence generally. I would not allow any amount for this. It follows that an allowance should not be made for regular surgical reviews and bone scans over ten years. There would clearly however need to be some review by Dr Penn and updated bone scans were he to be asked to review the plaintiff for an arthroscopy, and I would allow an amount for that. My only source of information as to the possible cost of a visit to Dr Penn, including travel costs but excluding any cost of a scan, is the MAIB list of scheduled payments. From that, I would allow, say, the cost of two visits to Dr Penn at a total of $660.

Counsel for the plaintiff identified a need for numerous visits by the plaintiff to a general practitioner. These were one per year for monitoring of renal function for life, six visits per year for life for pain medication, and eight visits per year for anywhere between 12 months and three to five years in relation to the plaintiff's depression. The plaintiff's general practitioner was seeing him once every two to three months to monitor his medication and provide ancillary counselling. It is likely the plaintiff will suffer some pain in his ankle for the rest of his life. Whether it is to the level that the current medication being taken is needed cannot at the present time be determined. It is appropriate in the circumstances to make an overall allowance for, say, five visits per year for life. The amount claimed in respect of one visit was $71.85. The average weekly cost is therefore $6.91. In his calculations in his written submissions, counsel for the plaintiff appears to have had regard to Table 3B, page 687 in Luntz, Assessment of Damages for Personal Injury and Death, 4^th ed. No objection was raised by counsel for the defendant to the basis of the calculations. The plaintiff was aged 40 at the time of trial. By reference to that table the multiplier should be 873.1, resulting in a total of $6,033.12 ($71.85 x 5 ÷ 52 = $6.91 x 873.1 = $6,033.12). I will allow that amount.

Counsel for the plaintiff also claimed the cost of various medications for life. These included Nurofen Plus, Panamax and Temazepan. While I accept that the plaintiff may need some form of pain medication for life, and may need medication to assist with sleep from time to time, it is difficult to accept he will need to take something like Temazepan every day for the rest of his life, or indeed that he will need the other medications to the degree suggested for that time. In the circumstances, and accepting that there is no real mathematical basis for the calculation but an attempt to base an allowance on what may be reasonable in all the circumstances, I will allow $7,000.

In relation to the plaintiff's depression, counsel claimed for the costs of:

·anti-depressant medication;
·attendances on a psychologist for counselling; and
·attendances on a psychiatrist.

As to the costs associated with the above, counsel estimated a total cost of $106.16 per week (medication $5.37, counselling $86.67 and psychiatrist $14.12). He claimed this would be needed for a minimum of 12 months and a maximum of anywhere between three to five years.

As to the anti-depressant medication, the cost identified was $5.37 per week. This was calculated by reference to the current level at which the plaintiff said he was taking that medication. However, there would seem no doubt having regard to the evidence of both psychiatrists, that this medication would not be advised at current levels over a period of years. The evidence was not precise as to for how long, and at what rate, this type of medication might be required. I am therefore left to make the best assessment I can having regard to the evidence. Dr Sale suggested a need for the current level for at least 12 months, tapering the medication off over the following six months. I will, given the circumstances, allow an amount covering the cost for three years. Using Table 2 at page 683 of Luntz and the interest rate of 5%, the allowance will be $5.37 x 146, or $784.02.

As to an allowance for the cost of psychological counselling, it is clear from the evidence that the plaintiff believes he gains a great deal of support from seeing Dr. MacKay. The plaintiff wishes to continue to see her and claims that the cost of this continuing counselling should be met by the defendant. Two issues arose in relation to this aspect of the plaintiff's claim. The first was the length of time over which the defendant should have to be responsible for ongoing therapy for the plaintiff, and the second is whether Dr MacKay was the most appropriate person to conduct that therapy. This last issue was the subject of quite a deal of evidence during the trial. It was not until after it had been led that counsel for the plaintiff told the Court that he was not necessarily pursuing the case on the basis that future counselling had to be with Dr MacKay.

Nevertheless, the issue perhaps needs to be addressed. It arose in two contexts. The first was that any such counselling to be given by Dr MacKay could in future only be given by telephone or by Skype. The second was the nature of the relationship which had developed between the plaintiff and Dr MacKay. As to the first context, Dr MacKay believed that this method of communication, while not ideal, was absolutely effective in her dealings with the plaintiff. Both Dr Sale and Dr Chambers commented upon this. Dr Chambers was of the view that, despite issues such as counselling sessions being held by video or Skype and the length of time over which the plaintiff had been seeing Dr MacKay, the plaintiff still appeared to gain some therapeutic benefit from his relationship with Dr MacKay. Dr Sale did not see the use of Skype as a counselling medium as a reasonable way to go about counselling unless there was no other option.

As to the second matter, during the course of her evidence-in-chief, Dr MacKay was asked whether there was a risk of a dependent relationship developing between a counsellor and a patient and, if so, was she conscious of that possibility in her dealings with the plaintiff. Dr MacKay said that such a relationship could develop but she was not conscious of one with the plaintiff. She described such a relationship as being:

"A dependent relationship is one where there are many in between session contacts. A dependent relationship is when a client can't make decisions without actually having contact with a person in their life be it a loved one or a therapist. A dependent relationship is one in which that is the primary source of, of um decision making consultation yeah."

As to the nature of her relationship with the plaintiff, Dr MacKay acknowledged that, at the time of trial, she had been counselling the plaintiff over a period of about six years. Certainly that counselling had been constant since the second half of 2008. She was asked about an email exchange she had with the plaintiff at the end of March 2010.

I digress to comment upon the context in which the email exchange came to be before the Court. The emails were tendered by counsel for the plaintiff. The plaintiff said that one of the emails was to tell his counsellor he was intending to take his life. I infer the material was intended to demonstrate just how depressed the plaintiff was following what had occurred with the MAIB about re-training and in the context of the plaintiff's belief, which he conceded was wrong, that the MAIB had somehow interfered with his obtaining the Life Line position. Counsel for the plaintiff commenced his questioning of the plaintiff about these emails with a question which began with the words "Now about this time did you have some email correspondence." The time-frame the subject of the questions immediately preceding this was the first half of 2009. It is clear from the emails tendered that they were sent in March 2010, nearly a year later. The emails can therefore have no relevance to the plaintiff's state of mind in March – May 2009. They may however have some relevance to the relationship between the plaintiff and his counsellor about which she was questioned.

In one of her emails to the plaintiff, Dr MacKay signed off with the following words "With the greatest respect and love". In another she used the words "With much love Linda". She also said in an email to the plaintiff:

"I know I will see a man who has changed me and who has made a profound difference in my life, my work and myself and has the opportunity to continue to make a profound difference with so many others, so their lives are richer, like mine. Please read the following link and know about that difference, how you have tamed others and, in doing so, enter into an‑
– I think it reads:
– an amazing relationship."

Dr MacKay also told the plaintiff a story about being frightened her own mother was going to commit suicide.

It was suggested that the way in which Dr MacKay was communicating with the plaintiff suggested an overstepping of the professional boundaries with him. Dr MacKay disputed this and explained her actions by the need to, in her words, "pull out all stops" in a situation where a client was threatening suicide.

Dr Chambers, the plaintiff's treating psychiatrist, was not questioned about the appropriateness of the email exchange referred to above. Dr Sale was asked to comment. His view was that the manner in which Dr MacKay signed off her emails to the plaintiff suggested an unsuitable tone for a professional relationship. He also believed that Dr MacKay's self-disclosure about her own family history was "somewhat inappropriate" and he would not encourage that in practitioners in whose training and supervision he was involved. When asked about the possible risks associated with not maintaining proper professional boundaries, he said:

"There's a lot of risks involved. There are risks involving the actual treatment of the patient, whether how much of what is going on is treatment and how much is more to do with personal relationship, and how much can you maintain that professional objectivity about your patient's situation. It would be coloured if your boundaries are beginning to fade like that. There is a risk that the relationship will be prolonged because it has become a relationship rather than a patient/professional transaction, and I'm involved, I'm involved with medical protection and I'm fully aware of how often relationships, professional relationships where boundaries begin to blur and then start moving on into quite inappropriate conduct. And it's something of a slippery slide."

Dr Sale is an experienced and senior psychiatrist. He clearly had concerns about the nature of the relationship which appeared to have developed between the plaintiff and Dr MacKay. The plaintiff is of course at liberty to see whomsoever he wishes for counselling. The issue on this trial is what the defendant should be required to pay for. The evidence relating to the plaintiff's relationship with Dr MacKay would suggest he has become somewhat over- reliant upon her beyond what may be needed professionally. Any allowance should therefore be made simply for counselling. It will be a matter for the plaintiff if he chooses to continue with Dr MacKay.

The only evidence of actual costs associated with on-going counselling related to that being conducted by Dr MacKay. The Better Outcomes option referred to by Dr Sale is a Medicare funded option. The options I have therefore are to determine a time-frame over which it is appropriate that care be provided, and make an allowance by reference to Dr MacKay's costings, or make no allowance at all on the basis the plaintiff, should he need it, can access the Better Outcomes program. Having regard to the evidence of Dr Chambers, it is appropriate, in my view, to make an allowance for a period of three years for a private counselling arrangement based on Dr MacKay's costs. If the plaintiff should feel the need to seek help beyond that, the Better Outcomes program will be available to him. I have calculated the allowance for this by reference to the same table referred to in par[94] at $86.67 x 146 = $12,653.82.

As to the cost of a psychiatrist, given the reliance on a general practitioner and counsellor, Dr Sale's view seems to be the sensible option. That is, make an initial allowance for some attendances upon Dr Chambers on a regular basis, but then rely on a need to be assessed for any further attendances by the general practitioner. That approach makes a precise calculation difficult. I will in the circumstances make an allowance for an initial four consultations and then one per year for two years, a total of six consultations. Calculating that allowance over three years, and using the same table previously referred to the allowance is $14.12 x 146 = $2,061.52.

The plaintiff also claims an allowance for replacement walking sticks, orthotics, ankle braces and shoe modifications. While there was evidence that the plaintiff has been making use of all of these aids, there was no evidence as to the long-term need for any of them. The reference in counsel's written submissions to some evidence of Dr Rowe was unhelpful, given his evidence as to the plaintiff's use of a walking stick and orthotics was simply a repeat of the plaintiff's report, and not a recommendation based on a need. I am not satisfied that the plaintiff has a physical need for a walking stick given the surveillance footage and Dr Penn's observations. As to the other items, there was no evidence of a continuing need for any of them.

Finally, under this head of damages the plaintiff claims an amount for travel expenses in respect of various services. I have already made an allowance for trips to see Dr Penn. As to Dr Chambers, the plaintiff's general practitioner and a counsellor, consistent with the number of visits I have already allowed for, but accepting that it is uncertain what counselling arrangements may be made into the future, I make an allowance of $1,000.

The plaintiff's counsel did not seek the costs of a new sander as a particular future expense. However, given the findings I have made about it, it is appropriate it be allowed as such at $10,000.

General damages – pain and suffering and loss of amenities

The plaintiff is now 41 years old. He has, as a consequence of the injury to his ankle, suffered ongoing pain in that ankle. The ankle pain is likely to continue for an indefinite period although I am not satisfied its intensity is now quite to the same level as the plaintiff suggested. The plaintiff's propensity to depression has been activated by the ongoing pain and financial pressures made worse by the accident. The plaintiff will require ongoing psychological and psychiatric assistance for a period of time. That pain, the psychological consequences of it and the financial pressure made worse by the accident have restricted the plaintiff's capacity to enjoy sport, to care for his home, to work and to enjoy a social life. I accept however that with treatment and the resolution of these proceedings the psychological difficulties from which the plaintiff suffers will significantly reduce.

Any amount allowed under this head should be commensurate with the injuries suffered and their consequences. I allow an amount of $30,000.

Summary of damages

A summary of the amounts assessed as being payable to the plaintiff are as follows:

Past economic loss

$36,500.00

Future loss of earning capacity

$37,000.00

Past expenses

$6,661.05

Future expenses

$42,692.48

General damages

$30,000.00

$152,853.53

The plaintiff's damages are assessed at $152,853.53.

Past economic loss	$36,500.00
Future loss of earning capacity	$37,000.00
Past expenses	$6,661.05
Future expenses	$42,692.48
General damages	$30,000.00
$152,853.53