Gerrard, Ned v Transport Accident Commission
[2010] VCC 107
•5 February 2010
January
| IN THE COUNTY COURT OF VICTORIA | Unrevised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES/COMPENSATION
Case No. CI-08-03418
| NED GERRARD | Plaintiff |
| v | |
| THE TRANSPORT ACCIDENT COMMISSION | Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 30 November and 1, 2 and 3 December 2009 |
| DATE OF JUDGMENT: | 5 February 2010 |
| CASE MAY BE CITED AS: | Gerrard, Ned v Transport Accident Commission |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0107 |
REASONS FOR JUDGMENT
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Catchwords: TRANSPORT ACCIDENT – Transport Accident Act 1986 – Section 93 – serious injury – psychiatric impairment.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Lewis SC and | Slater & Gordon Ltd |
| Mr Pillay | ||
| For the Defendant | Mr B McTaggart and | Solicitor for the Transport |
| Mr J Valiotis | Accident Commission | |
| HER HONOUR: |
1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to Section 94(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of a transport accident which occurred on 24 August 2005 (“the said date”).
2 Section 94(6) of the Act provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied
that the injury is a serious injury.”
3 The definition of serious injury relied upon by the plaintiff is under Section 93(17)(c) claiming “a severe long term mental or severe long term behavioural disturbance or disorder”.
4 The body function relied upon by the plaintiff in this case is a psychiatric impairment.
5 In forming a judgment as to whether the consequences of an injury are serious, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as at least “very considerable” and more than “significant” or “marked”?: see Humphries v Poljak [1992] 2 VR, at 140-1.
6 The term “serious” requires the impairment and its consequences to be viewed objectively and also judged on an external comparative basis against possible impairments not necessarily in the same category: see Humphries v Poljak [1992] 2 VR 129, at 170, and accepted by the Court of Appeal in Barlow v Hollis (2000) 30 MVR 441. See in particular Chernov JA at paragraph 29.
7 The judgment of the Court of Appeal in Mobilio v Balliotis [1998] 3 VR 833 resolved the meaning of “severe”. Brooking JA held, at 846, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission (1995) 21 MVR 314, that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely that the change in language from “serious” or “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, His Honour said that “severe” was used in the definition as a stronger word than “serious”.
8 Winneke P, in Mobilio, agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of sub-s.(17) of the Transport Accident Act, was a word of stronger force than the word “serious” where used in that Act: (see also Phillips JA at 858 and Charles JA at 860 to 861 to similar effect.)
9 The plaintiff relied on two affidavits and gave viva voce evidence. He was cross examined. Mr Niall McShane, Ms Joan Alcock and the plaintiff’s treating psychologist, Dr Mogan, were cross examined. In addition, both parties relied on medical reports and other material, including affidavits which were tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
10 The plaintiff is presently aged fifty nine, having been born on 6 May 1950. He has a son, Chris, aged in his thirties, from a previous marriage.
11 The plaintiff separated from his wife in 1974 and then shared Chris’ upbringing with her.
12 In 1986, the plaintiff established a relationship with Ms Alcock. In 1997, the personal aspect of that relationship ceased, although they have continued together under the one roof. They have one son, James, now aged twelve.
13 Prior to the said date the plaintiff excelled at football and he enjoyed running for Glenhuntly. He played Australian Rules football until 2003 with Ashwood, and prior to that played with Old Haileybury.
14 On the said date, the plaintiff was stationary at the corner of Hawthorn and Glen Eira Roads, Caulfield, when his car was struck from behind by another vehicle (“the accident”).
15 The collision caused the plaintiff to lurch back and forward with a snapping motion to his neck, causing immediate sharp pain. His torso twisted and produced a dull pain all over his body. The cost of repairs to the plaintiff’s vehicle totalled $3,550.
16 The plaintiff attended the local police station and although shaken, decided not to seek medical help at that time and continued driving to pick up James.
17 Later that night, when symptoms of headache, nausea and general pain became worse, the plaintiff sought medical help. He attended a medical clinic in Elwood where he was diagnosed with a whiplash injury. He was prescribed Ibuprofen, Naprosyn and Codral Forte.
18 The plaintiff returned to that clinic in December 2005 for a follow up consultation where he saw Dr Pun. The plaintiff subsequently underwent active treatment, including physiotherapy, myotherapy, chiropractic treatment and Pilates, as well as undertaking his own exercises.
19 On 14 February 2006, the plaintiff was referred to Dr Gary Zimmerman, sports physician, who told the plaintiff that he had found pre existing degenerative change in his cervical spine.
20 After the accident, the plaintiff’s neck soreness and headaches were the catalyst to a significant anxiety state.
21 On 24 March 2006, the plaintiff was referred to Ms Lisa Stevens, psychologist. At that stage he was suffering symptoms of depression and anxiety, together with poor concentration and severe headaches.
22 In about October 2006, the plaintiff was referred to Dr Christopher Mogan, clinical psychologist, a specialist in anxiety disorders.
23 Since the accident, as a result of debilitating headaches which the plaintiff experiences when he exerts himself beyond a certain level, he is unable to play contact sports and this impacts on his self esteem.
24 Physically the plaintiff suffers from shoulder and back pain and stiffness.
25 The plaintiff’s physical discomfort is accompanied by a state of hypervigilance that depletes his energy levels to the point of exhaustion. Prior to the accident, he had a sporting and physical prowess; now all he has is fatigue, worry, powerlessness and helplessness.
26 The plaintiff is consumed by a feeling of vulnerability and impending disaster, particularly with air travel, lifts, amusement rides and being driven by strangers. He is angry at the randomness of the accident and how it has ruined his life, of which he feels he is no longer in control.
27 When the plaintiff attempted to return to work, he found it difficult to concentrate, understand and articulate due to anxiety.
28 The plaintiff has a sense of being disabled by the accident, feeling inadequate psychologically and he has little in the way of coping skills. He has lost confidence in himself professionally to return to the high level he once achieved.
29 Since the accident, the plaintiff has become bad tempered and hostile. To avoid confrontation he has become more reclusive. He worries and feels frustrated, helpless and vulnerable. It saddens him that he can no longer provide for his young son in the way he hoped.
30 The plaintiff continues, despite treatment, to experience accident related dreams and flashbacks, as well as disturbed sleep. He feels restless, agitated and short tempered and is preoccupied by his injuries. He is often indecisive and feels frustrated and angry. He continues to experience significant anxiety and feels extremely stressed, being more emotional than he ever was previously, and feels out of control.
31 The plaintiff is hypervigilant, jumpy and easily startled. He has become a recluse but he manages to go out with a few friends. He has taken up basketball with parents of children who attend school with James.
32 Approximately three months after the accident, the plaintiff began to develop phobias, in particular in relation to flying. The phobia seems to relate to a feeling of lack of control or having to rely on someone else for his safety. However, the plaintiff has flown to Queensland twice since the accident to take James to theme parks, but those trips have been extremely stressful.
33 The plaintiff continues to receive counselling from Dr Mogan and he also sees Dr Zimmerman every three months. The plaintiff does not believe in taking Western medication.
34 Since losing his business, the only work the plaintiff has undertaken are some limited interviews for focus groups.
35 The plaintiff continues to experience neck symptoms for which he has received physiotherapy. He undertakes meditation and relaxation therapy. He has developed an extensive exercise program to aid his rehabilitation. As evidenced by pre-accident sporting activities, the plaintiff is a big believer in exercise and he has attempted to maintain a high level of physical condition to cope with his neck symptoms.
36 He has a daily gymnasium routine of exercises at home and attends the gymnasium three times a week. He plays basketball with the Garden State Warriors on the advice of his doctor, playing once a week, and he is not required to train.
37 In examination in chief, the plaintiff confirmed the affidavits of Ms Alcock and Mr McShane.
The Plaintiff’s Business Background
38 Having completed an accounting degree at Monash University in 1971 and then a degree in Marketing in 1973, the plaintiff worked as a law clerk for about six years. He was then a company administrator for Superbear Studio in France and later became the CEO of a medical supplies company.
39 In 1993-1994, the plaintiff ran an accounting and business advisory practice, Mahoney, Gerrard and Associates. Between 1995 and 2000, he ran Ned Gerrard and Associates, a company engaged in the research and development of natural health supplements. The plaintiff arranged for the production of health supplements and entered agreements for their distribution. He also retained an expertise in business management and was able to hire out that expertise. In furtherance of that side of his skills, he did an MBA at Monash University, starting in 2003.
40 The plaintiff completed this degree in July 2005, having obtained two high distinctions and nine distinctions amongst the fifteen subjects.
41 On 7 December 1999, the plaintiff entered a five year agreement for the production of health supplements (“the supplements”) with Mediherb Pty Ltd.
42 In cross examination, the plaintiff agreed that no payments were made to him pursuant to this agreement.
43 On 25 November 1999, the plaintiff signed an agreement with Yashito Suehiro for distribution of the supplements in Japan. In 2000, the plaintiff spent time in Japan assisting with the sales of the supplements.
44 Pursuant to this agreement, the plaintiff was to be paid a retainer of $11,000 per quarter and he had to pay Mr Suehiro $25,000 at the conclusion of the agreement. The plaintiff received two sums of $35,000 which are shown as foreign income in his personal taxation returns for 1999-2000 and 2000-2001. One of these sums also appears in the Super Nutritionals Pty Ltd (“SNN”) Company Tax Return for 2000-2001.
45 On 17 December 2000, the plaintiff signed an agreement with Wayne Smith to form a company to market the supplements, leading to the formation of SNN.
46 Clause 3 of this agreement provided the plaintiff would be paid a salary of $105,000 and Mr Smith would be paid $60,000 which would accrue until SNN became cash flow positive and profitable.
47 However, the plaintiff was never paid any salary pursuant to this agreement.
48 In cross examination, the plaintiff maintained Australian Brand Equity Enterprises Pty Ltd (“ABEE”), as SNN later became known, had the capacity to pay him a salary. He explained that his idea was “not to bleed the company straightaway in its growth phase” and that he would not take a salary until such time as ABEE became profitable.
49 The plaintiff said that he could have accessed the $122,000 cash held by ABEE in 2002-2003, being money he and Mr Smith had put into ABEE. ABEE had the capacity to pay him as it generated $279,000 in sales in that year.
50 The plaintiff was cross examined at length as to ABEE’s financial history. A number of matters, set out at pages 16 to 17 of these reasons for judgment, were put to him, including:
(a) ABEE suffered a trading loss of $70,404 in 2001-2002; (b) ABEE had a trading profit of $7,153 in 2002-2003; (c)
ABEE’s intangibles, including goodwill were valued at $1.4 million at the end of the 2001 financial year and were valued at only $423,000 at the end of 2002-2003 and at $262,000 at the end of 2004-2005;
(d)
ABEE had cash of $122,000 at the end of 2000-2001 and $76,000 at the end of 2001-2002;
(e)
ABEE’s assets totalled $194,000 at the end of 2000-2001 and had reduced to $60,214 at the end of 2004-2005.
51 Despite these figures, the plaintiff maintained ABEE was a viable concern, capable of paying his salary. He explained that the reduction in the various amounts referred to above represented a “changing of the valuation method of inventory”. In his view, the taxation documents “did not reflect what the business was about” but were only a snapshot of ABEE’s position on a particular day.
52 Clause 5 of the 2002 agreement with SNN provided for drawings to the co- directors of $1,300 to meet their individual expenses in running the business.
53 The plaintiff deposed that he drew about $30,000 per year from ABEE for living expenses. However, such claimed drawings are not shown as income in his taxation returns or in any other documents. The plaintiff gave evidence that any drawings he in fact took were from petty cash and would not be recorded in taxation documents.
54 Personal loans were taken out by the co directors to cover business set up and operating costs which were to be offset against their salary. By a Director's resolution on 28 February 2001, $8,000 was advanced to the co directors and an additional $20,000 was advanced by a further resolution on 31 July 2001.
55 The plaintiff covered his living expenses via a bank facility of $121,335 provided to him by Ms Alcock from the Colonial Bank in July 2000.
56 Mr Smith's company, Smith Marketing Group Pty Ltd (“SMG”) had the rights to manufacture and sell a visual display unit “Rotavision”. On 4 April 2001, SNN and SMG agreed that SNN should have exclusive distribution rights of this product in Japan. In cross examination, the plaintiff agreed that neither he nor ABEE received any payment pursuant to this distribution agreement.
57 In 2001, Mr Smith and the plaintiff received a subsidy from the Commonwealth Government to develop a business plan for a retail business which led to the development of a retail fashion boutique known as Eve- olution. This subsidy, totalling $9,121, is set out in the plaintiff’s 2000-2001 taxation return.
58 During 2001, SNN underwent a name change to Australian Brand Equity Enterprises Pty Ltd (“ABEE”) as the plaintiff’s business horizons widened.
59 The plaintiff and Mr Smith were the directors of ABEE, with the plaintiff holding 83 per cent of the shares and being the CEO. ABEE operated the business of the former SNN in business consulting and health products, together with Eve-olution to be managed by Mr Smith.
60 In 2002, by a share based transaction, Mr McShane became a co-director of ABEE. His gymnasium “Get to It” became part of the ABEE structure and was to be managed by Mr McShane. Mr McShane had operated a remedial massage business and had treated the plaintiff from time to time during his sporting career.
61 Mr McShane attended Monash University at the same time as the plaintiff, also pursuing an MBA. They both enrolled in this course in the interests of ABEE.
62 The operations of ABEE Consulting and Get to It were restricted whilst the plaintiff and Mr McShane were studying, save that contractors were engaged to perform some of the work.
63 AK Reels Pty Ltd (“AK Reels”) manufactured various hose reels. By agreements in March and July 2001, AK Reels agreed that SNN should advance its business interests in the United States. ABEE billed AK Reels $5,280 on 29 October 2002 and $21,780 in December 2002.
64 The plaintiff’s evidence was that there were other consultancy jobs available to him which he did not take up in the pre-accident period because of his involvement with setting up ABEE.
65 In January 2002, ABEE retained Shabehaz Khan to assist with sales in India. Mr Khan was paid $10,025 for his services.
66 The plaintiff deposed that in the 2002-2003 and 2003-2004 financial years, ABEE’s revenue was $279,932 and $279,210 which was principally derived from the activities of Eve-olution and Get to It.
67 The ABEE Statement of Financial Performance for 2002-2003 set out income of $27,060 from consultancy, $126,232 from Eve-olution, $117,668 from Get to It and $1,972 from interest.
68 The ABEE Statement of Financial Performance for 2003-2004 set out nil income from consultancy, $153,825 from Eve-olution, $104,437 from Get to It and $19,773 from rental.
69 On 21 March 2005, ABEE entered a three year lease of a Brunswick Street property at $5,341 per month.
70 In the period immediately before the accident, the plaintiff and Mr McShane addressed clients of the accounting firm Manning Perry with the intent of seeding further business contacts. Mr McShane, under the plaintiff’s supervision, completed a consulting assignment for an engineering firm which was a client of Manning Perry.
71 In May 2005, the plaintiff obtained a consultancy with INFOMDX, a company operated by Paul Wilkinson. An agency agreement was signed on 11 May 2005. The plaintiff's services were charged at two hundred dollars per hour.
72 Two invoices were sent by ABEE to INFOMDX for the preparation of diagnostic reports. The first invoice for $5,500 was dated 12 April 2005 and the second dated 11 May 2005 was for $16,500. These amounts are set out in ABEE’s Statement of Financial Performance for 2004-2005 and in the following year.
73 There are two separate amounts in the plaintiff’s personal taxation return of 2005-2006 of $8,250 and $18,953 representing payment for this work.
74 The plaintiff' attempted to work on for Mr Wilkinson after the accident but he found he had impaired concentration, anxiety and he could not coordinate information.
75 The plaintiff then attempted to perform a business assessment for Yann Pauchon, the owner of a motor repair business, “Chips and Scratches”.
76 By letter to the plaintiff dated 1 March 2007, Mr Pauchon confirmed the plaintiff’s services were to be retained on the basis of an annual remuneration of $55,000. A pay advice from Chips and Scratches for the period 12 to 26 March 2007 set out the plaintiff was paid $2,115 in this period.
77 The plaintiff deposed he felt unable to carry on the audit for Chips and Scratches due to the effects of the accident.
78 An e mail was sent to the plaintiff by Mr Pauchon on 6 June 2007. Mr Pauchon confirmed the plaintiff’s advice to him in their last conversation that ABEE was dealing with a client in the same field as Chips and Scratches which caused a conflict of all parties involved. In such circumstances, Mr Pauchon advised that he had no choice but to terminate the offer he had made to the plaintiff.
79 In response by email of the following day, the plaintiff advised Mr Pauchon that his dealings with him had been on a personal level, not through ABEE, as he was unable to fulfil his executive role in that company because of his accident injuries. In those circumstances, the plaintiff had suggested business mentoring or coaching to assist Mr Pauchon. The plaintiff confirmed that he had finally agreed with Mr Pauchon that the plaintiff be employed by Chips and Scratches to work on that business’s growth while Mr Pauchon continued to run the day to day operations.
80 There was no mention in the plaintiff’s email of the conflict of interest referred to by Mr Pauchon in the e mail of the previous day.
81 The plaintiff deposed that finally, in 2007, ABEE was sold to another company, Dolmear Pty Ltd, by Contract of Sale dated 1 December 2007 with an agreed consideration of $28,845. The lease was assigned and creditors discharged.
82 In cross examination, the plaintiff explained that Eve-olution was in fact sold to Dolmear Pty Ltd.
83 Since that time the plaintiff has earned some very modest income as a participant in market research which consisted of short term question and answer sessions.
84 “ABEE” was the plaintiff’s dream and he is now unable to make it grow in the way he had wished. He has tried many times to restart ABEE in his career. The plaintiff has had great difficulty responding to the pressure of work, and making work decisions is now too hard for him. He worries that he may make an error in his work which could lead to serious legal, professional and financial consequences.
85 The plaintiff was cross examined about two loan documents he completed with the ANZ Bank. In an application for a $300,000 mortgage made in February 2006, the plaintiff stated that his income was in excess of $8,000 per month, when he in fact was not in receipt of such income. He did not believe, in so stating, that he was misleading the Bank because he had always serviced the loan or made provisions to do so.
86 In January 2008, the plaintiff applied for an increased credit card limit to $15,000. In his application, the plaintiff listed his gross annual salary as $105,000. Whilst he had never been paid this amount, the plaintiff did not consider he had deliberately misrepresented this situation because ABEE is still a corporate shell and somebody may be able to take it over. He still, optimistically, at the back of his mind, harbours the thought that somehow magically he would be able to get that money.
87 The plaintiff agreed in cross examination that he and Ms Alcock had effectively lived on credit for the last three and a half years.
88 The plaintiff operates an Equity Manager account with ANZ, account number 03147568669508, withdrawing from it $90,000 since it was opened in May 2007, the only deposit being a payment of $47,300 from the Transport Accident Commission (“TAC”). The current amount outstanding is $68,000. The plaintiff has also run his ANZ credit card at a balance of about $20,000 throughout 2009.
89 There was an Access Advantage account statement with the ANZ Bank, account number 5206921194, the opening balance of which was $42,000 in February 2006. As of 6 October 2009, the balance was $26.00.
90 There was a home loan account, number 013147360126555, with an opening balance in April 2006 of $301,754.00 which, as of September 2009, was $306,694.00 in debit.
91 There was an ANZ Gold account, number 4564699004369095 with balances in the range of $4,000 to $5,000.
92 There was also an ANZ First Free Days Visa credit account, number 4564621015252110, with an opening balance of $14,201 in April 2008, and a closing balance of $12,000 in November 2008.
93 There were also various statements of financial position from the ANZ Bank relating to the plaintiff.
94 There were a number of documents relating to the Colonial Estate line of credit, account number 06379110072127, from 4 August 2005 with an opening balance of $264,806.00, until 3 February 2006, when the balance was $264,903.92.
TAC Documentation
95 By letter dated 4 January 2006, the TAC agreed to pay the plaintiff income benefits of $400 per week. This figure was based on wages of $8,250 set out in the plaintiff’s Business Activity Statement for the 2005 September quarter and fringe benefits of $3,485, making a total of $11,735.
96 It was noted that as per the directors’ minutes of 11 February 2005, the date of re commencement of the plaintiff’s official executive duties was two weeks from the date of that meeting, i.e. 25 February 2005.
97 Accordingly, the period of personal exertion covered the period 25 February 2005 to the date of the accident, 24 August 2005 (181 days). In this period the plaintiff earned $11,735, equating to $453,84 gross per week.
98 By letter to the TAC dated 17 June 2007, the plaintiff provided documentation in support of his loss of earnings claim, together with a very detailed explanation of the his business history.
99 The plaintiff concluded that letter as follows:
“I would also suggest that any reasonable person would find it inconceivable that the TAC could consider my claim questionable on the basis that I have not provided personal tax returns. In doing so, it is implying that I have abandoned a diverse and cash flow positive business with high level corporate, academic and government relationships so as to put myself at the mercy of a bureaucratic system in the hope of pursuing some unquantifiable financial benefit.”
Documents in Dr Mogan’s File
100 The plaintiff provided Dr Mogan with a statement of injury and effects in which he concluded that his accident injury was both serious and long term. He also compiled a document headed ‘Post accident medical issues’. Both documents were undated.
101 The plaintiff emailed Dr Mogan on 4 March 2007, thanking him for the draft report, noting that “it really hits home”.
102 The plaintiff advised Dr Mogan that one issue that needed to be addressed was Dr Walton’s comment that the plaintiff’s underlying personality was contributing to his psychiatric symptoms. Another was the TAC taking the liberty to read into Dr Walton’s comment that the plaintiff had viable transferable skills as meaning his current symptoms do not incapacitate him from working.
Taxation Details
103 The plaintiff’s personal taxation return for the financial year 1999 to 2000 showed income of $5,729.00, together with foreign income of $35,000. Total business income was $21,927, with expenses of $16,198.
104 In 2000 to 2001, the plaintiff’s income was $4,681, made up of a government subsidy under the NEISS scheme of $9,121.00 and a business loss of $4,440. The total business income was $1,140, with expenses of $5,690. He also had foreign industry earnings of $35,000.00.
105 The plaintiff did not earn enough income to file a taxation return for the financial years 2001 to 2005 inclusive.
106 The plaintiff’s next personal taxation return was for the 2005-2006 financial year, in which he earned two amounts of consultancy income from different ABNs totalling $8,250.00 and $18,953.00, together with director’s fees of $3,485. The plaintiff has not filed a taxation return since that time as he has not earned any income.
Summary of the Financial Performance of SNN and ABEE
2001 2002 2003 2004 2005 2006 2007 2008[1] 2009 [1] No figures for 2008 year as two entirely different sets of figures were provided for 2008 year (Court Book pages 339 and 340)
ASSETS
Cash 122,120 76,062 64,525 24,571 9,076 Stock/ 3,500 54,897 35,240 45,429 51,138 Inventories Receivables 68,909 65,160 - - - TOTAL CURRENT
ASSETS 194,529 196,119 99,765 70,000 60,214 46,752 32,294 2,850 NON CURRENT ASSETS
Intangibles 1,408,890 1,284,151 423,770 423,770 262,107 272,832 53,867 Loans 16,000 42,000 29,690 29,690 - - - Fixtures/
Fittings - 25,000 25,000 25,000 42,583[2] 31,858[3] 26,133 15,133 TOTAL NON- CURRENT [2] Called Business Equipment in the 2005 Statement
[3] Called Business Assets in the 2006 Statement
ASSETS 1,424,890 1,351,151 478,460 478,460 304,690 - - TOTAL
ASSETS 1,619,419 1,547,270 578,225 548,460 364,904 351,442 112,294 17,983 LIABILITIES Creditors 59,042 5,897 29,640 15,798 11,262 4,323[4] 5,902 1,850 Non-Current Liabilities - - - - 32,298[5] 18,433 20,280 9,600 TOTAL LIABILITIES 59,042 5,897 29,640 15,798 43,560 22,756 26,182 11,450 NET [4] Referred to as Current Liabilities in the 2006, 2007 and 2009
[5] Referred to as Business loans from the 2005 Statement onwards
ASSETS $1,560,377 $1,541,373 $548,585 $532,662 $321,344 $328,68 $86,112 $6,533 SHARE-
HOLDERS’
EQUITYIssued
Capital 1,567,500 1,647,500 622,925 599,849 326,199 Retained profit/loss (7,123) (106,127) (74,340) (67,187) (4,855) TOTAL SHARE- HOLDERS’
EQUITY $1,560,377 $1,541,37 $548,585 $532,66 $321,34
2001
2002
2003
2004
2005
2006
2007
2008
2009 (to
31/3/09)
INCOME 36,669 30,978 272,932 279,210 148,038 169,026 119,226 28,050 1,010 EXPENSES 43,792 101,382 269,745 272,057 156,609 180,737 119,155 42,995 6.337 RESULT ($7,123) ($70,404) $3,187 $7,153 ($8,571) ($11,711) $71 ($14,945) ($5,327) Lay Evidence
107 Mr Niall McShane swore an affidavit on 18 April 2009 and he was cross examined.
108 Mr McShane has known the plaintiff for about eight years. When they first met he owned a rehabilitation business and treated the plaintiff on a number of occasions for sport related issues.
109 Over time they began to talk about business and Mr McShane was looking to get out of his business and enter the corporate sector. The plaintiff became a mentor to him, advising him in relation to the business world and possible opportunities.
110 They both decided to do an MBA at Monash University in around 2004. Some years prior to that the plaintiff had developed a business model and was running a business under the name of ABEE. When Mr McShane met the plaintiff, the plaintiff had raised capital and Mr McShane thought the business model was quite impressive, and the plaintiff went on to develop this model further as part of his MBA.
111 In 2002, Mr McShane decided to sell his rehabilitation company to ABEE and he and the plaintiff began working on a collaborative venture to develop a company which would support mergers and acquisitions in the import and export market. Mr McShane then became a director of ABEE.
112 As part of the business model, the plaintiff carried out management consulting and did several jobs for ABEE at the rate of $200 an hour.
113 The plaintiff told Mr McShane that he had been involved in the accident. On the first day the plaintiff came to work after the accident, the plaintiff seemed to think that the whiplash was not a huge deal but as time went on, he was in a lot of discomfort and after the accident he began to have trouble concentrating for long periods.
114 During the MBA course, their business ideas and goals were very well aligned. However, as time went on Mr McShane decided to look for employment on the open market.
115 In 2005, Mr McShane left ABEE and now works for Amdocs in telecommunications software in a commercial role and earns a salary package of $140,000 a year. The MBA certainly helped him in his career change and in getting a job. If the plaintiff decided to pursue a career in the open market, Mr McShane believed the plaintiff would be able to earn a similar salary to what Mr McShane is presently earning.
116 In examination in chief, Mr McShane confirmed that at the time he assigned his business to ABEE, he had had four to six staff members and had profit sharing arrangements on the contractors. The turnover of his business was somewhere between $10,000 and $12,000 a month. He used to take drawings of on average about $2,000 a month, and he was provided with a car and telephone.
117 Mr McShane received shares, as detailed in the agreements for the sale of his business to ABEE. ABEE at that stage had raised capital but he did not know who had put it in. He thought ABEE was a going concern and he saw the balance sheet and profit and loss and obviously was informed enough to make the decision to come into the company.
118 Mr McShane became the development manager and his role was to build and grow the business under the guidance of the plaintiff. On a day to day basis his role was about building relationships, having conversations and building strategic alliances.
119 The plaintiff had suggested Mr McShane be involved in the business because of his success managing his own business operations from nothing up. Mr McShane continued to be responsible for ‘Get to It’ and he operated the business from his gym.
120 There was no salary remuneration agreement. Mr McShane became a director. It was a “starter” where you invested “sweat equity”. If there had been extra profit in ‘Get to It’, then that could have been available as drawings.
121 There were two consultancy jobs done during that time for AK Reels. Mr McShane helped with some of the reviews and market research but he did not charge out his services. AK Reels was the only paying customer when he started at ABEE. There were other consulting assignments ABEE had pitched for but did not get.
122 Mr McShane got the lead in a job, forming a strategic alliance with an accounting firm, Manning Perry. He was paid for this work and it was declared as part of ABEE’s earnings and he drew $5,000 out of ABEE. The plaintiff did not have anything to do with that job directly.
123 Whilst at ABEE, Mr McShane was living on earnings/drawings from ‘Get to It’ and also doing some bits and pieces lecturing. His plan was to give up all other bits and pieces and draw a wage and get an ongoing paid role with ABEE.
124 He was sold about five per cent of ABEE on coming in to the company. He thought the shares were valued at twenty five cents at that stage and that the capital involved with respect to ABEE was valued at $1.4 million.
125 Mr McShane remembered there were write-downs and agreed that when he left ABEE it was valued at $262,000.
126 He explained this write-down was due to the loss of future earning opportunities. The forecast revenues that would support that share price were no longer there and the intellectual property associated with supposedly creating that income stream had to be written off. It was based on a business model which the plaintiff had created three years earlier.
127 Generally, ABEE had agreements to distribute products overseas with AK Reels that, from memory, had lapsed and they had had some territorial arrangement. The jobs included in the $1.4 million were for a specified period of time and then they lapsed. They were not replaced by other jobs or other agreements. Future cash flows were not forthcoming so there had to be write- downs.
128 Mr McShane agreed that between 2002 and 2005, ABEE generated little income.
129 Mr Smith was pretty much taking care of Brunswick Street in terms of marketing – operations and marketing at Eve-olution. He sold Mr McShane his share of the business, one million shares for $10,000 in about the middle of the time he was doing his MBA. He did not know why Mr Smith sold him his interest. Mr McShane did not know how much Mr Smith contributed to the company when it was set up.
130 Mr McShane agreed, from his circumstances he left ABEE because it was a non viable and non profitable organisation. However, it was a going concern and was liquid. He was not sure, but he thought ABEE would have had a small profit in 2005.
131 He would not want to buy shares in ABEE right now and it is not something he wants to be involved with.
132 In response to the suggestion that ABEE was not profitable, Mr McShane explained that the value of a company is judged by the value of its assets; it does not necessarily have to be generating cash on the day and profitability is determined by accountants and doing the books. When he started he was investing in the future revenue streams that he expected and that was how he saw the valuation. They were not forthcoming. Over that three year period they were obviously trying to generate the cash through the consultancy and other activities and the prospects were there. When he thought the prospects were no longer there he decided to leave.
133 In re-examination, Mr McShane confirmed he was guided by the plaintiff in the Manning Perry job.
134 Ms Joan Alcock swore an affidavit on 10 March 2009. She has known the plaintiff for twenty two years and they were in a relationship for about eleven years. The plaintiff is the father of her twelve year old son. They have continued to reside in the same North Caulfield property after their relationship broke up.
135 Prior to the accident, the plaintiff’s personality was driven, extroverted and social. When they were together they particularly enjoyed going out to fine restaurants and the plaintiff also spent quite a lot of time taking clients out for lunch or dinner.
136 The plaintiff was highly motivated and very focussed on his career. When they met he was a management consultant.
137 In about 1988, the plaintiff took up a directorship of a public company that acquired and ran other businesses, mainly medical ones.
138 In about the early 1990s, he became director and chief executive officer of another public company involved in offset printing and sports stadium management.
139 By the mid 1990s, the plaintiff decided he would prefer to work for himself and he developed a private management consultancy business, the work he was doing at the time of the accident.
140 When their son James started school she worked in the plaintiff’s company on very flexible hours and prior to that the plaintiff assisted her by paying the mortgage.
141 Ms Alcock described the plaintiff as a workaholic, who would work very long hours. He did not get home from work until 10.00 pm and it was not uncommon for him to work on weekends.
142 The plaintiff was doing very well financially before the accident. He was able to put his older son Chris through private school and university and he could afford to go to nice restaurants and had nice cars.
143 Ms Alcock deposed as to the plaintiff’s sporting prowess before the accident, noting that he was the oldest player in the A Grade Amateurs and that he usually played a sport of some kind about five times a week. He had an extremely positive ‘can do’ attitude. He had even developed a line of business in conjunction with this way of life, developing a line of sporting health supplements.
144 The plaintiff’s life changed dramatically after the accident. He has hardly been able to work since then, although he has attempted to do so on several occasions. When he tried, he had major headaches and got completely stressed out. He has lost confidence and just seems unable to cope. His business has suffered to the point where she has had to get another job to support herself and James. The plaintiff can no longer pay maintenance and she has to work much longer hours.
145 The plaintiff finds it difficult to do things around the house, such as cooking or cleaning. He is depressed and finds it difficult to cope. He gets stressed out at the smallest things and becomes withdrawn and usually has to lie down everyday.
146 The plaintiff can “flip out” at the smallest things and become aggressive. Little things, such as traffic, can send him off, whereas he used to be cool, calm and collected and could cope with a very stressful job and thrived on it. He used to be organised but he is now “all over the place”.
147 The plaintiff has developed some phobias since the accident, the most serious being in relation to flying. Before the accident he flew regularly with his job without any problem.
148 The plaintiff is also quite anxious in the car and would rather drive than be driven. He is more anxious about crossing roads. He has become hypervigilant about James’ safety.
149 The plaintiff does not see friends very much anymore because he cannot afford to go to fancy, expensive places. He has also become socially withdrawn and isolated.
150 The plaintiff has tried very hard with his rehabilitation program and often takes James with him to the park to do his exercises. He does his rehabilitation with a lot of pain but is committed to trying to get better. In some ways his positive nature has not gone completely and he pushes himself as hard as he can but it does not seem to be working. The plaintiff had such big plans for his company, which he has not been able to fulfil because of the accident.
151 It has been distressing to watch a once happy, successful and thriving individual change into a depressed, anxious and incapable person.
152 Ms Alcock was cross examined. She confirmed that the property in Dandenong Road was purchased in 1991 and it was initially put in her name and her brother’s name to help the plaintiff’s borrowing capacities for his business. She has never paid the mortgage. She would not have been able to take out the loan herself. She could not recall how much money she contributed to the purchase price and agreed the mortgage would have been about $135,000.
153 Ms Alcock thought at that time the plaintiff was employed as the CEO of Pro Sports. He had always had lots of plans to do different things but she could not remember what he would have been planning at that stage.
154 Ms Alcock started working for Eve-olution, in the shop, in about 2003 and she thought she was paid about $200 a week.
155 She confirmed that a line of credit and another account of hers at Colonial State Bank were available for the plaintiff to access. She had helped the plaintiff fund some of his business activities. As of February 2006, $265,000 was owing on the line of credit.
156 In early 2006, the plaintiff became a co owner of her property and the finances were rearranged, with the ANZ Bank becoming the mortgagee.
157 The mortgage had increased from $130,000 to $264,000 in early 2006 because the plaintiff had re-borrowed.
158 Ms Alcock was hoping that something good was going to come out of his company to look after James. As of 2006, she thought that ABEE was doing well financially.
159 She has to do things at home because the plaintiff cannot cope himself. He has had problems with concentration since the accident and once he put glad wrap instead of foil on a chicken when he put it in the oven.
160 She does not know much about either the plaintiff’s financial arrangements, or her own.
The Plaintiff’s Medical Evidence
Treaters
161 The plaintiff attended Dr Jayasinga at the Elwood Clinic on 31 August 2005, a week after the accident. The plaintiff was then complaining of neck pain and anterior lower chest pain. A medical certificate for one month was given. On review on 27 September 2005, the plaintiff felt unable to concentrate at work, with intermittent headaches.
162 The plaintiff was referred to Malvern Sports and Physiotherapy Centre by his treating physiotherapist, Andrea Stanley, in March 2006 for a supervised exercise program.
163 Dr Gary Zimmerman initially saw the plaintiff on 14 February 2006, complaining of neck pain following the accident a year earlier.
164 The plaintiff told him he had tried to return to work on three occasions but because of ongoing neck stiffness, neck ache and posterior headache, which started coming on after about forty five minutes of work, he was unable to continue.
165 Dr Zimmerman thought the plaintiff’s physical symptoms were coming from his cervical spine and he organised a plain x-ray.
166 Dr Zimmerman noted the plaintiff came across as being quite anxious about his situation and felt unable to do personal exertion work because of his concern about severe posterior headaches and his inability to concentrate, which was further aggravating his anxiety.
167 It became apparent to Dr Zimmerman that the plaintiff, who had always been very physically active, did not appear to be coping with the consequences of the accident. He was becoming increasingly anxious and agitated about the TAC’s perceived lack of trust and concern about his current status. At that stage, the plaintiff had been referred for psychological treatment.
168 As of mid 2007, Dr Zimmerman thought the plaintiff was not fit to return to his previous occupation due to ongoing anxiety secondary to his Adjustment Disorder, and he believed he should remain under the care of Dr Mogan.
169 Dr Zimmerman agreed with the contents of Dr Walton’s report of 27 November 2006.
170 In his most recent report of 10 June 2009, Dr Zimmerman noted the plaintiff’s main ongoing medical problem was a psychological one, although he was still getting intermittent neck stiffness.
171 Dr Zimmerman thought the plaintiff still had evidence of his Adjustment Disorder with secondary anxiety, and significant concerns about his ability to work in the future.
172 He noted that in February 2009, the plaintiff was commenced on five milligrams of Valium, half a tablet nightly, which had helped his sleeping.
173 Dr Zimmerman noted the plaintiff found the reinstatement by the TAC of his physiotherapy and gymnasium program very helpful for maintaining his physical status.
174 Dr Zimmerman commented that the plaintiff had lost his invincibility and could not cope with work within a pressured environment, and he got significantly anxious contemplating return to any sort of work which demanded extremely high levels of competency and decision-making.
175 Dr Zimmerman considered the plaintiff remained unfit to return to work duties for which he was trained and he felt the mainstay of his ongoing management was psychological support and counselling with Dr Mogan.
176 Ms Lisa Stevens, psychologist, first saw the plaintiff on 24 March 2006 on referral from Dr Zimmerman. At the time of her report in November 2006, she thought the plaintiff required intensive, ongoing psychotherapy.
177 She noted the plaintiff initially presented as a highly driven individual whose self concept was predominantly formed around his physical and sporting prowess. The plaintiff also related stories which gave the impression he saw himself as competitive in all areas of his life, including his relationship with his elder son and also his business partner.
178 She thought the accident seemed to have shaken the plaintiff’s fundamental beliefs regarding his perceived level of control over the environment and his physical wellbeing.
179 As time has passed and the plaintiff found himself unable to perform pre injury tasks, he had reported increasing symptoms of depression and anxiety.
180 Ms Stevens noted the plaintiff had attempted to recommence his pre injury work on a number of occasions but reported he was unable to perform at the required level, experiencing deficits in concentration, impaired cognitive functioning and severe headache. He had reported to her that he required bed rest for a period of three days following attempts at pre injury mental and physical exertion. It was also her understanding the plaintiff’s previous work would attract serious legal, professional and financial consequences if he were to make errors in submissions or reports.
181 The plaintiff was referred to Dr Mogan, clinical psychologist, in October 2006. The plaintiff attended him twice in 2006, twenty times in 2007, seventeen times in 2008 and on a monthly basis in 2009.
182 Dr Mogan reported that constant themes that emerged during those consultations included the plaintiff’s sense of bewilderment at not being able to function at his pre accident level, frustration, lack of understanding and obstructive processes of the TAC and a strong sense of being misunderstood, in that the implications of his psychological response were not appreciated by the TAC.
183 The plaintiff did not present at any sessions in other than a state of psychological arousal, including agitation, anxiety, depression and related emotional distress. The clinical diagnosis was Major Depression Disorder, including low mood and anhedonia, insomnia, restlessness and agitation, preoccupation, indecisiveness, frustration and anger. There was also a diagnosis of Post-Traumatic Stress Disorder.
184 Treatment by Dr Mogan focussed on strategies from cognitive behavioural therapy, including structured activity scheduling, encouragement to process emotional distress and efforts to engage in stress reduction activities.
185 Dr Mogan noted there were associated issues of phobic avoidance and life limiting anxiety that were having a serious impact on the plaintiff’s daily living.
186 It was recommended by Dr Mogan that intensive therapy continue for the foreseeable future. He thought the plaintiff’s prognosis was very guarded, given that over forty sessions had been implemented. The progress of therapy had, in Dr Mogan’s view, been largely hindered by the persistently obstructive nature of the insurer (TAC) and the severity and complexity of the psychological impact on the plaintiff’s life, relationships and family. It was noted the plaintiff’s prognosis was certainly negative.
187 In conclusion, it was Dr Mogan’s view that there was no current capacity for work and he currently could see no prospect of the plaintiff performing work in his highly specialised field or in any other field owing to the severity of his psychological symptoms and the unusual complexity of his traumatic status.
188 In examination in chief, Dr Mogan did not agree with Dr Walton’s diagnosis of Adjustment Disorder because Adjustment Disorders normally lasted for about a year and if a person has had that adjustment or crisis response beyond that time, it was more likely to be Post-Traumatic Stress Disorder.
189 In cross-examination, Dr Mogan said the plaintiff’s condition had fluctuated but overall it had not improved. It was not his role to consider medication as he was a therapist. As far as he knew, the plaintiff had not received psychiatric treatment and he had never been recommended medication.
190 Dr Mogan explained that he had not referred the plaintiff to a psychiatrist because he would probably provide exactly the same treatment for Post- Traumatic Stress Disorder himself.
191 In his view, the plaintiff, a health conscious man, was not the kind of person who would not be responsive to psychotropic medication. However, he had never discussed this issue with the plaintiff.
192 Dr Mogan explained he engaged in cognitive behaviour therapy, helping the plaintiff deal with Post-Traumatic Stress and that the treatment was very long and drawn out. He noted there was high co-morbidity in Post-Traumatic Stress Disorder, in terms of anxiety, and there was also a deep sense of depression because of the lack of support and the drawn out process.
193 Accordingly, Dr Mogan diagnosed Anxiety, Depression and Post-Traumatic Stress Disorder.
194 Dr Mogan thought the plaintiff had had a lack of support from the TAC which had stopped his physiotherapy and there had also been “the removal of a minimal support fee or payment for quite a long period of time“.
195 Dr Mogan meant, by this, that he thought the plaintiff was receiving payments of about $400 per week. It was his view that this sum was minimal; it was not the plaintiff’s view.
196 Dr Mogan was not sure that prior to the accident he had discussed the plaintiff’s earning capacity with him. It was his understanding, at the time of the accident, that the plaintiff was the CEO of a business. The plaintiff’s work involved him consulting with businesses to advise about trade matters, strategies and marketing techniques. It was his understanding the plaintiff had stepped out of the business in order to complete his degree and that he had an associate who was managing the business at that stage.
197 Dr Mogan disagreed that the plaintiff had ever given him the impression that he was entitled to get more from the TAC than he had in fact received but he agreed the plaintiff had expressed frustration at the TAC.
198 The plaintiff had complained to him throughout treatment of his physical problems. The plaintiff had indicated to him, as of the time of the accident, that he was still playing football and was pretty physically fit and that sport meant a lot to him.
199 The plaintiff had told Dr Mogan that he had gone from managing his own company to a virtual subsistence budget.
200 Dr Mogan was not aware, between April 2007 and early 2009, that the plaintiff was expending money through lines of credit of about $900 a week.
201 Dr Mogan confirmed that the plaintiff had corresponded with him, describing physical restrictions and the impact of his anxiety on work. He thought that letter headed “Post Accident Medical Issues” written by the plaintiff was a couple of years’ old.
202 In that document the plaintiff complained of a noticeable deficit in his right pelvic area and that he had had debilitating headaches for which medication had little effect on and that he was having problems dealing with recovery without the use of appropriate health facilities and remedial therapy.
203 The plaintiff sent an email to Dr Mogan on 4 March 2007 which opened:
“Hi Chris
Thank you for a copy of the draft report; it really hit home.”
204 Dr Mogan explained it was his practice to refer draft reports to patients in order to ensure the factual details were correct. He assumed the plaintiff was referring to the report that was later dated 23 May 2007.
205 Dr Mogan agreed he thought it was likely the report would be used by the plaintiff’s solicitors in court proceedings. He sent the draft because a patient sometimes needed to correct matters like dates. He noted that he had seen reports prepared for litigation where patients had told him details were wrong.
206 There was no other correspondence relating to this email nor was there any amended copy of the report on the file. As Dr Mogan said, he was not meticulous with his paperwork or record keeping. He was prepared to alter the draft if there was factual information that was incorrect. He could not recall whether he had sent the plaintiff other reports compiled by him.
207 Dr Serry, consultant psychiatrist, conducted a psychiatric assessment on 9 March 2007, 18 June 2008, and most recently on 2 June 2009.
208 On the final examination, Dr Serry commented that the plaintiff essentially remained somewhat psychologically distressed as a result of the accident, although Dr Serry noted that with psychological treatment the genesis of the plaintiff’s symptoms had been more readily understood. He thought the plaintiff was now able to separate the physical and psychological components of his symptoms and he had found that healthy.
209 The plaintiff described still feeling extremely anxious, particularly outside his comfort zone. He had a heightened sense of awareness and felt on high alert, which caused him to feel physically drained. He lacked trust in others, felt vulnerable and disliked being exposed or being the centre of attention. He remained anxious about lifts and tended to have catastrophic thinking about flying and tended to ruminate over what could go wrong.
210 Overall the plaintiff was more irritable and frustrated and tended to be more agitated. He was jumpy and easily startled. He remained depressed much of the time, although he could get some pleasure from his son’s basketball.
211 The plaintiff was frustrated because he was motivated and interested in theory but felt very restricted. He reported a non existent libido and a tendency to feel depleted in terms of energy. His concentration was reasonable unless put on the spot, and he needed time to organise his thoughts.
212 The plaintiff’s sleep was less broken with Diazepam but it remained somewhat disturbed. His confidence and self esteem was shot. He experienced ongoing flashbacks but their quality had changed.
213 On mental status examination, the plaintiff was neatly attired, well looking, of average build and appeared younger than his stated age. Dr Serry noted the plaintiff was an intense historian who demonstrated a reduced effective range with persistent underlying depressive themes. There were residual post- traumatic anxiety and phobic features and also prominent obsessional ruminations. Thought content revealed an ongoing preoccupation with the nature of the accident and its consequences, as well as the entire process involving the TAC. There were no psychotic features. Cognitive assessment was unremarkable, but for some ongoing subjective complaints.
214 Diagnostically, Dr Serry thought the plaintiff continued to demonstrate features of a pain disorder associated with psychological factors and a general medical condition, and a generalised anxiety disorder with phobic and obsessional features, along with a secondary depressive condition which remained consistent with a Chronic Adjustment Disorder. The plaintiff also continued to have features of traumatisation consistent with a partial Post-Traumatic Stress Disorder.
215 At that stage Dr Serry thought the plaintiff would require ongoing expert management of his physical and psychological symptoms. Dr Serry did not repeat the comment made in his 2008 report that the plaintiff would potentially benefit from treatment with psychotropic medication.
216 Dr Serry felt the plaintiff’s capacity for employment, domestic duties, social and leisure activities had been markedly compromised directly as a result of the accident.
217 He noted the plaintiff continued to demonstrate features of an entrenched pain syndrome, along with ongoing psychological distress which had been exacerbated by an ongoing difficult process in relation to the TAC.
218 Dr Clayton Thomas, consultant in rehabilitation and pain medicine, examined the plaintiff for medico-legal purposes on 26 February 2007.
219 The plaintiff told Dr Thomas that he had attempted to return to work on a number of occasions but could only work for an hour as he was not able to concentrate. The plaintiff reported that headaches were present whenever he tried to be active.
220 At that stage Dr Thomas diagnosed a whiplash associated disorder predominantly, together with significant cervicogenic headaches.
221 Dr Thomas thought, as far as work was concerned, it would be reasonable to suggest that the plaintiff’s work would be affected by his clinical condition and it would be reasonable to suggest that the headaches, in particular, would be very problematic for him and would make his ability to concentrate in a manner that he was able to do prior to the accident very problematic.
222 Dr Thomas provided a supplementary report, having been forwarded a report from the plaintiff’s treating general practitioner and psychologist.
223 Dr Thomas noted, having seen the x-ray report of May 2006, that the plaintiff’s spine was clearly not normal and that it was unusual to get degenerative retrolisthesis at two levels. The discs were noted to be “markedly narrowed” and he thought there was an organic lesion accounting for the plaintiff’s neck pain.
224 At the date of examination, Dr Thomas thought the plaintiff did have some neurological symptoms and signs in his right upper limb. Dr Thomas felt an MRI scan was warranted, given the severity of the plaintiff’s symptom complex.
225 Having seen Dr Mogan’s report, Dr Thomas concluded that this was a case in which there are both physical and psychological aspects which both appeared significant for the plaintiff and clearly both would have impact on the other.
The Defendant’s Medical Evidence
226 Mr Robert Marshall, surgeon, examined the plaintiff in January 2006.
227 There was nothing abnormal to find on examination. Mr Marshall could detect no neurological, muscular or joint deficit in the plaintiff’s neck or back but he accepted unreservedly that the plaintiff did have a whiplash injury in the accident and he was still suffering from gradually subsiding neck pain and headache.
228 He concluded that the plaintiff had perfectly genuine symptoms which had an organic basis attributable to the accident.
229 Mr Marshall noted the plaintiff’s comment that he found it difficult to continue using a computer bent over but it did not appear to Mr Marshall that this should stop the plaintiff from working full time as a management consultant. He noted that certainly the plaintiff’s capabilities may be somewhat diminished but that appeared to him to be a subjective judgment on the plaintiff’s part.
230 With that proviso, Mr Marshall thought the plaintiff was fit to resume his pre injury employment even thought he accepted the plaintiff might have some problems working at full pressure.
231 Dr David Eaton, specialist in occupational medicine, examined the plaintiff in January 2006. Dr Eaton considered the plaintiff had suffered soft tissue injuries in the accident which had resolved. There was no evidence of a significant head injury which explained the plaintiff’s mild subjective cognitive impairment.
232 Dr Eaton noted the plaintiff’s subjective assessment that he could not resume his usual employment, largely as a result of his perceived cognitive impairment, but he considered the plaintiff was capable of undertaking full time employment.
233 Dr Walton, consultant psychiatrist, first examined the plaintiff on 20 April 2006.
234 At that examination, the plaintiff complained of ongoing pain in the posterior aspect of the neck which tended to radiate into his shoulders.
235 Dr Walton noted it seemed that the plaintiff’s principal work was as the CEO of an operation which assisted other businesses to develop, especially in relation to exporting. However, the plaintiff was also involved in some direct retail.
236 The plaintiff had not been working since the accident and he regarded himself as being in full time rehabilitation. The plaintiff stated that headaches and poor concentration limited him to working to no more than forty minutes at a time on the computer.
237 The plaintiff also told Dr Walton that he was normally an active sportsman, having played five hundred Australian Rules football games, one hundred and fifty matches with the VFA and that he stopped playing football in 2003 to study.
238 The plaintiff told Dr Walton he was annoyed about his continuing incapacity for work and he was quite fearful of making mistakes which might breach business contracts and leave him legally and financially liable. He complained of frustration about his limitations in relation to sport and his acute awareness that he was ageing. He had difficulty accepting his dependency on others, including the TAC, and he described feeling powerless. He stated he was actually afraid of becoming depressed and/or suicidal and felt his life had been taken away from him.
239 The plaintiff told Dr Walton that since the accident he had actually resumed living in the same home as his former partner, due mainly to financial difficulties he had encountered, especially maintaining the mortgage on the house.
240 In examination, Dr Walton noted the plaintiff correctly labelled himself as a Type A personality and he certainly had the impression the plaintiff was a driven individual.
241 Memorising was intact and the plaintiff was correctly oriented in time and place and the plaintiff was able to concentrate sufficiently for the interview process. There were no signs of psychosis.
242 The plaintiff’s self assessment of work capacity was that he would be capable of retail management duties, although to resume those within his business network he would actually have to retrench the current manager, which he was not prepared to do. The plaintiff thought there was a glimmer of hope that he would resume his pre-injury work.
243 At that stage Dr Walton diagnosed an Adjustment Disorder with anxiety and depressed mood.
244 Dr Walton concluded that the plaintiff,
“a thoroughly driven and fitness obsessed man, for the first time in his life had been confronted with the fact he was not invulnerable. Even quite modest pain signals to him were a significant deficit, and were accompanied by anxiety, irritability and some lowering of mood.”
245 At that stage Dr Walton thought the plaintiff’s prognosis was reasonably favourable. His symptoms did not have an organic basis and they were psychological in nature, largely as a reaction to the plaintiff’s sense of vulnerability. However, the change in his self-perception certainly had been triggered by the accident. Dr Walton thought the plaintiff required at least three months of psychological counselling and he did not suggest psychotropic medication.
246 From a psychiatric perspective, he considered the plaintiff was properly described as suffering from a partial incapacity for work and it certainly was not the situation that he was meaningfully totally incapacitated. The question of that capacity, in Dr Walton’s view, should be revisited in a few months after further counselling. Dr Walton considered the plaintiff was capable of returning to work on reduced hours and/or performing modified duties.
247 The plaintiff was reassessed on 22 November 2006, at which time he continued to complain of headaches and neck and shoulder pain.
248 The plaintiff told Dr Walton he had made multiple attempts to return to work and had routinely failed with tasks similar to his usual work, such as assisting with projects seeking funding and evaluating business activity. He told Dr Walton he got briefs to do quotes to undertake work; however when he attempted such tasks he was unable to sustain concentration, being interrupted by headache and anxiety.
249 On examination, the plaintiff remained the same anxious man with pressured conversation and he was even more insistent than previously, tending to become more agitated.
250 Dr Walton noted the plaintiff was particularly preoccupied with what might constitute suitable employment. On the one hand the plaintiff did not regard himself as capable of doing his old job, but on the other it was virtually impossible to engage him in any useful discussion about possible alternative work, but the plaintiff ultimately did agree that consulting with a vocational assessor might be of some use.
251 Whilst the plaintiff had highlighted problems with concentration, and Dr Walton did not question he had some difficulty, he noted that those problems were not readily apparent to direct observation and thus he would describe them objectively as relatively minor, and there was no other evidence of cognitive deficit.
252 Dr Walton noted that the plaintiff was a man strikingly lacking in psychological insight. He continued to diagnose the plaintiff as suffering from an Adjustment Disorder with anxiety and depressed mood.
253 Dr Walton noted that the plaintiff’s pre accident state was one of fragile mental equilibrium, very much resting upon his physical prowess and business acumen.
“Now that he was compromised in those areas, probably much less so than he perceives himself, his whole world is shattered, understandably enough, generating quite marked anxiety for him.”
254 At that stage Dr Walton could not exclude the possibility there was an ongoing significant material contribution from the accident to the plaintiff’s current psychiatric symptoms, but noted the plaintiff’s underlying personality was also relevant. He did not think the plaintiff fit to return to his old job on a full time basis, but with encouragement he believed the plaintiff could begin that process, but at that stage the plaintiff found that proposition very intimidating.
255 Dr Walton saw the plaintiff again in June 2008, at which time he continued to complain of ongoing shoulder and neck pain and debilitating headaches.
256 The plaintiff told Dr Walton that he was not effectively working. He informed Dr Walton that he participated in market research perhaps for an hour every few months only, but then that turned out to be describing merely responding to questions for which he might receive modest remuneration.
257 The plaintiff told Dr Walton he had attempted to become more actively involved in business. He had a contract to acquire fifty per cent of a company performing minor car repairs. Prior to the contract being executed, he was to become involved in the running of the company. However, he was criticised because of poor work performance and he was well aware himself that he was not coping well with accounting issues and the like, thus the business venture lapsed.
258 The plaintiff told Dr Walton of a shock like feeling he experienced after participating in a remunerated daylong seminar in relation to market research.
259 The plaintiff described being afflicted by huge depression which was mainly about not feeling adequate to provide satisfactorily for his son. He maintained that in an otherwise comfortable environment he could concentrate continuously for an hour at a time.
260 Dr Walton noted, as was not especially uncommon with the plaintiff, he then produced a lot of words without great information content and essentially did not answer the question.
261 On examination, it remained the case that there was no significant cognitive deficit nor signs of psychosis.
262 Dr Walton noted that the plaintiff had written directly to him, stating that he was unable to work because of psychological rather than physical problems and thus the decisions of practitioners other than Dr Walton were irrelevant and, “consequently the validity of the TAC’s decision as to ‘denial of loss of earning capacity’ rests solely on your opinion”.
263 The plaintiff took issue with the fact the TAC had interpreted Dr Walton’s previous remarks as reflecting he had some capacity for employment. Dr Walton confirmed that that in fact was his view at that time.
264 Dr Walton disagreed with Dr Mogan’s diagnosis of Major Depressive Disorder and anxiety – Post-Traumatic Stress Disorder – but agreed with the general practitioner that the diagnosis was of an Adjustment Disorder.
265 Dr Walton was inclined to agree with Dr Mogan’s comment that the plaintiff had lost his capacity to operationalize his expert knowledge.
266 Dr Walton questioned how responsive the plaintiff’s problems may be to psychological intervention, noting that the progress had been minimal in setting appropriately paced goals in regard to the plaintiff’s personal and work capacity.
267 Dr Walton again emphasised the plaintiff’s pre-existing personality fragility and noted he was afraid that the plaintiff seems to be an example of a psychological eggshell skull and the challenge of adjusting to his physical and psychological problems after the accident had proved beyond him.
268 Dr Walton noted he was afraid he could identify no type of psychological intervention or psychiatric treatment which was likely to ameliorate the situation.
269 Dr Walton commented that “the house of cards had crumbled”. He also noted a particular psychological issue in relation to the plaintiff’s sense of inadequacy was of not being able to provide financially for his second son.
270 Dr Walton suggested it might be prudent, as it was his impression the plaintiff was ruminating about medical reports, that they be provided through his psychologist rather than given to him directly.
The Defendant’s Lay Evidence
271 Tegan Murphy swore an affidavit on 27 November 2009 exhibiting the plaintiff’s pay advice from ‘Chips and Scratches’ for the period dated 12 March 2007 to 26 March 2007 setting out payment of $1,621(“the payslip”).
272 Ms Murphy first met the plaintiff at the start of 2007 when the plaintiff attended a business meeting with Mr Yann Pauchon, the former general manager of Chips and Scratches, which employed Ms Murphy as an operations manager.
273 The purpose of the meeting was for the plaintiff to provide information to Mr Pauchon on how to improve the company’s franchise business opportunities.
274 The plaintiff attended the company office once a week for approximately the next three months. The plaintiff did not perform any work for the company during the meetings. The plaintiff never worked for the company and Ms Murphy was not aware that there was ever any agreement between the plaintiff, the company or Mr Pauchon.
275 Having been provided with a copy of the pay slip, Ms Murphy had reviewed the company’s financial records and there was no record of any payment to the plaintiff in that period.
276 Nor was Ms Murphy able to locate a copy of a letter from Mr Pauchon to the plaintiff dated 1 March 2007 setting out that the plaintiff’s services had been retained by the company on the basis of an ongoing annual remuneration of $55,000 gross per year.
277 Ms Murphy would have known if the plaintiff had been engaged by the company with such a salary, as part of her responsibility as operations manager was to pay wages. In 2007, the company had limited financial resources and would not have had the money to pay the plaintiff an annual remuneration of this amount.
278 Mr Pauchon is no longer employed by the company.
279 Ms Murphy was not aware that the plaintiff had been involved in an accident, and when seen thereafter, the plaintiff did not display any disabilities or restrictions.
280 Keith Schilling swore an affidavit on 19 November 2009. He has been a member of the Old Haileyburians’ Amateur Football Club since 1989 and is currently the unofficial historian.
281 The plaintiff played thirty seven games for the Club from 1990 to 1996. He never played in a senior first side. He did not play in 1995 and he played four games in 1996 with the Senior Reserves.
282 Mr Paul Wilkinson swore an affidavit on 18 November 2009 exhibiting a statement made by him on 8 July 2009. He swore a subsequent affidavit on 26 November 2009.
283 Mr Wilkinson is a self employed software architect trading in the corporate name of INFOMDZ. He has known the plaintiff for about forty years and knew he wanted to start a consultancy company, ABEE.
284 The plaintiff suggested to him that he could write a couple of diagnostic reports which would be partly rebated through a government program.
285 Two reports would have cost $20,000 and Mr Wilkinson agreed to pay the plaintiff this amount for this job which was completed some time in early 2005.
286 Mr Wilkinson thought at that time that the plaintiff and Mr McShane were just starting up ABEE and then Mr McShane left to go to Saudi Arabia. He thought Mr McShane left because there was no work at the company.
287 The two reports were satisfactorily completed. They were initially handwritten by the plaintiff but then INFODMX had them typed up. The reports were of some assistance and were worth paying for. The plaintiff had a few interviews with Mr Wilkinson and he was very thorough. He put in the hours to do the reports.
288 The plaintiff was then going to go and consult to others but Mr Wilkinson did not know what happened after that with ABEE. He thought the plaintiff was doing consultancy work but that this did not seem to go very far. Mr Wilkinson knew the plaintiff was dealing with a company called AK Reels and another company called Tosca, prior to AK Reels, and prior to that he was dealing with a company called Clinitec, but that was all prior to the accident. He did not know of any client the plaintiff dealt with after the accident.
289 Mr Wilkinson was told by the plaintiff that he had been involved in a minor accident and that he had got some money for physiotherapy. The plaintiff seemed fine physically. He saw the plaintiff a week after the accident and the plaintiff did not make any comment about injuries and he did not appear to display any sign of restriction.
290 In a subsequent affidavit sworn on 26 November 2009, Mr Wilkinson deposed that he had kept in regular contact socially with the plaintiff for many years. The plaintiff did not perform any work for INFOMDZ beyond the diagnostic reports which were completed and paid for before 11 May 2005.
291 On that date, ABEE entered into an agreement with Mr Wilkinson’s company (“the agency agreement”) authorising ABEE to represent itself as a non- exclusive agent of INFOMDX to potential customers. ABEE did not secure any customers for Mr Wilkinson’s company, nor has it paid any money to ABEE pursuant to the agency agreement.
292 Mr Wilkinson was not aware, nor had he been made aware by the plaintiff that since the accident that the plaintiff had been restricted in his ability to perform any work pursuant to the agency agreement or any other work for his company by reason of any physical and/or psychological injury.
293 The plaintiff would occasionally tell him that he suffered ongoing minor physical injuries that he attributed to the car accident and that he had obtained physiotherapy treatment for these injuries.
294 Whilst they were not the subject of submission, there were three affidavits sworn by people involved in the accident.
295 The driver of the other vehicle involved in the accident, Ms Natalie Mizrachi, swore an affidavit on 4 June 2009 exhibiting a statement made by her on 9 February 2007.
296 The collision occurred when Ms Mizrachi eased her foot off the brakes whilst waiting for the lights to change and her vehicle crawled into the rear of the plaintiff’s car, which was about two metres ahead of her. Immediately after the collision the plaintiff said he had a bit of whiplash and asked her to go to the police station with him. When the plaintiff got out of his car he was very angry and started screaming at her and said that his neck was sore.
297 Ms Dianne Miller, who witnessed the accident, swore an affidavit on 24 November 2009 exhibiting a statement made by her on 14 February 2007.
298 Ms Mizrachi’s car was immediately in front of hers. They were all riding the brakes and waiting for the vehicles in front to actually come to a stop.
299 The car in front had not put the brakes on hard enough and would have been travelling between ten and twenty kilometres per hour and only crawling when it hit the rear of the plaintiff’s car. The impact was definitely light.
300 When Ms Miller spoke to the plaintiff he made no mention of injury and did not appear to be injured.
Overview
301 I accept the plaintiff suffered a psychiatric injury as a result of the accident.
302 Both medico legal psychiatrists included an Adjustment Disorder with depressive features in their diagnosis, with psychologist, Dr Mogan, describing the plaintiff’s condition at the higher level of a Major Depressive Disorder.
303 In Dr Walton’s view, there was no significant cognitive deficit nor any signs of psychosis – a view shared by Dr Serry, who found cognitive assessment unremarkable but for some ongoing subjective complaints.
304 To succeed in this application the plaintiff must establish that the consequences of his psychiatric impairment are “severe”.
305 It was submitted on the plaintiff’s behalf that consequences in relation to both disablement for employment and pain and suffering met this test.
306 Counsel for the plaintiff submitted that the plaintiff had invested considerable energy and intellectual capital into ABEE before the accident. Before he was injured, he had secured contracts and put considerable intellectual efforts into pursuing the future for ABEE. By the time the accident happened these efforts had not materialised in the sense of making ABEE profitable on a day to day basis.
307 It was submitted the plaintiff had certainly established his capacities in many ways, with his pre-accident directorships and CEO employment, together with his outstanding academic success in his MBA, particularly his business plan and the encouragement he received to pursue that plan in the real world.
308 It was submitted by counsel for the defendant that consideration of the plaintiff’s application in this regard involved an analysis of what in reality the plaintiff’s earning capacity was pre accident, not simply looking at his academic qualifications or theoretical skills, which do not necessarily translate into earning capacity. It was submitted that in reality the plaintiff, either through ABEE or his own consultancy work, had no capacity pre accident to earn more than nominal income.
309 I accept that in the present application, the plaintiff is not required to establish the amount of any pecuniary loss suffered by him and that this question of damages is a matter for trial. The issue of capacity is one that I am required to deal with.
310 Forrest J made a similar finding in Acir v Frosster Pty Ltd [2009] VSC 539 when considering an economic loss in a serious injury under the Accident Compensation Act.
311 However, it is clear from Forrest J’s judgment that the plaintiff was still required to satisfy the provisions of section 134AB of the Accident Compensation Act, the gateway provisions, to obtain leave to bring common law proceedings.
312 Similarly, in the present application, the plaintiff is required to satisfy the gateway provision, 93(4)(d) of the Act, and establish that he has a severe and long term mental disorder.
313 In Barlow v Hollis (supra), the Court of Appeal considered the relevant factors in assessing employment consequences in serious injury applications to the Transport Accident Act.
314 As Chernov JA stated, at paragraph 17, a situation where the opportunity of doing other work has been denied to a plaintiff by reason of his accident injuries is clearly relevant for the purpose of considering what effect the impairment will have on the plaintiff.
“The mere fact that the trial judge did not quantify such pecuniary disadvantage does not mean that he was nevertheless not able properly to conclude that the respondent's earning capacity had been reduced by reason of the wrist injury. By recognising that the respondent was precluded from undertaking heavy work because of his injury, His Honour thereby recognised that he was likely to suffer pecuniary disadvantage as a result of the impairment.”
315 In Chernov JA’s view, it was open for the trial judge so to find on the material before him.
316 This issue had earlier been considered by the Court of Appeal in State of Victoria v Glover [1998] VSCA 93.
317 In that case, the respondent had to give up his former work as a police radio technician, in the course of which he suffered the original injury, and had returned to the police force working as a phone and radio operator and was unable to otherwise perform operational duties.
318 Ormiston JA mentioned the lack of flexibility as far as the respondent was concerned in relation to any future employment. Although he was guaranteed a job, he could not change that job. In those unusual circumstances, Ormiston JA noted that the plaintiff’s present loss of income, however, was of relatively minor consequence in determining whether there had been impairment. The impairment may be serious although it does not at present result in any substantial loss of income.
319 Reliance was also placed by the plaintiff on the decision of Judge Shelton in Tate v Anderson & Transport Accident Commission [2008] VCC 1171.
320 In that case, the plaintiff, a policeman, was not able to qualify for employment in specialist groups nor cope with employment in such groups as a result of his transport accident injury.
321 Granting leave, Judge Shelton noted the plaintiff had been denied career opportunities open to him and there was a fear which he had expressed that this restriction in performing operational duties may lead to being placed on non-operational duties. On account of his injury suffered in the accident, the job opportunities for him in the force were no longer available and he had lost the flexibility of employment and his career opportunities had been limited - at paragraph 43.
322 Further, in Hunter v Transport Accident Commission [2005] VSCA 1, Nettle JA, at paragraph 34, referred to loss of career as being relevant to the severity of an injury.
The Plaintiff’s Employment Capacity
323 Whilst I am not required to assess the amount of income the plaintiff has lost as a result of his accident injuries, in assessing any loss of capacity it is relevant to look at what work the plaintiff was actually doing and could be expected now to be doing had he not been injured to assess whether there has been any loss of capacity resulting from the accident.
324 There is no evidence available as to the profitability or otherwise of enterprises in which the plaintiff was involved prior to 1999.
325 Whilst the plaintiff deposed as to his business activities between 1993 and 2000, pre accident taxation returns were only available for the 1999-2000 and 2000-2001 financial years in which the plaintiff had foreign income of $35,000 from the Japanese agreement, pursuant to which the plaintiff was personally required to pay $25,000 at the end thereof.
326 In 2000-2001, the plaintiff’s total business income was $1,140, with expenses resulting in a $4,550 loss. He also received a government subsidy of $9,121 under the NEIS scheme.
327 No taxation returns were filed by the plaintiff between the year ending 2001 and the year ending June 2006 because he did not draw sufficient income to pay tax in that period.
328 Agency agreements to which the SNN or ABEE were party, save for AK Reels, were not income producing and were of limited duration. The plaintiff was required to pay $10,000 to Mr Kahn of Mumbai and he did not receive any return pursuant to that particular agreement.
329 The plaintiff did not earn any income between the time he finished his MBA in July 2004 until he prepared the two reports for INFOMDX in early 2005.
330 Mr Wilkinson, a director of INFOMDX, who is a longstanding friend of the plaintiff’s with whom he has kept in regular social contact, did not give the plaintiff any further work beyond these reports. No customers were secured by ABBE pursuant to the agency agreement. Mr Wilkinson was not cross examined. He was not aware that following the accident the plaintiff had been restricted in his work capacity in dealings with INFOMDX or other clients .
331 Whilst the contractual salary of $105,000 was payable when ABEE became profitable, I do not accept that at any stage before the accident ABEE was profitable or in a position to pay any remuneration. If the plaintiff had in fact been paid a salary, ABEE would have suffered a greater loss or a reduction of a minimal profit on one occasion of $7,000.
332 There were in fact no drawings of $30,000 a year for private living expenses as the plaintiff deposed. Small amounts were withdrawn at times to cover entertaining expenses, but they are not disclosed in any personal taxation return.
333 I accept that between 2001 and 2005, ABEE had gone backwards. The value of the company significantly decreased and the cash reserves had been diminished from over $100,000 to $9,000. I do not accept, as the plaintiff tried to explain, that this was a result of the use of a different accounting method.
334 I accept Mr McShane’s evidence that contracts were not renewed and new ones were not obtained. When Mr McShane came into ABEE in 2002, the company was valued at 1.4 million dollars based on anticipated work. When he left ABEE in 2005, it was valued at $264,000. On entering ABEE, its shares were valued at twenty five cents, and when left in 2005, they were valued at four cents. Mr McShane paid Mr Smith $10,000 for his one million shares in 2005.
335 As Mr McShane conceded in cross examination, “it was not the type of share I would buy right now - it is not something I would want to be involved with”. Whilst ABEE was still operating when he left in 2005, it was not viable for him to continue and he went to work elsewhere.
336 I do not accept that Mr McShane’s present earnings are relevant in considering the plaintiff’s claim. The plaintiff has not been in salaried employment since 1992, being self employed since that time.
337 When looking at the plaintiff’s post accident employment, the circumstances in which he was involved with and left Chips and Scratches are not clear. Whilst the plaintiff maintains he left because of his inability to cope due to his mental condition, the email from Mr Pauchon made reference to a conflict of interest and did not mention the plaintiff’s condition as being the reason the relationship came to an end.
338 Tegan Murphy’s evidence, which was not challenged, makes the issue more complicated. Whilst the plaintiff relied upon documentary evidence that he had been paid for work carried out for Chips and Scratches and he had been offered a yearly salary of $55,0000, Ms Murphy, who was responsible for paying accounts and wages, had reviewed the financial records of that business in the relevant period and there was no record of any payment to the plaintiff. Further, she had no knowledge of the plaintiff having been offered a salary and, in any event, the business would not have been in a position to pay such a salary.
Medical Opinion in Relation to Capacity
339 I am mindful of what was said by the Court of Appeal in Dordev v Cowan (2006) VSCA 254 in relation to a plaintiff’s credit in this type of case. As Chernov JA said at paragraph 14 of his judgment, a plaintiff’s credibility is relevant not only to whether his evidence should be accepted but is also relevant to the reliability of the medical evidence because the opinion of the doctors are essentially dependent on the credibility and reliability of the history given to them by the plaintiff.
340 Accordingly, in this case what appear on their face to be medico legal opinions supportive of the plaintiff’s claim must be considered in the light of my views as to the plaintiff’s credit.
341 Psychiatric/psychological opinion is unanimous that the plaintiff has suffered an impaired earning capacity as a result of the accident.
342 The medico legal psychiatrists and the plaintiff’s treating psychologist have accepted the plaintiff’s history that he was functioning at a high level professionally before the accident and that thereafter because of concentration and other mental problems, he has been unable to resume work and has been living off very limited means, concerned about being able to provide for his son.
343 Whilst not saying the plaintiff was unable to work, Dr Serry thought the plaintiff’s capacity for employment, domestic duties and social and leisure activities had been markedly compromised as a result of the accident.
344 Commenting most recently on the plaintiff’s work capacity in 2007, Dr Walton thought the plaintiff was not fit to return to his pre-accident employment in a full time capacity but with encouragement he could begin that process but at that stage the plaintiff found the proposition very intimidating.
345 Dr Mogan saw no current capacity for work and no prospect of the plaintiff performing work in his highly specialised field or any other, owing to the severity of his psychological symptoms and the unusual complexity of his traumatic status.
346 I do not accept that the plaintiff was functioning at the high level he described to these doctors. As was submitted by counsel for the defendant, the plaintiff was pre accident and still is, a “man of dreams” who was not in fact functioning at the level he has described. The plaintiff’s claim is based on his unrealistic view of his own ability and capacity. He has not been able to demonstrate there would have been a capacity to put his dreams into effect.
347 The plaintiff has not suffered any significant financial disadvantage since the accident. Given his extraordinary capacity to borrow money without servicing various loans, he has continued to take drawings over the last two and a half years or so of $140,000 or $1,100 a week, which he has spent in addition to the $43,000 paid to him by the TAC.
348 Accordingly, what appear to be medical views supportive of the plaintiff’s claim must be considered in light of these factors.
Statutory Benefits
349 The fact that the TAC paid the plaintiff no fault loss of earnings benefits for six months does not advance this serious injury application. The payment made related only to the limited earnings from INFOMDX in the months preceding the accident.
Credit and Impressions of the Plaintiff
350 I found the plaintiff to be an intelligent man who had no difficulty whatsoever giving evidence in relation to detailed financial and business matters. At times his answers were verbose and did not address the question asked – not through a lack of understanding but from what I considered to be a keenness to convey information that supported his view of his case.
351 I accept that the plaintiff’s presentation in the witness box was of a man who had no distress or memory problems. In my view, being cross examined for a day is a particularly onerous and stressful experience and was one with which the plaintiff coped without difficulty.
352 The plaintiff accepted that since the accident he does not have memory or concentration problems generally, such as when giving evidence as to matters within his pre accident memory, but said that he had difficulty processing new material, particularly in a work context dealing with new projects.
353 However, the plaintiff had a clear understanding of what was required from Dr Mogan in support of his application, advising him, after having been sent the draft report, of matters to be stressed and the fact that Dr Walton’s comment needed to be addressed. The plaintiff also wrote to Dr Walton raising these concerns.
354 Further, in my view, documentation prepared by the plaintiff in support of his claim to the TAC for loss of earning benefits and also his email to Dr Mogan were insightful, detailed, clear and to the point.
355 In terms of his credit, I accept that the plaintiff knowingly misled the ANZ Bank on two occasions when making loan applications, declaring an income he had never in fact received.
356 The plaintiff has also overstated the effect of his physical injuries when describing his condition to doctors such as Dr Mogan in circumstances where his counsel expressly disavowed any suggestion of significant physical impairment. The plaintiff has never played A Grade Amateur football as he claimed.
357 Also, the plaintiff was unable to adequately explain certain matters such as why his name was not included on the original title of the Dandenong Road property and how he was able to live off credit without serving various loans.
Findings
358 Taking into account these findings as to the plaintiff’s credit, my view that the plaintiff’s earning capacity pre accident was predominantly theoretical, together with the fact that medical support for his claim in this regard is based on an inaccurate history, I am not satisfied that there are consequences in relation to employment capacity which are “severe”.
359 This application was also brought on the basis that the plaintiff had a severe long term mental impairment in terms of non economic consequences.
360 Matters relied upon in this regard by his counsel were the plaintiff’s complaints of apprehension about the future, feeling depressed, anxious and hyper vigilant. Further, it was submitted the plaintiff was not as sociable as before the accident.
361 Taking into account all of the evidence, and in light of my findings as to the plaintiff’s credit and demeanour, I am not satisfied that the plaintiff has the level of impairment of which he complains.
362 The plaintiff continues to remain very active for a man of his age, attending the gym three times a week and having recently commenced playing basketball in a weekly competition. He exercises and continues to take pride in his physical appearance. He is able to manage day to day activities, including his personal financial affairs, without difficulty.
363 The plaintiff is involved in his young son’s activities. He still drives a car, and whilst he complains of some phobia experienced when in a plane, he has in fact been able to fly interstate.
364 Accordingly, I am not satisfied the plaintiff has suffered a severe long tem mental disorder as a result of the accident.
365 The plaintiff’s claim is dismissed.
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