Gladanac v Wang

[2009] NSWDC 234

CITATION:	Gladanac v Wang [2009] NSWDC 234
HEARING DATE(S):	27 July 2009, 28 July 2009
JUDGMENT DATE:	29 September 2009
JURISDICTION:	Civil
JUDGMENT OF:	Bozic SC DCJ
CATCHWORDS:	NEGLIGENCE – motor accident – plaintiff a pedestrian knocked down on pedestrian crossing - contributory negligence not proven – no evidence that plaintiff’s alcohol consumption contributed to accident - EVIDENCE- medical assessor’s statement of reasons–evidentiary effect of - non-certified matters have evidentiary value of a non-conclusive nature – little weight to be placed on statement of reasons – Motor Accidents Compensation Act 1999, ss 61, 131 - DAMAGES – assessment of past lost earnings and diminution of future earning capacity having regard to previous injuries and sparse pre-accident work history – s 126 Motor Accidents Compensation Act 1999 – assumptions made in determining future economic loss – assessment of future attendant care
LEGISLATION CITED:	Motor Accidents Compensation Act 1999 ss 61, 126, 131
CASES CITED:	Adams v Ascot Iron Foundry Pty Limited (1968) 72 SR (NSW) 120 Brown v Lewis [2006] NSWCA 87; (2006) 65 NSWLR 587 Fox v Percy [2003] HCA; 197 ALR 210 Jarzebski v Jiminez [2006] NSWCA 104 Kallouf v Middis [2008] NSWCA 61 Manly v Alexander (2005) 80 ALJR 413 Murdoch v Davis [2005] NSWCA 466 Pham v Shui [2006] NSWCA 373 Purkess v Crittenden [1965] HCA 34; 114 CLR 164 Turkmani v Visvalingam [2008] NSWCA 211 Watts v Rake [1960] HCA 58; 108 CLR 158
TEXTS CITED:	P A Leslie and M M G Britts, Motor Vehicle Law in New South Wales, 4th ed (1993)
PARTIES:	Branko Gladanac - Plaintiff Xi Wang - Defendant
FILE NUMBER(S):	2540 of 2008
COUNSEL:	Mr PJ Frame for the plaintiff Mr J Turnbull for the defendant
SOLICITORS:	NSW Compensation Lawyers for the plaintiff Holman Webb, Lawyers for the defendant

JUDGMENT

Introduction

1 This is an action for damages under the Motor Accidents Compensation Act 1999 (“the MAC Act”). The action arises out of an accident which occurred on the morning of 11 December 2006. The plaintiff was a pedestrian and was hit by a car driven by the defendant at the corner of Memorial Avenue and the Hume Highway Liverpool. The defendant’s vehicle was travelling at slow speed. The defendant has denied liability and alleges that the accident was wholly due to the plaintiff’s own negligence or, alternatively, that the defendant was guilty of substantial contributory negligence. It is alleged that the plaintiff was intoxicated by alcohol at the time of the accident.

2 The plaintiff and the defendant both gave evidence. They gave conflicting versions of what happened that morning. Another driver at the scene witnessed the accident. He also gave evidence.

The accident: the plaintiff’s version

3 The plaintiff speaks limited English. He is a 54-year-old man who was born in Bosnia. He came to Australia in 1993. After giving some short evidence in English he gave the remainder of his evidence through an interpreter.

4 The plaintiff gave evidence that on the morning of 11 December 2006 he awoke at about 6.00am, had breakfast and travelled by public transport to a friend’s house in order to celebrate a Saint’s Day. While at the friend’s house he had a coffee and two or three glasses of a drink called rakija, which was described as a grappa-like drink or a plum brandy. This is a customary way of celebrating a Saint’s Day. The plaintiff knew that he would be drinking rakija and therefore travelled to and from his friend’s house by public transport rather than by car.

5 After the customary celebration of the Saint the plaintiff left his friend’s house and travelled home. This involved catching a bus from Lansvale to Cabramatta and then a train from Cabramatta to Liverpool. At Liverpool station he negotiated about fifty stairs and then proceeded to walk home. His walk brought him to the intersection of Memorial Avenue and the Hume Highway.

6 At this point Memorial Avenue runs roughly in an east-west direction, while the Hume Highway runs roughly north-south. Cars travelling along the Hume Highway in a southerly direction and wanting to turn left into Memorial Avenue travel down a separate section of road described as a slipway. On the slipway immediately before the intersection with Memorial Avenue was a pedestrian crossing. The pedestrian crossing was marked by white ‘zebra’ stripes. On the northern side of the stripes was an unbroken line and on the southern side of the stripes (that is the side nearest Memorial Avenue) was a broken line.

7 The plaintiff had lived in Memorial Avenue since 1997 and was familiar with the area. He had used the pedestrian crossing regularly prior to this day.

8 The plaintiff gave evidence that he was walking along the footpath in a westerly direction. He was on the northern side of the road. When he reached the slipway he stopped and looked. He saw two cars that were stationary. The first car was about two metres from the crossing. Having observed that the first car was stationary the plaintiff proceeded to step onto the road, crossing the road within the marked lines of the pedestrian crossing.

9 When he was about halfway across the pedestrian crossing, a distance that might have been about three metres, he was hit by a car. He said that he only became aware of the car when he was hit. The car hit him on his right side and spun him around. He landed on his hands on the road. The driver and another person came to assist him.

The accident: the defendant’s version

10 The defendant was an accountant who, on this particular morning, was on her way to work. She had driven on this section of road before and was familiar with the area. There was no reason for her to be in a hurry as she was not running late for work. The weather was fine.

11 The defendant was driving in a southerly direction along the Hume Highway. She drove down the slipway towards the intersection with Memorial Avenue. As she approached the crossing there were two cars in front of her. Those cars moved forward and her car then became the first car behind the pedestrian crossing. She stopped and pedestrians crossed.

12 She drove forward over the crossing towards the broken line in order to look to her right and ascertain whether there were cars in Memorial Avenue or whether it was safe to turn left. When her vehicle was over the pedestrian crossing she looked left and right and waited for a while because there was a heavy stream of cars. She waited until the traffic cleared. Her car was an automatic and while waiting for the traffic to clear she had her foot on the brake. Eventually there was a gap in the traffic and she moved her foot off the brake. She saw the plaintiff standing in front of her car and immediately put her foot on the brake again. In cross-examination she denied that she had taken her foot off the brake, put her foot on the accelerator and accelerated sharply.

13 While stationary at the intersection, her car was pointing slightly to the left. It was the left hand corner of her car that came into contact with the plaintiff. When the defendant’s vehicle came into contact with the plaintiff he was standing with his hand on her car. Her car had moved a very minimal amount.

14 The plaintiff did not fall over. The defendant got out of her car and asked the plaintiff to sit on the ground. Up to that point he had remained on his feet. The defendant helped the plaintiff to move to the side of the road and called an ambulance.

15 The defendant marked on a photograph of the intersection (exhibit 1) the position of her car when it hit the plaintiff. This indicates that the plaintiff was not on the pedestrian crossing but rather close to the curb in an unmarked area of the roadway between where the zebra lines end and the unbroken white line.

16 The defendant was cross-examined about why she needed to look to the left when the cars she needed to keep a lookout for were on her right. She said that she wanted to make sure that there were no pedestrians. She agreed that she was not expecting any cars from the left and that she was looking to her right to see whether any cars were coming. She said that she definitely looked in all directions.

17 The defendant was interviewed by a police officer at the scene of the accident. The questions and answers were written in the officer’s notebook and at the end of the interview the defendant read the notes and signed the notebook. The following questions and answers were recorded:

“Q: What time did the collision occur?
A: Around 8.40 am.

Q: Can you tell me what happened?
A: I was driving on the Hume Hwy and went to turn onto Memorial Ave via the slip rd. I was waiting for the cars turning right from the Hume Hwy, when the last car went I went to take off and the man stepped onto the crossing, I saw him out the corner of my eye and I put my foot on the brake to stop. I hit the man right knee (sic) . I got out of the car and got him to the side of the road. I then moved my car around the corner and called the ambulance. I gave my details to the man and when the ambulance left, I left also.

Q: How fast were you travelling?
A: Don’t know I only moved less than half a metre.

Q: How many people in your car?
A: Only me.

Q: Is there anything else you wish to tell me about the collision?
A: Not really, I was parked over the crossing at the stop sign. That’s where the stop line is. I was looking to the right, and he came from the left, I only saw him when I hit the accelerator, and I stopped straight away.”

The independent witness

18 The car behind the defendant that morning was being driven by Mr Graham Spice. Mr Spice gave evidence in the plaintiff’s case. Mr Spice was driving down the slipway and was preparing to turn left into Memorial Avenue. His evidence continued:

“Q. As you drove up the slip road was there traffic ahead of you?
A. One car ahead of me.

Q. Could you tell us what occurred as you proceeded up the slip road towards the pedestrian crossing?
A. Yes, that was as I was waiting there I noticed that a pedestrian came from the left-hand side, stepped off the kerb onto the pedestrian crossing and that he was struck by the vehicle in front of me.

Q. Before you made those observations, you obviously come up the carriageway and brought your vehicle to a standstill?
A. Correct.

Q. At the time that you brought your vehicle to a standstill, was the vehicle ahead of you also at a standstill?
A. That's correct.

Q. Were you in a position to tell precisely where the front of the vehicle in front of you was in relation to the stop line just before the pedestrian crossing?
A. I couldn't say exactly where that vehicle was.

Q. When you saw the pedestrian being struck, did he remain on his feet, did he fall down, what did you see happen?
A. To my best recollection he was struck and he didn't fall straightaway but very soon after he slumped to the ground with a grimace on his face.”

19 And a little later in his evidence in chief, Mr Spice gave the following evidence:

“Q. What can you tell us about the movement of a vehicle in front of you just before the man on the pedestrian crossing was struck?
A. Yes, okay, originally it was stationary and then as the pedestrian came in front of the vehicle, the vehicle moved forward sharply for a short distance and then stopped.”

20 In cross-examination, Mr Spice candidly agreed that he had some difficulty recalling the precise details of what occurred that day. He agreed that the defendant’s car had moved towards the left-hand side of the carriageway and that he had also moved his car towards the left-hand side of the carriageway so traffic could get past.

21 He agreed that from where he was sitting in his car the precise point where the plaintiff stepped off the footpath and onto the road was not particularly clear. Mr Spice was unable to see the plaintiff’s feet when he stepped off the footpath.

22 Importantly, however, on one matter Mr Spice was clear. It was suggested to Mr Spice in cross-examination that his vision of the lower part of the plaintiff’s body would have been obstructed. In this passage of evidence Mr Spice was emphatic:

“Q. Your vision certainly at the lower part of his body would have been obstructed by the car. Do you agree with that or do you not recall, sir?
A. No, I don't - I don't agree with that. I did see him walking across the pedestrian crossing after he stepped off the kerb before he was struck by the vehicle.

Q. Was he towards the end side of the pedestrian crossing closest to you or the side of the pedestrian crossing furthest away or somewhere in between. What's your recollection of that, Mr Spice?
A. All I can say is that he was perhaps a few metres from the kerb when he was struck.”

23 Mr Spice agreed that the defendant’s vehicle didn’t move more than half a foot to one foot before hitting the plaintiff.

Was the plaintiff affected by alcohol?

24 In determining how the accident occurred, and the reliability of the plaintiff’s evidence, it is necessary to deal at the outset with the extent to which the plaintiff was affected by alcohol. The defendant submitted that the plaintiff was “well affected.” The extent to which the plaintiff was affected by alcohol was said by the defendant to go not only to the issues of liability and contributory negligence but also the extent to which the plaintiff was able to give a reliable account of the incident at the pedestrian crossing as well as to general issues of credit.

25 Resolving this issue involves a consideration of the plaintiff’s oral evidence, the ambulance report and a blood alcohol certificate

26 In cross-examination the plaintiff initially denied that he had drunk beer at his friend’s house that morning. Some weeks after the accident he saw a solicitor. The solicitor spoke Serbian. He was asked questions by the solicitor and provided answers. The solicitor wrote down the answers on a form which is dated 10 January 2007 and which the plaintiff signed.

27 One of the questions in the form was, “Had you taken any drugs including medication or alcohol in the previous twelve hours?” The answer written down on the form was, “At 7.00am I had a beer.”

28 When first asked about the question and answer on the form, the plaintiff said he probably answered “no.” Then he said that he might have said it, and that he might have drunk a beer, although he was not sure. He didn’t think it was important whether he drank.

29 He said that seven days later he told his solicitor that he had drunk three rakija. A letter from the plaintiff’s solicitor to the defendant’s solicitor dated 8 September 2008 providing further particulars stated that the plaintiff had three shots of plum brandy between 6.30am and 7.15 am but no alcohol in the 24 hours prior to that time. There was no mention of beer. This was, in essence, the account the plaintiff gave in the witness box.

30 Given that a short time after the initial interview with the solicitor the plaintiff provided to his solicitor the information about drinking rakija, I infer no more than that the plaintiff may have initially wanted to minimise the amount he was drinking but subsequently thought better of it. In my view, the plaintiff's answer to the question of the form was not such as to affect his credit generally.

The ambulance report

31 The ambulance report, under the heading “Patient/Incident History”, contained the following:

“O/A 51 yo male sitting on stairs of Memorial Hall. Driver of vehicle states she checked crossing when she stopped, checked traffic & then moved forward. In meantime pt had stepped onto crossing. Driver collided with pt at low speed on pt’s R side. (5 – 10km) Pt fell to ground. Witness states car not going very fast approx 5 – 10 km/hour. Pt states nil loc. Pt c/o painful R knee. Nil any other injuries or pain.

O/E Pt conscious oriented and well perfused. Pt with slurred speech & smelling of etoh. Pt nesb & difficult to assess. Pt and driver exchanged details. Nil police on scene. Abs requested police attendance at hospital. Pt tx for rx. Nil police at hospital. (Nil vehicle deformity or scratching)”

32 I take the abbreviation “etoh” to refer to “ethanol”, meaning alcohol, and the abbreviation “nesb” to refer to ‘non-english speaking background”. There is thus some evidence in the ambulance report that the plaintiff was affected by alcohol at the time, namely, that he was smelling of alcohol and had slurred speech. The cogency of the observation that the plaintiff had slurred speech is perhaps tempered by the fact that the plaintiff has limited English and, at least as far as I listened to him in the witness box, his English was not altogether easy to understand.

The blood alcohol certificate

33 The certificate purports to be a certificate by a medical practitioner under s 33(4) of the Road Transport (Safety and Traffic Management) Act 1999 and a certificate by an analyst under s 33(6) of that Act in respect of a blood sample taken from the plaintiff at 10.00am on 11 December 2006. The analyst states that he carried out an analysis of the blood sample on 19 December 2006 and determined that the concentration of alcohol in the blood was not less than 0.158 grams of alcohol in 100 millilitres of blood.

34 The defendant relied on the certificate purporting to show the blood alcohol level of the plaintiff. Ultimately, no objection was taken to the certificate, however, counsel for the plaintiff submitted that the certificate could not be taken to be evidence of the plaintiff’s blood alcohol reading since the ‘chain of title’ had not been proved. The plaintiff made no concession that the blood alcohol reading was that of the plaintiff or even that it was his blood that had been tested. In response, counsel for the defendant submitted that there was a “strong prima facie case” that the figure shown on the certificate represented the blood alcohol concentration of the plaintiff.

35 Even if I were to treat the certificate as prima facie evidence that the plaintiff had a blood alcohol level of 0.158 there is no expert evidence as to how this blood alcohol level might have impacted upon the plaintiff, and in particular the extent (if any) to which it would impair his ability to make a decision as to when, where and how to cross the road. In my view, the blood alcohol certificate does not add to the plaintiff’s own admission that he had been drinking and the observations of the ambulance officers that he smelt of alcohol and that his speech was slurred.

36 In these circumstances I approach the plaintiff’s evidence with a degree of caution accepting that his evidence as to his precise movements in the vicinity of the pedestrian crossing that morning may not be reliable.

37 I adopt this approach notwithstanding the plaintiff’s assertion that he could drink three rakijas and still walk normally. He said that on that morning, having left his friend’s house, he had no difficulty passing five sets of traffic lights, getting from his friend’s house to the bus station and getting on and off the bus, making his way to the train station, buying a ticket, getting on and off the train and negotiating about fifty stairs at Liverpool Station.

How did the accident occur?

38 I make the following findings:

1. The plaintiff was on the pedestrian crossing at the time of the accident.
2. The defendant was looking to her right waiting for the cars to clear.
3. When a gap appeared she took her foot off the brake and began to accelerate.
4. She had travelled less than a metre before she hit the plaintiff.
5. She did not see the plaintiff until moments before she hit him.
6. I reject the defendant’s account that her car was parked over the crossing at the Memorial Avenue broken line.
7. The plaintiff’s prior consumption of alcohol did not cause or contribute to the accident.

39 I make these findings for the following reasons:

40 Firstly, the independent witness, Mr Spice, was a laconic and objective observer at the scene. He did not pretend to remember more than he did and made concessions about the limits to what he could observe. I accept his evidence. Where it conflicts with the defendant I prefer his evidence to that of the defendant.

41 Mr Spice was clear and unequivocal about where the plaintiff was when he was hit by the defendant’s vehicle. In my view the fact that he did not see the plaintiff’s feet leave the curb nor see the exact point where the plaintiff left the curb does not detract from the strength of his observation that he saw the plaintiff on the pedestrian crossing, and that the plaintiff was some metres onto the crossing when he was hit.

42 Secondly, the plaintiff made two important admissions to the police officer to whom she spoke at the scene of the accident. These two admissions are inconsistent with her oral evidence.

43 In the first answer recorded in the police officer’s note book and set out at paragraph [17] above, the defendant stated, “when the last car went to take off and the man stepped on to the crossing.” When questioned about this answer in cross-examination, the defendant said that what she meant by those words was that she thought the plaintiff was crossing. She explained, “my English not well.”

44 In the witness box the defendant was able to understand questions and answer them without any apparent difficulty. She spoke English well and I do not accept that what she was attempting to convey to the police officer by her answer was that the plaintiff was crossing, as opposed to stepping onto the crossing.

45 In the last answer set out at paragraph [17] above, the defendant told the police officer, “I was looking to the right, and he came from the left, I only saw him when I hit the accelerator, and I stopped straight away.” When asked about this answer in cross-examination, the defendant gave the following answer:

“Yeah, when I said I hit, it means – I said – it – if you – if you really ask me where my foot is, I’m maybe over but didn’t hit – definitely didn’t accelerate, I knew that.”

46 This answer is not one which satisfactorily explains or diminishes what the defendant told the police officer.

47 As with first answer to the police officer, I find that this answer accurately records what was said by the plaintiff. It is an admission by her to the police officer that she was looking to the right, started to accelerate without looking to her left and only then saw the plaintiff. This is consistent with the observations made by Mr Spice that the defendant’s vehicle moved forward sharply before it stopped.

48 The defendant said that she was parked over the crossing at the broken sign where the stop line was, I reject this account because it is inconsistent with the observations of Mr Spice that the plaintiff was on the pedestrian crossing when struck by the defendant’s vehicle.

Liability/Contributory Negligence

49 A person driving a motor vehicle on a public road has a duty to be observant of all possible sources of danger on the road: Jarzebski v Jiminez [2006] NSWCA 104 at [23] Ipp JA citing Manly v Alexander (2005) 80 ALJR 413 at [11]. Thus a driver is required to exercise a high degree of vigilance, in the presence of other traffic and the vicinity of an intersection: Turkmani v Visvalingam [2008] NSWCA 211 at [28]. This must be particularly so in the vicinity of a pedestrian crossing.

50 On the findings that I have made the defendant breached her duty as a driver. She failed to keep a proper lookout, failed to observe the plaintiff on the pedestrian crossing, and failed to give way to the plaintiff, a pedestrian, on a marked pedestrian crossing.

51 Contributory negligence is governed by s 138 of the MAC Act as well as by the common law. The circumstances of this case do not fall within s 138(2) but the section does not exclude other grounds on which a finding of contributory negligence may be made: s 138(6).

52 In order to constitute contributory negligence it is necessary that the plaintiff’s conduct involved a degree of departure from the standard of care of the reasonable person and also that the plaintiff’s conduct contributed to the damage.

53 In my view there was no contributory negligence. The plaintiff was crossing at a pedestrian crossing. He says that he was about halfway across the road when hit. Mr Spice thought that the plaintiff was “a few metres” from the curb when he was hit. While the plaintiff may not have been half-way across the road given that Mr Spice says that the defendant’s vehicle was over towards the left hand side of the road, I accept Mr Spice’s estimate that the plaintiff would have been “a few metres”, from the kerb.

54 In my view the plaintiff was not negligent. His conduct did not involve a departure from the standard of care of a reasonable pedestrian.

55 It is not necessary for me to make a finding about the extent to which the plaintiff was affected by alcohol. Even if I were to assume that the plaintiff’s blood alcohol was 0.158 and that he was, as submitted by the defendant, “well affected”, there is nothing to suggest that this caused him to act negligently as a pedestrian, let alone negligently in a way that contributed to the accident.

Damages

56 The plaintiff has not met the threshold under the MAC Act for non-economic loss. He claims damages for past and future economic loss, loss of superannuation, past and future out of pocket expenses and future attendant care.

57 The plaintiff is now aged 54. He was born in Bosnia. He completed his high school education and then attended trade school. Initially he worked as a diesel mechanic for three years. He then went on to work as a train driver for about ten years. After the outbreak of war in Bosnia in 1992 he went to Serbia. He then came to Australia as a refugee in 1993.

Pre-existing problems

58 The plaintiff had a number of pre-existing problems.

59 Prior to coming to Australia he had an operation to his stomach which left him with only one third of his stomach. Following the surgery he had a number of restrictions. He was advised not to lift anything heavier than five kilos. He was also only able to eat small amounts of food and thus had limited strength.

60 In 1997 he started work as a labourer with Timothy & Sons. The company made roofs. He found the work hard, partly, because he was not eating enough food and felt that he was not strong enough to do the work. In addition, the work was outdoor work and he had what he described as an allergic reaction to the sun. This caused him to break out in blisters and scabs. Despite wearing long sleeves he eventually had to give up his labouring job.

61 In September 1999 Associate Professor John Ireland, orthopaedic surgeon, saw the plaintiff. The defendant tendered the doctor’s report. He obtained a history that the plaintiff had been having quite severe pain in both knees, the right being worse than the left. Examination revealed a limitation of full extension and flexion beyond 135 degrees. Associate Professor Ireland concluded that the plaintiff’s symptoms were quite significant and that an arthroscopy and washout would be beneficial.

62 In May 2000 a medical review form was filled out for Centrelink. The handwriting on the form was not that of the plaintiff. He said that sometimes the form was filled in with the assistance of an interpreter and sometimes not. The form required the plaintiff to provide medical and employment details. One of the questions asked if there was a reason why he couldn’t do a rehabilitation or training program. He ticked the box, “yes”, and gave as the reason, that he couldn’t concentrate and he couldn’t sit down for long. He explained in evidence that this was because he had problems with diarrhoea which caused him problems in travelling and sitting. He also listed as the medical conditions which stopped him from working or studying as:inability to lift, nervous diarrhoea and eating small meals due to a stomach removal operation, osteoarthritis of both knees causing pain and making it hard to walk and an allergy to the sun which makes it hard to be outside on a sunny day.

63 In 2002 he slipped on stairs which were not properly lit and hit his heel on one of the steps. He fractured his right calcaneus. Although it was initially painful, after a time he recovered from the injury.

64 In approximately 2002 he injured his right knee playing soccer. He saw a doctor about the knee but did not have any medical treatment for the injury. Over time the injury improved though never got completely better. The pain decreased, although he continued to have pain from time to time, and he was able to once again play football. He had some restriction of movement in his knee. As a result he reduced the amount of football he played and avoided running. In the months prior to the accident he did not have any swelling. In cross-examination the plaintiff said that the injury did not stop him playing soccer altogether but rather he reduced the times he played. There were times he couldn’t play.

65 In 2003 he had a right-sided inguinal hernia. Surgical repair was successful and he had no ongoing problems.

66 In November 2003 the plaintiff was involved in what seems to have been a minor car accident. His car was hit from behind in a collision involving several other vehicles. He had some neck pain for a relatively short period of time.

67 Prior to the accident he did have some restrictions on his ability to work. He limited himself to lifting up to five kilos although he felt able to lift up to ten kilos. He restricted himself to no more than five kilos because of medical advice he had received.

68 He denied that prior to the accident he had any restriction of movement in his back, neck or shoulders. He said that he was able to squat and kneel down.

Pre-Accident Employment

69 The plaintiff arrived in Australia in October 1993. In the thirteen years he was in Australia prior to the accident (from 1993 to 2005) the plaintiff had only two jobs and worked for no more than about ten months. In 1997 he worked as a labourer for about seven or eight months. He left this job because of the problems I have set out above at paragraph [60]. He did not then work until September 2006 when he worked for about ten weeks.

70 From about 1997 to about 2003 the plaintiff says that he suffered from the various medical problems set out above at [60] to [67]. These problems seemed to have prevented him from looking for work. His problems lasted until about 2003. Over time his stomach condition improved and he was able to eat more food. He put on weight and felt stronger and healthier.

71 From around 2003 the plaintiff says that he took active steps to find a job. He participated in various programs through Centrelink. He said that he was keen to try and find a job. He attended training at Centrelink and received help in looking up job advertisements and canvassing work.

72 On 28 September 2006, not quite ten weeks before the accident, the plaintiff obtained a job as a cleaner with Netclean Pty Limited. This was obtained with the assistance of Centrelink.

73 There were no set hours at Netclean. The plaintiff says he worked anything from five to fifteen hours a day. The work involved cleaning newly constructed buildings and making them presentable. He would clean walls, cupboards, windows, carpets and stairs. On occasions the work involved cleaning tiles with a scraper. The tiles could be floor or ceiling tiles. The plaintiff said that the work was not heavy, it was indoors, he had no trouble doing the job and indeed enjoyed it. His intention was to continue in the job and pay off his mortgage.

74 A statement was tendered by a director of Netclean, Mr Milorad Branezac. Mr Branezac stated that he employed the plaintiff through an agency called JobNetwork at Liverpool. He used the agency when he was short staffed and in busy periods.

75 The plaintiff worked a minimum of 25 hours per week as a casual and up to 40 hours a week depending on the workload. Mr Brazenac confirmed the plaintiff’s evidence as to the scope of his duties at Netclean. His duties included general cleaning, mopping, sweeping, wiping surfaces and vacuuming. The cleaning work involved bending and lifting weights up to about 10 kilograms. He had to clean surfaces including carpets, tiles, timber flooring, windows, bench surfaces, kitchens, toilets and bathrooms. His tools included mops, vacuum cleaners, detergents and scrubbers.

76 Mr Branezac had no complaints about the plaintiff. The plaintiff arrived on time and carried out his duties efficiently.

Post-Accident Condition: The Plaintiff’s evidence

77 Immediately after the accident the plaintiff felt pain in his right thigh and in his back. He was given some tablets at the Hospital.

78 The following morning he was in much more pain. He had pain in his right leg and hip, in his neck and his back. He also had headaches. The pain in the base of his neck woke him up throughout the night. He consulted Dr Tomasevic and was given a certificate to be off work.

79 In January 2007 he had a CT scan because of his headaches.

80 In March 2007 he had physiotherapy on about ten occasions. The physiotherapy didn’t help because after each session he experienced severe pain.

81 His general practitioner had suggested that he see a psychologist because of his problems however he has yet to see one. After the accident he felt anxious, depressed and bored.

82 The plaintiff was asked about his condition over the past twelve months. He said that the condition of his neck has not improved. There are periods when the pain is severe and constant. It is very rare for him to have no pain or discomfort. He did not have normal movement in his neck, and had more problems if he turned it to the right.

83 Prior to the accident he was able to elevate his arms above shoulder level without any problems. Since the accident he had not been able to move his arms above shoulder level. The plaintiff demonstrated the extent of the restriction in the witness box. In effect he was able to raise his left arm so that the elbow was slightly above shoulder level, and his right arm so that it was just below shoulder level. He has pain in the shoulders mostly when he moves them and uses the shoulders.

84 In relation to his low back, the plaintiff said that he has difficulty bending and that when he does bend it causes pain. The back pain is not present all the time but he mostly feels it with movement. Over the past twelve months the condition has remained much the same.

85 He has difficulty sleeping on his right side and has really bad headaches every week or so. The plaintiff identified as his worst problem his shoulder, neck and back problems although when he gets a severe headache that overtakes everything.

86 In relation to the right knee, the plaintiff said that the right knee is painful and that sometimes he can’t walk. He can’t fully bend the knee, or fully squat or kneel. The difference in the knee is that before the accident he could kick a ball, work and had no swelling in the knee. Now, however, the swelling is non-stop.

87 He felt unable to do his previous work at Netclean because that required non-stop bending, the use of arms and general mobility.

88 Around the house, he is now unable to help his wife with tasks. For example he can’t do painting jobs, wash his own car, spring clean the house or help his wife change light globes.

89 The plaintiff felt that he was capable of doing some light duty work, although not a full time job. He felt unable to do full time work because he couldn’t stand for long periods of time and after sitting for periods he has pain in his back.

The Medicine

The Investigations

90 The MRI report of 10 May 2007 revealed that the plaintiff had pre-existing degenerative changes. At the C3/4 level there was left posterolateral and lateral bulging of the disc annulus but without encroachment on the neural structures. Osteoarthritic changes were noted and at C6/7 there was disc protrusion encroaching on the theca but without neural compromise.

91 In the lumbar spine there was some disc protrusion at L2/3 but without encroachment on the neural structures. At L5 /S1 there was a small right posterolateral closed tear of the disc annulus but without herniation, protrusion or encroachment.

92 An x-ray of the right knee on 16 May 2007 revealed osteo-arthritic changes in both compartments of the knee joint and the patello-femoral joint.

93 The arthrogram report dated 28 January 2008 stated that in the right shoulder there was a Neer type 2 acromion with structural impingement on the rotator cuff and mild subacromial/subdeltoid bursitis and underlying supraspinatus tendinopathy. There was also an associated partial thickness tear extending through to 50 per cent of the supraspinatus tendon from the capsule surface.

94 In relation to the left shoulder the report stated that there was a Neer type 2 acromion with mild structural impingement on the rotator cuff, mild to moderate subacromial/subdeltoid bursitis and chronic supraspinatus tendinopathy. Bursal surface irregularity was noted without any definite evidence of any partial or full thickness tear.

The Plaintif's Medical Evidence

Liverpool Hospital

95 The plaintiff was taken to Liverpool Hospital on the day of the accident. When the plaintiff presented at Liverpool Hospital at 9.15am, he was noted to be limping and complaining of right knee pain. On examination by the Registrar, he was found to be swollen and tender over the right knee and tender over the lumbar spine. X-rays revealed no bony injury. The plaintiff was discharged that day.

Dr Tomasevic

96 The day after the accident, the plaintiff saw his general practitioner, Dr Tomasevic, who provided a medical certificate. The plaintiff complained of headaches and pains in his neck, lower back, bilateral shoulders, right hip, right sciatica, right knee pain and right knee swelling.

97 Dr Tomasevic, in a report dated 13 June 2009, stated that the history obtained by him and the physical examination revealed soft tissue musculo-ligamentous injuries and facet joint strains to the back and lower back, soft tissue musculo-ligamentous injuries to the right hip, bilateral shoulder and right knee and evidence of nerve root irritation of the right lower limb. Dr Tomasevic was of the opinion that these injuries, and the persisting headaches and pains in his neck, lower back, bilateral shoulder, right hip, right sciatica and right knee together with anxiety and depression, were the direct result of the accident.

98 Dr Tomasevic provided the plaintiff with some counselling and referred the plaintiff to a psychiatrist for therapy. Dr Tomasevic also referred the plaintiff to an orthopaedic surgeon, Dr Giblin, for an opinion as to further management.

99 Dr Tomasevic was of the opinion that the plaintiff’s prognosis was guarded and that he would require monitoring, therapy and review by medical specialists and allied health professionals. As to his future employment prospects, Dr Tomasevic considered that the plaintiff had suffered a loss of capacity to carry out the work he had been doing prior to the accident. The plaintiff was fit for restricted light activity only and any future employment would have to be sedentary in nature.

Dr Matalani

100 Dr Matalani, an occupational physician, was of the view that the plaintiff suffered soft issue injury and chronic musculo-ligamentous strain of the neck and back, contusion to the shoulders (with imaging evidence of bulbitis and tendinopathy bilaterally). There was structural impingement of the rotator cuff bilaterally. It appeared to Dr Matalani that the accident aggravated pre-existing degenerative changes in the right knee, which was asymptomatic and made it symptomatic.

101 Dr Matalani expressed the view that the plaintiff is unfit for work involving such things as repetitive bending and twisting of the spine, prolonged walking and standing, uninterrupted sitting, heavy manual activities, activities involving sitting, jerking or jarring of the back, prolonged driving, squatting and kneeling and repetitive stress of ladder climbing. In Dr Matalani’s view, the plaintiff would be unable to work as a labourer and would be unable to work in an office because of his lack of English and his inability to tolerate prolonged sitting with sustained flexion of the neck and static loading on the neck, back and shoulder.

Dr Giblin

102 Dr Giblin, an orthopaedic surgeon, saw the plaintiff on 5 March 2007. Dr Giblin stated that the plaintiff’s condition was stable and largely non-surgical although he considered that he plaintiff’s right shoulder and right knee might benefit in due course from arthroscopic surgery.

103 The plaintiff was permanently unfit for pre-injury work and had restrictions that would apply indefinitely to his domestic and recreational activities. He was fit for a sedentary job not involving heavy repetitive bending, lifting and pushing, prolonged periods of kneeling and squatting or heavy impact use of his right leg, using either arm at or above shoulder height in a heavy, repetitive or impact fashion.

Report of Dr Max Ellis

104 The plaintiff tendered a report of Dr Max Ellis dated 26 August 2008. The defendant objected to the report due to its late service. In order to meet the defendant’s objection, counsel for the plaintiff disavowed reliance on Dr Ellis’ report for the cost of future medication or future treatment and indicated that Dr Ellis’s report simply showed the general consensus as to the nature of the plaintiff’s injuries.

105 Dr Ellis was of the view that as a result of the accident the plaintiff suffered musculo-ligamentous contusion and an aggravation of the degenerative changes in his neck and back. The direct injury to the plaintiff’s right knee has made the right knee with its pre-existing degenerative changes much worse. Both shoulders are affected by traumatic capsulitis particularly where there is a tear to the rotator cuff.

106 Dr Ellis was of the view that the plaintiff was now unfit for physically demanding work.

The Defendant's Medical Evidence

Dr Harvey

107 Dr Harvey, orthopaedic surgeon, saw the plaintiff on 26 August 2008. He elicited a history and conducted an examination and considered the x-ray and MRI results. Dr Harvey considered that the plaintiff suffered soft tissue injuries to the lower back and knee muscular osteoarthritic changes in the right knee.

108 On the question of causation, Dr Harvey said that it was clear that there was some aggravation of the osteoarthritic right knee and that the plaintiff did suffer soft tissue injures to the lower back in the accident.

109 In relation to the shoulders, Dr Harvey accepted only that there were degenerative changes in the rotator cuff of both shoulders and a partial loss of the right supraspinatus tendon. These findings were, however, not unexpected in a person of the plaintiff’s age and Dr Harvey did not believe that the changes were a direct consequence of the accident. While Dr Harvey accepted that the plaintiff’s shoulders could have been rendered symptomatic by trauma, Dr Harvey could find nothing in the history of those seeing the plaintiff on the day of the accident that the plaintiff suffered a significant injury to his neck or shoulders. Dr Harvey raised the question of the extent to which the restriction of shoulder movement was due to abnormal pain response.

110 On the question of work capacity, Dr Harvey accepted that the injury to his right knee the plaintiff suffered in the accident could have made his right knee more symptomatic and hence affected his work capacity. He was, therefore, fit for light cleaning work only.

111 On the question of prognosis, Dr Harvey was of the view that the plaintiff was going to have problems with his right knee and that one would expect the osteoarthritic change in the right knee to gradually progress with time. Eventually, the plaintiff could require a total knee replacement. Dr Harvey did not believe that any knee replacement would be related to the accident but, given that the accident made his knee more symptomatic, it may cause him to have surgery earlier than would otherwise be the case.

112 On page 10 of his report of 26 August 2008 Dr Harvey accepted that the plaintiff did suffer soft tissue injuries to the knee and lower back and that the injury to the right knee could have rendered the osteoarthritic knee more symptomatic. While Dr Harvey regarded the delay in the onset of pain in the neck and shoulder regions as ruling out any very significant trauma, he could not deny that the plaintiff may have suffered soft tissue injuries to those areas with some delay in the onset of symptoms.

Dr Selwyn Smith

113 Dr Smith, psychiatrist, saw the plaintiff in August 2008 in the presence of a Serbian interpreter. Dr Smith was of the view that in response to the motor vehicle accident the plaintiff had experienced a modicum of psychological symptomatologies which equated to the development of a Chronic Adjustment Disorder with Depressed and Anxious mood. His symptoms are predominantly in response to his ongoing pain, with restrictions of movement and relinquishment of his work and resultant activity.

114 On the basis of the history given, Dr Smith found the plaintiff had become somewhat neglectful of himself and had withdrawn socially, compounded by a lack of income. He described increasing irritability and interrupted sleep patterns because of chronic pain. Dr Smith accepted that the common psychological symptomatologies demonstrated by the plaintiff were predominantly attributable to the accident.

115 In a report dated 3 September 2008, Dr Smith reviewed some additional documentation and expressed the view that the plaintiff “may” be experiencing alcohol dependence. The plaintiff was not cross-examined on his level of alcohol use nor was it suggested to him that he had an alcohol problem. In am not, therefore, prepared to make a finding that the plaintiff had a problem of alcohol dependence.

Admissibility of MAS Assessor’s Statement of Reasons

116 The defendant tendered the certificate of MAS Medical Assessor Dr Margaret Gibson dated 12 March 2009, together with a second report by Dr Gibson of the same date headed, “Statement of Reasons in the making of a determination of a Certificate of Determination of Medical Assessment under Part 3.4 of the Motor Accidents Compensation Act 1999.” The defendant accepted that the Assessor's report was not binding on the question of causation but submitted that the Assessor's report was admissible and relevant on the medical issues before the Court. The plaintiff objected to the tender of Dr Gibson’s report. The parties agreed that the admissibility of the Statement of Reasons be dealt with in this judgment.

117 The status of medical assessments under the MAC Act has been considered by the Court of Appeal in Brown v Lewis [2006] NSWCA 8; Pham v Shui [2006] NSWCA 373 and Murdoch v Davis [2005] NSWCA 466.

118 In Pham v Shui [2006] NSWCA 373 the trial judge held that the assessor’s certificate, which incorporated the reasons, were conclusive evidence that the relevant injuries sustained in the accident were impairment of the nervous system and fracture of the femur giving rise to a total impairment of 7 per cent and that the remaining conditions had no necessary causal connection with the accident. The trial judge held that evidence contradicting the matters in the certificate and accompanying reasons was therefore inadmissible for all purposes. In upholding the appeal, Santow JA stated that the certificate under s 61 is a review assessment of the degree of permanent impairment of the injured person as a result of the injury caused by the motor vehicle accident [83] and that such certificate is required for the purpose of determining whether, within s131 of the MAC Act, damages could be awarded for non-economic loss [90]. While it is true that s 61(9) requires the certificate to set out the reasons for any finding by the medical assessor or assessors, this is only “as to any matter certified in the certificate in respect of which the certificate is conclusive evidence” [94]. Hence while matters falling outside s 61(2) are capable of constituting evidence, they are not conclusive evidence [96]. At [97] Santow JA said:

“There is an issue, not needing to be decided here, as to whether that category of non-conclusive evidence can be admitted not only in relation to damages for non-economic loss under Pt 5.3 but also as to damages for economic loss under Pt 5.2. There, the stricture of Mason P earlier quoted becomes relevant. If it be capable of being non-conclusive evidence in the latter category, it must even so be used with extreme caution; that is especially given the very different methodology for assessing degree of impairment under Pt 5.3, to which the certificate is directed. I therefore would not exclude it at the threshold from bearing on Pt 5.2 in relation to economic loss. Rather I would adopt Mason P’s “extreme caution”- as to its likely relevance.”

119 The stricture of Mason P referred to in this passage is a reference to the judgment of Mason P in Brown v Lewis [2006] NSWCA 87; (2006) 65 NSWLR 587 at 592.

120 In view of the approach referred to by Santow JA, namely not to exclude the material at the threshold, I will admit the Statement of Reasons. Having admitted the document, however, an examination of its contents reveals why there is the need for caution pointed out by Santow JA. The Statement of Reasons determined:

“ Injuries Listed by the Parties and Not Caused by the Accident
After reviewing the list of injuries as submitted by the parties examining the claimant and reviewing accompanying documentation, it is determined that the following injuries WERE NOT caused by the motor accident:
• Right shoulder – musculo-ligamentous injury, impingement on the rotator cuff and partial thickness tear.
• Left shoulder - musculo-ligamentous injury and facet joint strain in the neck, impingement on the rotator cuff and a partial thickness tear.”

121 This conclusion appears to flow from the way in which an assessment is required by the Motor Accident Authority to be conducted. At page 13 of the Statement of Reasons the assessor stated:

“The MAA advised that referred pain to the shoulder cannot be considered separately to the neck injury. This being as assessment of restriction of range of motion at the shoulder is appropriate only if there is a clear history of injury to the shoulder documented in the medical records contemporaneous with the time of injury. This being as a person with a whiplash injury may have associated pain in the shoulder region and as a result of the pain there may be inhibition of shoulder movements.”

122 In a case such as the present the MAS Assessor’s opinion is restricted by the requirement that there be a clear history of injury documented in contemporaneous records. On the other hand Dr Harvey, who provided reports for the defendant’s solicitors but who was not under any Motor Accident Authority constraints as to how to approach the matter, stated in his report of 26 August at page 10:

“There does appear to be some delay in the onset of pain in the neck and shoulder region and I believe that the relationship of his complaints in these regions are more open to question. However it could not be denied that he may have suffered soft tissue injuries to these areas with some delay in the onset of symptoms but if he had suffered any very significant trauma to these areas it would be expected that the onset of these symptoms would have been immediate.”

123 I therefore place little weight on the Statement of Reasons. The methodology involved and the conclusions reached are influenced by the purpose of the assessment, namely, determining non-economic loss under the provisions of the MAC Act and in accordance with advice from the Motor Accidents Authority as to the basis upon which that assessment is to be conducted.

The Video Surveillance

124 Before setting out my findings regarding the plaintiff’s injuries it is necessary to deal with the video surveillance evidence. The defendant relied on video surveillance taken in late August-September 2008. The defendant submitted that the video demonstrated that the plaintiff was able to walk without difficulty, could sit for long periods, could bend over without apparent problem and was able to use his arms to a greater extent than he claimed.

125 The video shows the plaintiff engaged in activities such as walking and carrying a plastic shopping bag, opening and closing a garage door, bending over to get things out of a car and sitting on a park bench at an outdoor table playing chess for around an hour and a half.

126 The video was played to the plaintiff while he was in the witness box. When showed the footage of closing the garage door the plaintiff said that closing the door was something he had to do and that sometimes he hurt himself. He was able to reach up and pull the garage doors down but he had pain and mostly used his left arm. In any event he said that the garage door required only a touch to pull it down for it didn’t have any resistance. In relation to bending over, the plaintiff said that he had no choice but to do these things and that sometimes he had pain. Similarly, he was able to turn his neck but it did cause pain. He said that he was able to sit for up to two hours at a time to play chess and that although he had pain in his back, playing chess was something interesting for him to do.

127 It was submitted by the defendant that the video footage showed that the plaintiff was able to walk without difficulty. By way of example, reference was made to the video taken on 27 August 2008 between 8.48am and 9.17am, a period of some 22 minutes in which, it was said, the plaintiff was walking without any obvious difficulty or restriction. I have viewed the DVDs and my impression from the video is that the plaintiff walks with a slightly irregular gait.

128 The footage showing the closing of the garage door the plaintiff demonstrated no more movement of the shoulder than that which the plaintiff demonstrated in the witness box. This is particularly so taking into account the plaintiff’s evidence that little force is required to lift the garage door. On a few occasions the plaintiff is shown bending over, however, there is no evidence of repetitive bending on the video.

129 While the video may offer some insight into the type of domestic activities that the plaintiff is capable of doing (for example walking to the shops and coming home with a shopping bag), in my view the video evidence is at best equivocal. I do not accept that the video surveillance shows that the plaintiff has exaggerated or feigned his symptoms.

The Injuries

130 I make three preliminary observations before setting out my findings.

131 Firstly, as is often the case in this Court the medical evidence consisted simply of medical reports. There was no oral evidence given by any expert. The reports set out conclusions, often without any, or any detailed analysis of why that conclusion should be accepted to in preference to any competing conclusion. The generality of my analysis reflects the generality with which the issues have been dealt in the medical reports.

132 Secondly, the defendant submits that the plaintiff had pre-existing degenerative changes in both the right knee and the shoulders. I approach the issue of pre-existing degenerative changes on the basis of the rule in Watts v Rake [1960] HCA 58; 108 CLR 158 and the explanation of that rule in Purkess v Crittenden [1965] HCA 34; 114 CLR 164. Once the plaintiff establishes that the defendant’s negligence has caused an incapacity, there is an evidential onus on the defendant to adduce evidence that the incapacity is either wholly or partially the result of a pre-existing condition or that incapacity would in any event have resulted from the pre-existing condition. It is then necessary to consider the issue on the whole of the evidence.

133 Thirdly, I accept the plaintiff as a generally reliable historian both as to his pre and post-accident symptoms. As I have set out above at paragraphs [] to [], I do not accept that the video surveillance adversely affects the plaintiff’s credit. His evidence concerning the resolution of most of his pre-accident problems is supported by the fact of obtaining work at Netclean and by the statement of Mr Brazenac. His undisputed attempts to obtain work in the period 2003 to 2006 further support his claims and demonstrate a motivation to obtain work.

134 While the appearance of a witness in the witness box should not solely or mainly inform conclusions about the truthfulness of the witness (Fox v Percy [2003] HCA; 197 ALR 210 at [50]), I should note that in my view the plaintiff gave evidence in a straightforward manner without any obvious attempts to exaggerate his injuries or disabilities. I accept that the plaintiff has had ongoing complaints and restriction on his movement since the accident.

135 I make the following findings in relation to the plaintiff’s injuries in the lower back, the neck and shoulders and the right knee:

The Lower Back

136 The plaintiff suffered musculo-ligamentous strain of the lower back as a result of the accident. There is general agreement as to this amongst all the medical practitioners. It is consistent with the complaints of lower back pain immediately following the accident at Liverpool Hospital.

137 While the MRI scan on 10 May 2007 showed pre-existing osteoarthritic changes I accept the plaintiff’s evidence that he had no lower back pain prior to the accident. Given the absence of any pre-existing back pain prior to the accident I accept the opinions of Dr Tomasevic, Dr Matalani and Dr Ellis that the continuing back pain is the result of the accident.

Shoulders and Neck

138 Dr Harvey did not dispute that the plaintiff could have suffered soft tissue injuries to the neck and shoulder region and that there could have been a delay in the onset of symptoms. The plaintiff did not complain of pain in the neck and shoulders when seen at Liverpool Hospital but did complain of pain in neck and shoulders when he saw Dr Tomasevic the next day. Dr Harvey’s ultimate point was not that there could have been no injury to the shoulder and neck areas but that there was no significant injury.

139 According to Dr Matalani there was imaging evidence of bursitits and tendonopathy and structural impingement of the rotator cuff. According to Dr Ellis the shoulders are affected by traumatic capsulitis particularly on the right side where there is a tear in the rotator cuff. The doctors were referring to the changes seen on the MRI.

140 Dr Harvey said that the changes seen in the rotator cuff of both shoulders pre-existed the accident and are not the direct consequence of it. The degenerative changes seen on the imaging were pre-existing and of long standing.

141 No doctor directly engaged with the opinion of the other doctors on the question of what the MRI findings demonstrate.

142 The plaintiff claimed he had a full range of movement before the accident. I accept this evidence given that before the accident he was able to work at Netclean doing a wide range of activities and that he never complained of problems in his shoulders in the Centrelink documents. Given this history I accept the opinions of Dr Matalani and Dr Ellis that the shoulder pain and restrictions have been caused by the accident and the opinion of Dr Ellis that the MRI findings are consistent with the clinical presentation of pain in both shoulders, particularly on the right side where there is a tear of the rotator cuff. I reject the proposition that the shoulder pain and restrictions are the result of degenerative changes becoming symptomatic.

Right knee

143 In accordance with the general agreement amongst the medical practitioners I find that the accident caused some aggravation of the osteoarthritic right knee and that the accident made the plaintiff’s knee more symptomatic.

144 It is not disputed that the plaintiff will continue to have problems with the right knee. On the basis of the medical evidence it is not possible to say when, if the accident had not occurred, the right knee would have become symptomatic (or more symptomatic than pre-accident).

145 Although it is clear that the plaintiff had problems with his right knee prior to the accident, at the very least by September 2006 they had resolved, or at least settled down, such that he was able to work at Netclean. Support for the plaintiff’s evidence in this regard came from Mr Brazenac who said that the plaintiff was able to do his work there “efficiently.”

Pre-existing degenerative changes

146 The evidence does not enable me to make any finding as to when, if at all, the plaintiff’s right knee would have become symptomatic, or more symptomatic. Dr Harvey stated that the plaintiff would continue having problems with his right knee and that one would expect that over time osteoarthritic change would progress and that eventually the plaintiff could require a total knee replacement. Dr Harvey does not state over what period of time such changes would occur, and what would have been the plaintiff’s prognosis had the accident not occurred.

147 In the absence of such information I make no finding as to whether, over time, the plaintiff’s pre-existing degenerative conditions of the right knee would have become symptomatic and, if so, whether they would have interfered with the plaintiff’s work and domestic capacity.

Adjustment disorder with depressed mood

148 I accept the opinion of Dr Selwyn Smith that as a result of his ongoing pain and restriction of movement the plaintiff has developed a chronic adjustment disorder with depressed and anxious mood.

Economic loss

149 The plaintiff claims both past and future economic loss.

150 Notwithstanding the differences between some of the medical practitioners there was broad agreement that the plaintiff was not fit, and would never be fit, to do his pre-accident work. Similarly, the medical practitioners were in agreement that the plaintiff had the capacity to do ‘light’, or ‘sedentary’ work or ‘restricted light duties’.

151 The real difficulty in assessing economic loss lies in bringing to account the disparate elements of the sparse pre-accident work history. Counsel for the defendant relied primarily upon two matters in support of the submission that the plaintiff’s likely future scenario would have involved very short periods of work. Firstly, that between arriving in Australia in 1993 and the date of the accident in 2006, a period of 13 years, the plaintiff had worked for less than twelve months. Secondly, even had the accident not occurred, Netclean would not have continued to have employed the plaintiff beyond 2007. The plaintiff would then have been thrown onto the open labour market where in view of his pre-existing problems and his poor English he would have experienced significant difficulties in obtaining employment. His future work history would have been a reflection of what had occurred in the past. On the basis of this sparse working history, the defendant submitted that the award for economic loss should be by way of a relatively modest buffer, and that to award economic loss based on weekly loss to age 65 or 67 would be to significantly over compensate the plaintiff.

152 On behalf of the plaintiff it was submitted that, given that at the time of the accident the plaintiff was in regular, weekly, well-remunerated employment, and was very largely asymptomatic, to award future loss by way of a buffer rather than a weekly loss would be to significantly under compensate the plaintiff.

Past economic loss

153 A significant aspect of the statement of Mr Brenezac concerned the plaintiff’s future employment prospects at Netclean. As at 5 November 2007, the date of Mr Brazenac’s statement, Netclean no longer employed full time workers. The structure of the business had changed so that Netclean was no longer an employer but rather an organisation that used what Mr Branezac described as licensed operators.

154 Licensed operators were required to take care of their own operation including such things as advertising and marketing. While the licensed operators obtained most of their work through Netclean, they were also required to obtain work from other sources. Importantly, Mr Branezac did not think that he would have used the plaintiff as a licensed operator, “because I do not think he was at that level”.

155 Given that the plaintiff had been working well at Netclean from 28 September 2006 to 11 December 2006 (the date of the accident) I find that he would have continued to have been employed by Netclean until the structure of the business changed. Mr Brazenac does not state when the re-structuring occurred. After the re-structuring, which would have occurred between December 2006 and November 2007, the plaintiff would have again been looking for work on the open market.

156 There would have been both positive and negative factors impacting upon the plaintiff’s ability to obtain further employment.

157 On the positive side, the plaintiff would have had a recent history of work to commend him to an employer. Additionally, in the Vocational Assessment Report of Dr Ting dated 15 September 2008, there is a reference (p.17) to the Archangel Job Markets Australia 2008/2009 issue to the fact that the job competition for experienced cleaners at that time was easy and the employment outlook sound.

158 On the negative side, there are the following factors: age - according to Dr Ting, 39% of 45 to 54 year old job seekers are unsuccessful; the plaintiff’s skin reaction when exposed to sun excluded him from outdoor occupations; poor English language skills; limited job history in Australia; limited job skills and language skills; lack of training restricted the range of jobs available.

159 In my view the uncertainties of what would have happened to the plaintiff after he lost his job at Netclean can be appropriately accounted for by discounting the past loss in much the same way as I intend to discount the future loss.

160 The income tax return shows that in the period of his employment at Netclean (11.57 weeks) the plaintiff earned a total of $12,011. This equates to $1,136.33 per week gross or $884.85 net.

161 The period from the date of the accident to judgment is 146 weeks. Full economic loss for 146 weeks at $ 884.85 is $129,188. The appropriate discount to reflect the uncertainty as to when the plaintiff would have lost the job at Netclean, the time it would have taken him to find a new job (which could have been significant as the period 2003 to 2006 shows) and the periods thereafter when he could have been without work is 40%. The amount I award for past economic loss is therefore $129,188 less 40% ($51,675) = $ 77,513.

162 The question then arises as to whether the plaintiff should be awarded full economic loss for the past. The plaintiff has not worked since the accident. He gave the following history to Dr Ting. Following the accident he was certified fit for 15 hours of light cleaning work. As a result, Centrelink informed him that he would not be able to continue with the cleaning job. He was then assisted by Mission Australia to return to other paid work. He was required to attend interviews one to two times a month and to find at least one job every two weeks. He was told to approach Serbian communities for light jobs. Another recommendation was for him to undertake English training in Liverpool on a part-time basis doing two hours per day, two days per week. At September 2008 there had been no vacancy for the training. He finds job leads through personal contacts and local English newspapers.

163 In Adams v Ascot Iron Foundry Pty Limited (1968) 72 SR (NSW) 120 Sugerman JA at 132 to 133 said:

“A plaintiff is frequently said by medical evidence to be unfit as a result of his injury for his former employment, but to be capable of doing other forms of work, eg light work with or without particular qualifications. If in such cases a question arises of the plaintiff’s ability to find such other forms of work the problem is not one of mitigation of damages. It is really the plaintiff who is seeking to increase damages by establishing that he has been unable to obtain and in the future may not be able to obtain, or may only be able to obtain intermittently, work of the only kind of which he is capable. In this respect the onus of proof in the sense of the onus of satisfying the jury rests upon the plaintiff as part of the general burden which lies upon him of proving the extent of the damage he has suffered by reason of the injury.

In some cases it is the defendant who seeks to introduce evidence by way of establishing that a particular employment, usually with the defendant himself as the previous employer, within the capacity of the plaintiff is available to him. The present is an example of such a case. In such cases the defendant is really denying, according to the circumstances, that the plaintiff’s incapacity is as extensive as he claims or that his loss of earning capacity is aggravated by the impossibility of him obtaining employment within the limited capacity remaining to him.”

164 In view of the attempts made by the plaintiff to find work in the period since the accident (as related to Dr Ting) I find that in relation to the past, the plaintiff’s loss of earning capacity was aggravated by the difficulty finding employment within the limited capacity remaining to him. I therefore award past economic loss without reduction for partial or reduced earning capacity.

Future economic loss

165 In Kallouf v Middis [2008] NSWCA 61 at [7], the Court (MColl JA and Hall J) referred to the following summary of the principles applicable to s.126 of the MAC Act in P A Leslie and M M G Britts, Motor Vehicle Law in New South Wales, 4th ed (1993) (at [13.7792]):

(a) assess the “most likely” of the possible future economic circumstances facing the claimant but for the accident (including type of employment, duration of employment and remuneration);

(b) assess the claimant’s economic prospects as a consequence of the accident;

(c) compensate the claimant for the difference between (a) and (b), including, where appropriate, through the use of a buffer;

(d) adjust (c) by an appropriate percentage (including, where appropriate, by 0%) for vicissitudes, to reflect the possibility that the claimant may not have achieved (a) even had the accident not occurred; and

(e) include a statement of the assumptions made as to the claimant’s most likely future circumstances and the appropriate percentage adjustment.

166 I assess future economic loss in the following way. While it is true that in his thirteen years in Australia the plaintiff worked for less than twelve months (seven to eight months as a labourer and ten weeks at Netclean) these bare facts do not tell the whole story. Prior to 2003 the plaintiff did have a number of problems affecting his ability to work. The protracted health issues had, however, resolved sufficiently so that by 2003 he was actively seeking work. On the other hand it then took him some two years to find work even with the assistance of Centrelink.

167 Because of the physical nature of the work that he was doing, I find that he would not have worked beyond 65. The plaintiff will be 55 in December of this year. I find that the most likely scenario is that, if uninjured the plaintiff would have worked for another ten years from the date of judgment. He would have continued to do much the same sort of work as he was doing at Netclean and at a comparable salary.

168 I find the future scenario that is more likely than any other possible scenario is one that reflects the various components of the plaintiff’s past. I find, therefore, that there would have been periods when the plaintiff was in employment and periods when he was not employed. These periods of unemployment would have reflected the various negative factors I have set out above at [158 ].

169 It is not possible to assess with any degree of specificity the periods in which the plaintiff would or would not have worked. In my view it is appropriate to reflect the likely fluctuating periods of employment and unemployment by adopting a figure of for vicissitudes than is greater than usual. While the usual 15% figure for vicissitudes reflects amongst other things the adverse contingency of unemployment, particularly in light of the plaintiff’s past history, his age and his limited English, an increased discount for contingencies of 40% is justified.

170 This gives the following calculation: $884.85 x 412.9 = $365,354 less 40% ($146,141) = $219,213.

171 In relation to the plaintiff’s most likely earnings in his post-accident state, the plaintiff said himself that he was capable of doing light work. This accords with the view of all the medical practitioners.

172 The Vocational Assessment Report of Dr Ting found that the plaintiff had the capacity to perform sedentary work three hours per day, five days a week, that is to say fifteen hours a week. However, Dr Ting concluded that, particularly in light of the plaintiff’s existing disabilities and his short local work history the plaintiff did not have the capacity to return to paid employment in the foreseeable future and hence was not competitive for employment on the open market.

173 Mr Brazenac said that the plaintiff worked between 25 and 40 hours a week prior to the accident. Assuming that before the accident the plaintiff was able to work an average of 32.5 hours a week, if he is now able to work 15 hours per week, he now has roughly 45% of pre-accident capacity.

174 In assessing what is the plaintiff’s ‘most likely’ post-accident earnings, I accept that the plaintiff will not now be able to work on an uninterrupted basis for fifteen hours a week until the age of 65. I find that he has 45% pre-accident capacity but that his capacity to obtain work is limited by the factors set out in the report of Dr Ting. These factors are: age, physical and functional restrictions, limited transferable/transition skills; poor health conditions; limited formal education; lack of career direction and goal following injury; lack of confidence in returning to work; limited access to the labour market.

175 I do not accept Dr Ting’s view that the plaintiff will not return to any paid employment in the foreseeable future. The plaintiff himself accepted that he could do light duties. I have made an allowance for future out of pocket expenses for physiotherapy, chronic pain management and, perhaps more importantly, ten hours of vocational counselling and 20 hours of job placement services.

176 To allow for periods in which he will not be able to find work I would discount his most likely future wages by the same percentage that I have discounted his most likely future wages but for the accident, i.e. 40%.

177 There was no evidence of the level of wages the plaintiff would be able to earn with his post-accident reduced capacity. I will assume that he will be able to earn the same rate in a post-accident sedentary job as he was able to earn in his pre-accident cleaning job.

178 I calculate the future economic loss as follows: The figure for future economic loss less the 40% for vicissitudes is $219,213. I subtract from this amount the most likely earnings if the plaintiff is able to exploit his current earning capacity which I find to be 45% of this figure, namely, $98,645. The amount for future economic loss is therefore, $219.213 minus $98,645 = $120,568.

Past and Future Superannuation

179 In the absence of actuarial evidence, the parties agreed that I use the conventional approach of calculating past and future superannuation at 11% of economic loss. I note the plaintiff had superannuation entitlements at Netclean.

180 For the past, I have assessed the loss of earning capacity at $77,513. 11% of this amount is $8,526.

181 For the future, I have assessed the loss of earning capacity at $120,568. 11% is $13,262.

The Future Needs

182 There was no suggestion in the medical reports that there was going to be any, or any significant improvement in the plaintiff’s condition. I accept Dr Matalani that the plaintiff’s condition had stabilised and that no improvement or deterioration is anticipated.

183 The plaintiff is aged 54 and on the medium life expectancy table has a life expectancy of 31 years.

184 The plaintiff submitted that it would be appropriate to allow the future out-of-pocket expenses and future domestic assistance for twenty years.

Domestic assistance

185 The plaintiff lives in a two-bedroom unit with his wife and two daughters aged 25 and 19. The unit consists of a bathroom, a large lounge/dining room, a kitchen, a laundry and a balcony. There is a garage downstairs. Both the daughters live at home. The elder daughter works full time, the younger daughter is studying and working part-time. The plaintiff’s wife works part time.

186 According to a history the plaintiff gave Ms Grinter, prior to the accident the plaintiff did approximately 20% of the cleaning, often vacuuming and sweeping and mopping the floors. He performed 50% of the shopping with his wife and cooked 10% of the evening meals. Prior to the accident he ironed his own clothes. He did 40% of the spring-cleaning and 40% of the window cleaning.

187 Prior to the accident the plaintiff performed all the home maintenance activities. He had tiled the bathroom, kitchen and bathroom and had put down a wooden floor in the lounge room, bedrooms and hallway. He put shelves in the laundry and garage and painted his unit. He had intended to sand and re-varnish the floors however had been unable to do this due to the accident. Prior to the accident he washed his car fortnightly and serviced his car regularly. Since the accident he has not been able to do any of these activities.

188 In evidence the plaintiff said that the injuries suffered in the accident impacted on his ability to do household chores. He can make his own breakfast and lunch and can wash up a couple of plates and cups. He no longer changed light globes, washed the car or did the spring-cleaning. He could no longer sand and varnish the floors because of his pain.

189 In terms of the hours required, Ms Grinter said that the plaintiff required the following assistance:

• one hour a week of shopping
• one hour a week of ironing
• one hour of meal preparation a week
• three hours of spring cleaning twice a year (40% of actual)
• the windows to be cleaned twice a year (40% of actual)
• the car to be washed fortnightly
• the car to be serviced twice a year
• forty hours of home maintenance a year
• Wooden floors to be sanded and varnished
• The unit to be painted every five years

190 In my view, on the basis of the plaintiff’s functional work capacity and the video surveillance, the plaintiff is able to do the shopping, the ironing and the meal preparation. I make no allowance for those items. Nor do I make an allowance for home maintenance for 40 hours a year. It is not entirely clear what the home maintenance allowed by Ms Grinter contemplates. As set out below, I have allowed assistance for the heavier item of domestic activities. Other than changing a light globe, this covers the activities that the plaintiff identified he could no longer do.

191 The need for assistance with heavier domestic tasks was supported by the reports of the medical practitioners qualified by the plaintiff. They were of the view that the various restrictions that impacted upon his ability to work (inability to do heavy repetitive bending, lifting or twisting, prolonged periods of kneeling or squatting or heavy impact use of right leg, using wither arm at or above shoulder height in a heavy repetitious or impact fashion)` would also apply indefinitely to the plaintiff’s domestic activities.

192 In my view, given the nature of the services, it is reasonable to allow the costs on the basis that such services will be provided commercially rather than by members of the plaintiff's family on a gratuitous basis. I therefore allow the following (the costs given are annual costs set out in the report of Ms Grinter):

Spring cleaning: 3 hours twice a year at $30.20 per hour	$182
Windows cleaned twice a year	$100
Car wash fortnightly	$650
Car service: Twice a year	$400
Painting every five years	$1000
Wooden floors to be sanded and varnished	$1000

193 This gives a total of $3332 or $64 per week.

194 The plaintiff submitted that a period of twenty years was reasonable. In my view it is likely that after the age of 70 the plaintiff would have been provided with the services in any event. I therefore allow these items for a period of fifteen years. $64 per week for fifteen years discounted at 5% is: $64 x 555 = $35,562.

Past out-of-pocket expenses

195 The following past out-of-pocket expenses (other than the first item of $810) were agreed:

Pharmacy at $27 per month	$ 810.00
Dr Peter Giblin	$ 250.00
Symbion	$ 77.90
Holistic Physiotherapy	$1,169.00
DEERW (rehabilitation)	$6,385.50
HIC	$1,663.30
Total	$10,355.70

196 From this total the parties agreed there had to be deducted an amount of $60 in respect of the consultation with Dr Tomasevic on 12 February 2008.

197 The pharmacy expenses were opposed by the defendant on the basis that the plaintiff said that he had receipts which were not produced. The plaintiff did, however, give evidence that he spent this amount on average. He was not challenged on this and I allow the amount of $27 per month.

198 I therefore allow past out of pocket expenses of $9,605.50.

Future out-of-pocket expenses

199 The plaintiff gave evidence that he used Panadol every day and on rare occasions when the stomach pain was severe he use Di-Gesic. He also used Voltaren Creams. The monthly expenditure on these items was in the order of $27.

200 I would allow the following out-of-pocket expenses set out on page seven of the report of Dr Matalani. The expenses said by Dr Matalani to be required are as follows:

1. General practitioner: four visits (intermittently or once every 3 months) at $55 per visit = $220 per annum. $44.23 per week x 666.4 = $2818;
2. Referral to a rehabilitation physician. Initial consultation $215 then two further follow up consultations of $110, total of $ 435;
3. The monthly expenditure on medication such as Digesic and Volataren was in the order of $27 or $6.75 per week. $6.75 x 66.4 = $4498;
4. Intermittent short course of physiotherapy. He will require one to two courses of 8 to 10 sessions per course for the next year or two at a cost of approximately $70 per session. One course would be $560 to $700, two courses would be $1120 to $1400. I allow a mid figure of $1,000;
5. Dr Matalani said that the plaintiff “needs to be involved in a gym based self-managed exercise program. Gym membership of $650 and three to four sessions at $50-60 per session." I allow $845. Gym membership for ten years at $1,000 per annum deferred each year on the 5% tables is $7733;
6. Ten hours of vocational counselling and twenty hours of job placement services at $165 per hour is $4,950. I note that Dr Giblin said that vocational rehabilitation would provide “the most optimistic work related scenario opportunity”;
7. Twelve hours of chronic pain at $200 per hour is $2,400;
8. In terms of future surgery, it is reasonable to allow for future surgery of the right shoulder and the right knee, costed by Dr Giblin at $8,000 and $7,000 respectively. Deferred for, say, ten years at 5% (.614) this gives a figure of $ 9,210.

The summary of future out-of-pocket expenses is:

General practitioner	$2818
Rehabilitation physician	$435
Medication	$4498
Physiotherapy	$1000
Gym membership	$8568 ($7733 + $845)
Vocational Counselling	$4950
Chronic pain Management	$2400
Knee Surgery	$9210
Total	$33,879

201 In summary, the damages are as follows:

Past economic loss	$77,513
Past loss of superannuation	$8,526
Future economic loss	$120,528
Future loss of superannuation	$13,262
Future domestic assistance	$35,562
Past out of pocket expenses	$9605.50
Future out of pocket expenses	$33,879
Total	$298,875.50

202 There will be judgment for the plaintiff in the sum of $298,875.50.

203 I will hear submissions from the parties as to the appropriate costs order before making final orders.

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