Grant v Shaw - [2007] WADC 66

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: GRANT -v- SHAW [2007] WADC 66

CORAM: COMMISSIONER POWER

HEARD: 15-18 FEBRUARY 2005, 2124 MARCH 2005, 31 JANUARY & 12 FEBRUARY 2006

DELIVERED : 10 MAY 2007

FILE NO/S: CIV 498 of 2002

BETWEEN: ROBERT DAVID GRANT
Plaintiff
AND
THERESE MARIE SHAW
Defendant

Catchwords:

Negligence - Assessment of damages - Whiplash and brain injury - Turns on own facts

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943

Result:

Judgment for the plaintiff in the amount of $37,164.41

Representation:

Counsel:

Plaintiff: Mr D Elliott
Defendant: Mr M A McAuliffe

Solicitors:

Plaintiff: G H Healey & Co
Defendant: Dibbs Abbott Stillman

Case(s) referred to in judgment(s):

Graham v Baker (1961) 106 CLR 340
Purkess v Crittenden (1965) 114 CLR 164
Watts v Rake (1960) 108 CLR 158
Western Australia v Watson [1990] WAR 248

COMMISSIONER POWER:

The plaintiff's claim

The plaintiff is a 72 year old plumber who claims damages for personal injuries allegedly suffered by him in a motor vehicle accident which occurred at the intersection of Bannister Road and Hodges Way, Canning Vale, at around midday on 4 April 1996 ("the accident"). Immediately prior to the accident, the plaintiff was driving his 1981 VH Commodore station wagon, registration number VBN 055 ("the plaintiff's vehicle"), in a northerly direction in the kerbside lane of Bannister Road, approaching the intersection with Hodges Way ("the intersection").
At the time, Bannister Road was a dual carriageway, with the north bound and south bound lanes separated by a median strip ("the median strip"). At the intersection, the median strip had a break in it to allow traffic entering the intersection from Hodges Way to cross the two north bound lanes of traffic on Bannister Road so as to be able to travel south on Bannister Road in the south bound lanes.
Immediately prior to the accident, the defendant was driving her 1986 model Honda Civic sedan, registration number 7FX 365 ("the defendant's vehicle"), in an easterly direction on Hodges Way, approaching the intersection.
At the time, the east bound lane on Hodges Way had a stop sign ("the stop sign") located at the entrance to the intersection and a continuous white line adjacent to it, requiring traffic travelling east on Hodges Way to stop and give way to traffic travelling on Bannister Road, before entering the intersection.

The circumstances of the accident

The defendant brought the defendant's vehicle to a stop behind the continuous white line adjacent to the stop sign. She then drove the defendant's vehicle into the intersection, intending to turn right and travel south in the south bound lanes on Bannister Road. As the defendant's vehicle entered the intersection and was travelling across the kerbside north bound lane on Bannister Road, it collided with the plaintiff's vehicle ("the collision"). The defendant's vehicle did not give way to the plaintiff's vehicle. The collision occurred between the right front section of the defendant's vehicle in the area of the defendant's right front wheel and the central and right front sections of the plaintiff's vehicle. The damage to the defendant's vehicle was repaired at a cost of about $2,700. The damage to the plaintiff's vehicle was repaired at a cost of $4,087.42.
The defendant's vehicle and the plaintiff's vehicle stopped rapidly after the collision and remained in close proximity to one another after the collision. The plaintiff's vehicle was still in the kerbside north bound lane on Bannister Road after the collision. The defendant's vehicle was to its immediate north within a distance of three to four metres, facing in an easterly direction, and predominantly in the kerbside north bound lane on Bannister Road.
At the time of the collision, the plaintiff had three passengers in the plaintiff's vehicle. His ex-wife, Margaret Grant ("Mrs Grant"), was in the left front passenger seat. Two of his adult sons, Andrew and Michael Grant, were in the rear passenger seat. The defendant was the only occupant of the defendant's vehicle.
In her defence, the defendant admits that she failed to stop at the stop sign and give way to the plaintiff's vehicle and that the collision occurred as a result of her negligence.
It is apparent from the pleadings and from the evidence that none of the facts which I have so far described were contentious. Accordingly, I make findings of fact in these terms.

The issues for determination

The defendant does not admit that the plaintiff was injured in the accident or that he has suffered the loss and damage pleaded in his statement of claim. Further, or in the alternative, the defendant contends that if the plaintiff suffered injury, loss or damage as pleaded in the statement of claim, any such injury, loss or damage was caused or substantially contributed to by:
(a)pre-existing neck symptoms arising from previously diagnosed osteoarthritis in his cervical spine;
(b)pre-existing and long-standing degenerative disease in his thoracic spine;
(c)pre-existing and long-standing degenerative disease in his lumbar spine;
(d)pre-existing hearing problems; and
(e)prostate cancer suffered by the plaintiff, requiring extensive chemotherapy and radiotherapy.
The issues defined by the pleadings and agitated at trial were primarily:
(a)whether the plaintiff suffered any injuries in the accident and if so, the nature and extent of those injuries; and
(b)whether any mental or physical impairment suffered by the plaintiff since the accident was caused by the accident or by some other cause and if so, the nature and extent to which that other cause has contributed to any such mental or physical impairment.
A significant issue in the trial was the speed at which the defendant's vehicle and the plaintiff's vehicle were travelling immediately prior to the collision. The combined speed of the defendant's vehicle and the plaintiff's vehicle at the time of the collision was considered to be relevant to the forces which would have been imparted to the plaintiff at the time.
The plaintiff's case was that the collision caused him to strike the back of his head against the head rest on his seat and then strike his forehead against the steering wheel in the plaintiff's vehicle in a whiplash fashion with sufficient force to cause brain damage and spinal injuries. The plaintiff was at the time of the collision wearing a retractable seatbelt. The plaintiff contended that the combined speed of the two vehicles at the time of the collision was high enough for him to sustain these injuries.
The defendant, on the other hand, contended that the collision occurred when the defendant's vehicle and the plaintiff's vehicle were travelling at much lower speeds than those contended for by the plaintiff, with the result that insufficient force would have been imparted to the plaintiff to have caused these injuries. The defendant's case was that if the plaintiff was injured in the accident, those injuries were minor and not permanently disabling.
In arriving at my findings on the issues in this action, I have paid close attention to all of the evidence, particularly that evidence which assists in the resolution of these issues. I describe that evidence in the paragraphs set out below.

The plaintiff's evidence

The plaintiff gave evidence to the following effect.
The plaintiff was born on 6 January 1935 and raised in Western Australia. He attended secondary school at St Louis College and subsequently at St Patrick's College. On balance, the evidence establishes that he left school at 14 years of age and commenced a five year apprenticeship as a plumber. On completing his apprenticeship, he then obtained additional certificates of competency as a drainer, plumber and gas fitter. He subsequently undertook further training to enhance his trade qualifications, with some limited success. He commenced work as a plumber on completion of his training and, apart from a period between 1979 and 1981 when he worked for himself in South Australia, worked exclusively as an employed plumber until about 1992. From that time on, he has been largely self‑employed. While an employee, the plaintiff was in largely continuous employment for a number of different employers, without ever working for the same employer more than once.
About two months prior to driving from Sydney to Perth in March 1996, the plaintiff had some soreness in his neck and shoulders, for which he consulted Dr Martin, his general practitioner. He was advised to do his daily exercises and use a lotion to ease the soreness in his neck and shoulders. The treatment worked and the pain stopped within a very short time. He had never had neck pain like it before. As far as he was aware, the pain was caused by the type of work which he had been doing, namely, heavy work as a plumber, including lifting oxyacetylene bottles weighing in the vicinity of 200 pounds and measuring 6 feet in height and 10 inches in diameter, lifting other heavy tools and equipment, walking over broken ground, climbing stairs and going on to rooves. The plaintiff maintained that he was otherwise able to do this kind of work with reasonable comfort and efficiency. When asked how often he was working in the period leading up to March 1996, he said he was in continual employment. He rejected the suggestion that he was working only a couple of days a week or having weeks off from work.
In his evidence-in-chief, the plaintiff said he had driven across to Western Australia with his ex‑wife to attend his mother's 90^th birthday party. The plaintiff took three and a quarter days, driving 12 hours a day, to drive from Sydney to Perth in March 1996.
On the day of the accident, he had driven out to a cousin's bakery in Canning Vale. It was called Noonan's Bakery. He had driven out to visit the bakery with his ex-wife and twin adult sons, Andrew and Michael.
The plaintiff was travelling south on Bannister Road, approaching the intersection with Hodges Way. He was keeping up with the traffic. He believed he was travelling at about 50 kilometres per hour. He recalled there were other vehicles travelling both in front and behind him in the lane to his immediate right. He was travelling at the same speed as those vehicles. The traffic was moving freely. As he approached the intersection, he became aware of a vehicle on his left. The vehicle went through the stop sign on Hodges Way and into Bannister Road. The front right hand side of the defendant's vehicle collided with the front right hand side of his vehicle. When the plaintiff realised what was happening, he braked, but said it was too late to avoid the collision. When the vehicles collided, the plaintiff said his head went forward, hit the steering wheel and then went back against the head rest. He said he seemed to black out. He was wearing a fitted standard inertia reel seat belt at the time. He said his head struck the steering wheel pretty hard. When asked to describe the blacking out process, he said:
"My mind just went dark as far as my vision is concerned. My mind and my head went dark or black and also my vision".
He was not aware of anything happening around him at that time. He then got back into an upright position and heard his wife ask him what had happened. His son Andrew got out of the plaintiff's vehicle and then helped him get out. He was unsteady on his feet at the time. He felt some pain and swelling on his forehead and some jarring in his neck, shoulders and arms. He also felt some pain in his lower back at that time.
Shortly after getting out of his vehicle, the plaintiff spoke to the defendant. He said he was feeling very upset at the time. He hadn't been in a traffic accident for many years and that upset him.
He gave evidence that he said:
"Look at the damage you've done to my vehicle".
And then asked her:
"Are you drunk or are you on whacky weed?"
According to the plaintiff, she replied:
"Did you come through the red traffic light?"
On arrival at Royal Perth Hospital immediately after the accident, the plaintiff was seen by a young doctor. The plaintiff told him that he had been in a car accident and that he had soreness in his neck and shoulders. He also told him that he had hit his head and had been whiplashed on the steering wheel and head rest. The doctor suggested he take a Paracetamol and told him that it would improve his condition. The plaintiff rested for the rest of that day and the following day.
On the drive back to Sydney, the plaintiff had pain in his neck, shoulders, arms and lower back. The pain in his neck and shoulders and back was persistent for a few days after the accident. He was lying down as much as he could, taking it easy, when not attending social events. It took the plaintiff five days to drive back to Sydney, because of his pain and soreness. His ex‑wife did not drive any of the distance. By the time he got back to Sydney, the plaintiff's pain had got worse. In between the accident and his return drive to Sydney, the plaintiff noticed that he had headaches and a blue and black lump on his forehead. He had never had headaches or a bruise on his forehead like that before. It took some weeks for the bruising to resolve.
When he returned to Sydney, the plaintiff started looking for work, but there was not much work available. He said there was a downturn in the building industry at that time. As time went on, work started to pick up. When he attempted to return to his plumbing work, he found that he could not do some of the work he used to do, mainly working in confined spaces, under buildings and in roof spaces. He couldn't lift in the same way that he could previously. He was unsteady on his feet and on ladders and had a soreness in his limbs, especially in confined spaces. He denied having any similar problems previously. He described these problems as regular and persistent and occurring on a daily basis. Some days were better than others. He said that if he took it easy, the pain was not so bad, but that there wasn't much scope for taking it easy.
The plaintiff did not consult Dr Martin for about five and a half months after the accident, because he was trying to help himself. He was using liniments. He described himself as not the sort of person who would go to a doctor. The liniments were called Tiger Balm and Coldform. Both could be readily purchased at a chemist and both helped alleviate his symptoms. He eventually went to see Dr Martin, because he felt as though he wasn't getting any better and it was better to get some medical advice and treatment.
The plaintiff said that Dr Martin referred him for physiotherapy. He had 15 sessions of physiotherapy over three months, which he found beneficial. He said that the benefits lasted for about four to seven hours immediately after the treatment. After the effects of the physiotherapy wore off, he would just do his regular exercises, which would help him until the next appointment.
The plaintiff said that the pain he was suffering prevented him from doing a lot of the plumbing jobs which would otherwise have been available to him. This depressed him, on and off, for quite a while. He maintained that he had not previously suffered from depression. As a result of the pain he was suffering from, the plaintiff limited himself to small domestic type work. He was unable to take on industrial and commercial work.
The plaintiff said that he would get a headache about every third day, depending on the work he was doing and the weather. The headache could last for anywhere between 10 minutes to three to four hours. When he had headaches, they prevent him from concentrating. The pain was a sharp pain radiating from the front to the back of his head. It would seem to radiate from where he had the bruising on his forehead.
In 1997, the plaintiff was diagnosed with prostate cancer by Dr Martin, during a yearly check‑up. The cancer was treated with radiotherapy. He found the procedure painful and disruptive. The plaintiff was also given Zoladex to treat his cancer. The diagnosis, its effects and the Zoladex made him depressed. The treatment was successful.
During the treatment for his prostate cancer, particularly during radiotherapy, the plaintiff required the assistance of a friend, Mrs Colpitts. She helped him care for himself. She also helped him with the housework. She assisted him in this way for about three months. After that he was able to look after himself and do his housework himself.
The plaintiff denied ever drinking heavily and denied ever giving Dr Martin any cause for concern about his alcohol consumption.
The plaintiff saw Dr Bryan on 9 June 1998. He did not recall telling him that he was not knocked out in the accident and did recall telling him that he had hit his head on the steering wheel and the back of his head on the seat rest.
The plaintiff described a loss of patience since the accident, which manifested itself in him losing his patience with some of his customers. He described occasional forgetfulness, particularly affecting his short term memory. He also maintained that he had become a lot more irritable since the accident. His concentration is at times poor. Although fluctuating on a daily basis, the plaintiff maintained that the range of movement in his shoulders and arms had improved since the accident. It worsens with heavy work and the weather.
After the accident, the plaintiff stopped coaching junior AFL football. He didn't want to go to the expense of taking out a separate insurance policy, he didn't have the patience to coach a junior team and there was some travelling involved between where he lived and where the club and playing fields were located. He had trouble remembering how to demonstrate the footballing skills required and had difficulty running, kicking and catching in the same way that he did before the accident. He considered that the accident handicapped both his movements and his thinking.
Standing for a long period of time results in soreness across the shoulders, arms, hands and legs. It would usually occur after about half an hour of standing. The same symptoms occur after about one and a half to two hours of sitting. The plaintiff can still drive a vehicle, but said he could not drive for more than an hour and a half before stopping the vehicle, getting out and having a rest. His ability to read and write is limited to about half an hour before he has to get up, exercise and then return to it. He has noticed difficulties with concentration, reading and writing.
The plaintiff's evidence was that he intended to keep working for as long as he could. He presently receives the old age pension, amounting to about $550 gross a fortnight. He is entitled to earn $60 per week on top of that. If he earns in excess of that, it results in a reduction in his pension.
The plaintiff gave evidence that he was presently taking over the counter and prescription medication to relieve his pain and stiffness. He also maintains his exercise program, which takes no less than half an hour per day.
The plaintiff described the current symptoms in his arms and hands as a soreness radiating from the shoulders down the arms into the palms of the hands and fingers on both sides. He noticed its onset a few years ago. It seems to be worse in winter. He first noticed it about two weeks after the accident.
The plaintiff also complained of having difficulty spelling words. He denied having any such difficulties prior to the accident.
The plaintiff described the last week as fairly typical. He gave evidence that he had neck pain nightly and sometimes during the day as well. He also had pain and stiffness in his arms and shoulders with roughly the same frequency. He described it as radiating across the shoulders, down the back and down his arms. He said that he had had back pain three times in the last week during the day. His headaches occur three days out of seven. He feels he is able to cope with them. He takes something to relieve the pain.

In cross-examination, the plaintiff agreed that he might have repeated one year of schooling in primary school and that he had some educational difficulties, leaving school at the earliest time permitted by law. The plaintiff could not recall which year he repeated, but denied that he would have repeated more than one year. When asked what particular difficulties he had as a student in primary school, he replied that he: "might have been a slow learner".
The plaintiff conceded that although he had worked primarily as an employee from the age of about 20 to the age of about 62, he had never had an employer who had kept him on for a second contract.
The plaintiff also agreed that between the ages of 62 and 65, he was in receipt of social security in the nature of a subsidy, because he was also working for himself at that time. It was a subsidy related to his age. He conceded that he had difficulty getting work because of his age.
The plaintiff also conceded in cross-examination that in the three financial years preceding his accident he earned nothing from his own personal exertion in his own business. None was shown in his income tax returns for those years. In the financial year preceding those three financial years, he had earned $160 from his own personal exertion in his own business. The plaintiff steadfastly maintained that if any income was earned, it would have been declared.
Very shortly after giving that evidence, the plaintiff was shown what was described as his proof of evidence. He confirmed that he had told his solicitors that he was earning about $30,000 to $40,000 per annum from his own plumbing business, Grant Plumbing. The information was recorded on p 19 of the proof of evidence. The plaintiff confirmed his signature appeared on the last page of the document, which was dated 5 or 9 May 2002. After reading the document, the plaintiff said he could not recall whether he had read it before. On being pressed, he appeared to confirm that he did read it before signing it. He denied knowing at the time that it would be sent to doctors and others who might be called to comment on it. He denied that it would have struck him as odd on reading the proof of evidence to see the figures on p 19, knowing what was declared as his income in his income tax returns. He did not recall discussing the contents of the proof of evidence with his solicitors. The proof of evidence referred to cash jobs. The plaintiff denied doing cash jobs that he did not disclose for taxation purposes. He denied doing cash jobs that he had not disclosed for taxation purposes since the accident. He maintained that any income earned was disclosed to the Australian Taxation Office, including any income earned from the business of Grant Plumbing. In short, if his personal income tax returns disclosed no self-employed income, then no self‑employed income was earned.
In the financial years ending 30 June 1987 to 1992, when the plaintiff was an employee, the total of his wages and allowances were $24,741, $32,154, $29,570, $42,314, $39,386 and $41,548, respectively.
In the years ending 30 June 1993 to 30 June 1996, when the plaintiff was largely self‑employed, his taxable income from personal exertion was $13,375, $2,688, $7,604 and $3,590, respectively. During that period, he was occasionally working and paid as an employee. In that same period, the income which he earned from working in his own business amounted to $160, which, as previously noted, was in the financial year ending 30 June 1993. He earned no income from working in his own business for any of the subsequent years in that period.
In the year ending 30 June 1997, his income from work as an employee was $1,332. His taxable income from personal exertion was $1,121. In that same year, he earned no income from his own business and did not begin earning any income from his own business again until the financial year ending 30 June 2000. In the year ending 30 June 2000, the plaintiff earned $2,409 from working in his own business. He earned $3,193 from working in his own business in the same way in the following year. He then earned no income from his own business until the year ending 30 June 2004, in which he earned $4001. In the year following that year and ending 30 June 2005, he earned $1,187 from working in his own business.
In short, the plaintiff's earnings from personal exertion as a self‑employed plumber, after the decision to set up his own business and work for himself in the year ending 30 June 1993 and onwards, has been significantly less than his earnings as an employed plumber.
The plaintiff is currently not in a relationship and lives alone in his one bedroom flat in Sydney. He was married for over 21 years to Margaret Grant, with whom he had four (now adult) children. The plaintiff lived with and supported Margaret Grant and their four children during their marriage and subsequently supported them financially after he and Margaret Grant divorced.
The plaintiff confirmed in cross-examination that he had in the past undertaken some studies in gas metal arc welding prior to the accident, but that he had not successfully completed his studies in and qualified for the welding certificate and had failed at least one unit.
The plaintiff also confirmed that he had some learning difficulties at St Patrick's Technical College, but denied having any learning difficulties when undertaking the TAFE courses after school.
In cross-examination, the plaintiff also confirmed that he had suffered depression and tiredness following the administration of Zoladex and had some difficulties with impotence since the radiotherapy for his prostate cancer. He also confirmed that he had been prescribed Prozac for depression following the breakdown of a relationship in about February 2000. He took Prozac for about five days, but denied taking any other medication for depression. He also admitted having some difficulties with his children during a period when his ex‑wife was in a relationship with another person. He didn't see two of his children on a regular basis.
The plaintiff admitted periods of depression since the accident. He also admitted disappointment with his three sons and daughter, disappointment that he had not done better for himself in life, living on his own in a rented flat and not having received enough from his divorce settlement to buy a home. He also admitted finding it difficult going into other people's houses to fix them up whilst comparing them with his own circumstances. He nonetheless denied being depressed about these matters. He also subsequently denied telling Dr Canaris that he found it difficult to go into other people's homes to fix them up whilst comparing them with his own circumstances.
The plaintiff was asked about the reason why he had described his speed at the time of impact as being 10 kilometres per hour in the State Government Insurance Commission accident report form dated 20 November 1996 and signed by him, when his evidence-in-chief was to the effect that his speed was much higher. The plaintiff's explanation was that he wrote 10 kilometres per hour in November 1996, because it was a figure that just came quickly to his head at the time. He added, by way of further explanation, that he had since reconsidered that issue and concluded that the speed was higher. When asked directly what speed his vehicle was doing at the moment of impact, he replied that he did not know. He denied that he gave evidence of a higher speed in evidence‑in‑chief, because he thought it would assist his case. He agreed that it was his recollection in November 1996, when he filled in the form, that 10 kilometres per hour was his estimate of the speed of his vehicle on impact. He described the nature of his injuries in that form as a whiplash to the neck and shock. His explanation for not including his other alleged injuries at that time was, in effect, that they were not apparent to him until he started getting treatment. He agreed that no-one else in his vehicle was injured. He explained the delay between the accident and lodging the form on the basis that he had tried to treat himself and he hoped that his injuries would subside. When they didn't subside, he wrote to the State Government Insurance Commission to advise it that he was going to make a claim, whereupon he was sent the form and other material.
In cross-examination, the plaintiff maintained that at the point of impact his head went back, struck the head rest and then went forward and struck the steering wheel. He denied that his head went forward and then backward.
The plaintiff gave evidence that, as far as he was aware, the swelling and bruising on his forehead didn't appear until after his attendance at Royal Perth Hospital.
When questioned about his first recollection after the accident, he said that when he came to he turned to his ex-wife and asked her if she was alright. He then turned to his twin sons in the back of the car and asked them if they were alright. He estimated that he had blacked out for between two and three minutes. He did not recall his ex-wife asking how he was. Nor did he recall if his twin sons asked about his welfare. When pressed, he accepted that the period of time he estimated that he was blacked out must have been approximate and conceded that he didn't know whether he had blacked out for between five to seven minutes. He also conceded that five to seven minutes would appear to be too long a period of time given what he recalled.
The plaintiff confirmed that he had a very clear recollection of asking the defendant, after they had both got out of their vehicles, the question:
"Are you drunk or are you on whacky weed?"
No ambulance was called to the scene of the accident. The plaintiff remained at the scene for about half an hour before the tow truck driver arrived. In that time, his ex-wife and children left the scene. His sister drove out and picked them up.
The plaintiff went with the tow truck operator, after helping him hitch his car up on the tow truck, to the panel beater's shop, where he completed the necessary paperwork and paid the tow truck driver. He then telephoned his sister, who collected him and drove him to Royal Perth Hospital. On arrival at Royal Perth Hospital, his sister was able to find a parking spot nearby. The plaintiff then went from that parking spot into the emergency department at Royal Perth Hospital unaided.
The plaintiff confirmed in cross-examination that immediately following the accident, he had a pain in his forehead at the point where it had struck the steering wheel and he felt he was suffering from shock. Later that day when he went back to his motel he noticed some discomfort developing in his neck. The discomfort in his lower back and arms developed within the next day or so. It radiated down the shoulders. He recalled the bruising on his forehead first appearing, as far as he was aware, the next day. He noticed it when he was shaving. At that stage he didn't seek any further medical attention. He didn't think much of it. The discolouration on his forehead lasted approximately 10 days. The swelling disappeared with the discolouration.
The prescription medication about which the plaintiff gave evidence earlier in his evidence-in-chief was subsequently identified as Voltaren, a non‑steroidal anti‑inflammatory medication.
The plaintiff gave evidence that he had soreness in his neck, shoulders, arms and lower back during the return trip to Sydney. It took five days instead of three, because he took a few more breaks on the return journey than on the journey from Sydney to Perth.
The plaintiff accepted that it was some five and a half months before he saw his general practitioner, Dr Martin, on his return to Sydney. During that time he was experiencing symptoms of soreness to his neck, shoulders, arms and lower back. He also had occasional headaches. He confirmed that he waited five and a half months to seek medical treatment, because he thought that if he rested and treated himself, his situation would improve. He did not see his general practitioner on a regular basis. He maintained that his symptoms were affecting his ability to work, particularly the soreness in his neck and arms. He said he was unable to do heavy lifting, work in confined spaces and roofing work. When pressed, he conceded that he was not in fact taking on any work when he returned to Sydney.
The plaintiff was then cross-examined about some of the histories he had provided to the medical practitioners who had reviewed him.
The plaintiff confirmed that he had told Dr Barold that he was unconscious for between five to seven minutes following the accident. He did not accept that that was an exaggeration. He confirmed that he had not told anyone that he had discomfort in his back before the end of 1996. He also confirmed that he could have told Dr Barold that he returned to work, but that his symptoms restricted his physical functioning, limiting the type of work that he accepted as well as reducing his work hours. He did not accept that it was misleading.
When confronted about an entry in the Westmead Hospital notes of 5 November 1996 which read:
"Reports continued neck pain only after five to six hours of long distance driving",
the plaintiff initially said he could not recall telling medical personnel at Westmead Hospital that he only had neck pain after five to six hours of long distance driving. He was then referred to another note which read:
"Hobby-car racing requiring long periods of driving around Australia regularly".
When asked if he said anything of that kind to personnel at the hospital, he denied telling them that it was on a regular basis. When pressed, the plaintiff eventually admitted that his twin sons were involved in car racing and that he used to drive and tow their vehicles to and from races. The races were local, but also in rural areas outside of Sydney. He denied driving for five to six hours. He did not assert that the notes were incorrect, but simply said that he could not recall having told Westmead Hospital anything to the effect of what was recorded in the notes.
The plaintiff had no explanation for there being no record of him having struck his head on the steering wheel in the accident in Dr Martin's notes or in the Westmead Hospital notes, despite having been treated by both in respect of the injuries suffered in the accident. He added that he only went to Westmead Hospital on two or three occasions. When asked if he had told the staff at Westmead Hospital that he had struck his head in the accident, he replied that he had told them of his signs and symptoms to the best of his ability. He did not think he went into the detail of how he was unconscious for a period of time following the accident.
In cross-examination, the plaintiff confirmed that he had consulted Dr Martin on 11 December 1995 for neck pain, which Dr Martin had treated with Voltaren tablets. The plaintiff confirmed that he may also have had pain in his arms at that time.
The plaintiff confirmed that after that consultation, he then did not see Dr Martin again until 23 September 1996 in relation to injuries sustained in the motor vehicle accident. He then saw him again four days later on 27 September 1996 in relation to the same injuries. He then did not see him again until 11 February 1997, when he saw him about loin pain. The plaintiff did not accept that he did not see Dr Martin again about his accident caused injuries until 5 December 1997. He maintained that he saw him between 12 and 14 times after 27 September 1996 in relation to the accident caused injuries. The plaintiff maintained that he told Dr Martin that he had hit his head when he saw him originally in September 1996, despite the fact that Dr Martin's records disclose nothing of that kind.
The plaintiff was vaguely able to recall seeing Dr Naidoo, psychiatrist, on one occasion. He denied being depressed or drinking excessively at the time. He could not explain why Dr Martin referred him to Dr Naidoo for depression and alcoholism, but he nonetheless did recall Dr Naidoo's name. He did not recall what Dr Naidoo asked him about those matters and did not recall if Dr Naidoo gave him any treatment. He had no recollection of any discussion about those matters at that time. He could not recall what the problems were or the discussions.
The plaintiff denied telling the subsequently deceased Mr Bryan, on being reviewed by him on 11 June 1998, that he was not knocked out in the accident. He could not explain why Mr Bryan had put that entry in his report. He recalled telling Mr Bryan that he had hit his head and was knocked out. He offered no explanation as to why Mr Bryan only recorded symptoms of neck pain and stiffness. As far as the plaintiff was aware, he had pain extending into the upper limbs at that time. He wasn't aware of telling Mr Bryan anything to the contrary. He confirmed that he did not tell Mr Bryan in June 1998 of any problems he was having with depression or his vision or hearing. He agreed with Mr Bryan's record of much of the balance of the history apparently provided to Mr Bryan by him on that occasion.
When being cross-examined about what he had told Mr Wallace, the plaintiff confirmed that he only started to have lumbar pain about two months before October 2000.
The plaintiff also conceded that he was still driving for long periods when he saw Dr Alam in October 2000. He later explained in his evidence that these were four-hour trips into rural areas, accompanying his twin sons to their car races.
The plaintiff also confirmed that when he saw Mr Mahoney he told him that at the time of the accident he worked carrying out casual work as a plumber for between eight to 16 hours a week and was still doing so. He denied it was untrue. He maintained that the eight to 16 hours per week was spent quoting jobs.
In cross-examination, the plaintiff gave evidence that when BAS statements came out in around 2000 he could do them in an hour or so, but that more recently, it was taking him three hours to do them. He attributed the deterioration in his ability to complete BAS statements to failing memory and concentration. He maintained that the difficulties he was experiencing with memory and concentration started at the time of the accident and hadn't improved.
The plaintiff confirmed that he now does his own housework and has since his relationship with Ms Colpitts ended. He drives himself.
In cross-examination, the plaintiff also made it clear that he had coached junior AFL football in the early 1990s and then not again until about 2000 to 2002.
In re-examination, the plaintiff confirmed that the neck pain, which he had in December 1995, had cleared up long before the accident.
The plaintiff also indicated in re-examination that he was not very forthcoming with information to Dr Schaeffer, when he was reviewed by him, because he was aware that he acted on behalf of the solicitors for the defendant and was, therefore, going to say no more than what he was asked about.
The plaintiff also gave evidence in re-examination that he was currently taking Voltaren and Panadeine and using Tiger Balm and Coldform or Dencorub as well as Nature's Choice. The Voltaren cost $9 and one packet lasts approximately two months. It is a prescription drug. Each time a prescription is written two repeat prescriptions are also given. A visit to the doctor to get further prescriptions costs between $45 and $49. The liniments cost between $5 and $7 a tube and last about a month and a half. The cost of the Nature's Choice medication is included in the $9 for the Voltaren and lasts about two months as well. The plaintiff started using Voltaren at the beginning of 2005. He started using Nature's Choice at about the same time. The plaintiff uses about a packet of Panadol a fortnight. It costs between $4.50 and $6. The plaintiff started using the liniments in September 1996 and has since used them regularly. The plaintiff said that he would undergo further physiotherapy and psychiatric treatment or counselling if it was available on the basis that he believed it was beneficial for him.

In further cross-examination, the plaintiff accepted that he could obtain free physiotherapy at the Westmead Hospital and that whether or not he would undergo further psychiatric or psychological counselling would depend on whether he found it useful, which would in turn depend on who was providing it to him.

Mrs Grant

Mrs Grant was called to give evidence on behalf of the plaintiff. She gave evidence to the following effect.
In her evidence-in-chief, Mrs Grant was asked about the length of time it took her and the plaintiff to drive from Sydney to Perth. After indicating she could not remember, she gave an estimate of four or five days. She said he was driving 12 hours a day and had no problems with driving. She did not have a driver's licence at the time and did not drive.
As previously noted, Mrs Grant was in the front passenger seat of the plaintiff's vehicle at the time of the collision. She did not see the collision. At the time, she was turned around in her seat facing the back seat and talking to their two sons. She estimated that the plaintiff's vehicle was travelling at 50 kilometres per hour at the time of the collision, on the basis that she had looked at the speedometer just before the collision, and presumably, also just before she had turned around to face away from it. She also noted that the plaintiff's vehicle was travelling at approximately the same speed as the other vehicles travelling in the same direction on the dual carriageway. She was aware that the nearest vehicle to the plaintiff's vehicle was travelling in the lane to the plaintiff's immediate right. She heard the collision, but did not hear anything beforehand.
At the time of the collision, she saw the plaintiff's head go back, hitting the back of the seat, before he went forward and hit his head on the steering wheel. She described the force of the impact as very strong. She estimated that the plaintiff was unconscious for four minutes, and that it took about four minutes to get him out of the car. She recalled his head just resting on the steering wheel immediately after it struck it. She asked him what had happened, but he did not reply. She found that unusual and assumed he was unconscious. She recalled their sons, Andrew and Michael, helping him out of the car, taking him across to the kerb and sitting him down. She recalled his head was between his knees and that their sons were on either side of him. She estimated he was sitting on the kerb for about 10 minutes. She then saw their two sons take him over to examine the damage to his vehicle. She recalled the damage being to the left hand side between the front of the car and the passenger's door. She could not recall any damage to the front of the plaintiff's vehicle. She obviously did not have a clear recollection of where the damage was on the defendant's vehicle, and assumed it would have to be to the front of that vehicle. She explained her inability to recall where the damage was to the plaintiff's vehicle on the basis that she was in a state of shock at the time.
After the plaintiff had been taken to examine the damage to his vehicle, Mrs Grant saw him go over with her sons to speak to the driver of the other vehicle involved in the collision. She could not hear what he was saying. She was, however, able to see him gesticulating with his hands and pointing in the direction of his vehicle. He appeared to her to be quite agitated. This was a contrast to his relatively calm demeanour on the last occasion in which she had witnessed his behaviour after being involved in a motor vehicle accident.
Mrs Grant did not get out of the plaintiff's vehicle until she and her sons were collected by the plaintiff's sister, Maria, and driven away from the scene of the accident.
Mrs Grant next saw the plaintiff when he returned to the motel at which they were staying later that day. She described him as very shaky, with a bad head and a big bruise across his forehead. He complained to her that he was giddy and had pains in the back of his head. Over the next few days, she described him as not doing very much, with his head in his lap quite a bit. This was in contrast to what she would have expected, namely, that he would be more interactive and involved in what was going on. He was very quiet and subdued. His lack of interaction and desire to be active continued in the couple of weeks it took for the car to be repaired, so that the plaintiff and Mrs Grant could drive back to Sydney. On the drive back to Sydney, she noticed that he drove a lot more slowly and did not drive for 12 hours a day. She recalled the return trip being much slower than the trip from Sydney to Perth. She recalled the plaintiff complaining of a bad head, that he was very stiff and that his head was worrying him a lot near the back of his neck and his forehead. He wasn't his usual self. She said the bruising to his forehead took about a week to dissipate.
Mrs Grant described the plaintiff as not being as methodical as he once was since the accident and appearing to lose concentration during conversation, with the result that he appears to be confused and changes the subject of the conversation mid-stream. She has also noticed that he is easily upset and angered since the accident.
Mrs Grant also described a deterioration in the quality of the plaintiff's relationships with her and their children since the accident, exemplifying it by describing the plaintiff's decision to sell what was once the family home, not celebrating his 70^th birthday with his family and not staying for the wedding of his son, Andrew.
In cross-examination, Mrs Grant disputed the suggestion that the plaintiff would consume alcohol excessively. Her evidence was that he always drank alcohol in moderation.
When asked about the collision, she confirmed that she could not recall the brakes on the plaintiff's vehicle being applied or it swerving prior to the collision. She described the plaintiff's vehicle as stopping immediately after colliding with the defendant's vehicle. As she put it: "… it stopped with a bang". She described the two vehicles immediately after the collision as being: "… on top of one another …".
In cross-examination, Mrs Grant also made it clear that the first person to get out of the plaintiff's vehicle was their son Andrew. He got out immediately and went around and opened the driver's side door. It was then that their other son, Michael, got out and went to help him. She only had a vague recollection of the plaintiff regaining consciousness. She could not recall if the plaintiff said anything to her. She made it clear that she suffered very badly with nerves. She could not recall the plaintiff asking her or their sons if they were okay. She did recall her son Andrew asking the plaintiff if he was alright. She believed that the plaintiff was assisted out of his vehicle, while he was half awake and half not awake. She recalled him dragging his feet as he was being helped across to the kerb by their two sons, one on either side of him.
According to Mrs Grant, the mark on the plaintiff's forehead was quite visible at the scene of the accident. She described it as a quite nasty mark.
In cross-examination, she said the plaintiff would have been sitting on the kerb for approximately two minutes before getting up to inspect his vehicle. During that time she did not observe any conversation between the plaintiff and the defendant. She noticed the defendant had got out of her car and was examining it. She observed him examining the damage to his vehicle for between three to four minutes. He appeared to her to be fairly groggy on his feet at the time and he was being assisted by her two sons.
In cross-examination, Mrs Grant again confirmed that the damage to the plaintiff's vehicle was on the front left hand panel. She also confirmed that she had assumed the damage to the defendant's vehicle was on the front, because it hit the plaintiff's vehicle with: "… a heck of a hit". She indicated that the distance between the two vehicles when they came to rest after the collision was a lot closer than three to four metres or three to four yards. She said that the plaintiff's vehicle had not continued to travel down the road after the collision. It had stopped.
In cross-examination, Mrs Grant again confirmed that during the conversation between the plaintiff and the defendant, he was very agitated and moving his arms around. She described their two sons as being with the plaintiff, hanging on to him, during that time.
Mrs Grant confirmed that she and her two sons left the scene of the accident whilst the plaintiff was still shaky. She thought it was better to get her and her sons away from the scene of the accident, because she was very shaken up too. The surrounding area was a commercial area and she was told that the people in the shops around would take care of the plaintiff until the tow truck arrived. They also told her it would not be too long before it got there. It did not cross her mind to call an ambulance, because she was in a state of shock. She was, nonetheless, very concerned for the plaintiff at the time. She did not insist on the police being called, because she did not understand whether it was appropriate to do so or not.
Mrs Grant confirmed that his behaviour in the days following the accident was very unusual and that it was continuing up to the present day.
Mrs Grant was in contact with the plaintiff on a twice weekly basis during the time when he had prostate cancer. She was aware that he was in a relationship with another woman at the time, but did not know her surname. She noticed that his mind seemed to wander during that time, but she thought that he had been like that since the accident. She rejected the suggestion that his prostate cancer contributed to any of his problems. Nonetheless, she agreed that there had been a significant deterioration in recent years in his memory and concentration. She accepted that there had been a period of between 6 or 12 months when it had suddenly got worse and she accepted that it was getting worse with time.

The defendant's evidence

The defendant was called to give evidence about her recollection of the collision. She gave evidence to the following effect.
The defendant conceded in her evidence-in-chief that there were some things she could clearly remember and others about which she had no recollection.
The defendant described the collision as involving the front right side of her vehicle above the driver's side wheel and the front of the plaintiff's vehicle.
The defendant was unable to estimate the speed of impact and did not recall how close the vehicles were to each other when they came to rest after the collision.
The defendant did not see the plaintiff get out of his vehicle. Nor was she able to say how long it was before she first saw him after the collision. When she first saw him, her recollection is that he was alone. She did not see the plaintiff's wife get out of the vehicle, but did recall the plaintiff's two sons getting out of the vehicle. She had no recollection of the plaintiff's two sons getting out of the plaintiff's vehicle and assisting him to the kerb where he allegedly sat with his head between his knees for some 10 minutes.
The defendant did recall a conversation with the plaintiff, but did not recall how long after the collision that conversation took place. She could not recall any visible injuries on the plaintiff at the time of her conversation with him. She did not believe the plaintiff was assisted by any person during the course of that conversation. She had no recollection of the plaintiff being unconscious at the scene of the accident. She confirmed that no police or ambulance were called to the accident. She did not recall how long she remained at the scene of the accident after the collision.
In cross-examination, the defendant did not dispute that she was charged with failing to give way after stopping at a stop sign or with failing to have a driver's licence. She also admitted that there were many things about the accident of which she did not really have any recollection. She admitted that she had no recollection one way or the other of the plaintiff suffering a loss of consciousness at the scene of the accident, or of his two sons getting out of the car and helping him. She also admitted that she failed to see the plaintiff's vehicle when entering the intersection, and that she would not have entered it had she seen his vehicle. She was unable to offer an estimate of the speed of the plaintiff's vehicle prior to the collision.
In cross-examination, the defendant also confirmed that she could not recall whether there was any swelling or reddening on the plaintiff's forehead immediately after the collision. She did, however, recall that he was very angry and aggressive, to the point that she did not want to give him her address.
The defendant thought that the cost of repairing the damage to her vehicle was $2,700. She confirmed the damage caused by the collision was to the right front of her vehicle and to the front of the plaintiff's vehicle.

The plaintiff's medical evidence

Dr Alam

Dr Alam was called to give evidence on the plaintiff's behalf. His evidence was to the following effect.
Dr Alam, general practitioner, examined the plaintiff on 5 October 2000 and, subsequently, on or about 28 May 2003.
The plaintiff complained to Dr Alam of being angry, upset and a bit depressed, because of the persistence of his symptoms. He also complained of impaired short term memory, increased irritability and poor concentration. Dr Alam noted the plaintiff's complaints of pain in his neck after the accident, and headaches, which worried him for two to three weeks before settling down. He also told Dr Alam that he had pins and needles running down both arms into the three middle fingers for a week or so after the accident. He described his neck pain and soreness to Dr Alam as persisting, requiring physiotherapy and exercises. He also told Dr Alam that his shoulders were initially painful, with the pain radiating up his head and across his shoulders. His sleep was disturbed by neck pain and headaches and back pain. He described the back pain as across the lumbar area, but not radiating down either leg. He told Dr Alam that his persistent symptoms restricted his ability to stand for long periods of time at work, crouch under houses or under buildings and spend long periods of time on ladders. Initially, he also complained of blurred vision.
Dr Alam noted a slight indentation across the upper centre and left of his forehead, which he assumed to be the site of the initial haematoma and impact with the steering wheel. He noted no tenderness in the neck, but observed that his movements were very stiff. He also noted some tenderness to deep percussion at the T7 vertebrae. There was no tenderness in the lumbar spine, but he noted the plaintiff tended to bend stiffly. There was a near full range of movements in his upper limbs, but some marked restriction with backward placement. He also noted some tenderness in the lower rib cage to compression on either side.
The x-rays taken on 5 October 2000 and examined by Dr Alam showed marked spondylitic changes with narrowing of disc spaces at C5‑6, C7 and C8, and marked osteophyte encroachment on the intervertebral canals beginning at C3/4, 4/5 and going down to the lower cervical canals. He also noted marked wear and tear, spondylitic processes, osteophyte formation and some compression of the lower thoracic vertebrae. Similar changes were present in the lumbar spine with marked osteophyte formation and other spondylitic processes.
When further examined on 28 May 2003, the plaintiff complained of headaches, waking him and disturbing his sleep, a painful and restricted neck, with pain radiating into the inter-scapular area. He also complained of pain in the shoulders radiating to the neck, back and inter-scapular area, and pain radiating from his neck and shoulders down his arms to both hands, causing tingling and numbness. He described that numbness and tingling as radiating into the thumb, ring and middle fingers. He again complained of a sore lower back, interfering with his sleep and aggravated by sitting for long periods of time, such as when driving. He again complained of poor night and wet weather vision and impaired short term memory, concentration and increased irritability.
When examined on the second occasion, Dr Alam recorded tenderness in his neck and spasm in both cervico-scapular musculature with referred tenderness to the medial epicondyles of both elbows. He also noted a loss of grip strength in both hands, tenderness over the L3, 4 and 5 vertebrae, and stiffness in bending. Upper and lower limb joints were noted to move satisfactorily, but there was some diminution in the reflexes in both upper and lower limbs.
Dr Alam concluded that the plaintiff had suffered a closed head injury and soft tissue injuries to his cervical, thoracic and lumbar spine, which rendered previously asymptomatic degenerative changes symptomatic, resulting in pain and restriction of movement.
In Dr Alam's opinion, the plaintiff's symptoms were likely to be permanent and result in a significant restriction in his capacity for work, with the result that he should avoid repetitive work, sitting or standing for long periods of time, or any work involving heavy lifting, pushing, pulling and getting in and out of confined spaces as well as any repetitive work involving neck, upper limbs, back or lower limb girdles. It was also Dr Alam's opinion that the plaintiff should avoid driving for lengthy periods of time.
Dr Alam relied on his findings of an indentation in the plaintiff's forehead, which he considered to be the result of atrophy of the subcutaneous structures caused by the plaintiff striking his head on the steering wheel, to support his diagnosis of a closed head injury. He also relied on the plaintiff's history of being unconscious for between five to seven minutes and the plaintiff's complaints of impairment to his memory and concentration and occasional headaches.
Dr Alam considered the plaintiff's condition had worsened between his two reviews, which reinforced his opinion that the plaintiff's symptoms and disabilities were now permanent.
Dr Alam also considered that the plaintiff was suffering from depression, which he believed was also caused by the accident.
Dr Alam's diagnosis of a closed head injury was and is reliant on the accuracy of the history given to him by the plaintiff and was made without the benefit of any relevant neurological expertise. His diagnosis of soft tissue injuries to the plaintiff's cervical, thoracic and lumbar spine aggravating pre‑existing degenerative changes was again largely reliant on the reliability of the plaintiff's history. Notwithstanding his considerable experience, it is, in my view, preferable, where there is evidence from a medical practitioner with relevant expertise to rely on that evidence rather than evidence from a medical practitioner without that expertise.

Dr Barold

Dr Barold was called to give evidence on the plaintiff's behalf. His evidence was to the following effect.
Dr Barold, occupational physician, examined the plaintiff on 6 January 2005.
At the time of his examination by Dr Barold, the plaintiff gave a history of developing neck, shoulder and back pain in the hours following the accident. He told Dr Barold that his neck and back symptoms continued and affected his ability to undertake certain types of work and the number of hours he worked. At the time of his examination, the plaintiff also complained to Dr Barold of periodic neck pain extending into both shoulder girdle regions, periodic paraesthesiae in both arms and hands, occasional numbness down both arms into the wrists, periodic paraesthesiae between both shoulder blades, occasional headaches and low back pain, and a disturbed sleep pattern with shoulder girdle and loin pain awakening him at night, greatest on the left side, reduced static standing tolerance to less than five minutes, and reduced sitting tolerance to less than half an hour. He also complained of reduced concentration, intellectual and cognitive functioning, short term memory, reading speed, executive functioning skills and of slowness of thinking. He told Dr Barold that he was more irritable and easily angered and frustrated.

On examination, Dr Barold noted some restriction of neck and left shoulder movements, tenderness over the cervical, low thoracic and upper lumbar spines, with right sided paravertebral cervical spasm, pain on rotation and lateral flexion and restriction on extension of lateral flexion. He noted no restriction of range of movement in either right or left shoulders, elbows, forearms or wrists. He also noted some limitations on lumbar flexion and extension, the latter being painful. Lateral flexion of his lumbar spine was restricted on both sides.
Examinations of x-rays of his cervical, thoracic and lumbo-sacral spines showed moderate C6/7 disc degeneration with osteophytic lipping, minor degeneration at C4/5 and C5/6 with osteophytic protrusions on the left at C3/4, C4/5 and C5/6, as well as right sided protrusions at C2/3 and C3/4. Slight long standing wedging was present at T12, L1 and L2 with associated degenerative lipping and narrowing at the T12/L1 disc space. He noted no evidence of spondylolysis or spondylolisthesis. The facet joints appeared normal. Later x‑rays, CT scans and MRI scans showed degenerative facet arthropathy hypertrophic changes causing narrowing of a number of neural exit foramina, generalised degenerative changes, moderate compression of the L1 and L2 lumbar bodies, degenerative arthrosis in the apophyseal joints with associated narrowing of the ipsilateral intervertebral foramina, bulging and protrusion at C3/4 and C6/7 discs, and foraminal narrowing due to uncodiscarthrosis and facet arthrosis.
Dr Barold considered the plaintiff had suffered a closed head injury and a soft tissue musculo-ligamentous strain, which aggravated and accelerated mostly asymptomatic pre-existing degenerative changes in his cervical, lower thoracic and upper lumbar spine. Again, Dr Barold was reliant on the accuracy of the plaintiff's history.
Dr Barold considered the plaintiff was unfit, by reason of his injuries and disabilities, to return to his pre-accident employment or any work or activities which involved repetitive and sustained neck and back flexion and extension, prolonged standing, bending, kneeling, stooping or squatting as well as repetitive grasping activities or stretching or reaching and above shoulder activities. He recommended that the plaintiff sit and stand and take rest periods as required. He considered the plaintiff unfit for any form of employment in a competitive and open labour market, given his age and disabilities.
Dr Barold did not accept that the pre-existing degenerative changes in the plaintiff's spine would have become symptomatic, in any event. His view was that the symptoms, and resultant disabilities, were the direct result of the forces to which his spine was subjected in the accident. However, Dr Barold did agree that he would defer to medical practitioners with expertise in neurology, neurosurgery and psychiatry in respect of the nature and extent of any injuries to the plaintiff's brain and the resultant consequences of the same.
Dr Barold also considered, notwithstanding the plaintiff's own evidence to the contrary, that the plaintiff would require six hours of domestic assistance a week, by reason of his physical disabilities.

Dr Canaris

Dr Canaris was called to give evidence on the plaintiff's behalf. He gave evidence which was to the following effect.
Dr Canaris, consultant psychiatrist, examined the plaintiff on 12 January 2005.
Of interest in the history provided to Dr Canaris was the plaintiff's assertion that his customer base had diminished since the accident, and that he had not been able to build it up to the same level following the accident.
Dr Canaris considered the plaintiff had an organic brain syndrome. He believed the history given to him by the plaintiff was gross evidence of a cognitive impairment. He noted that the plaintiff had difficulties telling his life story and gave a confused and impoverished account of himself. This was most noticeable when Dr Canaris tried to elicit details of his pre and post‑accident work history. He considered the plaintiff's difficulties in this area were not so much evidence of memory impairment, but rather of impairment to his capacity to organise his memory. Similarly, he considered the plaintiff's tendency to answer "…past the point…" may have been a reflection of the plaintiff's difficulty in organising his responses. Dr Canaris noted that the plaintiff was at his most evasive when questioned about his work.
Dr Canaris considered corroborative evidence from anyone who knew him before and after the accident would be invaluable. Similarly, he considered it would be extremely helpful to establish whether anyone had noticed a change in his overall capacity to look after himself, any coarsening in his demeanour, emotional incontinence and the like. Indeed, given the plaintiff's age, he considered it critical to establish if there was any independent evidence of deterioration occurring very shortly after the accident. On the basis that it could be shown that there was a substantial change in these areas following the accident, he considered it highly likely that the plaintiff had suffered a closed head injury involving the fronto-temporal regions of the brain.
Dr Canaris considered that a brief loss of consciousness was "potentially very sinister" despite the lack of any reported post-traumatic amnesia. He agreed that the length of post-traumatic amnesia is normally the most reliable predictor of persistent sequelae of a closed head injury, but denied that it was the only predictor. In the plaintiff's case, he considered the rapid acceleration/deceleration forces on his cranium and its contents put him at risk of fronto-temporal damage. He hypothesised that the forces involved would have generated shearing forces on the white matter in the brain, being made up of axons (analogous to electrical cables), connecting to deep sub-cortical structures, which would have caused the axons to rupture.
Dr Canaris did not think that the plaintiff's presentation on 12 January 2005 was consistent with senile dementia Alzheimer type, but he did accept that he was, by virtue of his age, more vulnerable to benign senescent cognitive impairment, which may include forgetfulness, some slowing of thinking, increasing rigidity of mind set and the like. Dr Canaris considered the plaintiff's cognitive impairment as too severe to qualify as benign senescent forgetfulness, but believed it possible that his closed head injury may have aggravated benign senescent forgetfulness. On these bases he concluded it was quite possible that the plaintiff's organic brain syndrome may comprise contributions from both the normal ageing process and from the closed head injury.
Dr Canaris also considered the plaintiff's complaints of short term memory loss was highly consistent with organic brain syndrome. He also believed that any gap between the plaintiff's verbal and performance intelligence quotient ("IQ") was consistent with organic brain syndrome, rather than age‑related intellectual deterioration. The expectation with benign senescent cognitive impairment would be roughly uniform low performance and verbal IQ. He also considered a performance IQ of 82 would make it difficult for the plaintiff to function as a plumber, independent of any physical impairment.
Interestingly, Dr Canaris considered the plaintiff's attribution of the deterioration in his business to competition and not working for the right people was more than likely a rationalisation of his intellectual impairment that an accurate representation of the situation. He was not surprised that the plaintiff may be able to work in a limited way, but considered it would be difficult for him to deal with unfamiliar tasks or "tricky problems that every tradesman is likely to encounter in the day to day practice of his craft".
In summary, Dr Canaris concluded the plaintiff suffered from substantial sequelae, sustained as a result of a closed head injury, including problems with his memory, concentration, planning and visuo-special functioning.
Dr Canaris even expressed some doubts about the plaintiff's ability to manage any award of compensation and the complexities of giving instructions in the proceedings.
In cross-examination, Dr Canaris made it clear that he considered the plaintiff had a partial impairment of consciousness immediately following the collision. He considered the plaintiff to be a vague historian.
Dr Canaris did not consider the plaintiff had a depressive illness at the time he reviewed him.
Whilst Dr Canaris was unaware of the medical literature which suggested that Zoladex, which was used to treat the plaintiff's prostate cancer, could cause cognitive impairment, he nonetheless believed that it was unlikely to have caused any longstanding impairment in the plaintiff case ‑ the plaintiff having using Zoladex sometime well prior to his review by Dr Canaris. Dr Canaris did not accept that the medical literature in question did anymore than give cause for further investigation into the side effects of Zoladex on cognitive functioning.
Dr Canaris's view that the plaintiff had suffered a brain injury depended on his understanding that the collision occurred at high speed. He considered the plaintiff's partial loss of consciousness and his uninhibited angry and sarcastic reaction towards the defendant immediately after the collision to be consistent with a shearing injury to the neurons and axons. He did not accept that an injury of that kind would necessarily have been detected on examination by a medical practitioner in an emergency department of a major public hospital dealing regularly with road traffic trauma. In his view, the prediction of such an injury would require specialist knowledge and be more readily detected on neuro‑psychological testing than on the kind of standard examination conducted by medical practitioners, including psychiatrists. He did not think such an injury would be easily detected until the injured person had returned to their normal environment and begun to notice cognitive difficulties. He would expect difficulties of that kind to become apparent within a matter of days to weeks. He would consider it unusual for something of that nature not be reported until four and a half years after the injury.
In cross-examination, Dr Canaris also accepted that there were a number of possible alternative explanations for the plaintiff's mental deficiencies, including early Alzheimer's disease or other dementia, alcoholism, cognitive problems of developmental origin and cognitive dysfunction caused by depression and stroke. Whilst accepting that all of these alternative possible explanations for the plaintiff's cognitive dysfunction would have to be considered, Dr Canaris added that none of them, even if causative of the plaintiff's cognitive dysfunction, could exclude some of that cognitive dysfunction being attributable to the accident. Dr Canaris was reluctant to accept benign senescent cognitive impairment as a cause of the plaintiff's cognitive dysfunction, despite the plaintiff being of an age where such a condition would be more prevalent. However, he did accept that the plaintiff's cognitive dysfunction could be the result of one or more of the possible alternative explanations.
Significantly, Dr Canaris accepted that whether or not the accident made a substantial contribution would depend on whether it was a high speed collision of the kind described to him by the plaintiff.
In re-examination, Dr Canaris clarified his evidence in cross-examination on why he did not regard Zoladex as a cause of the plaintiff's cognitive dysfunction. He gave two reasons for his opinion. First, that the plaintiff was only on Zoladex for a very short period of time. Secondly, that a substantial proportion of patients who take Zoladex do not develop cognitive dysfunction. He was reinforced in his view by a comment made by a registrar in Radiation Oncology, Dr Viet Do, advising a Dr Testa on 24 November 1997 that the acute short term side effects of the Zoladex treatment had entirely settled down as had the toxicity associated with the hormonal manipulation.

Professor Kennett

Professor Kennett was called to give evidence on the plaintiff's behalf. He gave evidence to the following effect.
Professor Kennett was a clinical neuro-psychologist and rehabilitation and counselling psychologist. He had no medical training and no formal qualifications in neurology, neurosurgery or psychiatry. He described himself, in his resume, as an internationally recognised administrator, psychologist and educator and a specialist in various fields of studies, including developmental disabilities, thinking styles and creativity, family environments, clinical, educational, counselling and neurophysiology and teacher training.
Professor Kennett assessed the plaintiff on 2 September 2003 and, subsequently, on 12 December 2004.
Professor Kennett assessed the plaintiff's intelligence, memory, personality and adjustment and social activities. He administered the Weschler Adult Intelligence Scale-Revised (WAIS-R), Weschler Memory Scale Third Edition and Personal Assessment Inventory tests. The first test resulted in findings that the plaintiff had a verbal IQ of 105, a performance IQ of 82 and a full scale IQ of 95. His IQ was found to be in the average range, some five IQ points below the mean score of 100. Professor Kennett assessed the plaintiff's predicted pre-injury IQ as high to average (110-119 IQ range) or superior (120 plus IQ range). His estimation of pre-injury intellectual functioning was based on the plaintiff's reported levels of functioning prior to the accident, his reported lifetime of full employment, including the management of his own business, and the achievements of his siblings.
Professor Kennett considered the plaintiff had suffered a moderate to severe brain injury in the collision, caused by repeatedly striking the headrest and the steering wheel in the plaintiff's vehicle. He considered that this brain injury had reduced his intellectual functioning by one to one and half standard deviations below his predicted pre-injury level of intellectual functioning, with both verbal IQ and performance IQ significantly affected, with restrictions and limitation in functioning. He considered he had substantially limited memory function, with most primary indexes in the borderline or extremely low categories. His immediate memory was extremely low and dysfunctional. His delayed auditory recognition and delayed visual memory were also very low and his working memory was in the bottom end of the average range. He noted that the plaintiff had considerable difficulty in completing complex or high level attention tasks that stressed the ability to attend to information, hold and process it in memory and formulate a response based on that information. He noted that the plaintiff found complex and high level attention tasks frustrating, because of substantially reduced speed and limitation of response. He concluded that the plaintiff could not function at the same level of sound memory efficiency and was no longer at ease making decisions and could no longer demonstrate effectiveness and adaptive coping strategies, all of which were regular characteristics he had prior to the accident. He recorded that the plaintiff had extreme difficulty remembering newly learned information, after delays during which intervening cognitive activity occurred. His memory dysfunction was found to be in the severe range, reflecting substantially reduced intellectual function. He classified his severe memory dysfunction as being in the borderline and extremely low categories.
Professor Kennett also noted that the plaintiff had consistent problems of being unable to fluently and consistently initiate and organise his thoughts and work, as he once did, and in being sufficiently flexible in thought and effective in response patterns as a self employed plumber. He recorded the plaintiff's complaints of heightened anxiety and depressed mood and hypersensitivity to interpersonal interaction.
According to Professor Kennett, when he re‑tested the plaintiff using the same tests on the second assessment in 2004, the results continued to demonstrate substantially limited memory function, with all primary indexes still in the borderline to low average categories. There was some improvement in immediate auditory memory, but his immediate memory was worse. His improvement in auditory memory comprised improvement in immediate auditory memory, delayed auditory memory and delayed auditory recognition memory, with two of the three moving from borderline to low average. His working memory had worsened by 2004 to the low average category and his general memory remained extremely low. His memory dysfunction was found to be in the severe range.
In cross-examination, Professor Kennett reluctantly conceded, in a qualified way, that a neurologist would have more expertise to determine the cause of cognitive dysfunction.
In addition, he acknowledged that he had limited knowledge of dementia and Alzheimer's disease, because he did not treat them on a regular basis. He had not considered either as alternative causes of the plaintiff's cognitive dysfunction. Nor had he considered benign senescent cognitive impairment or cognitive dysfunction caused by alcoholism or depression as potential alternative causes of the plaintiff's cognitive dysfunction. He was not aware that the plaintiff had been treated with Zoladex and was not aware of its reported side effects and had not considered Zoladex as a potential cause.
Professor Kennett admitted that the reported period of loss of consciousness of five to seven minutes was a factor which he considered in arriving at his view about the severity of the plaintiff's head injury, but added that it was only one of a number of factors he had considered. He believed the plaintiff was unconscious for a short period of time. He also relied on the plaintiff's description of the accident and the rate of deceleration as other factors indicative of a severe brain injury having being suffered by the plaintiff. As he put it, the relevant factor was the force applied to the brain inside the skull.
When confronted in cross-examination with the plaintiff's own evidence about the jobs and positions actually held by his siblings, he withdrew from his position that the plaintiff was of superior intelligence, having an IQ of 120 plus, prior to the accident.
Professor Kennett also conceded that his assessment that the plaintiff could not function at the same level of sound memory was based ultimately on what the plaintiff had told him or others.
In cross-examination, Professor Kennett confirmed that his view that the plaintiff had suffered a severe injury in the accident was held because of his understanding that the plaintiff had hit his forehead on the steering wheel in a vehicle travelling at between 50 to 60 kilometres per hour. He subsequently added that severe brain injury could even be caused at lower speeds between 20 and 40 kilometres per hour. Whether the brain was injured or not would depend on the force of impact and the part of the head impacted. Professor Kennett considered the plaintiff could still suffer at least moderate brain damage even if didn't hit his head, because of the whiplash effect caused by the collision. Nonetheless, he accepted that it was less common for persons suffering low impact whiplash type injuries to sustain brain damage.
When it was put to Professor Kennett that if the collision involved a low speed impact of approximately 10 kilometres per hour, the plaintiff did not hit his head and there was no appreciable loss of consciousness, a brain injury was less likely, Professor Kennett maintained that it was still possible for the plaintiff to sustain a brain injury.

The plaintiff's own evidence of what he did on the day of the accident, immediately after it had occurred, is more consistent, relying on the preponderance of the relevant medical evidence, with someone not suffering from any significant brain injury rather than someone who was suffering from such an injury.
Whilst there were different opinions about whether or not some of the plaintiff's post-accident behaviour was consistent or inconsistent with him having suffered a brain injury, the preponderance of the specifically relevant medical evidence on this issue is to the effect that his immediate post-accident behaviour was rational.
Even allowing for these differences of opinion, the existence of these two indicators leads me to conclude that the plaintiff did not suffer any, or any significant or permanent brain injury in the collision. I find accordingly.
The plaintiff contends that for some time he has had difficulties with his short term memory, concentration and organisational skills. I accept that this is the case. These cognitive deficits or cognitive dysfunction is expanded on in the evidence of Professor Kennett and the neurologists and psychiatrists who have reviewed him. There seems little doubt that the plaintiff has, for some time, had these cognitive deficits. By his own admission, they are worsening over time.
The plaintiff attributes them to the whiplash movement of his head immediately prior to and during, and striking his head on the steering wheel in, the collision. The defendant contends that these cognitive deficits were not caused in the accident, and could not have been without any significant brain injury. The defendant has pointed to a number of potential alternative causes for these cognitive deficits in the evidence during the course of the trial. She did so, presumably, to satisfy the evidentiary onus on her and to demonstrate that the plaintiff had not discharged the onus of proving that he had suffered a significant brain injury caused by the collision.
The preponderance of the specifically relevant medical evidence was to the effect that the existence of the plaintiff's cognitive deficits did not necessarily implicate the collision as a cause. To put it another way, the mere existence of these cognitive deficits did not prove that they were caused by the collision. Whether or not they were caused by the collision would depend on whether or not any significant brain injury was suffered in the collision.
The plaintiff contended that the relevant cognitive deficits were not present before the accident and that there were no plausible alternative causes for them. He also contended that he had suffered a significant brain injury in the accident. I have already found that he did not.
The defendant contended that there was evidence of the existence of these cognitive deficits prior to the accident.
Specifically, the defendant contended that the plaintiff had learning difficulties at school and, thereafter, in obtaining his trade qualifications. The plaintiff admitted that he was a slow learner at school and had some learning difficulties. I have considered this evidence and the entirety of the contents of exhibit P16, which I have read, carefully. Whilst I am mindful of Professor Kennett's view on this subject, I am swayed by the plaintiff's own admissions about his pre‑accident learning difficulties. Accordingly, I find that the plaintiff did have learning and cognitive difficulties which pre-dated the accident.
On the basis that the plaintiff's own assessment is that his cognitive deficits are worsening with time, I find that to be the case.
The defendant relied heavily on the evidence of Dr Terace to put forward a number of alternative explanations for the plaintiff's cognitive deficits. I have had regard to each of those alternatives in the context of the whole of the evidence.
I am not satisfied that the plaintiff's cognitive deficits were caused by alcoholism, Zoladex, depression, any para-neoplastic condition, secondary tumours in the brain, stroke like events or cerebral-vascular disease.
The evidence that they were caused by alcoholism relies entirely on a referral by Dr Martin to Dr Naidoo for treatment of alcoholism. Absent any other evidence, there is no sufficient basis on which to conclude that the plaintiff suffered from alcoholism to such a degree as to cause the cognitive deficits.
Nor is there sufficient evidence on which to find that the plaintiff's treatment with Zoladex, during the currency of his prostate cancer, was the cause of the cognitive deficits. At its highest, the evidence only indicates that he suffered from depression for some transient period while being treated with that drug and Flutamide. There is certainly no evidence of any ongoing effect in the plaintiff.
The evidence that the plaintiff was depressed does exist. There is evidence that he suffered occasional depression as a result of having to cope with some physical symptoms in and around his spine, shoulders and arms, during the currency of his prostate cancer, after the break down of one of his relationships, the dissolution of his marriage, the break down of his relationships with other members of his family and with his lot in life. However, these episodes appear to have been transient and did not always appear to require treatment.
There is no evidence that the plaintiff suffers from any para‑neoplastic condition, secondary tumours in the brain, has had a stroke like event or cerebral vascular disease. Absent any evidence of that kind I am not prepared to find that his cognitive deficits could have been caused by any of these factors.
It is not of course for the defendant to prove that the cognitive deficits were caused by something other than the alleged brain injury. The defendant bears an evidentiary onus only: Purkess v Crittenden (1965) 114 CLR 164 at 168 per Barwick CJ, Kitto and Taylor JJ, and see also at 170 – 171 per Windeyer J and Western Australia v Watson [1990] WAR 248 (FC) at 311.
Therefore, to the extent that it is necessary to make any findings about the likely cause of the cognitive deficits, I conclude that it is more probable than not that these cognitive deficits are cognitive problems of developmental origin or were caused by age, senescence or other dementia or a combination of these factors. I am supported in my conclusion by the evidence of Dr Gubbay and Dr Terace. I also note that the specifically relevant medical evidence led by the plaintiff is not necessarily inconsistent with these conclusions.
The plaintiff also claims that he suffered a whiplash injury in the accident, which has left him with some permanent disabilities. I have also given careful consideration to the entirety of the evidence on this issue.
The medical evidence demonstrates that the plaintiff had long standing degenerative changes in his spine prior to the accident, which were consistent with his age and his occupation as a plumber, who was sometimes involved in heavy manual labour.
The plaintiff's evidence is that apart from one episode which occurred in December 1995, he had no disabling symptoms referrable to his spine prior to the accident. The evidence from Dr Martin's clinical file and from the plaintiff himself is to the effect that the symptoms which the plaintiff suffered in December 1995 resolved after about a week or so. There is no contradictory evidence. The preponderance of the medical evidence is also to the effect that degenerative changes of the kind evident in the plaintiff's spine prior to the accident can be asymptomatic. The preponderance of all of the evidence is also that, apart from the one episode in December 1995, the plaintiff did not have any disabling symptoms referrable to his spine prior to the accident. Absent any contradictory evidence, I find that any disabling spinal‑related symptoms suffered by the plaintiff following the accident were not caused or contributed to by the cause of the spinal symptoms in December 1995.
The plaintiff has given varying accounts of his spinal symptoms and disabilities to different medical practitioners at different times. In my view, the plaintiff is and has for some time been a poor historian. He has also demonstrated a reluctance to be candid about his prostate cancer and its effects on him, and his work history, both prior to and after the accident.
It is apparent to me from the evidence that the plaintiff's lack of candour about his prostate cancer and its effects on him with various medical practitioners who have examined him over time, is probably the result of some embarrassment about its effects on him. It is something he would probably rather forget.
The plaintiff's lack of candour about his pre-accident work history and his post-accident work history is also, in my view, largely due to his embarrassment about not being as successful as he would have liked to have been as a self-employed plumber.
I do not regard the plaintiff's lack of candour about either matter as indicating any greater overall level of dishonesty pervading all other aspects of his evidence.
In my view, his varying accounts of his symptoms to various medical practitioners over time are, for the most part, due to him being a poor historian which is, in my view, for the most part due to the worsening of his cognitive deficits. I find accordingly.
The plaintiff contends that he suffered a soft tissue injury to his upper spine in the accident. His evidence was that he suffered pain and stiffness in his neck, shoulders and arms, with parasthesiae radiating down the arms to his thumb, middle, ring and index fingers at the time of the collision and for some time thereafter. He also contends that the pain and stiffness in his neck radiated down his spine as far as his lower back. He explains his failure to seek medical attention from his general practitioner until four and a half months after the accident on the basis that he was content to treat himself in the hope that his symptoms would dissipate over time. Ultimately, that did not occur. According to the plaintiff, it was when it became apparent to him that his symptoms would not dissipate over time that he sought medical attention. Contrary to Dr Martin's clinical file, the plaintiff contends that he consulted Dr Martin on a fairly regular basis after his initial attendances on 24 and 27 September 2006.
The plaintiff's case is that he has since the accident been unable to perform the heavier manual duties required of a plumber and has thereby suffered a loss of earnings and a diminution in his future earning capacity. He also contends that the symptoms which he has suffered from since the accident have pervaded his enjoyment of his life, including his levels of physical activity, social interaction and ability to care for himself.
The defendant, on the other hand, contends that the plaintiff either suffered no physical injury in the accident or a minor soft tissue injury to his neck which has long since resolved, and that the symptoms from which the plaintiff now suffers and has suffered for some time, have been caused by the long standing and pre-existing degenerative disease in his spine, consistent with his age and occupational history. In short, any disabling symptoms have not been caused by the accident and/or have not, for some time, been caused by any physical injury suffered in the accident ("the defendant's pre‑existing condition argument").
Counsel for the plaintiff urged me to accept that the plaintiff has taken a stoical approach to his injuries and is not someone who would readily complain and, therefore, is not someone who would be prone to seek medical assistance if he thought he could overcome his injuries without it. Having carefully observed the plaintiff during the occasions on which he gave his evidence, I accept that he is someone who would take a stoical approach to his injuries and that he did so. I accept that he did not seek out medical attention until late September 1996, because he thought he could treat himself. However, the fact that he sought medical assistance in December 1995 for not too dissimilar symptoms, and did not seek it until about five months after the accident for treatment of symptoms which he says he has suffered from since the day of the accident is, in my view, some indication of the severity of those symptoms during that period of time.
On balance, I find that the plaintiff suffered a soft tissue whiplash injury to his upper spine in the accident, which aggravated and rendered symptomatic pre‑existing (but asymptomatic) degenerative changes in his spine. This injury has caused pain and stiffness radiating down as far as his lower spine, into his shoulders and down his arms and hands, causing occasional parathesia down his arms and into his thumb, middle, ring and index fingers ("the injury").
I now turn to consider the issue of whether or not the injury and the resultant symptoms resolved over time and if so, when that occurred.
As I have already found, the plaintiff did not seek medical attention until about five months after the accident. When the injury was treated, it was treated with physiotherapy at the West Mead Hospital, which gave temporary relief, and anti-inflammatory and pain relieving medication. The initial physiotherapy was provided by the West Mead Hospital between 10 October and 5 November 1996.
The plaintiff then did not see Dr Martin again about the injury until 5 December 1997. I do not accept the plaintiff's evidence about being examined by Dr Martin on numerous occasions in the interim. It is not borne out by Dr Martin's notes and I am aware of no satisfactory explanation as to why Dr Martin was not called to confirm that aspect of the plaintiff's evidence. The symptoms related to Dr Martin on 5 December 1997 were not very different to those related on the previously recorded occasion on which he saw him about his injury. The plaintiff was referred for further physiotherapy, which occurred on 8 December 1997. He continued to take anti-inflammatory and pain killing medication. In addition to his medication and physiotherapy, the plaintiff undertook an exercise program to help alleviate his symptoms.
On the whole, the plaintiff has been relatively consistent in his descriptions of the symptoms arising from and related to his physical injury. The nature of the treatment for the injury and its resultant symptoms has also been relatively consistent over time.
I do not accept the defendant's pre-existing condition argument: Watts v Rake (1960) 108 CLR 158 at 160 per Dixon CJ and Purkess v Crittenden (op.cit.) at 168 and 170 – 171.
The symptoms from which the plaintiff has intermittently suffered since the accident are headaches, pain, stiffness and restriction of movement in his neck, back, shoulders and arms and numbness extending down his arms to his thumb, middle, ring and index fingers, all of varying duration and intensity, causing irritability, loss of patience, difficulty sleeping and difficulty standing or sitting for too long. I find accordingly.
The plaintiff has had no surgery for the injury and, on balance, there is little prospect that any surgery will be required in the foreseeable future. I find accordingly.
The treatment for the injury has essentially been conservative in nature and has consisted of intermittent physiotherapy, anti-inflammatory and pain relieving medications, liniments and exercises. There would appear to be some ongoing, but intermittent, need for similar treatment in the future. I find accordingly.
The plaintiff has described a lessening of his symptoms over time. The preponderance of the medical evidence is, nonetheless, to the effect that the plaintiff's physical condition precludes him from undertaking certain types of manual labour. More specifically, it is to the effect that he should not return to work as a plumber, where that work involves heavy lifting or repetitive bending, standing or sitting for long periods of times, work on ladders or in confined spaces. I accept this evidence and find accordingly.
I accept that the injury, which has produced symptoms of the kind in respect of which I have made findings, has been disabling.
The conservative and intermittent nature of the plaintiff's past, present and foreseeable treatment for the injury and its symptoms is a good indication of its severity and extent to which the symptoms have interfered with his daily life.
It is evident from the plaintiff's own evidence that he has, and has for some time, been able to care for himself, notwithstanding the injury and its symptoms. The only time when the plaintiff was not able to do so was when he was suffering from prostate cancer. I do not accept that the injury caused or contributed to that need for gratuitous assistance.

Assessment of damages

The injury was not insignificant. It produced symptoms of pain, stiffness and restriction of movement in his neck, back, shoulders, arms and hands, associated with numbness and tingling down the arms as far as the thumb, middle, ring and index fingers on each hand. It has inconvenienced him in his daily activities and has required intermittent, but largely conservative treatment. The plaintiff's symptoms have persisted, albeit that there has been some lessening of those symptoms over time.
In the circumstances, a modest assessment of damages is appropriate for non‑pecuniary loss. I consider it appropriate to assess that as 11 per cent of a worst case, resulting in an award of $16,690.
In the period ending 30 June 1993 to 30 June 1996, the plaintiff's average annual taxable income from personal exertion was $6,814. He was occasionally paid as an employee during that period. In the same period, the income derived from his own business was $160, which was in the financial year ending 30 June 1993. He earned no income in his own business for any of the subsequent financial years in that period. In the year ending 30 June 1997, his income from work as an employee was $1,332. In that same year, he earned no income from his own business and did not commence earning any income from his own business until the financial year ending 30 June 2000, over three years after the accident. In that year he earned $2,409 in his own business. In the following year ending 30 June 2001, he earned $3,193 in his own business. He then earned no income from his own business until the year ending 30 June 2004, when he earned $4,001. In the year following that and ending 30 June 2005, he earned $1,187 from his own business.
The plaintiff's claim for past economic loss and loss of future earning capacity is made on the basis that the injury suffered by him in the accident and its sequelae were productive of past economic loss and loss of future earning capacity as a self-employed plumber. The evidence quite clearly demonstrates that the plaintiff was not earning very much at all as a self-employed plumber for some years prior to the accident. That situation largely continued to be the case in the period immediately after his accident. His average annual earnings in that period up to the year ending 30 June 2005 were $1,347.
Notwithstanding the plaintiff's assertion that he would continue working well beyond the normal retirement age of 65, his past earnings, both before and after the accident, are very modest and I conclude more likely the result of his advancing age and a commensurate reduction in his ability to earn a living as a plumber. I am not satisfied that the injury suffered by the plaintiff in the accident was actually productive of economic loss of the type alleged: Graham v Baker (1961) 106 CLR 340. In my view, the plaintiff was very much in the twilight of his working career as a plumber prior to the accident and this is the true explanation for the level of his earnings both prior to and after the accident. At best, the plaintiff's injury and his resultant disability has resulted in the loss of a chance that he may have obtained some similar work at a similar level of remuneration in the future. On that basis, a modest notional award of $5,000 is appropriate for loss of future earning capacity. I have allowed for contingencies in arriving at this sum. I make no award for past economic loss on the basis that none has been satisfactorily demonstrated.

On the basis that the plaintiff was self-employed prior to the accident and since, I make no award for loss of superannuation benefits.
As to the plaintiff's claim for past and future gratuitous services, the evidence demonstrates only that the plaintiff was in need of gratuitous assistance during the period that he was suffering from prostate cancer. The plaintiff's prostate cancer was not caused by the accident. The plaintiff's evidence is otherwise to the effect that he has since the accident and presently, leaving the period during which he was suffering from prostate cancer to one side, been able to care for himself. Therefore, I am not satisfied that the plaintiff's injury has resulted in any need for gratuitous care or assistance in the past or will result in any need for future care or assistance. Accordingly, I make no award for past or future gratuitous services.
The plaintiff and the defendant provided me with a consent schedule of agreed past out of pocket expenses with agreed rates dated 21 March 2006. In that schedule a number of matters were agreed. Relevantly, it was agreed between the parties that if the plaintiff was found to have suffered a whiplash injury in the accident, which has persisted to 12 May 2003, there should be an award for past medical expenses in the combined sum of $1,401.90. It was also agreed and set out in the schedule that if there was a finding of a whiplash injury, the sum of $300 should be awarded for chemist's expenses and $200 for travelling expenses. In addition, medical expenses in the sum of $8,530.46 have been paid on behalf of the plaintiff and that sum has also been agreed. On the basis of the agreement between the parties and my findings, I award the combined sum of $10,432.36. I also award interest on the sum of $1,401.90 for accounts between the period 5 December 1997 to about 12 May 2003, amounting to the sum of $42.05.
The plaintiff will have an ongoing need for intermittent physiotherapy, medications and liniments. Doing the best I can on the available evidence, I award the plaintiff the sum of $5,000 for future medical treatment.

Summary

In summary, I find the plaintiff's claim against the defendant proven and award the plaintiff damages of $37,164.41, made up in the following manner:
Pain, suffering, inconvenience and                  16,690.00
loss of enjoyment of life
Loss of future earning capacity  5,000.00
Past medical expenses  1,401.90
Pharmaceutical expenses  300.00
Travelling expenses  200.00
Past medical expenses  8,530.46
Interest for accounts between period
5 December 1997 to about 12 May 2004                42.05
Future medical expenses  5,000.00
Total  $37,164.41