Halloran v Van Der Velde - [2010] WADC 63

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: HALLORAN -v- VAN DER VELDE [2010] WADC 63

CORAM: STAUDE DCJ

HEARD: 8, 9, 10, 11 & 15 MARCH 2010

DELIVERED : 5 MAY 2010

FILE NO/S: CIV 821 of 2007

BETWEEN: KEVIN GREGORY HALLORAN
Plaintiff
AND
HENDRIK JAN VAN DER VELDE
Defendant

Catchwords:

Personal injuries - Motor vehicle crash - Assessment of damages - Causation of injuries - Loss of earning capacity - Retained capacity - Income protection insurance benefits

Legislation:

Nil

Result:

Plaintiff awarded damages of $566,800.00

Representation:

Counsel:

Plaintiff: Mr D R Clyne
Defendant: Mr J Brooksby

Solicitors:

Plaintiff: Simon Walters
Defendant: WHL Legal Pty Ltd

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

Bradburn v Great Western Railway Co (1874) LR10Exch 1
Graham v Baker (1961) 106 CLR 340
Husher v Husher (1999) 197 CLR 138
Insurance Commission of Western Australia v Kightly (2005) 30 WAR 380
National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569
Richards v Mills (2003) 27 WAR 200
Thomas v O'Shea (1988) 7 MVR 569; (1989) Aust Torts Reports 80-251

STAUDE DCJ:

Introduction

The plaintiff claims damages for personal injuries sustained in a motor vehicle crash that occurred on 5 May 2005 at the intersection of Francisco Street and Kooyong Road, Rivervale. The plaintiff was driving a Ford sedan which was struck on the passenger side by a vehicle driven by the defendant who had failed to give way. The defendant admits liability for the crash and his counsel conceded that it involved substantial force.
The plaintiff was born on 23 December 1960. At the date of the crash he was aged 44 years and was married with three young daughters. He is now 49. For over 10 years prior to the crash he worked as a technician for RCR Tomlinson in a steel heat treatment factory.

Issues

The statement of claim alleges that the plaintiff suffered multiple injuries as follows:
"In the … accident the plaintiff sustained strain injuries to the cervical, thoracic and lumbar spine, both scapulars, a fracture of the C6 vertebrae (sic), a prolapsed disc at the C6/C7 and the right arm (sic) which injuries produced:
(a)pain, stiffness and tenderness of the cervical, thoracic and lumbar spine, both scapulars and the right arm;
(b)limitation of movements of the cervical, thoracic and lumbar spine, both scapular (sic) and the right arm;
(c)pins and needles of the right arm including right arm paraesthesia;
(d)depression;
(e)mood changes;
(f)fatigue; and
(g)headaches and discomfort together with sleep disturbance."
The defendant admits that the plaintiff suffered a neck sprain as a result of the crash, but otherwise denies the allegations of injury, loss and damage pleaded in the statement of claim, contending, in the alternative, that if the plaintiff did suffer loss and damage as alleged it was due to factors unrelated to the crash. Those matters were pleaded in par 4 of the defence as follows:
"(a)pre-existing psychiatric problems;
(b)a pre-existing knee injury;
(c)the onset of neck and right shoulder pain in or about November 2005 which condition is not related to the accident;
(d)the onset of severe lower back pain in or about mid‑2006 which condition is not related to the accident;
(e)excessive alcohol consumption;
(f)addiction of (sic) cannabis;
(g)addiction to narcotic preparation;
(h)overdosing of narcotic preparations requiring hospitalisation;
(i)stresses generated by his social circumstances."
It is a matter of concern that neither the statement of claim nor the defence was amended prior to trial to delete allegations of fact which were not able to be proved. With respect to the statement of claim, there was no evidence of a fracture of the C6 vertebra. As to the defence, there was no evidence led to support the allegations that the plaintiff's alleged loss and damage was due to the causes pleaded in pars 4(b), (e), (f), (g) or (h). It behoves counsel, who are required by r 44(3)(a) of the District Court Rules 2005 to certify that the pleadings adequately define all the issues of fact or law that their client contends will need to be determined at trial, to do so with due care and attention. The pleadings should accurately and precisely define the factual issues. In this case they did not do so.
Defective pleadings notwithstanding, from the evidence and the submissions on behalf of the parties, I understand the main issues to be:
(1)What injury was suffered by the plaintiff as a result of the crash?
(2)What has been the course and effect of such injury over the last five years since the crash?
(3)To what extent, if any, have the plaintiff's alleged symptoms and disabilities been contributed to by the plaintiff's admitted pre‑existing psychological problems?
(4)Were the plaintiff's acute neck and right upper-limb symptoms with which he presented on 26 November 2005, and which were diagnosed as being due to a disc protrusion at C6/C7, causally related to any injury resulting from the crash?
(5)Was the episode of acute pain symptoms for which the plaintiff was admitted to St John of God Hospital Murdoch on 27 June 2006 causally related to any injury resulting from the crash?
(6)To the extent that the plaintiff has been incapacitated for work due to crash-caused symptoms and disabilities, what is the measure of his past loss of earning capacity and to what extent is he likely to suffer loss in the future?
(7)What need does the plaintiff have for ongoing treatment and medication in respect of the effects of any crash-related injury?
(8)Should the plaintiff's income protection insurance benefits, in respect of which the insurer has exercised a right of subrogation, be taken into account in the assessment of economic loss?
The determination of the first seven issues requires careful consideration of the plaintiff's evidence, his documented medical history before and after the crash and the opinions of the various medical practitioners who have been involved in the plaintiff's treatment or asked to make independent assessments.
In this context I note that a good deal of the medical evidence was adduced in documentary form without the authors of various reports and clinical notes being called. This was all done by consent. Such evidence I propose to treat as having been admitted pursuant to s 79C of Evidence Act 1906 with due regard to the provisions of s 79D dealing with the weight and effect of such evidence.

Pre-existing medical condition

The plaintiff gave evidence that he regularly consumed alcohol prior to the crash but never required time off work for any alcohol-related illness. He also said that from a time after the birth of his first child in 1995 he developed psychological problems for which he was eventually treated at Bentley Health Service ("Bentley") from about 2002. He said he experienced depression and anxiety which he attributed to abuse he suffered as a child.
A number of matters were put to him with reference to the Bentley clinical records (Exhibit 1). Of some of these the plaintiff had little or no recollection. The clinical records reveal that the plaintiff was referred by a psychologist, Ms Penelope Boyle, on 26 June 2002 for an assessment and treatment of a depressive disorder. From 23 July 2002 the plaintiff attended regularly for psychiatric treatment at Bentley until 9 January 2007 by which time he was separated from his wife but seeing his children daily. The plaintiff's treatment up to 29 April 2004 is set out in a treatment summary of that date by Ms Gemma Brajkovich, clinical psychologist, which stated:
"Kevin's self reports, obtained from his responses on the brief symptom inventory (BSI), suggest notable change over treatment duration. The BSI was initially administered on 14 October 2002. At this time he was elevated on the somatization, interpersonal sensitivity, depression, anxiety, hostility, phobic, paranoid ideation and psychotic symptoms scales. At the time of treatment termination (administered 230404) he was not elevated on any scales. In correspondence with this, Kevin stated that he is very satisfied with treatment gains to date."
The notes reveal that he continued thereafter to have treatment, mainly in the form of Mirtazapine, an anti‑depressant and anxiolytic medication. He was also prescribed Cialis for sexual dysfunction. His treatment was supplemented with Reboxetine from January 2005. On 14 February 2005 he was reported as feeling how he used to feel prior to the onset of his difficulties. His colleagues had reported that he seemed much better. Mirtazapine was ceased. He later reported some withdrawal symptoms that lasted temporarily. There was reference to him nearly having an accident at work but nothing to indicate any other difficulty in terms of his work.
On 3 March 2005 the plaintiff described his main problem as difficulty sleeping. He reported a lot of benefit from Reboxetine. He had stopped smoking and drinking, although the notes suggest that he said he required three bourbons to get to sleep. The plaintiff disputed that he ever drank bourbon. That issue cannot be resolved on the available evidence.
Prior to the crash the plaintiff was last seen by the clinical psychologist at Bentley on 30 March 2005 when he indicated that psychological input was not required.
The plaintiff's general practitioner's notes were also put in evidence (Exhibit 5). These record that from September 1999 he mainly presented with depression. There is nothing in the clinical records to indicate any pre‑accident history of spinal problems of any kind. This history was confirmed by Dr Shiong Tan in evidence. No issue of substance was taken by the plaintiff with respect to his documented medical history.
On the evidence available in relation to the plaintiff's pre‑accident medical history I conclude that he had no relevant pre‑existing pain state, but did have a chronic psychological disturbance with symptoms of depression and anxiety which were treated with medication and counselling. There was associated substance abuse.
Although these problems impacted on his family life and personal wellbeing, they did not affect his capacity to work. This was confirmed in evidence by Mr Greg Harris who was the operations manager at RCR Tomlinson during the period of the plaintiff's employment prior to the crash. As far as his pre‑crash capacity to work is concerned, I find that the plaintiff was a skilled and experienced technician who was highly valued by his employer. The plaintiff's work was very important to him.

Aftermath of crash

The plaintiff gave evidence that at the time of the crash he was on his way to pick up his daughters from school. He was knocked sideways into the driver's door by the impact of the defendant's vehicle. He was given a lift to the school by a person who stopped at the scene of the crash and later took his daughters home by taxi. He lost no time from work, but over the next few days began to suffer increased pain and stiffness in his neck, back and head. He said he tried to see his general practitioner, Dr Tan, but could not get an appointment.
According to the Bentley records, on 11 May 2005 the plaintiff's wife rang the duty officer indicating her concern for the plaintiff whom she described as not sleeping very well and being irritated and frustrated at times. When telephoned on that day the plaintiff indicated that he was continuing to attend work, but was only sleeping three to four hours per night. He was contacted by telephone on 13 and 17 May 2005. He failed to attend an appointment made on 9 June 2005. The plaintiff did not have a clear memory of these events but did not dispute the clinical records.
On 18 May 2005 he saw a Dr Helen Lu who suspected a fracture at the C6/C7 level and referred him for x‑ray. She also prescribed a collar. An x‑ray report by Dr Emmeline Lee to Dr Lu dated 18 May 2005 stated "likely stable fracture of the supero‑anterior aspect of the C6 vertebral body, with no evidence of retro‑pulsion", and suggested a CT scan to confirm this appearance.
The plaintiff was referred to the Royal Perth Hospital Spinal Unit at Shenton Park and was seen by Dr Ben Jeffcote, surgical registrar to Mr Philip Hardcastle, on 30 May 2005. Dr Jeffcote reported that the CT scan showed normal alignment of the cervical vertebrae with no visible fracture. An observed abnormality on the anterior aspect of C6 was an osteophyte. The plaintiff had been taking Panadeine Forte, Tramadol and Naprosyn for neck pain. He had tenderness over the C6/7 area and globally restricted movement of the neck to about 60 per cent of normal range. There were no neurological signs.
Dr Jeffcote stated that in his opinion there was no major injury to the bones, ligaments, discs or nerve roots in the plaintiff's neck and that he did not need to wear a cervical collar. He suggested that he reduce his painkilling medication, but continue taking anti‑inflammatories. He recommended further physiotherapy and a return‑to‑work in one week on light duties.
According to the patient records of Fulham General Practice (Exhibit 5) the plaintiff, when seen on 9 June 2005, reported occipital pain and pain in the dorsum of the neck and upper thoracic vertebrae. There was no radicular pain in the arms. A bone scan on 14 June 2005 showed no signs of recent fracture but suggested mild degenerative disease.
On 23 June 2005 Dr Douglas Cordell noted an exacerbation of pain in the right shoulder. The plaintiff was then seen by Dr Tan on 28 June 2005 when he reported pain in the neck and upper shoulder region, radiating to the lower back and buttock area. On 6 July 2005 the plaintiff's complaints were noted as "neck pain slowly improving", and "headaches … gradually diminishing". On 12 July 2005 the notes indicate that the plaintiff's neck pain was gradually resolving, but he was still having gentle physiotherapy. He wanted to return to work the following week and was cleared for a "careful return to work".
During the time he was off work the plaintiff was paid benefits assessed at 85 per cent of his average pre‑accident earnings pursuant to an injury and sickness insurance policy issued by Guardian Underwriting Services Pty Ltd (Exhibit 11). The effect of the receipt of these benefits upon his claim for damages will be dealt with later in these reasons.

Return to full‑time work: July to November 2005

The plaintiff returned to work on 18 July 2005 working eight hours a day on light duties as a leading hand heat treatment technician. The factory treated heavy steel equipment for industrial use. Although the plaintiff possessed a good deal of technical knowledge and skill which, according to Mr Harris, made him a very valuable employee, his normal duties also required him to engage in physical activities of a reasonably heavy nature. Some items up to 40 kilograms in weight he would move manually. Others required forklifts and cranes. He had to drag chains. There was a lot of loading and unloading of ovens.
He normally started work at 2.00 am and finished at 2.00 pm (dayshift), sometimes working back until 4.00 pm and occasionally working 16 hours days. Mr Harris described the plaintiff's work performance as very good. He said he supervised his shifts well and worked safely. There were no issues with his performance. He had never failed any of the drug and alcohol tests that were randomly conducted in the workplace. Mr Harris stated that the plaintiff's activities when he returned to work in July 2005 were restricted, particularly with respect to lifting.
It was put to the plaintiff that the history recited in Dr John Kagi's medical report of 5 December 2005 was that he effectively returned to his normal duties. The plaintiff disputed this and gave evidence that he needed help from others to get his work done. The plaintiff's evidence was corroborated by that of Mr Harris and I accept it.
The plaintiff next attended Bentley on 18 August 2005 when he described himself as "good". He was continuing to take Reboxetine. He was also smoking cannabis. He described having had a motor vehicle accident and having been off work and undergoing physiotherapy. He reported ongoing marital issues at that time. On 23 August 2005 Dr Tan noted that the plaintiff was having physiotherapy three times a week. He prescribed Tramal and Cipramil.
The plaintiff was next seen on 13 September 2005 when he was still having physiotherapy. His pain continued but he did not wish to increase his dosage of Tramal. A trial of Mersyndol Forte was suggested. The plaintiff saw Dr Tan on 20 September 2005 and reported that Tramal had not been effective.
On 12 October 2005 the plaintiff reported that his pain escalated when he did not take medication. At that stage he was prescribed codeine and doxylamine. A week later on 20 October 2005, Dr Tan reported that the plaintiff was suffering severe pain in the upper back, localised in the inter‑scapular region. There was no radicular pain. Dr Tan described severe symptoms, musculo‑skeletal in origin. Neck movements were intact. The plaintiff had tender trigger points across multiple upper thoracic muscle groups. Dr Tan noted a long discussion regarding pain management. He prescribed Indocid suppositories for pain relief.
On 31 October 2005 Dr Tan reported persisting neck pain and headaches. Lower back pain, previously noted on 28 June 2005, had improved by 50 per cent.
When seen on 16 November 2005 the plaintiff appeared to be well with no evidence of depression or elevated mood, but he was still suffering "whiplash" from the crash and was undergoing physiotherapy three times per week. He was taking pain relieving medication as well as Reboxetine.
The plaintiff said in evidence that he had not wished to return to work in July, but was advised by his doctors to do so. He did mainly supervisory work and worked for eight hours a day. This continued for two to three months during which time he continued to have physiotherapy. He described his work as "just telling people what to do, just keeping an eye on things, [making] sure that things were done properly". He avoided driving a forklift. He said he was taking 10 codeine tablets per day. These made him feel tired and affected his memory. On occasion he forgot to switch on a machine which could have caused an accident.

Diagnosis of disc protrusion at C6/C7

On 26 November 2005 the plaintiff saw Dr Timothy Chappell who noted a history of chronic pain following an accident. The notes read:
"Now back at work – in an engineering shop – heat treatment plant. Was a lot better on the Endep and tried to do some shovelling. It made him a lot worse. Pain down the left arm and in the neck. Hand has some paresthesia. O/E looks depressed. In pain. Tight in the upper trapezius. Limited extension in the neck. Flexion OK. Minimal rotation (this has always been the problem). Trial of sling."
On 29 November 2005:
"Long history. Flare in chronic neck pains in last week when he was shovelling in garden. Has been in excruciating pains. Taking lots of analgesia. Increasing dose by self. Has been to physio. Seeing physio today. Physio has comment on facet joint not looking right, but has had CT post and this apparently didn't show anything. Has been getting intermittent pains down arm. Nil pains now. Looks depressed. Neck reduced ROM. Apparently extension less than before. Neuro UL nad. Pains over right trapezius area.
Script Panadeine Forte (requesting). Indocid. Discussed use and maximal qualities. See Dr Chappell. Physio. Hot packs."
On 30 November 2005 Dr Chappell wrote:
"I was not really understood him (sic) that this is a new problem and not going away. He was digging in the garden – pain in the left neck and going down the right arm. Looks sore but more motivated in his spirits. Needs CT scan and review. To continue on Panadeine Forte."

The plaintiff underwent a CT scan of the neck on 1 December 2005 which was reported by Dr Martin Blake as indicating a disc protrusion at C6/7 likely to be impinging on the exiting C7 nerve root.
On the same day the plaintiff saw Dr John Kagi, orthopaedic consultant, at the request of the Insurance Commission of Western Australia. The plaintiff described a recent exacerbation of pain in his neck, shoulders and right arm with pain and tingling and pins and needles in the fingers of his right hand. He had stopped work that week and was undergoing further investigations. Dr Kagi's opinion was that the plaintiff had suffered a sprain of the cervical spine, complicated by the development of a cervical radiculopathy or intravertebral disc injury which rendered him totally unfit for work (Exhibit 7, p 4).
The plaintiff attended Dr Chappell on 6 and 8 December 2005. The notes state that the pain he had recently experienced was not new but an exacerbation of a pre-existing problem. His neck was a lot better and there was no tingling in his arms. He was much better than he had been before. The recommendation was for three weeks off work. On the following day (9 December), however, the plaintiff telephoned the surgery and advised that he had woken up with agonising pain and that Panadeine Forte was not helping. He was prescribed MS Contin, an opiate medication.
The Bentley notes indicate that on 19 December 2005 the plaintiff reported neck and shoulder pain.
On 5 January 2006, the plaintiff reported that his arm pain had resolved but he still had occipital headache. The notes indicate that he asked for more time off work. Dr Chappell did not consider this was a good idea. Nevertheless, the plaintiff remained off work and on 16 January 2006 was referred to see Mr Eamonn McCloskey, spinal surgeon, who reported on 8 February 2006 (Exhibit 1, p 86) that the plaintiff had developed severe right arm pain in November 2005 which had settled. Indications at that time were of a possible disc prolapse at C6/7. The plaintiff's major symptom was neck pain radiating into the trapezius muscles bilaterally with associated headaches. Medications were only minimally effective. The plaintiff had decreased his activities to help his symptoms. There were no neurological symptoms in his limbs but there was a global loss of movement of the cervical spine and defuse tenderness to palpation over the posterior cervical musculature.
According to Mr McCloskey there was no serious or significant pathology on examination. A small disc prolapse would account for the right arm symptoms, but no surgery was indicated and symptoms were expected to continue to improve.

Return to work: February – June 2006

Dr Tan certified the plaintiff fit to do four hours work per day from 13 February 2006. At that time he noted that his depression was under control. Pain management was recommended.
On 21 April 2006, the plaintiff was seen by Mr Peter Bath, orthopaedic surgeon, apparently at the request of the income protection insurer (Exhibit 10, p 1). Mr Bath noted that the plaintiff had been working four hours per day since 13 February 2006. He was doing physiotherapy exercises at home. He had ceased taking morphine but was taking 10 codeine tablets per day. According to the history taken by Mr Bath the plaintiff had lost approximately 10 kilograms in weight.
Mr Bath was of the opinion that the plaintiff's symptoms were due to cervical disc pathology and that he was unfit to work more than half days because of his symptoms and his need for significant analgesic medication. He recommended an MRI. He thought that discogenic pain could result from a motor vehicle accident. He described the plaintiff as having the appearance of being unwell. He found that his neck movements were grossly reduced. There was mild wasting in the right deltoid and reduction of triceps reflexes on both sides.
The plaintiff was then referred by his general practitioner Dr Tan to Dr Geoffrey Gee, pain management specialist, who saw him on 8 May 2006 and reported that day, stating that the plaintiff was suffering from constant frontal and occipital headaches (Exhibit 1, p 64). The plaintiff complained of extremely tight muscles around his neck particularly on the right. He had suffered tingling down the right arm but this appeared to be settling. The plaintiff was taking codeine, 10 to 12 tablets per day. He was suffering from depression and had lost about 15 kilograms over the previous year. He was working four hours per day, five hours per week, but experiencing increased neck pain. Dr Gee found that the plaintiff had limited rotation of his spine although flexion and extension movements were quite good. He diagnosed soft tissue injuries with superimposed greater occipital neuralgia and possible temporo‑mandibular dysfunction, accentuated by depression.

Admission to St John of God Hospital, Murdoch: June 2006

On the referral of Dr Gee, the plaintiff underwent a supervised physical training program with Dr Michael Ponchard. By 26 June 2006 he had completed four weeks of a 10 week program. He had not missed a session. His range of cervical movement was still quite restricted and his symptoms were said to be easily aggravated. Nevertheless, he was reported to have picked up psychologically. Massage therapy appeared to be helping.
On 26 June 2006 the plaintiff suffered an exacerbation of symptoms. He said in evidence that he became sorer and sorer until he could not walk. He had pain from his head through his neck and back to his hips and legs. He saw Dr Tan who prescribed morphine. The next day a friend of his wife found him in pain on the floor. He was admitted to St John of God Hospital, Murdoch, where he was seen by Mr Soni Narula, neurosurgeon.
The history given by Mr Narula in his report of 28 June 2008 (Exhibit 1, p 5) was that the plaintiff, following the crash, had modest neck pain without arm symptoms and returned to work. His symptoms worsened with time such that he then required eight weeks off work. He returned to work, but after 10 weeks experienced severe symptoms with pain and numbness in his right arm extending to the hand. He subsequently returned to work four hours a day and had ongoing headaches which he described as sub-occipital, biparietal and bifrontal. He had presented to the emergency department of St John's following an episode of severe lower back pain. He had not suffered any significant similar symptoms previously, but two months before had suffered back pain after driving to Northam. He had also suffered back pain after refereeing a soccer match. On each of these occasions he required bed rest but had no leg symptoms.
When asked about this incident in cross-examination the plaintiff said:
"I remember rolling around on the floor, clutching at my head. Months later, when you are talking about, I got pain from the top of my head all the way to about my knees, all down my back, my neck, down through my hips, down – yes, down through my lower back, down to my knees. Everywhere. That's when I went down to Dr Tan and got morphine tablets."
The plaintiff described wide-spread pain which he had experienced three or four times since the crash. He said it was an "all over" pain which went down through his hips such that walking was quite painful. On one occasion it occurred in Sydney and he went to a local GP for morphine patches.
Mr Narula reported on 2 July 2006 following the plaintiff's discharge from hospital that day (Exhibit 1, p 7). He noted that the plaintiff's lower back pain had resolved with rest and anti-inflammatories and opiate medication. A further bone scan of the cervical spine showed increased activity from C4 to C7 and in the facet joints from C2/3 down to C6/7. He thought that the lower back symptoms were indirectly related to his neck injury.

Medical history post-June 2006

Dr Tan's notes indicate that when seen on 6 July 2006 the plaintiff was taking MS Contin. On 17 July 2006 Dr Gee noted continuing soft tissue symptoms and recommended ongoing exercise and massage together with treatment of depression. Although a bone scan showed extensive changes in the facet joints, nerve root block injections were not indicated. Dr Gee gave evidence that in his opinion the plaintiff suffered greater occipital neuralgia which was caused by muscle tension on the occipital nerves as they exit through the muscles at the base of the skull. This caused headaches.
On 11 August 2006 Dr Ponchard reported that the plaintiff was compliant with his home exercise program but was still compromised by pain (Exhibit 1, p 89). He recommended that the plaintiff's exercise program be continued.
On 19 September 2006 Dr Gee reported that the plaintiff had not made much progress with his neck symptoms and was experiencing some problems with depression, pain and alcohol (Exhibit 1, p 72). He recommended psychological therapy and a psychiatric review, also that exercise be encouraged as the plaintiff's motivation was fading. On 19 October 2006 Dr Gee reported that the plaintiff had benefited from counselling with Mr Christopher Semmens. Ongoing counselling was recommended.
Dr Andrew Harper, rehabilitation physician, examined the plaintiff on 8 September 2006 (Exhibit 1, p 20). His opinion was that the plaintiff had suffered a strain to the cervical spine and the development of a C6/7 disc protrusion which had partially resolved. There were mild pre‑existing degenerative changes in the cervical spine. The plaintiff's injury appeared to have aggravated his pre-existing and long‑standing depression and he developed symptoms consistent with a pain disorder. He was unfit for gainful employment and his work capacity was expected to be compromised for at least a further two years.
Dr Harper recommended ongoing psychiatric and psychological treatment and a pain management program. At that time the plaintiff was using alcohol and cannabis for pain control. This was also noted by Dr Tan in his notes of the consultation on 27 September 2006.
In evidence the plaintiff said that he had turned to alcohol after he ceased work to the point where it became a problem. The general practice notes indicate his desire to control his intake through the latter part of 2006. He said that losing his job was significant as it was very important to him.
By 8 November 2006 the plaintiff was off cannabis and alcohol but was still separated from his wife, according to the Bentley Health Service notes. He continued, however, to suffer neck pain associated with headaches and at times pain radiating down his back to his hips and legs.
On 9 January 2007 the plaintiff attended at Bentley. The notes record that he was suffering back pain on and off for which he was taking codeine. His mood was stable. He was separated from his wife but saw his children every day.
The plaintiff continued to attend Dr Tan's practice for prescriptions of codeine and to obtain medical certificates. The notes indicate ongoing complaints of headaches and neck pain, as well as symptoms of depression. In June 2007 the plaintiff commenced seeing Ms Joanne Robinson, psychologist, for counselling funded by the Vietnam Veterans Counselling Service, being eligible for this assistance due to his father's military service.
In September 2007 Dr Gee administered C2 nerve blocks which involved injection of cortisone and local anaesthetic. On 22 October 2007 Dr Gee reported that his headache symptoms had improved. In a medico‑legal report dated 29 October 2007 Dr Gee stated that the plaintiff's potential for work had improved since the bilateral C2 nerve blocks were administered. However, he thought that his capacity to work would be restricted for a further six to 12 months. He assessed a mild residual disability of 5 to 10 per cent of the cervical spine.
The plaintiff's improvement in terms of headaches was also noted in Dr Tan's notes of 10 October 2007. At that time the plaintiff was taking Valium and Indocid, but not codeine. There are no records of the plaintiff's attendances on any general practitioner after 13 November 2007, although it was Dr Tan's evidence that he last saw the plaintiff in December 2009.
In a medico-legal report dated 12 September 2008 (Exhibit 1, p 8) Mr Narula, having examined the plaintiff that day, reported that he was not taking any medications because they had not helped him. He continued to have neck pain radiating to the shoulder blades and shoulders and to the sub-occipital and bifrontal areas of the head causing significant headache. His pain was aggravated by manual activities. He also suffered sleep disturbance. In the lower back the plaintiff complained of ongoing dull pain with tingling and paresthesia into both legs. His general activities were reduced.
Mr Narula considered that the plaintiff was unfit for his previous work but able to do light work not involving lifting, bending or twisting or standing all day. He thought he was suited to a sedentary job. He was not fit to work as a forklift driver. Mr Narula felt the plaintiff was capable of working half-time. In relation to the plaintiff's neck injury, Mr Narula stated that he was asymptomatic prior to the crash. His age‑related degenerative changes were relatively mild and but for the crash would not have become symptomatic for at least 10 to 15 years. He assessed a 30 per cent loss of effective use of the cervical spine.
In his final report of 12 June 2009 Mr Narula said the plaintiff's underlying pathology was an irritation of the facet joints at C2/3 and a disc prolapse at C6/7 which had given rise to headaches and upper limb symptoms. Mr Narula explained in his evidence that the headaches were caused by a strain of the facet joints in the upper cervical region. He also explained that the pain source at C6/7 was discal in origin. It was not necessary to have a disc prolapse to experience such pain.
Dr Gee made a final report for medico-legal purposes on 4 June 2009 in which he stated that the plaintiff continued to experience bilateral posterior neck pain with tightness through his cervical muscles and pain over his right shoulder and lower back pain radiating through both legs to the knees. At that time the plaintiff was not taking antidepressant medication. He took codeine and Indocid when required. He was nowhere near as depressed as when he was first assessed. There were no features of greater occipital neuralgia. Cervical extension was reduced by half of normal range but extension and lateral flexion appeared normal and there was no restriction of rotation.
Left shoulder examination was normal. In right shoulder there was tenderness over the acromio-clavicular joint and restriction of abduction to 90 degrees. In the lower back there was tenderness through the paraspinal muscles. Straight leg raising was 75 degrees on each side. There were no neurological signs.
Dr Gee noted that there had been evidence of a disc protrusion impinging on the right C7 nerve root in December 2005, but the symptoms for which he had seen the plaintiff were not consistent with C7 nerve root involvement. He considered the plaintiff's ongoing symptoms were soft tissue in nature and that he was fit for light duties not involving substantial lifting or long periods on a computer. His work would be likely clerical. He said it was clear that the plaintiff had an ongoing restriction in terms of his competitiveness in the open workforce but he did not consider that he would have to retire prematurely once he returned to suitable duties. He described his injuries as mild to moderate and again assessed a 5 to 10 per cent disability of the cervical spine. In evidence Dr Gee stated that the plaintiff's muscle tension problems which caused his headaches could arise from stress.
As I understand the plaintiff's evidence his symptoms have continued to affect him, although he is now at the point where he does not rely on regular medication for pain relief. The plaintiff separated from his wife in late 2007 and in mid‑2008 went to live in Sydney where he stayed with his mother. It was during this period that he decided to stop taking painkillers. He stated that he still has some codeine and anti‑inflammatories which he takes if required, but he no longer uses medication on a daily basis. He received regular insurance benefits by way of income protection until October 2007 and since that time has been living on a disability allowance. He has not sought to return to work in any capacity.
The plaintiff described his main disability as an inability to move his arms and shoulders without suffering pain in his neck and down his arms. He has particular difficulty in hanging clothes. He sees his general practitioner from time to time but is not engaged in any pain management program and no longer has regular massage. On a day to day basis the plaintiff gave evidence of ongoing pain in his head, neck and upper back. Occasionally he suffered pain extending down his spine into his lower back and hips.

Other expert evidence

Mr Peter Bath was not called but his reports were tendered as Exhibit 10. He first saw the plaintiff in April 2006, as I have mentioned, and was of the view that the plaintiff was unfit to work in his pre‑accident occupation. He assessed the plaintiff again on 6 February 2007, noting at that time that the MRI on 28 June 2006 did not explain the long and significant history of cervical spine symptoms reported by the plaintiff. Mr Bath was nevertheless of the view that the plaintiff's prognosis in terms of his headaches and neck and back pain was guarded in the short and long term as it was unlikely that he would make any significant improvement so as to be able to return to work as a heat‑treatment technician. He thought that the plaintiff's long term depression could be contributing to his musculo‑skeletal symptoms. As the plaintiff was taking a good deal of codeine at that time he thought it would be unwise for him to participate in any work activities where safety was a consideration. He did not consider any further physiotherapy or exercise programs would make a significant difference to the plaintiff's symptoms.
Mr Bath's most recent report is dated 7 May 2009. He reviewed the plaintiff for this purpose on 4 May 2009 when the plaintiff again reported headaches and widespread pain in the upper body. The plaintiff told Mr Bath of sudden episodes of "all over" pain from the top of his head to his knees which first occurred two years previously when he required treatment at St John of God Hospital in Murdoch. A similar episode had occurred about one month before the examination when the plaintiff was in New South Wales. Mr Bath found evidence of a painful limitation of movement in the cervical spine and in the right shoulder. There was tenderness over the thoracic spine and some limitation of lumbar movement as well as evidence of possible nerve root involvement extending into the left leg. There were no neurological signs or symptoms in the right arm.
Mr Bath's opinion was that the original injuries were soft tissue in nature and did not involve a disc prolapse. Ordinarily, he thought the symptoms would continue for six weeks although they could continue for six to 12 months. In a majority of cases symptoms of soft tissue injury settled completely. This led him to opine that if the plaintiff had suffered a soft tissue injury only then it would be reasonable to expect that he would have been able to return to his normal duties over a few months. In his opinion the plaintiff's right shoulder pain was not due to neck injury but indicated either a capsulitis of the shoulder joint or some rotate or cuff pathology both of which would be unrelated to the crash. He thought that the disc protrusion in 2005 could have been the cause of right arm symptoms reported at that time but in his opinion this would have been a new pathology.

As I have observed, Mr Bath did not give evidence. His most recent expression of opinion is difficult to understand in some respects, but, in any event, I note that the defence does not contend that the plaintiff's right shoulder symptoms are caused by either of the pathologies suggested by Mr Bath.
Dr Andrew Marsden, a rehabilitation physician, gave evidence on the basis of five reports dated 12 July 2007, 6 August 2007, 29 January 2008, 3 October 2008 and 14 October 2008 (Exhibit 8), although he saw the plaintiff only once on the first of those dates. It was his opinion that if the crash had caused a disc protrusion then it would have been evident on CT scanning in May 2005. The finding of a disc bulge at C6/7 in December 2005 was a completely new finding. He did not consider that it was caused by the crash.
On examination Dr Marsden noted a number of inconsistent findings, including variable degrees of rotation of the head on formal testing and informal observation. He observed that his straight leg raising was 50 degrees on both sides, but that the plaintiff could sit at 90 degrees and extend his knees easily, equating to 75 degrees of straight leg raising. He noted a positive response to an axial load test which meant that the plaintiff reported discomfort in his lower back on pressure to his head. The plaintiff also reported pain in the lumbar sacral junction on rotation of the shoulders. Dr Marsden thought neither of these activities should have caused pain or discomfort in the lower back.
In his first report Dr Marsden described the plaintiff as follows:
"He had a rather dramatic overall presentation with apparent stiffness, with much moaning and grimacing and groaning with respect to his neck and lower back on examination, but it was difficult to find much in terms of clinically positive findings, except to say that there were some inconsistent findings [as] described above …"
He considered the headaches described by the plaintiff to be stress headaches, rather than cervical in origin. There was no significant right upper limb radiculopathy. He did not consider that the episode of pain that occurred on 26 June 2006 was related directly to the crash or its sequelae. Dr Marsden was of the opinion that the plaintiff could work as a supervisor in a heat treatment plant. He doubted that medical treatment would be of much benefit in the long-term. He expected that the plaintiff would be able to return to full-time work following the resolution of his claim in an area in which he had training and experience, including as a plant operator at a mine.
Dr Marsden's subsequent report did not add a great deal to his original opinion, although he did acknowledge a significant psychological and psychiatric background to his reported pain state.
In a report dated 3 October 2008 Dr Marsden commented on the surveillance DVD which he thought was inconsistent with the plaintiff's presentation on 12 July 2007 in as much as he was seen to be moving freely on the surveillance film yet presented as being very stiff on clinical examination.
In his final report dated 14 October 2008 Dr Marsden commented on a report of Dr Kagi dated 5 December 2005, extracts from the Fulham General Practice notes in the period 2003 to 2006 and some other medical documentation. In the context of these documents, Dr Marsden was asked for his opinion about the cause of the disc protrusion depicted on the CT scan of 1 December 2005. His view was that the plaintiff appeared to suffer a marked deterioration in his physical condition in late November 2005 said to be related to a digging episode. He inferred that the digging episode was sufficiently vigorous to cause a disc injury. He found no evidence that the plaintiff had a disc lesion prior to that point. He also noted that the plaintiff's neck problem appeared not to have been aggravated by his return to normal physical work in July 2005.
Accordingly, in his opinion, the disc was not weakened by the crash but rather damaged by heavy, physical manual labour in his garden in late November. Furthermore, Dr Marsden observed that as this episode appeared to be related to the C6/7 level, he could not understand why the plaintiff should have been given nerve root injections at the C2 level.
In cross-examination, Dr Marsden accepted that the neck pain complained of in late November 2005 represented an acute episode in a chronic condition dating from the accident and that the effects of the disc protrusion appeared to have been temporary.
The plaintiff's medical evidence (Exhibit 2) included reports by Dr Nick De Felice, psychiatrist, who saw the plaintiff at the request of his solicitors on 24 October 2006, 12 November 2007, 22 September 2008 and 16 June 2009. Dr De Felice's opinion on the first occasion was that the plaintiff was suffering from a major depressive disorder from which he had previously suffered and which had responded to treatment. The crash had caused a recurrence of this disorder due to pain and limitations experienced as a result of his injuries. In his opinion the plaintiff's depression had contributed to his reduced work capacity.
When seen on 12 November 2007 the plaintiff was again found to be suffering from a recurrent major depressive disorder. His pain and limitations due to injury and his worsening depressive symptoms had exacerbated his alcohol abuse. He remained of the opinion that the plaintiff's psychiatric symptoms impacted on his capacity for work. The depressive symptoms were related to the pain state. Dr De Felice anticipated an overall permanent psychiatric disability in the order of 15 per cent using the Commonwealth Social Security Rating of Impairment. Half was due to his pre‑existing psychiatric disability.
On examination on 22 September 2008 he considered that the plaintiff had improved (more than he had thought he would) and that the crash injuries were then causing only mild residual psychiatric symptoms. He adjusted his estimation of permanent psychiatric disability due to the crash alone to 2.5 per cent.
In his most recent report dated 16 June 2009 Dr De Felice stated that the plaintiff's psychiatric symptoms had resolved such that he was left with no residual psychiatric disability due to the crash.
The medical reports of Dr Victor Cheng, psychiatrist, were tendered by the defendant by consent. Dr Cheng made four reports dated 25 October 2007, 22 February 2008, 15 July 2008 and 2 July 2009 having examined the plaintiff on three occasions during that time. The reports contained the detailed histories obtained from the plaintiff on each occasion, including, obviously, his history of psychiatric problems for which he was treated at Bentley. When Dr Cheng saw the plaintiff on 25 October 2007 he found that his psychiatric condition, which he diagnosed as an adjustment disorder with depressed mood and anxiety symptoms, was not severe but that his level of function was limited by physical symptoms of pain related to the crash. Dr Cheng found that the plaintiff's presentation was consistent with the history he gave.
Dr Cheng also thought the plaintiff may have a degree of dependence on alcohol. He did not consider that he was suffering from a major depressive disorder. Acknowledging the difficulty of doing so, he considered that the crash may have contributed 30 to 40 per cent in terms of an aggravation of his pre‑existing psychological condition.
For the purposes of his second report dated 22 February 2008 Dr Cheng was provided with a number of medical reports by other practitioners and the general practice notes none of which caused him to change the views expressed in his previous report. He accepted however that if, as a matter of fact, the aggravation of his psychological condition was caused by physical symptoms unrelated to it then that contribution he assessed could not be sustained.
When seen on the last occasion the plaintiff described a significant improvement in his psychological state such that Dr Cheng did not consider that he was suffering from a psychological disorder. He said his symptoms were consistent with the normal range of emotional experience considering his situation at that time. The plaintiff had reduced his level of alcohol consumption and denied taking any illicit substances. He had ceased anti‑depressant medication. Dr Cheng did not consider that he would be left with any permanent psychological impairment or disability as a result of the crash as his psychological symptoms were resolving.

Causation issues

It is the defendant's submission that the crash in question caused no more than a mild neck strain, Dr Jeffcote having cleared the plaintiff of major injury to bones, ligaments, discs or nerve roots of the neck in May 2005. The defendant submits that the plaintiff, after a period of about six weeks off work from 19 May 2005, returned to full-time duties which he was able to perform until late November 2005 when he suffered an episode of severe neck pain, apparently as a consequence of doing work in his garden. It is contended on behalf of the defendant that this episode, which led to a diagnosis of a disc protrusion at C6/7, was unrelated to any injury caused by the crash.
It is further submitted on behalf of the defendant that the episode of pain for which the plaintiff was admitted to St John of God Hospital on 27 June 2006 and treated by Mr Narula, was also unrelated. The defendant points to the fact that Mr Narula documented an episode of severe low back pain as well as right arm pain consistent with the disc protrusion which occurred in November 2005.
The defendant also submits that prior to the crash, the plaintiff, due to his pre-existing psychological problems, required medical treatment for depression, used cannabis and alcohol to excess, and suffered poor sleep, sexual problems and marital difficulties. In this respect, the defendant relies on the Bentley records to which reference has been made. The plaintiff does not dispute this history.
In support of the submission that the crash caused no significant injury the defendant points to the fact that, according to the plaintiff's employment records, he was paid for jury duty from 13 June to 26 June 2005. No further information was given than was contained in the pay records (Exhibit 4). The plaintiff recalled being summonsed but had no recollection of actually serving as a juror in this period. He thought that pay records were incorrect. I am inclined to agree as the period in question appears to correspond with a reimbursement of wages by the income protection insurer. No further light was thrown on this matter and I do not consider that it is of any significance in terms of determining the issues relating to causation.
What is clear is that the plaintiff suffered a cervical strain injury the symptoms of which were, initially, rather mild such that he did not in fact require medical attention until almost two weeks after the accident by which time the symptoms had worsened to the point where a spinal fracture was suspected and investigated, the plaintiff being referred to the Spinal Unit at Royal Perth Hospital for this purpose.
Thereafter, the plaintiff did suffer a period of time off work before returning to work in July 2005 and continuing until late November 2005 when he suffered a further exacerbation of neck symptoms, as well as right shoulder and arm symptoms, this time diagnosed as being due to a disc protrusion at C6/7.
Although the defendant's counsel suggested strongly in cross‑examination, on the basis of the general practitioner's notes, that this episode was caused by shovelling whilst gardening, the plaintiff's evidence was that he was merely spreading potting mix on a garden bed from three 15 kilogram bags his wife had bought and asked him to spread. Although this is somewhat inconsistent with him apparently telling Mr Bath on 4 July 2009 (Exhibit 10, p 17) that he was shovelling 75 kilograms of mulch (3 x 25 kilogram bags), I do not consider the inconsistency is significant in terms of credibility. The plaintiff was a strong, fit person for whom moving a relatively small amount of mulch or potting mix, whether 45 kilograms or 75 kilograms, would not have been a physically demanding task. The plaintiff's detailed account of this incident was credible and I accept it.
In relation to the episode for which the plaintiff saw Mr Narula, the defendant's counsel put to him that his main symptom was low back pain as described by Mr Narula in his reports. The plaintiff said that he had widespread pain from his head down into his legs, including his low back and hips. While he certainly described pain which was more extensive than that which he had previously reported, I find that the plaintiff's description of the on-set of this pain and the circumstances of his attendance for treatment is credible and consistent with the documented medical history and should be accepted. I do not consider that any apparent inconsistency between Mr Narula's description of the problem as being low back pain and the plaintiff's recollection of severe pain all down his spine and into his legs is material. Mr Narula's opinion (Exhibit 1, p 7) that the lumbar symptoms for which he saw the plaintiff in June 2006 were indirectly related to the neck injuries was not challenged.
With respect to the plaintiff's disc protrusion, the symptoms of which have resolved over time, I am satisfied that a sufficient causal nexus exists to connect it with the crash in question. I accept Mr Narula's explanation of the pathology. The disc prolapse was an acute episode in the course of a chronic cervical injury.
Similarly, I consider that the exacerbation of the plaintiff's pain state in June 2006 can reasonably be attributed to the original crash, having regard to Mr Narula's evidence. Neither of these episodes constitutes a novus actus interveniens as submitted on behalf of the defendant.

Surveillance evidence

In relation to the plaintiff's credibility generally, the defendant adduced in evidence a DVD depicting activity on 24 August 2007. It showed the plaintiff attending at a liquor store and later carrying a bulky doona under his right arm. Although the DVD depicts a somewhat greater range of neck movements and upper limb movements than has been described by the various medical examiners from time to time, and by the plaintiff in evidence, the DVD did not demonstrate any levels of activity which I considered to be inconsistent with the plaintiff's testimony to the extent that his credibility was impeached. Indeed, the clinical records of the plaintiff's documented complaints and findings on medical examination do indicate a level of variation in his physical restrictions which is consistent with the nature and extent of his cervical injury, the symptoms of which were exacerbated from time to time by stress and psychological disorder. No significant challenge was made to the plaintiff's evidence on the basis of the DVD. I am not able to draw any adverse inferences from it.

Income protection insurance policy benefits

The defendant proved that the plaintiff had received income protection benefits from a policy issued by Guardian Underwriting Services Pty Ltd on behalf of an underwriter. The policy wording is Exhibit 11. The policy schedule was not tendered. The plaintiff's 2005 tax return (Exhibit 1, p 90) suggests that he paid the premium for the policy.
According to Exhibit 4, benefits totalling $142,532 were paid to the plaintiff in the period 18 May 2005 to 11 October 2007. The sum of $3,030 was reimbursed to the employer for the period 8 June to 21 June 2005 in which the plaintiff was paid wages. The table of benefits paid shows that no benefit was paid for the first 14 days. The daily rate was $216.45. For the period during which the plaintiff was partially incapacitated, he was paid a half day benefit of $108.23.
It appears from Exhibit 1 that the benefits were not treated as taxable income. In the circumstances, it seems reasonable to treat the amount of the benefits as being net of tax for the purposes of any necessary adjustments.
The Court was informed that the defendant's insurer had reached a compromise with the income protection policy underwriter with respect to the recovery of the benefits paid to the plaintiff under the policy. This fact was conceded by the plaintiff. The amount of the compromise was not disclosed.
The plaintiff submitted first, that as the policy was taken out and paid for by the plaintiff, he was entitled to keep the benefits from the policy in addition to and without reduction of his damages for loss of earning capacity and second, that if the insurance benefits were brought to account it should only be the extent to which the defendant's insurer reimbursed, as it were, the underwriter.
The plaintiff's first submission is supported by Bradburn v Great Western Railway Co (1874) LR10Exch 1, approved in Australia in National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569 and subsequent cases. In Richards v Mills (2003) 27 WAR 200 Anderson J analysed these authorities for the purpose of deciding whether a benefit paid to the plaintiff through a group disability income insurance policy should be taken into account when assessing damages for economic loss. At 215 his Honour concluded that the governing principle was that expressed by Windeyer J in Espagne (supra) at 599 to 600 as follows:
"In assessing damages for personal injuries, benefits that a plaintiff has received or is to receive from any source other than the defendant are not to be regarded as mitigating his loss, if:
(a)they were received or are to be received by him as a result of a contract he had made before the loss occurred or by the express or implied terms of that contract they were to be provided notwithstanding any rights of action he might have; or
(b)they were given or promised to him by way of bounty, to the intent that he should enjoy them in addition to and not in diminution of any claim for damages."
In this case the policy provided by cl 14:
"In the event of any compensation payment under this policy, we shall be subrogated to all of your rights and the rights of an insured person to a recovery against any person or entity and you and the insured person must execute and deliver any instruments and papers and do whatever else is necessary to enable us to secure such rights. Neither you nor the insured person shall take any action after any loss which will prejudice our rights to subrogation."
In the policy "you" is defined to mean the employee, union, or professional association indicated in the schedule (which is not part of Exhibit 11) and "insured person" is defined to mean the employee, in this case the plaintiff. "We" and "us" refer to the underwriter specified in the schedule of which Guardian Underwriting Services Pty Ltd is stated to be the agent. It is also significant to note with respect to the policy wording that the special provisions provided by cl 1(f) that benefits will only be paid up to the maximum sum insured "less the amount of payments to which the insured person is entitled under any transport accident legislation or other statutory compensation scheme, including common law benefits or payments".
In Insurance Commission of Western Australia v Kightly (2005) 30 WAR 380, Steytler P, with whom Wheeler and Roberts‑Smith JJA agreed, held that an insurance policy which compensated the insured for actual financial loss suffered as a result of an injury caused by accident was an indemnity policy and, as such, created a right of subrogation in favour of the insurer. His Honour held at [26] that:
"… [The doctrine of subrogation] prevents the insured from making a double recovery, once from the insurer and once from the tortfeasor (in a tort case) in circumstances in which the insurer has undertaken to indemnify the insured against actual financial loss. It does that by giving two rights to the insurer. First, it gives to the insurer the right to require the insurer to pursue any remedy available against the tortfeasor for the benefit of the insurer. Second, it gives to the insurer the right to recover from the insured any benefit received by the insured in diminution or extinction of the loss against which the insured has been indemnified. …"

In the present case, the wording of the policy expressly created a right of subrogation which, it is common cause, has been exercised by the underwriter in its claim for recovery against the defendant. It follows, then, that the benefits paid to the plaintiff by the income protection policy underwriter should be brought into account.
The remaining question is whether the plaintiff's damages should be reduced by the full amount of the benefits or only to the extent of the presently undisclosed amount in which the underwriter's claim against the defendant was agreed.
In my opinion the full amount of the benefits received by the plaintiff pursuant to the income protection policy should be deducted from his damages. That is the necessary effect of the agreement between the insurers. That the recovery of the benefits may have been the subject of compromise is a matter for the parties to that agreement, but in my opinion the defendant obtained by that agreement a discharge of the defendant's liability to the plaintiff to the extent of the income protection benefits.

Evidence of earnings

The plaintiff's income tax assessments and taxation returns (Exhibit 1) from the period 2001 to 2006 show the plaintiff's annual gross income from his employment to be as follows:
2001 - $67,425
2002 - $76,944
2003 - $81,527
2004 - $77,612
2005 - $90,291
2006 - $46,604
In the period of 58 weeks up to 15 May 2005 the plaintiff earned an average of $1,754 gross per week, $1,171 net, as appears from his pay lists (Exhibit 4).
At the time of the crash his base pay for a 40 hour week was $948.65 gross plus a standard allowance of $30. I calculate his base pay, including the allowance, net of income tax and the Medicare levy to be $744 (using the marginal rates applicable at that time).
No tax returns were tendered for 2007 or subsequent years, but I note from a PAYG payment summary the period 1 July 2006 to 5 October 2006 that the plaintiff's employer paid wages of $16,107 gross. An eligible termination payment of $804 (less $132 tax) was made on 5 October 2006. These payments have not been explained.
The 2006 tax return declares net business income from a truck hire business of $13,923 (from a turnover of $21,062), but no evidence was elicited from the plaintiff in examination‑in‑chief or cross‑examination regarding this income. The plaintiff gave evidence that he has not done any work since 2006.
A point made by the defendant's counsel in cross‑examination of the plaintiff was that his hours of work during the period of six months after the accident were not significantly less than his average hours prior to the crash. The pay lists show that in the period of 26 weeks prior to the date when the plaintiff ceased work following the crash, he averaged about 120 hours per fortnight (60 hours per week).
Normal hours were 40. His rate of income varied according to overtime which was paid at time and a half, double time or double time and a half. He was paid for 80 hours work in the fortnight ending 29 May 2005 of which of 56 hours was paid as sick leave. He was paid 76 hours sick leave and for a public holiday in the period ended 12 June 2005. Then, according to the pay list he was paid 80 hours on 26 June 2005 for jury duty which appears from the evidence as a whole to be an anomaly.
Significantly, in the fortnightly pay period within which the crash occurred the plaintiff worked 136 hours. This included 40 hours at double time which was an unusually high number by comparison with other pay periods. (The plaintiff and Mr Harris gave evidence that the plaintiff, who lived close to where he worked, would sometimes be asked to attend the factory on the weekend to monitor the furnaces and was entitled to claim a minimum of two hours at double time for doing so.)
The plaintiff received no income from his employer in the fortnight ending 10 July 2005. In the 10 following fortnightly periods to 27 November 2005 the plaintiff's average hours were 111.6 (55.8 hours per week). In the subsequent period to 11 December 2005 he was on leave without pay. In period ending 25 December 2005 he was paid 76 hours for accumulated rostered days off. In the next period ending 10 January 2006 he was paid for three public holidays and seven days sick leave.
Mr Harris gave evidence that there had been pay increases in 2006 and at the end of 2009. He said a leading hand would currently earn $32 per hour and that a person in the plaintiff's position would earn $120,000 gross per annum which I calculate to be $2,308 per week gross, $1,637 net.
It is not possible to calculate precisely the rate at which Mr Harris would have been paid from week to week since May 2005 had he continued to work at his pre-crash level. The mean of his average pre‑crash net earnings and the net rate at which he would currently earn income were he still employed is $1,404.
From the evidence I calculate that the plaintiff has earned (from his employment with RCR Tomlinson) since 15 May 2005:
(a)to 30 June 2005: $3,691 net;
(b)from 1 July 2005 to 30 June 2006: $34,013 net;
(c)from 1 July 2006 to 5 October 2006: $9,845 net.
Added to the amount received by way of income protection benefits ($142,532), the plaintiff's actual net income for the period since he ceased work on or about 15 May 2005 is $190,081, say, $190,000.
As to employer contributions of superannuation, there was no evidence to indicate that the plaintiff's employer paid or would have paid more than the statutory rate of 9 per cent of ordinary time earnings. In May 2005 the plaintiff's hourly rate was $23.71. Accordingly he earned $948.50 for 40 hours work, 9 per cent of which is $85.35. Assuming that employer contributions would have been taxed at 15 per cent, the net rate would have been $72.50 in round terms.
At the notional current rate of $32 per hour, ordinary time earnings would be $1,280, 9 per cent of which is $115.20 gross, $97.92, say, $98 net. The mean of these figures is $85.25, say, $85. It is not possible to be precise but I would calculate the employer's actual contributions according to income earned in that period to be in the order of $4,200 net of contribution tax.

Assessment of damages

General findings

I am satisfied that the crash caused a strain injury of the cervical spine which took an unusual course and became unexpectedly chronic with the plaintiff suffering a significant degree of disability in his upper spine and limbs beyond what might have normally been expected of an injury of this kind.
The plaintiff had significant personal difficulties prior to the crash. These were emotional, psychological and psychiatric in nature. The plaintiff was dealing with these problems as best he could with appropriate treatment. He had an admitted tendency towards alcohol and drug abuse but was able to work satisfactorily as I have found. When he returned to work in July 2005 it was on light duties and for slightly fewer hours per week on average. He worked under sufferance.
The exacerbation of his neck symptoms associated with a diagnosed C6/7 disc protrusion in November 2005 was painful and distressing and caused further time off work. The effects of the disc protrusion, however, diminished over time and, consistent with this recovery, the plaintiff was able to return to work albeit on half time duties in February 2006. Unfortunately he was not able to carry on for more than a few months before having to cease work altogether in June 2006. The employer's representative Mr Harris confirmed in cross‑examination that the plaintiff worked half hours prior to ceasing work and that the plaintiff could not do the physical aspects of his work. It was apparent from Mr Harris' evidence that the employer did what it could to accommodate the plaintiff for as long as it was practical to do so.
The plaintiff has complied with medical advice from time to time, including recommended exercise programs. Over the last two years he has ceased taking medication except as required. He no longer undergoes physiotherapy or massage treatment, but nevertheless he continues to have intrusive symptoms of variable severity.

Non-pecuniary loss

In assessing damages for non‑pecuniary loss I am required to determine as a matter of discretion the proportional severity of the plaintiff's injury by reference to a most extreme case in accordance with s 3C of the Motor Vehicle (Third Party Insurance) Act 1943.
I assess the plaintiff's loss at 20 per cent. Amount A is presently $327,000. I calculate the loss to be $64,800 net of the statutory deductible.
This assessment takes into account the plaintiff's loss of enjoyment of life due to the pre‑existing conditions for which he was being treated at Bentley at the time of the crash. I have factored into the assessment the likely extent to which he would have had ongoing problems of that kind, noting that he has continued to attend for psychological counselling and psychiatric review.
At the same time I find that the crash probably exacerbated the plaintiff's pre‑existing condition to some extent, particularly in as much as his loss of capacity to work created further emotional and psychological problems which impacted on his family relationships and his sense of self worth. Necessarily, the delineation between the ongoing effects of his pre‑existing condition and the effects of the crash related injury is a matter of evaluation rather than scientific analysis, but I am assisted in this regard by the opinions of Dr De Felice and Dr Cheng.

Past loss of earning capacity

But for the crash it is likely, in my opinion, that the plaintiff would have continued to work for RCR Tomlinson as a leading hand heat treatment technician, despite his pre‑existing psychological problems and related difficulties.
He was unfit for work from 18 May 2005 to 15 July 2005 and from late November 2005 to 6 February 2006. He was then able to work only four hours per day until about 26 June 2006, since which date he has not worked.
His continuation of work immediately after the crash, his two returns to work in 2005 and 2006 respectively, the level of his pre-crash remuneration, and the high regard in which he was held by his employer, lead me to find that during those periods in 2005 and 2006 in which he worked reduced hours or not at all, his incapacity was due to the injurious effects of the crash. He now has a capacity for alternative work and the medical evidence suggests that this has been the case for some time.
In September 2008 Mr Narula thought the plaintiff was fit for light duties on a half-time basis. Mr Narula last saw the plaintiff on or about 12 June 2009. At that time he was of the view that his working capacity was permanently restricted. In future he thought he would be limited to non‑exertional work, excluding driving, which did not require him to look up or down on a regular and prolonged basis.
Dr Gee has had a large role to play in the plaintiff's pain management and has not expressed any reservations regarding the genuineness of his presentation from time to time. In October 2007 he opined that the plaintiff would be able to resume work in six to twelve months but would have to avoid substantial lifting. In his opinion the plaintiff was capable of making a return to full‑time work on light duties when he last saw him in June 2009.
Similarly, Dr Harper, who saw the plaintiff on a number of occasions from September 2006, most recently in July 2009, has expressed the view that the plaintiff has a reasonable probability of working through to retirement age in an appropriate alternative job.
Dr Marsden is of a different view, having reported in January 2008 that the plaintiff had no limitations in his capacity for work, albeit that he was physically de‑conditioned from having not worked for some time. I consider that Dr Marsden's opinion is based on his conclusion that the plaintiff did not suffer any significant low back injury and that his neck injury was minor and likely to have resolved within a short time of the crash. I have found, however, that the symptoms and disabilities complained of are due to a crash related injury to his cervical spine.
Mr Bath has not seen the plaintiff since February 2007, but accepted at that time that it was unlikely that the plaintiff would improve to the extent that he would be able to return to work as a heat treatment technician.
Mr Kagi, who last saw the plaintiff on 9 December 2009, considered then that if the plaintiff could not work it was because of pre-existing degenerative changes, not any crash-caused injury.
There is no expert evidence to support a finding of total incapacity after October 2008, by which time Mr Narula felt he could work half-time on light duties and Dr Gee thought he would be fit for alternative work. I was told that the plaintiff was given a disability allowance when his income protection benefits ceased in October 2007, presumably having been certified unfit for work to the requisite degree for that purpose. No evidence of such certification was tendered and, as I have pointed out, there are no general practice records after November 2007. Dr Tan's evidence was merely that when he last saw the plaintiff in December 2009, "his mood was stable, he was positive, [and] he stated that he was looking forward to his future".
The plaintiff gave evidence that he needed to find work. He said he did not know whether he could be reliable and thought he may need professional help to find something he could do. He conceded in cross‑examination that he had not worked since he ceased work in 2006 and not sought any work at any time since then. In these circumstances, no evidential onus shifts to the defendant to prove what work the plaintiff could have done, as in Thomas v O'Shea (1988) 7 MVR 569; (1989) Aust Torts Reports 80-251, the burden of proof remaining on the plaintiff to prove the measure of his loss. The extent of his residual capacity is unproved. This creates some difficulty with assessment of damages.
Although the plaintiff acknowledges that he has a substantial retained capacity, the evidence does not establish what work the plaintiff can in fact do, the availability of such work or its likely remuneration. It is not apparent why no assessment has been made of the plaintiff's functional capacity or vocational alternatives.
It is clear, however, that the plaintiff remains unfit for his pre-crash employment and for any work involving significant physical exertion. In this context it is important to bear in mind the principle that damages are awarded for loss of capacity to earn. It is necessary to identify what capacity has been lost and what economic consequences flow from that loss: Husher v Husher (1999) 197 CLR 138 at 143.
Doing the best I can on the evidence, I find that the plaintiff should be compensated in damages as follows for his past incapacity by reference to three periods.
The first period is from 15 May 2005 to 30 October 2008 (180 weeks). To the extent that he did not work in this period it was due to incapacity caused the crash-related injury. The plaintiff's damages equate to the difference between his actual earnings and what he would have earned had he not been injured.
In that time, at an average weekly rate of $1,404 net, he would have earned $252,720. In fact he received wages and income protection benefits of $190,000. His loss is therefore $62,720. He would have earned superannuation contributions of $15,300 ($85 x 180 weeks). In fact, he earned about $4,200 so his loss is $11,100. Interest on $73,820 at 3 per cent for 180 weeks (cumulative) and at 6 per cent for 78 weeks to 5 May 2010 is $14,310.
The second period is from 1 November 2008 to 30 June 2009 (34.4 weeks). In this period I find, accepting the evidence of Mr Narula, that he could work half time on light duties which I take to mean 20 hours per week. In the absence of other evidence of pay rates, about which I am not prepared to speculate, I will use the mean of $28 (his hourly rate at the time of the crash being almost $24 and the current rate being $32). This would give a weekly capacity of $560 gross, $496 net. His capacity was therefore worth $19,264. Had he not been injured he would have earned $48,298. The difference is $29,034. I calculate loss of superannuation on the same differential basis to be $1,450. Interest on the total loss of $30,484 at 3 per cent for 34.4 weeks and 6 per cent for 44 weeks to date is $2,153.
The third period is from 1 July 2009 to the date of judgment (44 weeks). In this period I find that the plaintiff has had the capacity for full time alternative work, but no capacity for overtime, so his loss is the difference between notional ordinary time earnings ($1,280 gross, $994 net) and what I have found that a person in his previous job would have earned ($2,308 gross, $1,637 net). The net difference is $643. The loss is $28,292 and interest at 3 per cent is $718. I do not find that any loss of superannuation has been suffered in this period.
I therefore assess past economic loss, inclusive of superannuation and interest, to be $149,777, say, $150,000.

Future loss of earning capacity

As I have found, were he still working in his pre-crash employment, the plaintiff would be earning about $1,637 net per week. I have found that he has a capacity for full‑time alternative work. Essentially, he has lost the capacity to earn more than ordinary time wages. The measure of his loss in my opinion is the value of the overtime earnings and allowances which he would have received had he not been injured.
The plaintiff is now aged 49 years. He submits a working life expectancy of 15.75 years to age 65 for which the multiplier is approximately 538. The plaintiff submits that his future earning capacity, had he not been injured, would have been $886,086 based on net weekly earnings of $1,647 (slightly higher than I have calculated). It assumes that the plaintiff would have continued to work long hours of overtime until retirement. He further submits that a reduction of 25 per cent should be made for retained capacity on the basis that he would probably be able to obtain work at a much lower level of remuneration.
I do not accept that a percentage discount for retained capacity is appropriate in this case. There is a clear consensus of medical evidence which supports a finding that the plaintiff has the capacity to work full‑time, albeit in an alternative job, to normal retirement age. The plaintiff himself admits that he has to work. Understandably, he has reservations about how he will cope. His claim, however, is one of partial incapacity and he bears the burden of proving the extent of his loss: Graham v Baker (1961) 106 CLR 340. He has not proved that alternative work is not available or that any work he can do will be remunerated at a lower ordinary time rate than his previous job (accepting that he has lost his capacity for overtime).
The plaintiff is evidently unable to work as a heat treatment technician in a manner that accommodates his physical restrictions. Nevertheless, he is, in my opinion, a motivated and resourceful individual with considerable know‑how and experience. On the medical evidence, it is reasonable to expect that his residual symptoms will either continue to improve or be increasingly better managed as time goes on.
I assess future loss of earning capacity for 15.75 years as claimed at the differential rate of $643, as calculated above. Using the submitted multiplier of 538 the loss is $345,934, which I would round up to $350,000. This strikes me as a fair assessment of the diminution of the plaintiff's earning capacity as a capital asset by whatever method is employed to arrive at that result. I make no reduction for negative contingencies as I consider that in this case there are countervailing positive contingencies of at least equal order. I do not find any future loss of superannuation because employer contributions are based on ordinary time earnings.

Special damages and future treatment expenses

Special damages have been agreed at $831.40. The plaintiff also claims $2,000 for future treatment. There is a paucity of evidence. He is not taking regular medication and does not require specialist review or physiotherapy. It is unlikely that he will need specific treatment. I allow $2,000 to cover both heads.

Summary

In summary I assess damages as follows:
Non-pecuniary loss  $64,800.00
Past economic loss including superannuation and interest     $150,000.00
Future economic loss  $350,000.00
Special damages and future treatment expenses  $2,000.00
TOTAL$566,800.00