Hamamdjian v Lipovac

[2018] NSWDC 408

District Court

New South Wales

Medium Neutral Citation:	Hamamdjian v Lipovac [2018] NSWDC 408
Hearing dates:	8 – 12 October 2018
Date of orders:	07 December 2018
Decision date:	07 December 2018
Jurisdiction:	Civil
Before:	Sidis ADCJ
Decision:	(1) Verdict for the defendant. (2) The plaintiff is to pay the defendant’s costs of the proceedings, as agreed or assessed. (3) The exhibits will be retained for 28 days.
Catchwords:	Personal injury; motor accident, liability, conflicting accounts of circumstances of the accident, credit, claims of embellishment and exaggeration, assessment.
Legislation Cited:	Motor Accidents Compensation Act 1999
Category:	Principal judgment
Parties:	Plaintiff: Haig Hamamdjian Defendant: Mary Elizabeth Lipovac
Representation:	Counsel: Plaintiff: Mr M. Daley Defendant: Ms C. Allan   Solicitors: Plaintiff: Brydens Compensation Lawyers Defendant: Moray & Agnew
File Number(s):	2015/00142705
Publication restriction:	Nil

JUDGMENT

1. This matter concerns a collision that occurred at about 8.45am on 15 March 2013 between a motor scooter driven by the plaintiff and a car driven by the defendant.

2. The defendant challenged the plaintiff’s account of the circumstances of the accident and his clams of injury and disability suffered as a result of the accident.

LIABILITY

3. The accident occurred at the intersection of Woodville Road with Parramatta Road and Church Street, Parramatta. Both the plaintiff and the defendant were travelling north on Woodville Road. At the intersection there were four traffic lanes in Woodville Road. One lane provided for a left turn only into Parramatta Road to the west. One lane provided for a right turn only into Parramatta Road to the east; this lane was referred to in the evidence as lane 1. The adjoining lane allowed for traffic to travel directly ahead onto Church Street or to turn right into Parramatta Road; this lane was referred to in evidence as lane 2. The remaining lane allowed for traffic to travel directly ahead onto Church Street. It was referred to as lane 3.

4. The plaintiff said that immediately prior to the accident he was travelling in lane 2. He stopped at traffic lights behind four cars and indicated his intention to turn right into Parramatta Road. The four cars travelled directly ahead when the lights turned to green. He moved into the intersection to make a right hand turn. As he was turning right a collision occurred between his motor scooter and the defendant’s car.

5. The plaintiff’s motor scooter impacted with the defendant’s car at the front passenger’s side wheel and the tyre exploded with a loud noise. The plaintiff noticed that the front wheel tyre was flat but did not know if there was any other damage to the defendant’s car.

6. The plaintiff said his motor scooter was pushed to the opposite side of the intersection and he and the defendant pulled up in the centre of Church Street, in the area that he marked on Exhibit D. The defendant said she was sorry and told him she had to get to work. She then began to make telephone calls.

7. The defendant’s account was different. She said that immediately before the accident she was travelling north in lane 2 on Woodville Road, intending to drive onto Church Street and proceed to Parramatta where she worked as a bank officer with Westpac.

8. She said that Woodville Road was two lanes wide to the point of it’s intersection with Crescent Road. She stopped at the traffic lights at that intersection. At that point she was travelling in the kerbside lane. Traffic entering from Crescent Road slowed her path of travel when vehicles entered and crossed the traffic lanes to reach the right hand turn lanes into Parramatta Road. Traffic from that point proceeded slowly in a stop-start fashion.

9. The defendant said she remained in this lane, which became lane 2, when Woodville Road widened into four lanes. She stopped in lane 2 behind one other vehicle at the traffic lights at the intersection with Parramatta Road.

10. As she started to move forward when the lights turned to green she saw a motor scooter on the right hand side of her car. The driver struck the wing mirror on the left hand side of her car with his elbow, moving it forward, and the front wheel of his motor scooter impacted with her front wheel, breaking the air valve. The motor scooter became unbalanced and the plaintiff touched the side of her car and that of a vehicle in the adjoining lane 3.

11. The defendant said that after impact she stopped about one half of a car length behind the white line at the intersection. The plaintiff did not stop immediately. He pulled over to the left of the road. She then moved to the area in Church Street marked by the plaintiff on Exhibit D and the plaintiff followed her with his motor scooter to this area.

12. The defendant denied that she offered the plaintiff any apology. She said she had nothing to apologise for. She said she asked the plaintiff twice if he had been injured and if he wished her to call an ambulance or if he wanted a lift to see a doctor. The plaintiff said he was ‘OK’.

13. The defendant’s evidence was challenged to suggest that her recollection of the circumstances of the accident was flawed.

14. The defendant said she was familiar with road conditions at the intersection, having travelled through it from her home in Guildford to work in Parramatta on three to four days each week for 14 months prior to the accident. She rejected the proposition that traffic entering from Crescent Road forced her into lane 1 so that she needed to move back into lane 2 in order to travel onto Church Street. She said was that this was something a driver would not do:

Unless you were stupidly driving, yes. You wouldn’t be in that lane because you have cars constantly going into that lane, the second lane is turning right. This is half past 8 in the morning, traffic’s -

(T22.30)

15. She denied the proposition that she made no attempt to recover the excess of $600 that she paid when her car was repaired because she considered that she was responsible for the accident.

16. Similarly, it was put to her that she did not report to the accident to police because she believed that she was at fault. The defendant said that she spoke to her insurer immediately after the accident and was advised that it was not necessary to call the police if no party was injured. As noted, she inquired about the plaintiff’s condition and he told her that he did not need assistance.

17. The police record (Exhibit Y) indicated that the defendant was cautioned at the time she provided a statement on 13 August 2013. It was put to the defendant that she was cautioned that she might be charged or given an infringement notice as a result of the accident. Her failure to remember this caution was said to have been another indication that she believed she was at fault. That the defendant did not remember receiving a caution in the terms put to her was unsurprising since the caution set out in the police record related to the failure to comply with the request to supply the name and home address of the driver rather than the commission of any driving offence.

18. The defendant’s evidence that she moved only one half of a wheel length before impact was said to be improbable if she was in fact travelling at her estimated speed of 10 – 20 kmh. She said she told police she was travelling very slowly, after just starting to move. The police officer asked her to nominate a speed and she assumed a speed of 10 – 20 kmh.

19. There was much questioning about whether the plaintiff was filtering between traffic or merging into her lane. The defendant said he was travelling between her car and the vehicle immediately to her left. The defendant’s attention was drawn to a Motor Vehicle Assessment Report of her insurer (Exhibit Z) where the following was recorded:

I was driving north on Woodville Road in a 3 lane road and I was situated in the middle lane and all of a sudden on my left lane a scooter I believed tried to merge into my lane and didn’t realise I was there and hit into me.

20. The defendant said she did not remember the precise terms of the information she supplied to the repairer. She thought she might have speculated that the plaintiff tried to merge. She maintained in evidence, however, that he did not merge.

21. In a statement made to police on 13 August 2013 the defendant said:

I was driving North towards Parramatta on Woodville Road, I was stationary at the red set of lights cross of Crescent St, Granville. The lights turned green and I drove to the next set of lights which is a big intersection being Parramatta Rd, Church St and Woodville Road. I was in the middle lane of 3 lanes and the traffic was peak hour and I was travelling very slowly at about 10 – 20 kph. Whilst I was driving I never saw a scooter near me, it was bumper to bumper and I could only see cars around me. I’m fairly certain that the scooter was driving in between the cars because the traffic was so bad. I stayed in my lane and when the scooter pulled into my lane in front of my car he has collected the front left side of my wheel and the front left panel. I think his elbow collected my left mirror. We stopped and exchanged details.

22. These statements were relied upon by the plaintiff for the submission that the defendant made several attempts at her version of how the accident occurred, while the plaintiff was said to have been consistent throughout.

23. It was true that the defendant used words interchangeably to describe how the parties’ vehicles came into contact, whether because the plaintiff filtered between cars and became unbalanced when his elbow struck her wing mirror, or whether he merged or pulled into her lane. However, at no stage did she accept that she travelled in lane 1. Her evidence on this point was consistent throughout.

24. This was not the case as far as the plaintiff was concerned. The clinical notes made at the time of treatment by Dr Tsia, ambulance officers and practitioners at Westmead Hospital record a number of accounts given by the plaintiff. The plaintiff was not cross-examined concerning these records but in none of them was there a suggestion that the defendant travelled in lane 1.

25. On 16 March 2013 the plaintiff signed a statement recorded in a police notebook as follows:

I was turning right into Parramatta Road from Church Street. I was on the second lane from the right, both of these lanes turn right onto Parramatta Road. I was travelling somewhere between the 20 to 40 mark. As I was going around the corner I saw a colour coming up beside me on my right hand side. I’m not sure where this vehicle come from. The vehicles front left tyre hit the side of my motor bike where my foot was. I heard a bang, it whacked me and it moved me side wards with the bike. The vehicle stopped. We both met up and exchanged particulars. My bike was damaged. My right ankle elbow and shoulder hurt. I was out the front of a medical centre so I went in their (sic) to get checked. The medical centre called an ambulance and I was taken to Westmead Hospital. No broken bones. I received bruising and soreness with my elbow, ankle and shoulder. I have to return to the hospital on Monday for the results of all the xrays and other test they did.

26. The first claim that I was able to find in the evidence that the defendant moved straight ahead from a right turn lane and into plaintiff’s path of travel was contained in the Personal Injury Claim Form (Exhibit H):

I was in the centre lane to turn right. Other driver was in the right lane that must turn right. The other driver (Mary Lipovac) drove straight from the right lane colliding with my shoulder, head, right leg and scooter. Other driver proceeded to push my scooter onto the Parramatta side of Woodville Road hard enough to blow the front passenger side tyre.

27. There was some doubt about the date that the Personal Injury Claim Form was completed, namely whether that date was the 12 April, July or September 2013. In any event the plaintiff denied in very forceful terms that the signature appearing on the statutory declaration was his. The transcript from 65.4 read:

Q.   Does the back page have a signature on it?

A.   Yes, it does have a signature

Q.   And is that your signature?

A.   I believe that’s not my signature. I believe that’s a complete – if you have a look at all the other signature I’ve done previously, that’s not my signature. That’s – even that name that’s been written is not my signature, so I’d love to know where that came from, please.

And at 65.43:

Q.   You seem concerned that you don’t know anything about this claim form, am I right?

A.   I’m concerned that that’s not my signature?

Q.   Are you concerned that you don’t know anything about this form?

A.   I’m concerned that that’s not my signature.

28. This evidence left open the question of whether the description of the accident contained in the Personal Injury Claim Form was in fact provided by the plaintiff. I noted, however, that this description of the accident did not categorically place the defendant in Lane 1 and it was also inconsistent with the statement provided to police one day after the accident when his memory was fresh.

29. The evidence the plaintiff gave to the Court was substantially consistent with that contained in the police statement. The evidence commenced at Transcript 14.17:

Q.   What happened then?

A.   Then I just continued to turn right and as I was turning right I seen something from my right-hand side and I just hit this car that sort of had just jumped right in between my path and was turning right. It was, I had nowhere to go.

Q.   Was the car or had the car been in your lane?

A.   The car went into my lane, had to have come into my lane. I was turning right and I was just, I was making the turn. I was just making the turn and I got, and then as I was making the turn, like, as I was turning the car it placed itself there. It was like, she drove, she didn’t want to turn right any more.

(Objection)

Q.   Just tell us what you saw.

A.   Sorry. What I saw was I seen, I was going this way and I seen on the right-hand side just there, just a colour come past, it was a car and that was as I was leaving to just about to go around the corner and I struck her car.

30. In cross-examination, the plaintiff confirmed that the final paragraph of this extract from the transcript was correct (T183.32). He agreed that he struck the defendant’s car with his motor scooter rather than, as claimed in many of the statements, that she struck him. Questioned on the matter of whether he made an assumption that the defendant was travelling in lane 1, the transcript proceeded (T182.16):

Q.   You didn’t see her until--

A.   I seen colour--

Q.   --you saw her at the corner of your eye—

A.   I seen colour.

Q.   --as a colour?

A.   Yes.

Q.   And you didn’t see her at all in the right hand lane did you, you’ve made an assumption about that haven’t you?

A.   You’re making so many assumptions, I’m actually trying to tell you what would have happened, your assumptions are just not common sense, that very close to common sense of what could have happened.

Q.   So you agree that that was an assumption of yours that she was in the right turn lane, don’t you?

A.   No, no I—

Q.   -- because you didn’t see her?

A.   I know for a fact that she was in the right turn lane, I know for a fact that she was in the right turn lane for a fact. I know that.

31. Establishing that the defendant travelled in lane 1 was central to the liability aspect of the plaintiff’s claim.

32. The defendant at no stage departed from her contention that she was travelling in Lane 2 notwithstanding the matters raised with her in cross-examination to suggest that she provided inconsistent statements on other details. Whether she thought the plaintiff was filtering between vehicles or merging in to her lane was irrelevant in the light of her insistence that the collision occurred in lane 2 when the plaintiff travelled beside her car.

33. I found no other reason to reject the defendant’s consistent claim that she was in lane 2. She was very familiar with the route upon which she travelled. She denied that she was forced into lane 1 by traffic entering from Crescent Street. Acceptance of the plaintiff’s proposition that she was in lane 1 also involved accepting that the defendant waited until she reached the intersection to correct her situation and that her method of correcting her situation involved driving across a line of vehicles, including the plaintiff and his motor scooter whose intention to turn right had been indicated.

34. I could not, on the balance of probabilities and in the absence of clear and direct evidence, conclude that the defendant acted in such a foolhardy fashion.

35. Further, I could not overlook the relatively contemporaneous statement the plaintiff provided to the police and its coincidence with the evidence he gave to the court.

36. I concluded that the defendant’s version of the circumstances of the accident was to be preferred and I found in the defendant’s favour on the issue of liability.

DAMAGES

The plaintiff’s physical injuries

37. The plaintiff claimed that he suffered injuries to his neck, right shoulder, right leg and ankle.

38. The plaintiff gave evidence of an initial period of pain and disability that was so severe that he was bedridden and unable to attend even to his basic needs.

39. He claimed that he relied heavily on painkilling medication, both over the counter and prescription drugs. He said:

I took Endone, Dolocid, like I’d be there buying them weekly, a few packs a week.

(T.25.17)

40. He returned to work with Toll on 13 April 2013, working as a truck driver on light duties where he was not required to load or unload cargo. He ceased work on 21 May 2013, stating that his condition was such that he could no longer continue his employment.

41. In October 2015 the plaintiff commenced employment with SPA Contracts (Aust) Pty Limited as a driver delivering the company’s goods from site to site. He said this work suited him because he was not required to load or unload vehicles. However, soon after he commenced employment the company extended his role to include installation of their products, involving activities that he was not able to perform. By mutual agreement, his employment was terminated in November 2015.

42. On 14 December 2015 he commenced employment with First Logistics Pty Ltd where he drove a truck and loaded and unloaded cargo with a forklift. His employer changed the type of truck to that with curtained sides. Use of this truck involved a greater degree of physical activity that was beyond the plaintiff’s capability. By mutual agreement, his employment was terminated in May 2016.

43. Sydney Waste Services (Aus) Pty Limited employed the plaintiff as a driver and cleaner in July 2016. The plaintiff said he obtained this employment through friends of his family. He was required to drive a tipper truck for short distances within the Sydney metropolitan area and then unload by pushing a button to tip sand and other materials. About five times while employed by this company he was required to deliver a bobcat and driver to a golf course. The yard work he performed involved light work only. He said his employers were very understanding and they allowed him time off when necessary.

44. His employment with Sydney Waste ended, again by mutual agreement, because the nature of the work undertaken by the company changed and the type of work he had been doing was no longer available. The plaintiff said he ceased work in April 2017. The company’s records indicated that he continued in employment until the week of 22 June 2017.

45. He remained unemployed to the date of the hearing notwithstanding his attempts to secure work.

46. His condition at the time of the hearing was described as follows:

1. He continued with discomfort in his right shoulder. On good days he managed the discomfort with medication. On bad days he was bedridden. There were more bad than good days. The pain was constant and fluctuated according to weather conditions, the pain increasing in very cold or very hot weather.

1. He was restricted in the range of movement of his right shoulder. He could lift his arm above shoulder height only with resulting increase in pain. He could lift objects only with pain. He could not surf or play football, activities that he very much enjoyed prior to the accident. He would undergo the surgery recommended by Dr Kahil if he had the funds to pay for it.

2. He continued to have pain in his neck that locked up from time to time. The pain in his neck made it difficult to find a comfortable sleeping position. The range of movement in his neck was restricted.

3. His right ankle was not good. It was weak, it rolled easily and it was painful when walking on stairs. He suffered discomfort when truck driving because the accelerator of a truck was heavier to manipulate than that in a passenger vehicle.

4. He continued to have pain in his right knee.

Medical Evidence

47. The issue between the parties concerning the plaintiff’s physical injuries was whether the plaintiff had effectively recovered from their effects by the end of 2015.

48. Evidence from treating practitioners was sparse and was almost entirely in the form of the clinical notes.

49. Dr Tsia, who examined the plaintiff shortly after the accident, recorded findings of tenderness in the areas of complaint. On admission to Westmead Hospital, x-rays and CT scans were taken. They revealed no abnormalities. The plaintiff was discharged the following day with advice to consult his general practitioner.

50. On 8 April 2013 he returned to Westmead Hospital where he received clearance to return to work.

51. The plaintiff said he was treated during this period by his partner’s brother-in-law, a chiropractor, from whom no evidence was provided. He also made reference to having consulted a doctor at Maroubra in the first month following the accident. There was no evidence to support this contention. The plaintiff said he relied on painkilling medication and prescribed things (T.19.7).

52. On 7 May 2013 the plaintiff consulted practitioners at the Ingleburn Medical Centre with complaints of persisting pain in his right shoulder, right ankle and right lower back. He was referred to Dr O’Carrigan for specialist advice. The plaintiff said he did not consult Dr O’Carrigan because he was unable to afford his fees.

53. In September 2013 he was referred to another specialist, Dr Kahil, to deal with his right shoulder that was reported to have been painful since the accident. No mention was made in the letter of referral to any other areas of continuing complaint.

54. Dr Kahil reported on consultations between 6 November 2013 and 7 October 2015. He arranged an MRI scan that he said suggested supraspinatus lamination, intra supraspinatus tear and subacromial bursitis. He initially treated the plaintiff with steroid injections and referred him for physiotherapy. This treatment provided partial relief and Dr Kahil then instructed the plaintiff on muscle strengthening exercises.

55. Dr Kahil reported on 18 June 2014 that the plaintiff told him that he was dramatically improved with some residual mild pain.

56. On 3 June 2016 Dr Kahil diagnosed a definite impingement for which surgery was recommended. The plaintiff did not have private health cover and was unable to afford the hospital costs. Dr Kahil reported that he was building a day surgery centre and proposed that he could provide the plaintiff with surgery there at a reduced cost. On 7 October 2015 Dr Kahil reported that the plaintiff said he was somewhat better and that he was living with his condition. Dr Kahil continued to offer surgery when his day surgery centre became available. He said the plaintiff’s prognosis without surgery was poor.

57. The plaintiff said that he received physiotherapy at Maroubra during this period. He also said he attended a pool at Randwick for ‘aquatherapy’ and that he continued with this treatment to the date of the hearing. No report concerning these therapies was in evidence.

58. The plaintiff also consulted Dr Shams at the Macquarie Health Centre from time to time during 2013 and 2014. Dr Shams’ clinical notes refer to complaints of continuing shoulder pain in February and April 2014.

59. Exhibit W comprised the clinical records of the Botany Medical Centre that indicated that the plaintiff consulted Dr Brody in that practice in November 2016 with left shoulder pain. The plaintiff said this was the result of overuse of the left arm to compensate with the difficulties encountered with his right shoulder. This contention was not recorded in the clinical notes and there was no confirming medical report. There was no reference in the notes to any complaint concerning the right shoulder or any other part of the plaintiff’s body that had been affected by the accident.

60. The plaintiff said that he continued with aquatherapy, claiming that, without it, he would be very restricted in his movements. He continued to take over the counter painkilling and anti-inflammatory medication. He had tried creams and patches for pain relief without benefit. He continued to consult the Botany Medical Centre, although the medical practitioners there did nothing to assist him. There was no evidence before the court of continuing consultations.

61. Medico-legal practitioners were divided in their opinions. They accepted that the plaintiff suffered soft tissue injuries to the right side of his neck, right elbow, wrist, knee and ankle. They noted continuing complaints of tenderness in these areas but the preponderance of medical opinion was that these soft tissue injuries had resolved shortly after the accident.

62. The area of continuing concern related to the plaintiff’s right shoulder. Dr Harbison, Dr Bodel, Dr Dalton and Dr Cummine agreed that surgery was not required. Dr Giblin did not accept that right shoulder surgery was required immediately but he thought that it might be required in the long term.

63. Dr Harbison examined the plaintiff on 3 September 2014. He reported the plaintiff’s right shoulder was stiffer than expected and that the plaintiff had developed a partial frozen shoulder as a result of lack of use. He recommended an exercise regime. He accepted that the plaintiff remained partially incapacitated with restrictions affecting both his capacity for employment and domestic activity by reason of the difficulty of lifting objects above shoulder level with his right arm.

64. Dr Bodel initially examined the plaintiff on 28 November 2014. He provided a guarded prognosis for right shoulder. He recommended that the plaintiff be referred to a specialist shoulder surgeon to determine if further injections or surgery were required to assist the plaintiff to return to work.

65. Dr Bodel examined the plaintiff again on 11 April 2016 when his clinical findings included mild generalised wasting in the right shoulder girdle and slight restriction of shoulder movement, mild impingement in the right shoulder. He said the plaintiff’s prognosis was reasonable provided he maintained activity and took care to minimise activities that involved overhead use of his right arm. He did not recommend further treatment apart from exercise. He thought the plaintiff’s condition had stabilised and did not anticipate that surgery would be required although there might be a requirement for injections from time to time.

66. Dr Giblin examined the plaintiff on 14 June 2018. Dr Giblin diagnosed right rotator cuff disease.

67. On 20 April 2015, on behalf of the Medical Assessment Service, Dr Home assessed the plaintiff’s injuries. He accepted that the plaintiff-suffered damage to the right shoulder as recorded in the MRI scans with restricted shoulder movement.

68. Dr Dalton examined the plaintiff on 31 May 2016. Dr Dalton reported that the plaintiff nursed his right arm during the consultation and avoided its use when dressing and undressing. He reported that the plaintiff’s avoidance of the use of his right arm was inconsistent with the absence of evidence of disuse such as muscle wasting. He challenged the claim that the continuing shoulder pain was causally related to the accident although he acknowledged that it could be the result of the plaintiff’s avoidant behaviour. He thought the plaintiff’s claims of ongoing pain and disability were disproportionate and inconsistent with the injuries he suffered at the time of the accident. He was strongly opposed to the proposition that surgery was required, recommending instead physiotherapy to correct abnormal movements and compensatory muscle patterns.

69. Dr Cummine examined the plaintiff on10 October 2016. Dr Cummine was concerned that the nature and extent of the restriction on range of movement of the right shoulder demonstrated by the plaintiff was disproportionate. He thought no further treatment was required.

The plaintiff’s psychiatric injury

70. The plaintiff claimed to have suffered a psychiatric injury of considerable significance as a result of the accident. There was agreement amongst the majority of the psychiatrists who examined the plaintiff for the purposes of his claim that he suffered from a psychiatric disorder the categorisation of which varied between experts. A MAS Review Panel certified on 21 December 2017 that the plaintiff suffered from whole person impairment as a result of a Major Depressive Disorder to a degree of 19%.

71. The plaintiff has never received specialist treatment for this disorder and it was unclear from the evidence when the symptoms of it first manifested.

72. He claimed that during the period immediately after the accident when he was in extreme discomfort and bedridden and afterwards the limits of his physical capacity were such that he was unable to assist his partner in caring for their child, who was six months old at the time of the accident. This disability, coupled with the financial difficulties that faced them when he was unable to work placed pressure on the relationship to the point where it failed and they separated in June 2013.

73. This caused the plaintiff a considerable degree of distress because of the separation from his son and because he was ashamed that he was forced, as a grown man, to return to live with and rely upon his elderly parents. He also suffered from continuing distress caused by difficulties in gaining access to his son.

74. In May 2014 the plaintiff received counselling at the Redfern Community Centre. He said he did not consult a psychologist because he could not afford the cost of treatment and the defendant’s insurer refused his request to fund it. This counselling, he said was very helpful at first but the Centre closed down and counselling ceased. No report from the Centre was in evidence.

75. The remainder of the evidence concerning the plaintiff’s psychiatric condition dealt with the period from the end of 2015 to the current date.

76. The plaintiff complained of social isolation. He particularly enjoyed his work with First Logistics in 2016 because he was able to work alone. This was his preference because he was unable to cope full time with being around people. He said he hardly ever went out, preferring to go nowhere and avoid the embarrassment of his moodiness.

77. He said he suffered from anxiety to the point where he was unable to go to work on some days and that it frequently prevented him from getting to work on time. He said he rarely arrived at work at the set time of 6 am, usually arriving at 7 am or later. He frequently took time off. Sometimes he took days, sometimes weeks or half or quarters of days. He coped with his work on some days. On others he fared very badly.

78. The plaintiff described his condition in the following terms:

Q.   On a good day how were you, what could you do?

A.   I could smile, walk around and – you know – I could be alive and feel good and do stuff.

Q.   And how on a bad day?

A.   On a bad day I wouldn’t be there and I’d try not to be there and I’d avoid getting in there at all – at all times. If it’d come down to feeling bad later I just – I don’t want to – if I could keep the sheets over my head I would, it just gets to that stage.

(T.34.41)

79. In later evidence he described his circumstances as:

There was no life – no life whatsoever. It was just a life of my parents seeing me as a complete dropkick, that’s what it was. It was just – yeah – not good.

(T.34.41)

80. The plaintiff said his emotional condition had worsened since he became unemployed. He returned to counselling at the end of 2017 through a free service in Surry Hills. He attended fortnightly but discontinued treatment when the counsellors changed too frequently. No report from this service was in evidence.

81. As to his current condition, the plaintiff said he lacked motivation. He tried to avoid thinking of the past and did not think of the future. He disliked shops, he did not want people in his life, he had mood swings and he could not think straight because of the medication he relied on; he suffered from frustration anxiety and panic attacks that caused him to sweat. He had suicidal thoughts at times. He was ashamed of his domestic situation and he avoided his parents by staying in his room or in the back shed.

82. The plaintiff’s father gave evidence concerning his complaints of psychiatric injury. He said the plaintiff spent considerable periods of time in his room, that he rarely joined his parents at the dining table at meal times, preferring to eat alone, often in his room. He described the plaintiff as sad, lacking in appetite and socially isolated. He no longer cared for his appearance, remaining unshaven and not cutting his hair. Mr Hamamdjian’s evidence was difficult to follow, firstly because it was given through an interpreter and secondly because, as he freely acknowledged, he suffered from an impaired memory which resulted in his giving confused and conflicting evidence upon which little reliance could be placed. This evidence particularly affected his evidence about the plaintiff’s living arrangements immediately following the accident and the extent of his social activity after he returned to live at Botany.

Medical evidence

83. On 4 November 2016 Dr Brody, when consulted concerning the plaintiff’s left shoulder, also prescribed the anti-depressant Pristiq. The plaintiff said he resisted anti-depressant medication to that point. He also prescribed sleeping medication. The plaintiff said this was because he was suffering from nightmares and was unable to sleep. He attributed this to the quantity of painkilling and anti-inflammatory medication that he was taking. Dr Brody issued a further prescription for Pristiq on 20 December 2016, his clinical notes recording the plaintiff’s symptoms as feels depressed for no reason, anxiety as well, avoid social events.

84. On 18 January 2017 the plaintiff consulted Dr Nan Gu in the same medical practice. Dr Gu diagnosed anxiety/depression and increased the dose of Pristiq from 50 mg to 100 mg. The clinical notes of this consultation referred to poor sleep as the plaintiff’s main concern and a trial of Stillnox was implemented. On 11 April 2017 Dr Brody noted good results on Pristiq and he provided another prescription with the dose at 100m mg.

85. Dr Brody did not provide a report to explain the reasons for his prescription or to detail his assessment of the plaintiff’s psychological condition. This was surprising in the light of medico-legal opinion, the preponderance of which concluded that the plaintiff was suffering from mental ill health that required immediate treatment.

86. Mr Glancy, psychologist, who examined the plaintiff on 21 October 2016, was the first practitioner to assess his psychological condition. There were some aspects of the plaintiff’s history that were recorded by Mr Glancy that were contrary to the evidence. He recorded that at the time of the accident the plaintiff lived with his partner of 5 years and that he had been with the same employer for 5 years. This presented a picture of emotional and financial stability that was not apparent from the materials before the court. Mr Glancy dealt at some length with the circumstances leading to the breakdown of the plaintiff’s relationship after the accident that included episodes of ill temper and conflict, frustration associated with his pain and disability and consequences to intimacy within the relationship. The failure of the relationship was said to have exacerbated his depressed condition.

87. At the time of his consultation with Mr Glancy, the plaintiff reported improvement in his condition, with higher motivation and regular exercise. He continued to lament the loss of employment and the loss of his relationship and his inability to participate in former sporting activity around which his pre-accident social activity revolved. Mr Glancy recommended that the plaintiff obtain treatment.

88. Mr Glancy examined the plaintiff a second time on 27 October 2016. The plaintiff reported a number of symptoms including anxiety, with physical symptoms of chest pain before work each day, frustration at his compromised life circumstances, loss of libido, loss of his pre-accident sporting activity, social isolation and dramatic mood swings for no apparent reason as well as physical pain in his right ankle, right elbow and right shoulder. Mr Glancy thought that spontaneous improvement should not be expected and again recommended psychological treatment.

89. When Dr Jager examined the plaintiff at the request of the Medical Assessment Service on 15 February 2017 he diagnosed Chronic Post Traumatic Stress Disorder and Major Depressive Disorder. He noted the absence of treatment, aside from some counselling, and the delay in prescription of anti-depressant medication because of the plaintiff’s concern that it indicated weakness on his part. Dr Jager listed the plaintiff’s extensive complaints of symptoms, both physical and psychological. He noted that the plaintiff entertained suicidal thoughts as recently as a few days prior to 15 February 2017. At four years after the accident Dr Jager concluded that the plaintiff was unlikely to improve, even with treatment. He assessed his whole person impairment at 19%.

90. Dr Vickery’s examination of the plaintiff took place on 7 March 2017. He noted that the plaintiff’s condition was being managed with Pristiq and Temazepam. Although he noted the plaintiff’s symptoms and he diagnosed a Chronic Adjustment Disorder, Dr Vickery’s opinion was that the plaintiff’s prognosis was positive, that he was fit for employment and that his psychological injury did not generate a requirement for care, past or future.

91. Dr Klug examined the plaintiff on 8 May 2017. Dr Klug provided an extensive list of symptoms, many of which were not relied on in evidence, in particular the complaint of recurrent panic attacks. Dr Klug noted that the plaintiff reported that he took the anti-depressant Pristiq irregularly so that it could not be regarded as a therapeutic trial. He also noted increased consumption of alcohol and smoking more cigarettes daily.

92. Dr Klug described the plaintiff as markedly depressed and tearful, crying for most of the interview, describing pervasive anhedonia. He had suicidal thoughts and intermittent suicidal intent.

93. Dr Klug and Dr Vickery discussed this matter in conclave on 11 October 2017 after they viewed surveillance footage recorded in January and February 2017.

94. Dr Vickery listed other stressors that, in his opinion, were causative of the plaintiff’s Adjustment Disorder and supported his view that it was unrelated to the accident. He listed: the breakdown of his relationship; the difficulties complained of by the plaintiff in securing access to his child; his return to living with his parents; and financial stress resulting from unemployment. Dr Klug disagreed. He thought the breakdown of the relationship might have been accident related but conceded that he did not know for certain that this was the case.

95. In respect of the assessment of the plaintiff’s capacity for self care and personal hygiene, it was noted that when he presented to Dr Vickery and Dr Jager his appearance was appropriate and neat, as demonstrated in the surveillance footage. Dr Klug gave a higher rating to this aspect of the assessment because the plaintiff reported that he no longer cared about his appearance or personal hygiene.

83. Dr Klug and Dr Vickery disagreed on the appropriate assessment for social and recreational activity. Their differences depended upon the reports made to them by the plaintiff and their reactions to the surveillance footage. Dr Klug maintained that the plaintiff was significantly socially withdrawn.

The plaintiff’s credit

97. There was much in the plaintiff’s presentation to the Court that was of concern. He clearly did not respond well to the stress of the situation. He often became angry and argumentative in cross-examination. He failed to address questions. He gave responses that were lengthy and dissembling. He accused the defendant’s counsel of lies and of attacking him unfairly. When challenged on the discrepancies and inconsistencies in his evidence he became aggressive and argumentative rather than providing a direct answer or explanation.

98. This aspect of his personality was noted in a number of the medical reports that were in evidence. I tried on a number of occasions in the course of his evidence to assist the plaintiff but this did little to change his approach to his situation.

99. His conduct left the Court to decide whether it was the product of a psychiatric injury suffered as a result of the accident or whether it was, as submitted by the defendant, evidence of embellishment and exaggeration.

100. The plaintiff’s credit was attacked because of anomalies and inconsistencies in his evidence.

101. He claimed a record of employment as a truck driver during periods when he was not licensed to drive heavy vehicles or to drive at all.

102. The nature of his relationship with the mother of his child, both before and after the accident, was entirely unclear. He claimed the relationship commenced in 2008 or 2009 when, in July 2009 he nominated another woman as his lover in an application for employment (Exhibit 3). He claimed that he lived with the mother of his child in Macquarie Links from 2010 and at the time of the accident. A number of documents created during that period, such as employment applications, driving licence, hospital and other medical records, and police documents recorded his address at his parents’ home at Botany.

103. He was employed as a truck driver, from time to time, but always in areas of the eastern suburbs of Sydney, while he claimed to be living in the west at Macquarie Links. This was, he said, because, not having grown up there, he did not know streets of the western suburbs well enough to take a job driving through them.

104. He claimed that the relationship with the mother of his child ended because of the strain imposed by the consequences of the accident. As a result, after a period when he relied on his friends, he moved back into his parents’ home. Precisely when the relationship was terminated varied in his evidence between three and six months after the accident. The plaintiff’s father initially indicated that he returned to Botany Street immediately after the accident. He then said he was mistaken and that the plaintiff returned two months after the accident. Mr Hamamdjian Snr. attributed this mistake to his very poor memory, both as to the events of 2013 and the day before he gave evidence.

105. The plaintiff’s explanation for continuing to receive medical treatment from practitioners in the western suburbs, in close proximity to the Macquarie Links address, after he allegedly returned to live in Botany, was that doctors in those areas bulk billed at a time when he could not afford to pay for treatment. He subsequently acknowledged that this service was available to him at the Botany Medical Centre, where Dr Brody treated him.

106. He claimed that he was in extreme pain to the point where he was bedridden for 20 days after the accident and that he was dependent upon assistance with the most basic of personal hygiene. There was no evidence of treatment during this period. Indeed, he returned to Westmead Hospital on 8 April 2013, 25 days after the accident seeking medical clearance to return to work. The Westmead Hospital clinical notes (Exhibit J) of that date recorded that he complained of neck stiffness but not pain; there were no limitations in range of movement and no new complaints. There was no reference in the notes to any complaints concerning any other part of the plaintiff’s body. He returned to work on 13 April 2013.

107. The plaintiff initially said that he did not consult Dr Shams at the Macquarie Health Centre that was close to the Macquarie Links address although he was in extreme pain because he was not capable of tolerating the extensive waiting time that would have been involved had he made an appointment. Further, he was unable to walk for the three minutes it would have taken to get to her surgery. He then said that he did indeed consult Dr Shams soon after the accident and that he gave her the discharge summary provided by Westmead Hospital. Dr Shams’ records (Exhibit 17) did not support this evidence. Her clinical notes indicated that the plaintiff first consulted her after the accident on 19 September 2013 for an unrelated illness. The notes of that consultation made no reference to the accident or to complaints concerning the injuries received in the accident.

108. The plaintiff did consult Dr Shams concerning right shoulder pain and tenderness in February, April and June 2014. At the initial consultation Dr Shams recorded complaints of right shoulder pain, the results of an MRI of the shoulder demonstrating bursitis, tendonopathy and tears of the tendon and no hx of recent direct trauma. At each of those consultations Dr Shams recorded that there was full range of movement. On 24 April 2014 she recorded that the plaintiff was a lot better. On no occasion did Dr Shams record a history of injury following a motor vehicle accident.

109. The record of improvement in April 2014 was consistent with Dr Kahil’s note of 18 June 2014 recording dramatic improvement. The plaintiff denied that he had improved to this extent although he acknowledged that some improvement had occurred following Dr Kahil’s treatment. He attributed the interval of 12 months between consultations with Dr Kahil in 2014 and 2015, a period during which he received no other treatment, to the difficulty in obtaining appointments with a very busy practitioner.

110. The plaintiff claimed that from the time of the accident he required both prescription and over the counter painkilling medication, including Endone. This claim was not supported by medical or pharmaceutical records. There was evidence of a prescription for the anti-inflammatory drug, Naprosyn, in May 2013. Dr Brody provided the first of two prescriptions for Endone on 4 November 2016, the second on 8 November 2016, to deal with complaints of pain in the plaintiff’s left shoulder. Presented with evidence that no prescription medication was provided for strong painkillers until 2016, the plaintiff said he obtained the strongest possible painkilling medication that was available without a prescription. He did not ask doctors at Westmead Hospital on 8 April 2013 for a prescription because the over the counter painkillers that he was taking prevented him from thinking clearly.

111. The plaintiff made no complaint of a psychological reaction to the accident for two years, nor did he seek treatment for any mental health problems until Dr Brody prescribed with anti-depressant medication in November 2016. He said this was because he thought it was not manly to do so. When examined by Mr Glancy in September 2015 for the purposes of his claim, the list of symptoms was extensive.

112. The plaintiff claimed that when working for Sydney Waste he worked on average 20 to 30 hours per week and that he took a substantial amount of time off both in whole days and part days. His employer’s records did not substantiate this claim. They indicated that the plaintiff worked a 35 hour week consistently, although he did take time off to travel to Tamworth to assist a female friend. He secured this leave by presenting a medical certificate to the effect that his friend was unable to work or care for her children and that her partner will be required to care for her (Exhibit 14). The plaintiff denied that this friend was his partner or that he provided her with assistance. He said, in fact, she was helping him with his mental health. He agreed that he travelled to Tamworth to visit his friend several times by air or by car.

113. There were other aspects of the evidence that I considered to be unreliable. They included the reasons he provided for ceasing employment with First Logistics and Sydney Waste. He denied that his signature appeared on the Personal Injury Claim Form (Exhibit H) and the employment application (Exhibit 7) and his treatment at the Sydney Dental Hospital in an effort to avoid what he perceived might be the adverse consequences of admitting these parts of the evidence.

The Surveillance Material

114. I entertained serious doubt concerning the plaintiff’s claim that a private investigator telephoned him even before he commenced proceedings to advise him that he had instructions from the insurer to watch him. It was for this reason that the plaintiff repeatedly demanded that surveillance footage, other than that recorded in early 2017, be made available. He believed that this footage would demonstrate the truth of his claims of pain and disability.

115. The investigators’ reports (Exhibit 26) indicated that the plaintiff was under surveillance at the Botany Street address for five days in January and February 2015 when he was sighted only briefly and seven days in August and September 2015 when he was not sighted. On 19 January 2017 the plaintiff was sighted briefly. On 20 January 2017 the plaintiff was sighted and footage was recorded (Exhibit 20). Observations were made on 3, 4, 7 and 8 February 2017 with video footage recorded on 3 and 8 February 2017 (Exhibit 21). Observations were made on 16 – 19 February 2017 with video footage recorded on 16, 17 and 19 February 2017 (Exhibit 22); on 17 July 2018 when the plaintiff was sighted but no footage was recorded, 19 and 28 July 2018 when the plaintiff was not sighted; 1 August 2018 when some footage was recorded and 2 August 2018 when the plaintiff was not sighted. The investigator was not cross examined.

116. Surveillance footage is of limited assistance in determining the competing claims of parties to personal injury claims, particularly where, as in this case, it is limited to only a few hours or days in the plaintiff’s life. However, when coupled with the unsatisfactory nature of the plaintiff’s evidence overall, I did take into account. This was because there were very substantial inconsistencies between the plaintiff’s presentation as shown on the surveillance footage and his presentation and symptoms reported by medico-legal experts in the period when the footage was recorded.

117. In all of the footage shown to the court the plaintiff appeared to be neat and tidy in appearance. His head was close shaven and facial hair was limited to a small goatee type beard. He undertook activities that were inconsistent with his claims of continuing physical pain and discomfort. He showed no sign of emotional distress.

118. The plaintiff was observed over a lengthy period on 17 February 2017. The activities observed during that period were recorded in the surveillance report of that date forming part of Exhibit 16. Of note was the observation that the plaintiff left an address in Raby at approximately 6 am. This was an address to which he had driven on the prior evening and it was clear that he stayed there overnight. Observation on 17 and 18 February 2017 indicated that he also stayed at this address on 18 February 2017.

119. Among that activities observed on 17 February 2017 was the loading and unloading of a bobcat from a Mack truck. In respect of this activity, the plaintiff said:

It changed from helping put ramps on the back, because Toohey used to drive it onto the truck. So putting the ramps. Just tying down the bobcat so it didn’t, like – so it didn’t come off the – off the truck. It fit nicely inside the truck, but by law you have to tie it down to make sure – just in case the truck flips of something like that, but the bobcat doesn’t fly out.

(T30.50)

120. The ramps, he said, were not more than 20 kgs in weight. There were two straps that he threw over the sides of the truck. His co-worker mostly attended to the straps but when the boss was present the plaintiff would try to be more involved. He insisted that he was seen to limp after he jumped from the truck. He denied that, in throwing one of the straps, he used his right arm and shoulder in a full arc. The limp was not readily apparent to my view nor did I accept that his right arm and shoulder appeared to be restricted in any way.

121. The plaintiff said he did not cope well with this part of his work and he thought it was fortunate that he did it on rare occasions only. When he was required to do this, his pain levels increased so that he doubled the amount of painkilling medication he consumed.

122. The plaintiff was observed at a social outing with friends on the evening of 17 February 2017, engaging in conversation at a dining table in a local restaurant and attending to the needs of his son. He explained that these people included Jimmy and his wife who were virtually his only friends and the limit of his social life. He pointed out that the restaurant was not crowded so that he was able to tolerate the situation. He said he limited his conversation to Jimmy and his wife because the other adults in the party, Jimmy’s brother and sister, suffered from some kind of deformity.

123. Dr Cummine and Dr Dalton provided further reports after having reviewed the surveillance footage recorded in early 2017. They each noted movement by the plaintiff that was inconsistent with the plaintiff’s presentation when examined by them. Dr Dalton concluded that the plaintiff was embellishing and exaggerating his disabilities or that he made a remarkable recovery since his examination of him in May 2016.

124. There was no evidence of Dr Giblin’s response to the footage.

125. Dr Klug viewed the surveillance footage and concluded that it was of little assistance in assessing the plaintiff’s psychiatric condition. He had been informed that the plaintiff worked as a truck driver two days a week, which was incorrect but which Dr Klug thought was compatible with the footage.

126. In conclave Dr Klug repeated his view that little could be gleaned from the surveillance material concerning the plaintiff’s psychological condition and he referred to medical practitioners who reported that the plaintiff suffered from significant psychiatric symptoms. Dr Vickery disagreed. The surveillance footage suggested to him that there was inconsistency in presentations to Dr Dalton and Dr Jager in respect of both the plaintiff’s claimed physical and psychiatric symptoms.

127. Dr Jager re-examined the plaintiff on 8 August 2017. He maintained his diagnoses and his opinion as to their causation but noted inconsistencies between the plaintiff’s claim of heaps of time off and his employer’s records since 2016 and the inconsistencies between the surveillance footage and the plaintiff’s claims of hypervigilance, discomfort, social isolation and lack of self care. Based on these discrepancies, he reduced his assessment of the plaintiff’ whole person impairment to 5%.

128. This assessment resulted in referral to a Review Panel appointed by the Medical Assessment Service, comprised of psychiatrists Drs Diamond, Roberts and Anderson. They examined the plaintiff on 13 December 2017. They rejected Dr Jager’s diagnosis of Post Traumatic Stress Disorder but agreed that the plaintiff suffered from Major Depressive Disorder. The Review Panel concluded that there was a genuine psychiatric injury whether there had at times been embellishment or not and reinstated the assessment of whole person impairment of 19%. In reaching this assessment the Review Panel took account of:

1. Their differing view from that of Dr Jager of the Sydney Waste payroll records that indicated to them that the plaintiff received the maximum wage of $1,250 in only 8 of 32 weeks;

2. Their understanding that the dose of Pristiq had been reduced from 100mg to 50mg.

3. An apparent deterioration in the plaintiff’s condition since he was re-assessed by Dr Jager in August 2017. They questioned whether this was the result of the reduction in dosage of Pristig.

4. The difficulty of reconciling the surveillance footage with the plaintiff’s condition after 10 months had passed and their assessment that his condition had deteriorated.

129. The Review Panel shared the concern of all the experts in this case that the plaintiff had not received adequate treatment for his psychiatric condition. They noted that such counselling as he had received was directed towards his relationship breakdown and his reaction arising from the difficulties in securing access to his son.

ASSESSMENT

Non-Economic Loss

130. I find that the plaintiff overstated the consequences of the accident both as regards his physical and psychiatric injuries.

131. I did not accept the plaintiff’s claim of extreme pain and discomfort in the period immediately following the accident. I considered it improbable that, with pain at levels complained of, the plaintiff would fail to seek further medical attention or that he would not mention the severity of his condition when presenting to Westmead Hospital for clearance to return to work 26 days later.

132. I took account of the preponderance of medical opinion, the absence of complaint and medical treatment and the surveillance material in finding that the soft tissue injuries to his back, wrist, ankle and knee resolved within a short period after the accident.

133. The plaintiff’s claims of ongoing discomfort affecting his right shoulder were supported by the evidence of the Ingleburn Medical Centre, Dr Kahil and Dr Shams.

134. I accepted the opinions of Dr Harbison, Dr Bodel and Dr Home in finding that the plaintiff continued to suffer from a defect in his right shoulder that was likely to result in restrictions and discomfort from time to time. The absence of evidence of treatment of this condition since the last consultation with Dr Kahil in 2015 persuaded me that the defect did not affect the plaintiff to the extent claimed.

135. The claim of psychiatric injury was more complex to determine. I accepted the opinions of the medical experts in finding that the plaintiff suffered a psychiatric condition that involved anxiety and depression whether it be categorised as an Adjustment Disorder or Major Depressive Disorder.

136. The report of the Review Panel, however, was problematic because the evidence did not support the points relied on by the members of the Panel to distinguish their assessment of the plaintiff’s condition in December 2017 from that assessed by Dr Jager in August 2017.

137. The records of Sydney Waste (Exhibit T) dealt with the period of employment from 7 July 2016 to 22 June 2017, a period of about 41 weeks. The schedule prepared by the plaintiff that was attached to those records indicated that during that period he did not work on 37 days. Thirteen days were recorded as taken for purposes that were unrelated to any illness or disability. This left 24 days, or, assuming a 5 day week, 5 weeks of 41. The defendant tendered Sydney Waste’s sick leave and annual leave record for the plaintiff (Exhibit 25). These records indicated that 6 days of sick leave were taken and that 3 days of annual leave were taken when the plaintiff was away shoulder. The balance appeared to have been taken as annual leave. At best therefore these records indicated that the plaintiff’s rate of sick leave was no higher than might be expected and that he worked no overtime. There was no evidence that overtime was available to him.

138. The records showed that the amount paid to the plaintiff reduced from $1,250 for the first 12 weeks of his employment to $851.38 for the balance. The reduction in salary was unexplained but the records indicated that the lower wage was based on the hourly rate for a 35 hour week and that in many of the weeks of employment after the reduction in income the plaintiff worked the full 35 hours.

130. Dr Brody recorded that the dose of Pristiq was increased from 50 mg to 100 mg, not reduced as stated in the report of the Review Panel. Dr Brody also recorded improvement in the plaintiff’s condition with the increased dose. This improvement was consistent with the plaintiff’s presentation in the surveillance footage, to Dr Vickery in March 2017 and to Dr Jager in August 2017.

131. I rejected the defendant’s suggestion that I refer the matter back to the Medical Assessment Service for further review having regard to the evidence presented at the hearing. The psychiatric experts were unanimous in their opinions that the plaintiff suffered from a psychiatric condition. Their opinions diverged when it came to the cause and extent of the injury. I considered that I had sufficient material to allow me fulfil my responsibilities to determine these issues.

132. The factors suggestive of other causes for the condition of the plaintiff’s mental health were the breakdown of his relationship, his separation from his child and distress concerning difficulties of gaining access, as well as the period between the accident and the diagnosis of any psychiatric condition.

133. There were three aspects that persuaded me that the accident was a causative factor in the development of the plaintiff’s psychiatric condition:

1. There was no evidence of any pre-accident psychiatric illness.

2. The wage records of Toll indicated that after he returned to work and in the period from 12 March to 28 May 2013 the plaintiff worked only one 38 hour week so that it was apparent that his work was interrupted and that he was under financial strain.

3. The medical evidence established that the plaintiff continued to suffer from symptoms in his right shoulder up to 2015 when Mr Glancy was the first practitioner to identify the issue of his mental health.

143. I accepted that the ongoing physical condition and its consequences to the plaintiff’s financial position as well as to his way of life resulted in stress and relationship problems and the resulting development of psychiatric illness. I also accepted that the plaintiff’s personality was such that he failed to recognise his symptoms and the need to obtain treatment.

144. I respectfully disagreed with the assessment of the Review Panel and I concluded that, as with the complaint of physical injuries, the plaintiff overstated the severity of his psychiatric condition. It was apparent that when treatment was provided in the form of anti-depressant medication the plaintiff’s condition improved and was manageable. In this respect, I noted the reports of Dr Vickery, Dr Jager and the surveillance material.

145. The result was that I assessed the plaintiff’s non-economic loss on the basis that, as a result of the accident, he suffered:

1. Soft tissue injuries to his back, wrist, ankle and knee that resolved within a short period after the accident;

2. An injury to his right shoulder with continuing moderate discomfort;

3. A psychiatric injury resulting in depression and anxiety with ongoing consequences to his mental health, moderate in nature.

146. I assessed the plaintiff’s non economic loss at $120,000.

Income Loss

147. The Toll wage records (Exhibit R) stated that the amount earned in Y.T.D. up to 28 May 2013 was $69,951 gross or $56,968 net. The plaintiff’s claim for past income loss was based on his claim that this demonstrated that his income earning capacity at the time of the accident was $1,573 net per week. This figure, however, did not accord with the extract from the plaintiff’s income tax return for 2013 where a gross income from salary and wages of $37,379 was recorded.

148. In the absence of explanation of this discrepancy, and doing the best I could, I preferred to approach income earning capacity by reference to the hourly rates noted in the wage records. The plaintiff was paid $30 per hour by Toll and $25 per hour by Sydney Waste. I calculated his income earning capacity therefore at an average of a gross hourly rate of $27.50 over the period since the accident in March 2013. Accepting that the plaintiff was, prior to the accident, capable of working extra hours as overtime, I assessed a pre-accident income earning capacity of $1,000 per week net.

149. At this rate the figure for the period of 290 weeks to the date of hearing was $290,000. Deducting $75,398 earned since the accident, the result was $214,602.

150. The defendant argued against an award of this sum for past income loss. It was pointed out that, since the accident, the plaintiff had been unemployed for substantial periods during which he consulted no doctors, had no treatment and when, on the available evidence, he was capable of employment.

151. I accepted this submission. I had regard also to the plaintiff’s pre-accident history of interrupted periods of employment, the absence of evidence to support the plaintiff’s claim of his unsuccessful efforts to find employment, the considerable capacity demonstrated by the surveillance footage and the absence of support for his claim that he had heaps of time off.

152. I calculated past income loss over two periods:

1. I considered that the plaintiff’s capacity for employment was affected to a greater extent during the period from the date of the accident until he obtained employment with First Logistics in mid-December 2015. I assessed the loss during this period of 144 weeks, after deducting the income received from Toll, on the basis that the plaintiff’s income earning capacity was reduced by 80%. I allowed a rounded sum of $110,00 during this period.

2. For the period of 146 weeks from mid-December 2015 to the date of the hearing, after deduction of income received during that period, I assessed the loss on the basis that the plaintiff’s income earning capacity was reduced by 25%. I allowed a sum of $20,000.

153. I allowed past superannuation loss in the sum of $14,300.

154. The plaintiff’s only source of employment since leaving school had been as a truck driver. I considered that his most future likely circumstances but for the injury were that he would continue to work as a truck driver.

155. As far as his psychiatric condition was concerned, I was satisfied that, provided he maintained the regime of anti depressant medication, his condition was manageable to the point where it would not reduce his income earning capacity.

156. I accepted that the work of truck driving rarely excluded manual tasks that were likely to aggravate the plaintiff’s shoulder injury and therefore the limitations resulting from the shoulder injury would hamper the plaintiff’s capacity to find and retain employment as a truck driver.

157. The result was that the plaintiff would need to retrain into alternative employment or accept greater intermittent periods of unemployment than those experienced before the accident. Having already concluded that he retained an income earning capacity of 75% of that enjoyed prior to the accident, I decided that either contingency would be compensated for by calculating his future income loss on that basis, applying 15% for contingencies and rounding the resulting figure to $150,000. I allowed superannuation at 11% in the sum of $16,500.

Domestic Care

158. The evidence concerning the plaintiff’s need for care was generally unsatisfactory. I have already noted that the plaintiff’s father’s evidence was compromised to the point where I could have little regard to it. Further, I considered that the plaintiff overstated his needs.

159. Having regard to my findings concerning the extent of the plaintiff’s injuries, both physical and psychiatric, I did not accept that the requirement for past care exceeded the threshold requirements of s 141B of the Motor Accidents Compensation Act 1999.

160. Similarly, on the basis of my assessment of the plaintiff’s current condition, I was not satisfied that there was any requirement for care, except for assistance with the heavier aspects of household and garden maintenance, required on occasional basis. It was clear that the plaintiff’s parents were not able to provide this assistance and I allowed therefore a lump sum of $10,000.

Medical Expenses

161. The parties agreed that past medical expenses amounted to $2,027.40.

162. The majority medical opinion indicated that it was unlikely that the plaintiff would require shoulder surgery and I therefore made no allowance for this item of expense.

163. The unanimous opinion of the medical experts was that specialist treatment was required for the psychiatric injury. The plaintiff’s reluctance to obtain the necessary treatment presented a problem in deciding whether an allowance for its cost should be made. I considered it appropriate to provide for this treatment in anticipation that with the conclusion of this litigation, the plaintiff would reflect and appreciate its need.

164. I therefore allowed the sum of $15,000 to meet the cost of pain killing and anti depressant medication and treatment of the plaintiff’s psychiatric condition.

ORDERS

165. I make the following orders:

1. Verdict for the defendant.

2. The plaintiff is to pay the defendant’s costs of the proceedings, as agreed or assessed.

3. The exhibits will be retained for 28 days.

166. My reasons are published.

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Decision last updated: 23 September 2020