Hauraki v Steinhoff Asia Pacific Limited trading as Freedom

[2021] ACTSC 54

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Hauraki v Steinhoff Asia Pacific Limited trading as Freedom Furniture
Citation:	[2021] ACTSC 54
Hearing Dates:	1 – 5 March 2021
Decision Date:	12 April 2021
Before:	Crowe AJ
Decision:	See [232]
Catchwords:	DAMAGES – PERSONAL INJURY – Workplace accident – chronic pain syndrome and severe psychiatric injury – pre-existing mental health condition – substantial award of damages warranted – catastrophic injury – assessment of damages – assessment of life expectancy in the context of
suicide risk
Legislation Cited:	Civil Law (Wrongs) Act 2002 (ACT), s 100 Work Health and Safety Regulation 2011 (ACT)
Cases Cited:	Fox v Wood (1981) 148 CLR 41 Grincelis v House (2001) 201 CLR 321 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657
Roberson v Icon Distribution Investments Limited and Jemena
Networks (ACT) Pty Ltd trading as ActewAGL Distribution [2020] ACTSC 320 Ryrie v Tanner (No 2) [2020] ACTSC 104 Wilson v Peisley (1975) 7 ALR 571
Parties:	Adam Hauraki (Plaintiff)
Steinhoff Asia Pacific Limited trading as Freedom Furniture ACN: 051 493 764 (Defendant)
Representation:	Counsel
D Campbell SC and A Muller (Plaintiff) D Shillington (Defendant)
Solicitors
Maliganis Edwards Johnson (Plaintiff)
Hicksons Lawyers (Defendant)
File Number:	SC 453 of 2019
CROWE AJ
Introduction

1.       The plaintiff claims damages in relation to the alleged negligence of, and/or breach of statutory duty by, the defendant as his employer. The plaintiff suffered an injury to his back in the course of his work at the Freedom Furniture warehouse at Fyshwick in the ACT on 26 September 2016. He claims that that injury has caused him to suffer serious and disabling mental illness which has effectively destroyed his earning capacity and left him with a high need for care and future medical treatment.

1. The plaintiff’s Statement of Claim relevantly pleads:

2.5	Prior to 26 September 2016, the Plaintiff had made a verbal complaint to a representative of the Defendant that there was too much stock in the warehouse and that someone would hurt themselves.
2.6	In the course of his duties on 26 September 2016, the Plaintiff was required to move a sofa. The sofa was in a box, with dimensions of approximately 3 metres by
1 metre and weighed approximately 120 kilograms (‘the sofa’).
2.7	To move the sofa, the Plaintiff used an upright trolley. He pushed the trolley and slid it underneath the box containing the sofa. He then pulled back on the trolley so that it could take the weight of the sofa such that he could move it.
2.8	During the course of this action, the sofa knocked a flat packed wooden dining table that was standing upright against adjacent shelving to the right side of the Plaintiff. The dining table was stored in a flat pack box and was approximately 2.5
metres long and weighed approximately 100 kilograms (the ‘dining table’).
2.9	The dining table hit the Plaintiff on the right side of his head and body. The Plaintiff felt pain in his right shoulder and neck region. This caused the Plaintiff to momentarily release the trolley, which was the supporting weight of the sofa.
2.10	The Plaintiff attempted to stabilise the sofa to stop if (sic) from falling. He did this by grabbing the bars of the trolley. During this action he experienced pain in his lower back.

As to the basis for the claim that the defendant was negligent, the plaintiff relevantly pleaded that the defendant had failed to provide the plaintiff with a safe system of and access to, the work he was required to perform. It was also alleged that the defendant had breached a number of sections of the Work Health and Safety Regulation 2011 (ACT) by failing to take the appropriate steps to assess and manage the risk of injury to the plaintiff arising from his work conditions.

3.       At the hearing the defendant, through its counsel Mr D Shillington, effectively abandoned its denial of liability and the allegation of contributory negligence. In the light of the evidence the defendant also abandoned its denial of causation. The

defendant contested the plaintiff’s case in relation to damages.

4.       Having regard to the evidence as to the cluttered nature of the aisles within the

defendant’s warehouse, I am satisfied that the system of work under which the plaintiff

was working on 26 September 2016 was unsafe. It should have been obvious to the defendant that storing large, heavy objects upright in the aisles created the risk that such an item might fall while workers were trying to move stock through the aisle. I find that the defendant was negligent, and in breach of its statutory duty, in the circumstances leading to the injury suffered by the plaintiff on 26 September 2016.

5.       The central issue in the case is thus the determination of the damages flowing from the

tort of the defendant, having regard to the plaintiff’s particular circumstances.

6.       To avoid confusion, and for consistency with the approach taken by counsel, I will refer

to the plaintiff’s wife Belinda Lloyd by her first name.

The Factual Evidence

The Plaintiff

7.       The plaintiff was admitted to the Hyson Green mental health unit on the Friday before the hearing of this matter commenced. Initially there was some uncertainty as to whether he would be able to attend court to give evidence. However, on the fourth day of the hearing the plaintiff did attend court for the purpose of giving evidence. Mr D Campbell of Senior Counsel, who appeared with Mr A Muller for the plaintiff, applied to

have the plaintiff’s evidence in chief given by affidavit. The defendant did not oppose

that course. Having regard to the psychiatric evidence, and the fact that the plaintiff was available for cross examination, I acceded to his evidence in chief being given by affidavit.

8.       The plaintiff was born in 1985 and is currently 35 years of age. He was born in Sydney and lived there as a young child with his parents Bert and Sandra, and his older sister Kelly. Mr B Hauraki was a fireman. His employment led to the family moving around

Australia quite a bit during the plaintiff’s formative years. The plaintiff left school when

he was fifteen years old to start casual stocking work with Woolworths at Miranda Fair
in Sydney.

9.       In 2002 the plaintiff moved with his family to Canberra, and the plaintiff recommenced at school at the Canberra College, Phillip. He completed Year 11 in 2003. By that time the plaintiff had become a car enthusiast. While attending a car event at Hume in the ACT he met Belinda Lloyd. They struck up a relationship almost immediately.

10.     In 2004 Mr Hauraki was transferred to Ayers Rock fire station. The family, including the plaintiff, moved to Ayers Rock. Such was the relationship with Belinda that within a short time she also moved to Ayers Rock to live with the plaintiff and his family.

11.     Almost immediately after the move to Ayers Rock the plaintiff obtained employment with Qantas as a baggage handler at Ayers Rock Airport. After two years the plaintiff was promoted to the position of a Ramp Supervisor. This required management of the weights and balance of luggage placed on aircraft, supervision of baggage handlers and responsibility for safety in the baggage handling operation. The role was less physical than the duties of actually loading and unloading aircraft.

12.     The plaintiff remained in the supervisory role until he and Belinda moved back to Canberra in 2008. He says that he and Belinda had a busy social life in Ayers Rock, although he also worked in a couple of part time positions in addition to his work with Qantas. He and Belinda became engaged in 2006.

13.     In 2008 the plaintiff and Belinda moved back to Canberra. The plaintiff obtained work with Qantas at Canberra Airport as a baggage handler. The couple lived for a while

with Belinda’s mother and then moved into their own rental premises in Kambah. They

shared the domestic work, including cooking, equally.

14.     On 18 April 2009 the plaintiff and Belinda were socialising at a club in Mawson in the ACT. The plaintiff and his cousin were set upon by a group of young men. The plaintiff was knocked to the ground and kicked repeatedly. He suffered a fractured jaw and loose teeth. His cousin was knocked unconscious. He suffered a large laceration on the head and was covered in blood. Belinda called the police. The assailants decamped when they heard the police sirens.

15.     The plaintiff was initially taken to Woden Police Station to make a statement. However, he was feeling so unwell that police took him to Canberra Hospital. He suffered concussion and eventually had to have his jaw fractures surgically fixed.

16.     As a consequence of the assault the plaintiff became somewhat obsessed with finding and identifying his assailants. He and Belinda were uncomfortable socialising around Mawson. The plaintiff became more cautious when out in public and was not as trusting of new people as previously.

17.     In 2010 the plaintiff and Belinda moved to Rockhampton, where his parents were then living. The plaintiff and Belinda moved in with Mr and Mrs Hauraki. Kelly and her partner were also living in the same premises. The plaintiff described himself as

ruminating on the assault. He felt “aggravated and frustrated”. His father encouraged

him to seek psychological help. The plaintiff attended a psychiatrist who diagnosed him with depression. He was prescribed an anti-depressant, Pristiq, which he commenced taking. Indeed, he continued taking Pristiq until September 2015 when he was prescribed a different anti-depressant, Effexor, by a Canberra GP.

18.     After the move to Rockhampton the plaintiff started working as a baggage handler for a contractor to Qantas. He made some friends and he and Belinda socialised regularly. The plaintiff did a lot of fishing with his father and friends from work. The relationship with Belinda was good and she kept him on an even keel mentally.

19.     In mid-2010 Belinda gave birth to the couple’s first child, Mia. The plaintiff took several

weeks off work to help out at home.

20.     During 2012 the plaintiff, Belinda and Mia moved to Ayers Rock where the plaintiff undertook ramp supervisor duties for about 8 months. When they returned to Rockhampton the plaintiff took on similar supervisory duties with the Qantas contractor with whom he had previously worked. He was then promoted to the position of a coordinator of services for freight and troop movements for military exercises which were to be conducted in the Rockhampton area. He described this work as very demanding. It involved a lot of paperwork and long hours, up to 18 hours per day. He enjoyed that role.

21.     At times when work was not so demanding the plaintiff socialised with friends from work and spent time with Belinda and Mia. He had less time, generally, to assist with the domestic duties at home.

22.     Belinda gave birth to Kayla on 29 December 2013. Thereafter the plaintiff enjoyed playing with the girls at home, when the work demands permitted.

23.     In early 2015 the plaintiff, Belinda and the girls moved back to Canberra. Initially the plaintiff sought work at Canberra Airport. However, there were no positions available. He obtained employment with the defendant as a storeman, it being his intention to seek work at the airport when something became available.

24.     When he first commenced with the defendant its stock was kept at its main warehouse and also two off-site premises. However, in early 2016 the defendant lost access to the off-site properties. All of the stock which had been kept at those places was moved into

the main warehouse. The plaintiff described the warehouse as becoming “incredibly

cluttered”. Items of furniture regularly had to be moved to gain access to stock. The

plaintiff and his co-workers had to weave in between furniture to get through the warehouse. The plaintiff said that he reported to his supervisors his concern about the safety of workers in the warehouse.

25.     The plaintiff described himself as doing well mentally. He and Belinda were regularly socialising with friends, and the plaintiff would also go out fishing and four wheel driving with friends. He felt fine physically, although he could be tired at the end of a heavy day. He enjoyed playing with the children, and he was doing all the gardening work and helping out inside, including doing most of the cooking.

26.     In early September 2016 the plaintiff saw an advertisement for a position with Qantas as a baggage handler at Canberra Airport. He applied for the position and attended for an interview with an old work colleague. The interview went well and that person advised the plaintiff that he would be in contact soon.

27.     On 26 September 2016 the plaintiff was trying to load a sofa onto a trolley in the warehouse. As he rocked it back to stand it up, it knocked a dining table which was standing in a box. The table fell and hit the plaintiff across the right side of the head and the right shoulder. That caused him to let go of the trolley. He immediately bent forward to try and regain control of the trolley. As he bent forward, he felt severe pain in his low back. He ended up on the floor under the table. A colleague lifted it off the plaintiff. The plaintiff had pain in his head, neck, right shoulder and back. His supervisor told him to lie on the floor in the office. She called Belinda who came and took him to Canberra Hospital.

28.     The plaintiff subsequently saw his GP, Dr Lui, who certified him unfit for work for a couple of weeks.

29.     About a week after this accident the plaintiff heard from his former Qantas colleague. He was seeking follow up paperwork before a physical assessment which was a prerequisite of the baggage handling job. Soon after, the plaintiff called the former

colleague who advised him that he “pretty much had the job” subject to passing the

physical assessment. The plaintiff informed him that he was not able to do the
assessment at that time.

30.    The plaintiff made a workers compensation claim and started a course of physiotherapy. He said that after a few weeks he commenced a graduated return to work program on reduced hours and restricted duties. He found that he was not able to do much around the house. Belinda had to pick up most of the tasks which he had previously performed.

31.     The workers compensation insurer appointed a case manager. This person would visit the plaintiff at work and then started coming to his GP appointments. The plaintiff felt that the case manager was pushing his GP to reduce the work restrictions. The plaintiff said that he agreed to those changes but each time he informed her that the lower back pain had not improved. Eventually, he asked Belinda to come to the GP appointments with him because he felt that he needed support and was not being heard.

32.     During one of those appointments the case manager suggested that the pain was

“..entirely in his head”. This made the plaintiff very upset. He felt as though no one

cared about his condition or believed that he was suffering. After the appointment he went home and started drinking heavily. He said that things started to go downhill quite quickly from there.

33.    Each morning at work there was a staff meeting. The plaintiff said that he felt

“paranoid” and was concerned that everyone was judging him and talking about him

behind his back. This got to the point where he started to suffer panic attacks during those meetings. He was hyperventilating, shaking and crying. He needed to leave the meeting on such occasions and go for a walk. On some occasions one of his work colleagues would accompany him. On several occasions his supervisor sat him down in the kitchen and tried to help him regulate his breathing.

34.     In around mid 2017 the workers compensation insurer sent the plaintiff to be assessed by Dr R Wallace. According to the plaintiff this assessment took 5-10 minutes. A week

or so later he was informed that based on Dr Wallace’s recommendations the insurer

would be closing the claim because he no longer had any physical restrictions. If he
wanted any further treatment, he would have to pay for it himself.

35.    Shortly after this the plaintiff started talking to Belinda about thoughts of suicide. Indeed, over the next few months he gradually began to attempt self-harm at an increasing rate. His mental state slowly got worse to the point where he was having frequent stays at the adult mental health unit. He was also regularly having violent nightmares of being in fights.

36.     In late 2017 Belinda told him that she wanted time apart because he was drinking too much and getting angry and depressed at home. The plaintiff spent a couple of weeks

living at his cousin’s house and also at the home of a friend.

37.     Eventually he returned to live with Belinda and the girls. He knew that he wanted to continue the relationship and he missed his daughters a great deal.

38.     Toward the end of 2017 he and Belinda learned of the Hyson Green facility and the plaintiff had his first admission to it. He also resigned from his employment with the defendant.

39.     Since that time the plaintiff has had numerous, at times lengthy, admissions to Hyson Green. He has been treated by a psychiatrist and has received two courses of Electro Convulsive Treatment (ECT). He has been prescribed a large number of strong medications for pain and for his psychiatric disorder. The plaintiff has been suicidal and indeed has attempted to end his life on a number of occasions. He has found that the ECT has adversely affected his memory.

40.     In January 2019 Belinda gave birth to their third daughter, Elsie-May.

41.     The plaintiff described his back pain as variable. However, when it is bad it affects his

mental stability. He can “shut down” and starts thinking about suicide. The plaintiff says

that he is not abusing alcohol in the way he was earlier.

42.     The plaintiff has become socially avoidant due to anxiety. He lacks motivation. He is able to do only a little of the work around the house that he used to. He is not able to engage in fishing or four wheel driving as he did previously.

43.     He loves, and relies on, Belinda very much. He says that she has kept him alive. The couple married on 20 February 2021. However, the plaintiff says that he has lost most of his interest in sex. He considers that he had a good relationship with his daughters, although he is physically limited in what he can do with them. He is concerned about them finding out about his mental condition.

44.     The plaintiff still suffers suicidal thoughts. He is worried about what the future holds.

45.     In cross-examination Mr Shillington asked the plaintiff about his reaction to the 2009 assault. The plaintiff agreed that he had become depressed, and angry over time, and that he had sought treatment in Rockhampton. He confirmed that he was taking anti- depressant medication continuously up to the time of the work accident in September 2016. He did not specifically recall the GP consultation on 24 September 2015 when it was recorded that his anti-depressant prescription was changed from Pristiq to Effexor. However, he did recall changing to a different type of anti-depressant after being reminded by counsel that his prescription was updated at that consultation.

46.     The plaintiff did not agree that he was having problems with stress at work during the period 2012 to 2016. He conceded that he had headaches from time to time in 2015. He did not recall the complaints recorded by his GP in a consultation on 24 September 2015. He agreed that he was suffering ringing in the ears (tinnitus) in 2017. However, he considered that that condition had reduced after he had had nerve blocks.

47.     Mr Shillington asked the plaintiff about his interaction with Rachel Wenert, who was his case manager, in 2017. He put to the plaintiff that Ms Wenert had said at a consultation with Dr Lui that there was nothing shown on X-rays and he should see a pain management specialist. The plaintiff agreed that that had occurred. He also agreed that he was at that time angry with the GP and Ms Wenert because he thought that they did not believe that he had back pain. He did not consider that he was angry at that time with Belinda for the same reason.

48.     The plaintiff agreed that he was upset at the way in which the workers compensation insurer had terminated his claim and indeed at how it had been handled generally.

49.     In relation to his return to work, the plaintiff agreed that he had eventually returned to full duties. He had also increased his activities at home including cooking and driving.

50.     After being reminded he remembered that he had taken some time off in December 2016 to help at home when Belinda had been admitted to hospital after a suspected stroke. He did not recall an occasion in February 2017 when he took some time off to look after one of his daughters.

51.     In re-examination the plaintiff said that the ringing in the ears had started after the accident and had lasted a few months. He said that it had returned somewhat more recently associated with headaches.

Ms Belinda Lloyd

52.     Belinda was born in May 1987. She was thus 15 years of age when she first met the

plaintiff. She described the plaintiff as outgoing, friendly and “the life of the party”. They

started going out together and became boyfriend and girlfriend.

53.     Belinda testified in some detail as to the matters summarised at paragraphs [11]-[14] above. Her evidence is consistent with that summary. She described the plaintiff as the

same “happy go lucky” person she had met in Canberra during their time in the

Northern Territory. She did not see him as having any physical or mental problems. Nor did she see him as having a problem with alcohol. He did his fair share of the domestic tasks and they lived an active social life. They also engaged in camping and fishing for recreation.

54.     After the couple returned to Canberra in 2008 Belinda obtained employment with ACT Health in an administrative capacity at The Canberra Hospital. She has remained in that position since that time (apart from a break while the couple were in Queensland and the Northern Territory between 2010 and 2015).

55.     Belinda described a continuation of socialisation and recreational activities after the couple returned to Canberra as it had been at Ayers Rock.

56.     In relation to the assault on the plaintiff on 18 April 2009 she described events in the same way as is summarised in paragraphs [15]-[17] above. The plaintiff had a couple of weeks off work after the surgery on his jaw. Otherwise he returned to his normal work duties. He was annoyed and angry that the assailants were not identified,

however, Belinda did not consider that there was a significant change in the plaintiff’s

behaviour during the period when they remained in Canberra after the assault.

1. The family moved to Rockhampton to be close to the plaintiff’s family. Belinda thought

   that the plaintiff was happy in his work at the airport and that his mood was okay. He took time off when Mia was born to help out at home. The family went camping and to

   the beach which was about an hour’s drive away. They also engaged in boating and

   fishing. The plaintiff provided considerable assistance with domestic tasks.

2. Belinda was then asked about the plaintiff’s attendance on a general practitioner on 16

   June 2011. She said that she thought that the plaintiff had not been as “perky” as

   normal and she had pushed him to go to the doctor. She thought that the main issue was the assault. The plaintiff had been thinking about it and it was getting him down occasionally. She recalled the plaintiff having counselling treatment with someone

   called “Kay”, which seemed to help. She thought that there were four sessions with

   Kay.

3. Belinda recalled that the GP prescribed Pristiq. At that time the plaintiff’s sleep was

   being disturbed by nightmares. The clinical note referred to stress at work and financial problems. Belinda thought the former related to the war games tasks. The latter arose

   because she had been off work after Mia’s birth and her maternity leave had run out.

   She did not see the plaintiff as having any problem with alcohol at that stage.

60.     The plaintiff appeared to settle down after he commenced taking Pristiq and Belinda commenced work. However, in early 2012 the plaintiff had been admitted to a mental health unit overnight after threatening to jump off a bridge. Belinda considered that this had resulted from the plaintiff doing long hours at work in relation to the military exercises, and not getting much sleep. The work included calculations of weights on

aircraft which the plaintiff would sometimes do at home at night. To Belinda’s

observation the plaintiff was able to perform this work satisfactorily. He communicated
with people and his memory was fine.

61.     Belinda said that the plaintiff had become exhausted and was under stress at work in relation to the military planes. On the occasion in question the plaintiff had drunk some alcohol and went for a walk down to a bridge. Belinda went with him. The plaintiff was upset and was talking about jumping off the bridge. A passing police car stopped and the police officer spoke to the plaintiff and then took him to the hospital. The plaintiff agreed to stay overnight. Belinda attended the GP with the plaintiff the following day. She thought that the dosage of Pristiq might have been increased.

62.     Soon after that incident the family moved to Ayers Rock again for a period of 8 months.

The plaintiff was doing supervisory work and baggage handling. To Belinda’s

observation he had no difficulties in doing the work and did not take time off. His mood

did not deteriorate, indeed she described him as “almost back to normal”.

63.     The plaintiff saw the GP next in Rockhampton on 25 September 2012. The purpose of the consultation was for the plaintiff to obtain a further script for Pristiq. The plaintiff

was described as “feeling good”. After that, the plaintiff was able to obtain repeat

scripts by ringing up the doctor.

64.     During the remainder of their stay in Rockhampton the plaintiff lived a normal work, family and social life.

65.     The family returned to Canberra just after Christmas 2014. Initially they lived with

Belinda’s mother at Tarago, NSW. After a month or so they moved to their own rented

accommodation in Gordon in the ACT. The plaintiff sought work at Canberra Airport, however, there was nothing available for him at that time. He promptly obtained the storeman position with the defendant, which he commenced on 14 January 2015. Belinda returned to her administrative position with ACT Health.

66.     Belinda described the family routine after the return to Canberra. Essentially, she and the plaintiff shared the domestic and childcare tasks. The plaintiff also looked after the

yard where he put in a vegetable garden. Belinda saw the plaintiff’s mood at this time

as unremarkable.

67.     She remembered an episode (which occurred on 29 July 2015) when the plaintiff suffered a concussive injury at work. She considered that he made a full recovery from that injury.

1. Belinda did not recall the plaintiff’s visit to the GP at the Kambah Medical Centre on 15

   September 2015 in relation to back pain and headaches. She recalled that he could have back soreness but she did not see it as major. She expressed a similar sentiment in relation to the headaches.

2. Mr Campbell SC asked about the plaintiff’s visit to the GP on 24 September 2015

   where the doctor recorded a complaint of “bad spells” when under stress at work.

   Belinda thought that this related to the movement of stock from off-site premises into

   the defendant’s main warehouse. She attended the doctor’s appointment with the

   plaintiff. She recalled a discussion about changing from Pristiq to Effexor because the former might be losing its effectiveness. Belinda regarded the plaintiff as having returned to his normal self after the change in medication. In particular, the plaintiff was socialising with work friends, including joint fishing trips. She did not regard him as having a drinking problem at that time.

3. On 26 September 2016 Belinda received a call from the plaintiff’s supervisor, Sue. Sue

   told her to come and get the plaintiff as he had hurt his back. Belinda went to the warehouse where she found the plaintiff lying on the floor in the office. She took him to

   the Canberra Hospital. The plaintiff told her that he had heard a “pop” in his back after

   the table had fallen on him.

71.     The plaintiff was assessed at the hospital and given a certificate for some time off work. It was suggested that he should attend his GP in the next few days. The plaintiff attended Dr Lui on 29 September 2016. He was prescribed Panadeine Forte and given a referral for physiotherapy. He was also put off work to 14 October 2016. Belinda described the plaintiff as being in a great deal of pain during the first weeks after the accident. He was not able to do much.

72.     As time went on the plaintiff tried to help out with domestic tasks, however he remained quite restricted. In mid-October 2016 the plaintiff commenced a graduated return to work on light duties. However, Belinda saw him as having lost motivation at home. He tended to complain of pain and sit on the couch much of the time.

1. The plaintiff’s hours were, over the next couple of months, gradually increased, and the

   restrictions on lifting duties decreased. Prior to Christmas of 2016 Belinda did not accompany the plaintiff to his GP appointments. The plaintiff complained to her that the increased lifting at work was causing him pain but that people were not listening to him. The plaintiff was referred to an organisation called Fit to Manage where he was

   “pushed”, presumably to perform back exercises. The insurance company ceased the

physiotherapy treatment. The plaintiff was unhappy about that because that treatment
had given him some temporary relief.

74.     By January 2017 the plaintiff had increased his work hours and duties, however, he was taking a lot of medications and complaining of pain. He was not able to help out very much at home. The plaintiff undertook the tasks previously performed by the plaintiff. This took, she estimated, an extra hour or two per day. In addition she was taking and picking up the children from school/childcare.

75.    In early 2017 Belinda started to attend GP appointments with the plaintiff. This occurred because the plaintiff had complained to her that a case manager, Rachel, was attending the appointments and that she (and perhaps the doctor) were not listening to his complaints as to the level of pain he was suffering.

76.     At a GP appointment (which was probably on 27 February 2017) there was discussion about communications at work about the return to work program. The plaintiff, Rachel and Belinda were present. The plaintiff was concerned about being left alone in the

warehouse. Rachel undertook to speak with the plaintiff’s supervisors.

77.     After the appointment the plaintiff Rachel and Belinda spoke outside in the carpark. At one point after the plaintiff said that the Panadeine Forte was not doing anything for

him Rachel said “Well the pain may be in your head.” The plaintiff became angry and

upset by this.

1. Belinda and the plaintiff went home. The plaintiff remained upset. He said “See, I told

   you. They don’t believe me. They think it’s all in my head. They don’t think there’s

   anything wrong with me.” He started drinking to a greater extent that was usual that

night. He tried to take a large number of tablets, however Belinda stopped him and
eventually got him into bed.

1. To Belinda’s observation the plaintiff from this time became very “paranoid”. He thought

   that she did not believe his complaints of pain, and he would become very angry over trivial matters. He thought that his managers at work were watching him and that they did not believe his complaints of pain. He started to become very down. He questioned the point in trying at work if no one believed him.

80.     In April 2017 the plaintiff attended Dr R Wallace for a medical assessment at the request of the insurer. Dr Wallace provided a report which resulted in the insurer deciding to terminate liability for compensation. When notice of that decision was delivered to the plaintiff, he became very upset and started drinking. He drank to the point of passing out on that occasion. After the plaintiff accused Belinda of being on the side of the insurer, she arranged for him to return to Dr Lui for the purpose of obtaining a referral for help. Dr Lui, on 15 April 2017, in fact referred the plaintiff to a psychologist. Shortly afterwards, the GP also referred the plaintiff to Dr Jain, a pain specialist.

81.     Belinda was asked about an occurrence on 24 May 2017 when the police attended their home in the early morning. She recounted that the plaintiff had been drinking the evening before and became depressed. He started to talk about ending his life. Belinda was trying to talk him out of it, however, he eventually took an overdose of his medication. At one point he was hitting himself on the head, which he had not done before. Belinda called the police. They attended and took the plaintiff to Canberra

Hospital. After he returned home Belinda observed that the plaintiff’s mood had

changed. He was no longer the “happy go lucky” person he had been. He also

remained very limited in what he could do domestically.

82.     Indeed, the circumstances of this hospital admission seemed to be the start of a repeated pattern of such admissions. These have continued up until recent times. The

main change in that pattern came with the plaintiff’s first admission to the Hyson Green

unit on 24 October 2017. From that time the plaintiff has had numerous such
admissions, some of them quite lengthy.

83.       As 2017 progressed, Belinda found it harder to cope with the plaintiff’s instability and

resort to alcohol. Indeed, at one point in about July/August 2017, Belinda asked him to move out of the family home. This precipitated a number of crises leading to further hospital admissions. At one of these the plaintiff expressed a willingness to try to get better for the sake of the children and Belinda decided to give him another chance. It was at this stage that she discovered the Hyson Green facility. Belinda also described enlisting the assistance of a neurologist from her work place, Dr Hughes, who treated the plaintiff for his headaches. This treatment included a number of nerve block

injections. Over time the plaintiff’s headaches became more manageable.

84.     The plaintiff had been on and off work during the latter part of 2017. Belinda described him becoming extremely anxious about returning to work and on 16 November 2017 Belinda drafted a resignation letter for the plaintiff. This was provided to the defendant. There is no issue that the resignation was effective as at early December 2017. (I note that the plaintiff was an inpatient of Hyson Green from 24 October 2017 to 30 November 2017.)

1. In March of 2018 the plaintiff’s parents moved to Canberra to try and assist Belinda

with caring for the plaintiff and the children. They moved into the family home. They
remained in Canberra for about 12 months.

86.     Belinda said that the plaintiff’s pain was a continuing problem. There seemed to be an

association between the pain and his psychological state. Thus, when his pain was

worse his depression and anxiety would increase markedly. Belinda said that they “...

pretty much skyrocketed”. The plaintiff was taking a large number of medications,

including very strong painkillers. She needed Webster packs to administer the
medications due to the quantity that he was taking.

1. Belinda gave birth to the couple’s third child Elsie-May in January 2019. Belinda found

   the time around the birth difficult. The plaintiff had provided assistance during the earlier pregnancies and around the births, but he was not able to on this occasion.

   Fortunately, the plaintiff’s parents were there to help.

88.     When the plaintiff was out of hospital he did not do much to assist with the domestic tasks. Belinda estimated that she was spending two to three hours per day performing the domestic work which the plaintiff had formerly done. When he was in hospital she

and the girls would visit him daily, with the encouragement of the plaintiff’s treating

team.

1. Belinda confirmed that she attended most of the plaintiff’s medico-legal appointments

   with him to assist with his history-giving. This was because of his difficulties with memory. The exception to this occurred with Dr McMahon, psychologist, who was qualified by the defendant.

90.     In 2019 the plaintiff underwent a number of Ketamine infusions to try and deal with his chronic pain. Unfortunately, these treatments did not provide the plaintiff with lasting benefit.

91.     The plaintiff remained suicidal. Belinda recounted an occasion in early 2020 when he masked his plans so that she was not aware of what he was thinking. Fortunately, this came to light before he acted and he was again admitted to hospital.

92.     Belinda said that their sexual relationship has fallen away. The plaintiff appears to have

lost his drive. Indeed, Belinda saw herself primarily as the plaintiff’s carer now.

Although the plaintiff tries to help around the house when he is at home, he is able to do very little compared with his contribution before the September 2016 injury.

93.     A recent development has been that the plaintiff has on two occasions told Belinda when his mood was worsening so that he could be admitted to Hyson Green before he deteriorated.

94.     In cross examination Mr Shillington confirmed with Belinda that the plaintiff had been angry and let down after the 2009 assault having regard to the apparent lack of police investigation. However, Belinda said that the plaintiff had not seen a psychiatrist or counsellor during the during the period while they were living in Canberra immediately after the assault. She did not think that he needed to see anyone. He seemed to be okay and was going to work and doing what he normally did.

95.    After the move to Rockhampton Belinda became concerned because the plaintiff

seemed more “down” than normal. There were also episodes of anger. Belinda

encouraged the plaintiff to seek treatment. This led to the four sessions with “Kay” and

the visit to the GP to obtain a script for anti-depressants. She attended the appointments to encourage the plaintiff to go to them. Belinda described the plaintiff as

not being “his original self” after the 2009 assault. She sought intervention before this

change got to the point where he could not handle it.

96.    Belinda said that the plaintiff had a good reaction to the Pristiq. In particular his depression lifted. The plaintiff wanted to cease the medication, however, because of the benefit he was receiving from it his doctors advised him to continue with it.

97.     Mr Shillington questioned Belinda about the cause of the episode when the plaintiff was threatening to jump off a bridge in early 2012. Belinda maintained that part of the cause of that incident was work stress and long hours associated with the preparation for military exercises. That had led to the plaintiff becoming tired. She agreed that the pre-existing anger and depression also played a part. She did not think he was consuming alcohol excessively at that point. Belinda did not recall any other threat by the plaintiff to end his life during the time in Rockhampton.

1. In response to the suggestion that the plaintiff’s depression had not improved since

   2009 Belinda said that while he had times when he was depressed, they dealt with those episodes and moved on. She disagreed that he became angry over trivial things and that there were significant difficulties with their relationship due his anger and depression. She also disagreed with the proposition that she was downplaying the level

   of the plaintiff’s depression and anger following the assault. She said that while he did

   suffer from depression he still functioned at work and at home.

99.     In relation to the history recorded in The Canberra Hospital notes of 7 August 2017 Belinda said that she was not present initially. She did not provide a history that the plaintiff had had been depressed for eight years without improvement. In relation to the

death of the plaintiff’s grandmother Belinda clarified that that had occurred in May

2009. She confirmed that she had provided the description that his work injury not

being adequately addressed had become a “trigger” for his depression and anxiety.

100.  Belinda rejected the suggestion that the plaintiff had changed significantly after the 2009 assault. She maintained that while there was some change the plaintiff was still functioning normally at work, with the girls, and helping out around the home.

101.  Mr Shillington put to Belinda that Ms R Wenert had not said to the plaintiff that

sometimes the pain was “in his head”. Rather she had said to Dr Lui that it might be

appropriate for the plaintiff to be referred for pain management treatment. Belinda agreed that Ms Wenert had suggested pain management. However, she disagreed

about the “in the head” comment. She was definite that Ms Wenert had made that

comment outside Dr Lui’s rooms after they had left the surgery. Mr Shillington put the

contents of Ms Wenert’s file note of the meeting on 27 February 2017 at Dr Lui’s

surgery to Belinda. She agreed with the substance of the note, however she maintained her recollection that the plaintiff had become angry only when Ms Wenert made the comment about the pain being in his head.

102.  Belinda was questioned about her evidence as to the extra time she spent after the back injury in picking up the tasks around the home that the plaintiff could not do. She confirmed that had not kept a record of the hours, and that the hours were just her estimate of the extra time she had to spend on tasks around the home.

Ms Sandra Hauraki

103.  Ms Hauraki is the plaintiff’s mother. She said that she had continued to have a close

association with the plaintiff and his immediate family.

104.  Because her husband worked in the fire service there had been a lot of moves when the plaintiff was growing up. Both the plaintiff and his sister were unhappy at the moves and the disruption of their friendships. However, the plaintiff did make new friends after each move. She regarded the family as a generally happy one.

105.   Ms Hauraki said that Belinda had become part of the family from the early stages of her relationship with the plaintiff. Indeed, she had moved to live with them shortly after they moved to Ayers Rock. The plaintiff obtained his first full time job with Qantas. He loved

the job and flourished in it. Ms Hauraki saw him as a “social butterfly” at that time.

Belinda fitted in with the family well. Ms Hauraki saw no signs of any mental or physical illness while they were in Ayers Rock.

106.  After the plaintiff and Belinda returned to Canberra they kept in contact by telephone. Ms Hauraki learned of the assault on the plaintiff while she was visiting her mother in New Zealand. She commented that the plaintiff had become depressed and angry after the assault. She thought that he had got over it in the next year or two.

107.  When the plaintiff and Belinda had first moved to Rockhampton they lived with Ms Hauraki and her husband. She said that by then the plaintiff was okay. He was functioning and socialising, although occasionally he would become quiet and down. She recalled the bridge incident, although the plaintiff did not talk to her about it. The thought that there had been another occasion on which the plaintiff might have spoken about hanging himself while they were in Rockhampton, but again, he did not talk to her about it. Ms Hauraki considered that there were a few days when he was feeling down that the plaintiff might have stayed home from work.

108.  After the plaintiff and Belinda returned to Canberra they kept in contact by phone. Indeed, Ms Hauraki first heard about the September 2016 injury in a phone call. The plaintiff told her he had hurt his back and that he was having a lot of pain. After her husband retired from work, he and Ms Hauraki came to Canberra to help the plaintiff and Belinda with the children. At that time Ms Hauraki found the plaintiff to be very

anxious. He seemed to be in pain, angry and short tempered. He was “really down”

and not socialising. He was drinking more than usual and there was tension between the plaintiff and Belinda. Ms Hauraki recalled occasions when the plaintiff was talking about ending his life, emergency services being called and the plaintiff being taken to hospital.

109.  During the time they were in Canberra, Ms Hauraki and her husband took over the running of the house, particularly when the plaintiff was in hospital. Even when he was out of hospital the plaintiff was not able to contribute much. As well as the time after her

husband’s retirement, Ms Hauraki recalled that they had come to help out on many

other occasions for shorter periods, particularly in school holidays. She had not seen
much by way of improvement in the plaintiff over the past three years.

110.  Mr Shillington asked Ms Hauraki about the plaintiff’s attendance at the Adult Mental

Health Unit in August 2017 when she and her husband, and Belinda, were present at

what was referred to as a “family meeting”. Ms Hauraki recalled the history being given

that the plaintiff had been depressed for eight years after the assault without

improvement. She agreed with that description, but added “..but he was still fully

functioning.” I understood that to refer to the period before the September 2016 injury.

111.  In re-examination Ms Hauraki said that she thought the anti-depressant medication had helped after the plaintiff started taking it in Rockhampton.

Expert Medical Evidence

Reports Relied on by the Plaintiff

112.  Having regard to the concessions made by the defendant I propose to summarise only the evidence which I see as relevant to the assessment of damages. To some degree that will involve the issue of causation. None of the medical experts (including those qualified by the defendant) were required for cross examination. All of the experts

referred to under this sub-heading were qualified by the plaintiff’s solicitors for medico-

legal purposes.

113.  Mr T Sutton, psychologist, reported on 23 February 2019. He had conducted an interview of the plaintiff and administered a number of psychological tests to him on 19

January 2019. On p.2 of his report, under the heading “Test Results & Conclusions” he

said:

3.  Pain is experienced in the lumbar region, cervical and head. There is an unusually wide

range of pain experience from “weak” to almost the strongest imaginable sensation of

any kind. He reports that on average it is moderate (16/100).

a.	He is reasonably active despite his pain, and would benefit from pain psychological management treatment.
b.	His attitudes towards the psychological management of his pain is similar to those patients with constant pain. He does hold the view that if he is active he is harming himself, which restricts the amount of activity he undertakes. It would be useful for him to obtain clear clarification from his medical practitioners as to what he is able, in terms of physical exercise, to undertake. Otherwise there are no pathological maladaptive or illness behaviour promoting beliefs seen on assessment.
c.	He has significant levels of Somatisation, meaning that his pain and medical/bodily experience also involves psychological where unconscious conflicts and emotions are felt. This does not mean no pain is experienced due to physical reasons, nor

does it mean that all pain is “in his head”. It does mean that his severe emotional

condition interacts with his pain and bodily symptom experience and heightens it.

d. Given the findings of his severe emotional disorders, described below (section 4), I feel he is too internally disorganised at present to fully benefit from psychological pain management treatment. He will require such treatment at some stage, around ten sessions at $246 per session. (footnotes omitted)

114. Mr Sutton continued in the next paragraph:

4.    (The plaintiff) has highly significant comorbid Depression and Anxiety, at severity levels I rarely see, and which are unusual (statistically) even in clinical groups. It is consistent with his multiple admissions to Hysen Green Psychiatric Hospital and with his current fragile presentation during the session.

a.	The psychometric evidence from multiple validity scales indicates there is no deliberate exaggeration of his emotional state.
b.	I understand from (the plaintiff) and his fiancé that he has received diagnoses from Hysen Green of Major Depressive Disorder, Generalised Anxiety Disorder, and Post Traumatic Stress Disorder. These are consistent with my results. I would add that his mood disorders also contribute to Somatisation of his back pain experience, intensifying that experience. (The plaintiff) feels motions through his body, including his anger, depression, anxiety and fear of harming his body further with activity.
c.	He is on multiple psychotropic medications and is under Psychiatric care, and needs to remain so. The psychometric evidence suggests the medications are not yet ameliorating his condition. He remains an active suicide risk.
d.	(the plaintiff) is currently too internally disorganised to make use of standard psychological treatments. He does not appear to have introspective insight capacities (consistent with somatisation as a psychological defence), meaning that psychodynamic approaches would also be ineffective.
e.	There are few psychiatric treatment options available other than containment of his emotions within the Hospital environment, medication (and/or electroconvulsive therapy). His treatments are the decision of his treating Psychiatrists. I have no suggestions. Fortunately, he has a strong supportive social network to help buffer him against some of the stressors.
f.	(The plaintiff) is far too emotionally ill to consider work at this point I cannot give a prognosis at this stage or say when return to work can occur.

115. In relation to causation Mr Sutton reported:

g. Causation is problematic:

i. I suspect the diagnosis of Post Traumatic Stress Disorder refers to an assault

he experienced in 2009. This leaves him vulnerable to future 'assaults’. He

may have been misdiagnosed with depression following that assault.

ii. His current levels of depression and anxiety cannot have existed prior to his 2016 work injury, as he would have been hospitalised in the past under Psychiatric care. Nor would he have had any form of somatisation disorder. Something has had to happen post the 2016 injury to cause the current picture.

iii. There are external stressors including loss of work, financial difficulties (they

live off his wife’s wages), lessened ability to look after his three young

children, and life’s controls resting in the hands of others (Insurers and

medicolegal context). These all contribute to his depression and are
consequences of the work injury.

iv. (the plaintiff) and his fiancé report that an Insurance Case Manager informed (the plaintiff) that his pain and condition were “all in his head”. Following

this he believed his work colleagues thought the same and talked of this to each other. It appears the extreme anxiety and panic (his depression existing since the injury) developed from that stage of paranoia. If the comment was true, then it represents a causative component of his decompensation. Otherwise, his belief that it was said is similarly causal. I do not know why the resultant emotional decline has been so severe and can only hypothesise that it may be linked to vulnerabilities with his pre-

existing Post Traumatic Stress Disorder and a sense of further ‘assault’. He was ‘useless’ in the fight when attacked by eight men (as his jaw was

fractured), especially when they continued to beat his cousin (who he thought had been killed and threatened his fiancé, and he is feeling similarly physically useless now, as he often refers to this notion during the interview. This is only a clinical hypothesis. Such a comment about his pain, if said or even if perceived to be said, by an Insurance Case manager, may not have as seriously affected someone with a different history.

v. The back injury itself is physically present, though I do not know its pathophysiology or extent. He strongly believes activity will cause further harm: he requires strong medical guidance as to which activities he can do.

vi. In summary, there are necessary contributions from his Sep 2016 work injury and its direct subsequent events to his present emotional illness, having been made vulnerable by pre-existing (pre-injury) experiences. (footnotes omitted).

116.  Dr L Le Leu, occupational physician, saw the plaintiff on 25 February 2019 and reported on the following day. His diagnosis was:

(The plaintiff) has suffered:

• Musculoligamentous low back pain with facet joint involvement and intermittent radiculopathic-type symptoms

• Probable exacerbation of pre-existing depression (best commented on by a psychologist or psychiatrist)

• Initiation of anxiety condition (best commented on by a psychologist or psychiatrist)

117. His prognosis was in the following terms:

The prognosis is largely that of his psychological conditions. If they can be successfully treated, he will be able to return to a range of light semi-sedentary or sedentary duties.

Looking at the physical symptoms only, and noting the injury goes back to a half years, is more probable than not he will continue to have these symptoms at or near the current level for the next 2 to 5 years.

118.  The plaintiff saw Dr M Pell, neurosurgeon on 13 February 2019. Dr Pell provided his

report on 26 February 2019. Dr Pell’s diagnosis and prognosis were:

9.    Your diagnosis;

1. Mechanical lower back pain with facet joint arthropathy. He had second MRI Scan on 22 February 2017 and reported by Dr Tew of Canberra Imaging. This showed no disc protrusion or canal stenosis from T12.L1 to L5.S1. There was bilateral L5.S1 facet arthrosis seen with mild bilateral foraminal encroachment. Dr Jain, in his consultation, had recommended isotope bone scan to look for any element of facet joint inflammation which would possibly need intervention therapy.

2. Depression and anxiety.

11. Your prognosis;

Prognosis will be of continuing low back pain and ongoing anxiety and depression surrounding this.

119.   Dr Pell was asked to provide details of any recommendations as to further assessment, tests or treatment. He responded as follows:

12. Details of any recommendations you would make for further

medical/psychological assessment, tests of treat; and

Recommendations as regards his back pain would include isotope bone scan as recommended by Dr Jain, Pain Specialist, to see if there is any facet joint inflammation which could be helped by facet joint injection. He would need further rehabilitation regarding his lower back pain as well as probable job retraining for lighter work. This would depend on improvement in his mental health for which he would require ongoing treatment with the Hyson Green group mental health team to lessen the anxiety and panic attacks so that he can proceed with retraining and work. This is obviously a very variable situation and I would recommend that Hyson Green provide a treatment programme and recommendations for the future.

120.  The plaintiff was assessed by Mr V De Giovanni, vocational psychologist, on 16 March 2019. His report is dated 17 March 2019. He concluded in relation to the prognosis:

(The plaintiff’s) educational and vocational prognosis is guarded at best, and will depend

very much on how well he can recover from his psychological condition. If he had only the physical consequences of his back injury to contend with then I believe his prognosis would be positive because he could compensate for his functional restrictions by completing formal retraining that would allow him entry to more skilled and less physically demanding occupations.

As this is not the case because of his psychological conditions is interfering with both his current ability to work and to undertake formal retraining (which he needs), what he needs by way of rehabilitation and retraining is both more complex and more demanding.

121.  On 9 March 2020 Dr S Lahz, Rehabilitation Physician, performed a lengthy assessment of the plaintiff at his home. She provided a very detailed report of the same date. Dr Lahz set out her diagnosis as follows:

• Non-specific mechanical low back pain (essentially normal lumbar spine MRI scan) complicated by chronic pain syndrome and severe psychiatric condition (I rely on the diagnoses provided by psychiatric experts, including PTSD, generalised anxiety disorder and major depression (with suicidal ideation) because I am not qualified to make psychiatric diagnoses).

122.  Dr Lahz also provided a helpful comment as to the inter-relationship between the

plaintiff’s physical symptoms and his psychiatric condition:

Unfortunately, (the plaintiff’s) clinical course has been complicated by a chronic pain

syndrome with ongoing, widespread pain affecting lower back. The pain has persisted beyond the anticipated, usual time for healing of a soft tissue injury and been compounded

by psychological factors i.e. “yellow flags” of anxiety, negative conditions, and fear

avoidance of normal daily activities in case of pain.

In (the plaintiff’s) case, the lower back injury has also been compounded by the

development of a severe psychiatric condition associated with symptoms of anxiety, depression and suicidal ideation, requiring approximately 12 psychiatric admissions since 2017. A psychiatrist should provide an opinion although as noted by Dr Sutton and Mr Giovanni, the psychiatric condition appears to have risen in the context of feeling that his symptomatic complaints were invalid, of losing control and of feeling useless. Dr Sutton also refers to somatisation with strong physical/bodily focus.

I am not a psychiatrist although in my opinion, the psychological condition has an unhelpful interaction with ongoing pain, the pain begetting the anxiety, and the anxiety in turn causing increased pain levels via heightened neural sensitisation, discussed below. Chronic pain syndrome is often associated with anxiety, psychological distress incorporating irritability, social withdrawal, fear avoidance of activity in case of increased pain, and nervous system sensitisation (discussed below) with allodynia (complaint of pain on light touch).

123. She further commented:

Due to nervous system sensitisation, there is allodynia i.e. pain occurrence with typically non-painful stimuli such as light touch, which would not normally cause pain (due to aberrant hyperreactivity or sensitisation of the neurones transmitting pain), such that stimuli not usually evocative of pain, are perceived as painful.

Chronic pain is a complex biopsychosocial phenomenon with physical contributors such as physical deconditioning, physical inactivity and neural sensitisation as well as psychological contributors including anxiety, low mood and fear avoidance of normal activities, and loss of self-confidence with psychosocial factors compounding the physical. Persistent pain and anxiety as noted above, can also beget and heighten one and another.

As noted, (the plaintiff) has spent much of the last two years as a psychiatric inpatient due to depression, severe anxiety, drug/alcohol, intoxication and suicidal ideation. He has a pre-existing vulnerability to depression, given the history of the assault although the subject work injury has served unfortunately (to) reignite underlying, largely forgotten psychological issues. Of note, he was leading a normal life as a partner, father, friend, and worker before the work injury.

Based on the history, I have obtained from (the plaintiff), psychiatric treatment including psychotherapy, counselling, group (inpatient) programmes, hypnosis, antidepressants and ECT has not so far been substantially effective in respect of returning (the plaintiff) to a normal life from a psychiatric perspective.

(The plaintiff) is restricting his daily activity levels, in case of painful flare-ups, being supported by his partner. There is severe anxiety and psychological distress with feelings of uselessness, lack of control and periodic self-harm/suicidal ideation.

The end result is unfortunately a physically inactive, fearful patient complaining of widespread low back pain, who is also moody, anxious, socially reclusive, avoidant of normal activity, dependant on others for assistance, and unable to resume gainful employment. Whilst the initial physical injury at the workplace was minor, and not correlating with the relatively normal MRI findings, the psychosocial consequences of the persistent pain syndrome for (the plaintiff) who is relatively young have been, and remain major.

The present chronic pain syndrome and the severe psychiatric disorder (based on psychiatric expert opinion) have arisen secondary to the 2016 workplace injury.

124. Dr Lahz’ prognosis was not optimistic. She said:

Given that more than three years have elapsed since the work injury, the prognosis appears poor. (The plaintiff) remains very incapacitated for daily activities due to persistent, pervasive symptoms depression, anxiety and low back pain. He has so far been unable to escape from the cycle of depression, anxiety and pain.

125. As to the plaintiff’s fitness for work, Dr Lahz concluded:

I agree with other medical assessors that (the plaintiff) is unfit for work, given the events of the last 2-3 years with multiple psychiatric admissions due to panic attacks, drug/alcohol intoxication and suicidal ideation.

It is plain that (the plaintiff’s) psychiatric conditions despite frequent, reasonable and

necessary intensive inpatient (psychiatric) treatment have to date not been brought under
control.

(The plaintiff) is not capable of resuming his former work as a storeman and his severe, unpredictable psychiatric condition is precluding him from many social interactions, some interactions with his family, social activities, recreational activities, vocational training, work interviews and employment.

…

I agree with other medical assessors, that it will be the course of (the plaintiff’s) psychiatric

condition which will dictate whether he can ultimately obtain new work skills and be able to
find/maintain suitable employment.

126.  The plaintiff attended on Dr J Phillips, psychiatrist, on 21 February 2020. Dr Phillips provided his report on 29 June 2020. Dr Phillips considered that the plaintiff was, in and immediately after his formative years, a person of normal emotional fortitude. Having regard to his long term relationship with Belinda, his emotional relationship with the children and his good employment record Dr Phillips concluded:

46.  …there was no evidence to suggest any major psychiatric disorder suffered by (the

plaintiff) during his formative years. However, I accept that (the plaintiff) probably experienced intermittent depression spectrum symptoms from as early as 2009. Further, I could find no evidence of (the plaintiff) having an evolving personality disorder, despite comments made much later at TCH that he had Cluster B personality traits. I do not believe this comment can be justified currently.

1. In relation to the cause of the plaintiff’s current condition Dr Phillips said:

   50.  Whilst I believe that the assault on (the plaintiff) became an important step in the causal pathway leading to his psychological decompensation, the sentinel issue was the workplace accident which occurred while he was employed by Freedom Furniture on 26 September 2016.

…
59.	I believe it can be accepted that the causal pathway leading to (the plaintiff’s) ongoing
(enduring) health problems will include erosion of his psychological resilience and the onset of some depressive spectrum symptoms following the assault on him approximately 10-11 years ago, but with the workplace incident in 2016 having been
the trigger for (the plaintiff’s) psychological decompensation, with the subsequent
development of chronic psychological symptoms. Or to put matters another way, it can be accepted that the workplace accident has made a material contribution to (the
plaintiff’s) now chronic psychological problems.

128. Dr Phillips concluded as to the diagnosis:

61. On my assessment, (the plaintiff) is best diagnosed currently with a persistent depressive disorder DSM-5 300.4. The entity was previously known as dysthymia. It represents an existentially-based psychiatric disorder generally of middle intensity.

However, in the claimant’s case, his symptoms since 2016 have been chronic, severe

and treatment resistant. Further, his symptoms have been complicated by the presence of a chronic pain syndrome. It is important to note also that the claimant has co-existing anxiety spectrum symptoms and trauma-induced symptoms. However, these symptoms can be subsumed within the diagnosis of persistent depressive disorder.

…
63.	The link between pain and depression spectrum symptoms needs to be considered. As stated already, pain and psychological symptoms are best considered together in (the
plaintiff’s) case rather than be artificially separated. In brief, chronic pain lowers the
threshold to the emergency of depression spectrum symptoms, and in turn, depression spectrum symptoms lower the threshold for the production/recognition of pain. Essentially, a vicious cycle is established.
64.	Whilst I accept that (the plaintiff) has physiological (mechanical) reasons for pain, the interaction of his persistent depressive disorder also makes it likely that a second diagnosis of somatic symptoms disorder DSM-5 300.82. This is a term which has largely displaced the earlier entity of pain disorder. (footnotes omitted)

1. As to the consequences of the plaintiff’s illness, and the prognosis, he wrote:

   66.  There should be no doubt, given (the plaintiff’s) chronic combination of physical and

   psychological symptoms that he has and will continue to have problems with smooth conduct of everyday life, will have reduced pleasure in life and will note a reduction in the quality of his life also. Additionally, his chronic symptoms are interfering with his capacity to find and hold employment in an open workforce.

   …

   69.  In (the plaintiff’s) case, there is an urgent need for careful review by a psychiatrist.

   Given that the claimant suffers principally from an existentially-based psychological disorder, the prime focus of treatment will be a trauma-focused practical psychotherapy based principally on cognitive/behavioural lines, and with emphasis on the future rather than the past. Therapy should be led by a psychiatrist or clinical psychologist. Treatment will need to include a controlled catharsis, psycho-education, grief work (about aspects of life lost to the claimant), and optimising of his coping

   mechanisms. A course of 40 – 50 hours of therapy is likely to be needed, and it

   should be concluded within two years. Additionally, the claimant should undertake monthly follow-up thereafter until he demonstrates significant symptoms reduction (if this proves to be possible).

   …

   74.  I am not confident regarding the plaintiff’s future. Left with no proper treatment

   program, matters will inevitably worsen. The further need for hospital attendances will arise, and further inpatient psychiatric care will continue. His risk for suicide will be high. Whilst there is opportunity for symptomatic improvement if the claimant follows a reasonable and proper program of treatment, there are caveats. He presents with a complex combination of pain and psychological symptoms. He has become illness focussed in his way of thinking. He has not responded adequately to either outpatient or inpatient psychiatric treatment. He is of average intelligence, rather inarticulate, and he cannot think in a psychological manner. These matters will mitigate a successful

   treatment outcome. In keeping with this, the claimant’s chance for long-term

   improvement is small. It will be reduced further, should the relationship with his partner fail. His risk of suicide will remain moderately high. He is unlikely to return to the open workforce.

130.   Dr Phillips saw the plaintiff for review shortly before the hearing. His report in relation to that assessment was dated 1 March 2021. His opinion as to the conditions suffered by the plaintiff and its causes was expressed as follows:

56.  There should be no doubt that (the plaintiff) presents a very complex health problem, spanning ongoing substantive psychological symptoms and a problematic pain

disorder. The claimant’s problems must be understood in the context of two past

stressors; the assault (said to have occurred approximately 10 – 11 years ago), and

the work accident at Freedom Furniture Pty Ltd more recently (date unspecified by the claimant). The claimant has also a genetically-based scoliosis of his spine, which may be important in understanding his experience of chronic pain (but recognising comments in this area will need to be made by appropriate specialist physicians).

57.  I noted in my substantive report (see paragraphs 48 and 49) that the assault certainly

led to the erosion of (the plaintiff’s) psychological resistance, with the development of

depression spectrum symptoms, anxiety spectrum symptoms, and trauma-based symptoms, with the changes becoming important in the casual pathway to his current state of psychological and physical impairment.

58.  In a similar manner, the work accident at Freedom Furniture Pty Ltd became a further

major stressor, with the exacerbation/ extension of (the plaintiff’s) psychological

symptoms but mainly within the depression spectrum. He also has concomitant
substantive ongoing physical problems (mainly involving various areas of his back).

59.  At the time of preparing the first report, I found the plaintiff, after the accident at Freedom Furniture Pty Ltd to have developed a now chronic and pervasive persistent depressive disorder (see paragraphs 61 and 62 of the first report).

60.  It is probable that (the plaintiff’s) ongoing problem of pain has a complex origin, which

will include a vicious cycle where pain of physiological origin in reinforcing the

claimant’s underlying depressive disorder, and where the depressive disorder in turn

is reducing his threshold to pain (see paragraphs 63, 64 and 65 of the first report).

61.  As previously stated, the parsimonious explanation for (the plaintiff’s) ongoing

disability will include a vicious cycle where pain of physiological origin is reinforcing

the claimant’s underlying depressive disorder, and where the depressive disorder in

turn is reducing his threshold to pain.

62.  Unfortunately, (the plaintiff) appears not to have responded to psychological and physical treatment in an adequate manner, despite various aggressive treatments for his mental health problems (including a number of admissions to a private psychiatric clinic, and the administration of a broad group of psychotropic drugs, and at least two courses of ECT). Further, the claimant appears not to have responded to physical treatments offered by the experts in pain medicine, including the use of a variety of analgesic agents and radiofrequency ablation of specific facet nerves associated with his pain. I believe it can be stated, at this late stage in the cycle of illness, that the claimant now has a complex treatment resistant medical disorder. Further, I doubt that positive change is likely in the future.

131.   In relation to the reports of Dr McMahon and Associate Professor Robertson which had been provided to him for comment Dr Phillips said that he found the differences in their

conclusions “disturbing”. In particular, he disagreed with Dr McMahon’s opinion that the

plaintiff has a personality disorder. However, Dr Phillips said that he saw no significant difference between his conclusions and those of Assoc Prof Robertson. He accepted

the latter’s analysis concluding that the plaintiff probably had a genetic predisposition to

suffer from depression. However, this did not alter his fundamental conclusion that

“..the psychological and physical stressors associated with the work-related accident,

during his employment with Freedom Furniture Pty Ltd, became a trigger for his now

interlocking problems of chronic depression and intractable pain.”

132.   In relation to the care and assistance which the plaintiff will require Dr Phillips said:

70.  It is of considerable importance to consider (the plaintiff’s) ongoing care needs.

Associate Professor Robertson opined that the claimant was requiring almost constant gratuitous care (provided by his partner). I agree with this. My colleague went on to note that the claimant would require at least twenty hours of professional care/week (if this was sourced through the open market. I agree with this also, but make the point that there is a stark discrepancy between the gratuitous care provided

currently by the claimant’s partner, and the suggested twenty hours/week professional

care (assuming the gratuitous care was no longer available). I anticipate, in the absence of his wife, that the claimant may well require forty hours of professional assistance/week, on an indefinite basis. I make the point, however, that neither my colleague nor myself would have the expertise of an occupational therapist, when assessing the matter of future care.

133. More generally, Dr Phillips concluded:

71.  Stepping back a bit, I can state with certainty that (the plaintiff’s) health status has

worsened in the period since I initially assessed him, and despite the extensive

program of treatment. The claimant’s prognosis overall has worsened. I doubt that the

claimant is likely to make further progress, notwithstanding the efforts of his psychological therapists and of the experts in pain management. Essentially, the claimant has a high level disability which is likely to continue into the future. He runs a significant risk of self-harm and a risk for suicide. He will remain handicapped across all major domains of his life.

…

73.  It is hard to determine a useful program of treatment, where a person suffers from a treatment-resistant persistent depressive disorder and a somatic symptom disorder. At this point in the trajectory of his illness, I suggest that (the plaintiff) attend for a monthly consultation with his treating psychiatrist on an indefinite basis, with the aim of minimising his admissions to hospital and reducing, as far as possible, his polypharmacy. Obviously, I cannot comment on further management by the specialists in pain medicine.

74.  Simply, (the plaintiff) is never likely to return to the open workforce. Further, the claimant will continue to have difficulties in the day-to-day management of his life, where he will have a reduced pleasure in life, and reduced quality of life overall. Also, the claimant is likely to experience increasing interpersonal difficulties, even with persons of importance to him.

Reports Relied on by the Defendant

134.  The plaintiff saw Dr Wallace, orthopaedic surgeon, for the workers compensation insurer on 30 November 2016. Dr Wallace reported on 12 December 2016. He considered that the plaintiff had suffered a strain of the lumbar spine, that he had a good prognosis for recovery, and that he should be fit for return to full duties by the end of December 2016.

135.  The plaintiff saw Dr Wallace again on 4 April 2017, resulting in a report from the doctor dated 18 April 2017. Dr Wallace concluded that the plaintiff had suffered from a musculo-ligamentous of the lumbar spine which had resolved. He was fit for full duties, without restriction.

136.  A review was arranged with Dr Wallace on 19 May 2020. Presumably due to the problems created by Covid-19 that review occurred as a telehealth consultation. Dr Wallace provided his report on 25 May 2020. Dr Wallace maintained his opinion that the plaintiff had suffered a strain injury which had resolved. He saw the plaintiff as having no limitation on his capacity for work arising from the back injury he had suffered on 26 September 2016.

137.  On 11 June 2019 the plaintiff attended Dr J McMahon, psychologist, at the behest of the solicitors acting for the defendant. Dr McMahon provided a report of the same date in relation to his assessment. Dr McMahon made a diagnosis as follows:

In my opinion (the plaintiff) meets criteria for Major Depressive Disorder with Anxiety, Recurrent, with Mood Congruent Delusions and a Somatization Disorder on a background of a Personality Disorder Not Otherwise Specified (Negativisitic & Avoidant Traits).

Given the plaintiff’s general presentation I echo the concerns of Dr. Le Leu that thyroid and

hormonal issues need to be thoroughly ruled out as they may be contributing to his
presentation.

138.  In response to the question as to the relationship (if any) between the plaintiff’s back

injury and his subsequent incapacity for work, Dr McMahon responded:

(The plaintiff) has markedly decompensated psychiatrically in response to comments that he perceived as mistrustful of his report of back pain. He developed mood congruent delusions and explosive anger directed towards himself. In my opinion, the incapacity for work is predominately due to his psychiatric condition rather than his objective back injury.

139. Dr McMahon thought that the prognosis was poor.

140.  The plaintiff was sent back to Dr McMahon on 5 May 2020. The report relating to that attendance was dated 6 May 2020. In it, Dr McMahon repeated the opinion he had expressed in his first report as to the diagnosis. On this occasion he said in relation to the prognosis:

Given the persistent symptoms, revolving door type pattern of admission to psychiatric facilities, and lack of response despite significant intervention including Electro Convulsive Therapy, the prognosis is poor and most likely one of persisting symptomatology.

141.  The plaintiff attended Dr McMahon for a third assessment on 20 January 2021. Dr McMahon again conducted a number of psychometric tests. The results of these tests led Dr McMahon to express the following conclusions in his report of 22 January 2021:

(The plaintiff) reports a level of depressive symptomatology that is unusual even in clinical samples. He is severely depressed, discouraged, and withdrawn, and most likely meets criteria for a major depressive episode. He is likely to be plagued by thoughts of worthlessness, hopelessness, and personal failure. He admits openly to feelings of sadness, a loss of interest in normal activities, and a loss of sense of pleasure in things that were previously enjoyed. He is likely to show a disturbance in sleep pattern, a decrease in level of energy and sexual interest, and a loss of appetite and/or weight. Psychomotor slowing might also be expected.

167.  Mr Campbell emphasised that the need for a high level of future medical/hospital

expenses and commercial attendant care arose precisely because of the plaintiff’s

suicide risk. The medical/hospital treatment, and the attendant care, were designed to minimise that risk, so it did not make sense to apply a discount based on the extremely high risk assessment implicit in the approach taken by the defendant.

168.  The plaintiff’s claim for future hospital costs was based on the assumed need for 70

days per year of inpatient treatment at a facility such as Hyson Green. The claim for attendant care and s 100 of the CLW Act support was based on the figures set out in the Further Amended Statement of Particulars reduced by 20% to allow for the period of hospitalisation each year.

169.  In relation to the actual cost of the treatment at Hyson Green the plaintiff relied on the amount of $1,708 per day based on a quotation from the hospital for the cost of an

inpatient admission for a self-funded patient (see Ex. "P12”). Mr Shillington pointed out that BUPA had been paying a rate of $650 per day for the plaintiff’s past admissions.

He submitted that it was likely that the plaintiff would be able to negotiate a lesser rate than the quoted figure if he was funding his future hospital admissions himself.

170.  As to the measure of the plaintiff’s loss of earning capacity, Mr Campbell SC relied on

Ex “P13”, which was the Airport Employees Award Pay Guide. It was postulated that

calculations could be made by reference to the higher hourly rates for Sundays, shift work and the like. Mr Campbell SC pointed to the unlikelihood that the plaintiff would have sought work at the Airport for a lower income than that he was receiving with the defendant.

171.  On the other hand, Mr Shillington pointed to the income levels actually demonstrated in

the plaintiff’s tax returns (Ex “P2”). He noted that the plaintiff’s highest income between

2011 and 2017 was that earned in 2016/17 when he was working for the defendant.

172.  On the basis of the calculations referred to in his submissions, Mr Campbell SC proposed a schedule of damages as follows:

Head of Damage Amount

General Damages	$425,000.00
Interest	$19,125.00
Out of Pocket Expenses
Past	$493,000.00
Interest
Future	$3,235,055.00
Loss of Earning Capacity
Past	$239,831.00
Interest	$28,779.00
Future	$1,209,125.00
Domestic Care/Assistance
Past	$227,880.00
Interest	$27,346.00
Future	$3,139,483.00
Loss of superannuation
Past	$26,381.00
Interest
Future	$145,095.00
Fox v Wood
Total	$9,216,100.00
Consideration

173.  There was no challenge to the credit of the witnesses who gave evidence in the

plaintiff’s case. Consistent with the comments in the medical reports about the effects

of the ECT treatments, it was clear that the plaintiff’s memory was not as detailed as

might ordinarily be expected. However, it seemed to me that under cross examination
he was doing his best to respond truthfully and as fully as he could.

174.  I found Belinda to be an impressive witness. She was straight-forward and direct. She has shown considerable fortitude and competence in keeping the family together during the past several years. I thought that this strength of character was reflected in the way she gave her evidence. Although Belinda focussed somewhat on the causation issues relevant in this case, such a focus was no more than was to be expected in such circumstances. I accepted her as an honest and reliable witness.

175.   I also found Ms Sandra Hauraki to be a straight-forward and honest witness. She made reasonable concessions where appropriate. I accept her evidence as reliable.

176.  It follows from the above that I accept that the plaintiff was, prior to the accident on 26 September 2016, functioning reasonably well in all aspects of his life. While there is no doubt that he suffered a degree of psychological disturbance following the 2009 assault, by 2016 he was working steadily and his family and social lives had returned to normal.

177.  Unfortunately, the injury to the plaintiff’s back set in train a sequence of events which

was catastrophic for the plaintiff. It has left him with the interrelated chronic pain and severe psychiatric conditions summarised in the medical evidence referred to above. I

accept that the prognosis is such that the plaintiff’s chances of recovery to his pre-

injury level of functioning are very low. He is likely to require ongoing medical
treatment, intermittent hospitalisation and medications for the rest of his life.

178.   In relation to care, I accept that the plaintiff’s suicide risk is such that it is reasonable for

him to have the level of commercial care recommended by Assoc Prof Robertson and

Dr Phillips. I also accept that the level of care claimed in relation to Belinda’s support of

the plaintiff and under s 100 of the CLW Act is reasonable.

179.  The central issue in this case is the allowance to be made for the possibility that the plaintiff might have suffered some other injury or incident in his life which might have caused him to become as psychiatrically compromised as he is now in the absence of the subject low back injury. Some allowance must also be made for the risk that as a result of his mental condition the plaintiff might succeed in ending his own life. In that context, I should say that I do not accept the opinion of Dr McMahon that the plaintiff suffered a pre-existing personality disorder. That opinion was firmly rejected by Dr Phillips. I also note that such a diagnosis was not made by Assoc Prof Robertson. It seems unlikely in my view that the plaintiff would have functioned as well as he did in his work, social and family life up to the aftermath of the September 2016 accident if he suffered from a personality disorder. I prefer the views of the psychiatrists in relation to this issue.

180.  In assessing what might have happened had the plaintiff not been injured, or what might happen in the future, I must be guided by the approach discussed by the High Court in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 (Malec). In that case Deane, Gaudron and McHugh JJ described the process (at 642 and 643) as follows:

When liability has been established and a common law court has to assess damages, its approach to events that allegedly would have occurred, but cannot now occur, or that allegedly might occur, is different from its approach to events which allegedly have occurred. A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred. Hence, in respect of events which have or have not occurred, damages are assessed on an all or nothing approach. But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of

those events occurring. The probability may be very high – 99.9 per cent – or very low – 0.1 per cent. But unless the chance is so low as to be regarded as speculative – say less than I per cent – or so high as to be practically certain - say over 99 per cent – the court will

take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded. See Mallett v. McMonagle (1970) AC 166, at p 174; Davies v.Taylor (1974) AC 207, at pp 212, 219; McIntosh v. Williams (1979) 2 NSWLR 543, at pp 550-551. The approach is the same whether it is alleged that the event would have occurred before or might occur after the assessment of damages takes place. (footnotes omitted)

181.  Brennan and Dawson JJ agreed generally with the judgment of Deane, Gaudron and McHugh JJ. However, they did differ slightly in their approach to this issue. They said (at 639-640):

By contrast, earning capacity can be assessed only upon the hypothesis that the plaintiff had not been tortiously injured: what would he have been able to earn if he had not been tortiously injured? To answer that question, the court must speculate to some extent. As

the hypothesis is false - for the plaintiff has been injured – the ascertainment of earning

capacity involves an evaluation of possibilities, not establishing a fact as a matter of history. Hypothetical situations of the past are analogous to future possibilities: in one case the court must form an estimate of the likelihood that the hypothetical situation would have occurred, in the other the court must form an estimate of the likelihood that the possibility will occur. Both are to be distinguished from events which are alleged to have actually occurred in the past. Lord Diplock said in Mallett v. McMonagle (1970) AC 166, at p 176:

“The role of the court in making an assessment of damages which depends upon its view

as to what will be and what would have been is to be contrasted with its ordinary function in civil actions of determining what was. In determining what did happen in the past a court decides on the balance of probabilities. Anything that is more probable than not it treats as certain. But in assessing damages which depend upon its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that a particular thing will or would have happened and reflect those chances, whether they are more or less than even,

in the amount of damages which it awards.”

In assessing the plaintiff’s earning capacity in the present case what has to be evaluated

was the prospect that the deteriorating back condition would have precluded him from engaging in gainful employment had he not contracted brucellosis. An evaluation of that prospect had to be made. To make a finding on the balance of probabilities as though the prospect were something that had occurred in the past was to misconceive the process of evaluation.

Although we agree with the general thrust of the reasoning on this point in the judgment of Deane, Gaudron and McHugh JJ., we think it undesirable for damages to be assessed on the footing of an evaluation expressed as a percentage. Damages need not be assessed by first determining an award on the footing that the hypothetical situation would have occurred and then discounting the award by a selected percentage. Damages founded on hypothetical evaluations defy precise calculation. We should add that we would not favour

the use of the term “probability” to describe the possibility of occurrence of a situation when

the possibility is minimal.

Subject to these observations, we agree in the order as formulated in their Honours' reasons for judgment. (footnotes omitted)

182.  In relation to the possibility that something like the plaintiff’s current mental condition

might have been triggered by some other event, I have no clear evidence with which to formulate that risk as a percentage on a scientific basis. Assoc Prof Robertson

expressed the view that it was “more likely than not” that other life events could have

caused exacerbations of the plaintiff’s underlying “constitutional” depressive illness. He

did not express a view as to the duration or degree of those exacerbations, although in the context of the question he was addressing I infer that he was referring to serious, incapacitating exacerbations. Nor did the Assoc Prof opine as to when such exacerbations might have been expected to occur.

183.  Against that risk, I accept that the plaintiff had, for the most part, functioned well during the seven years between the 2009 assault and the 2016 injury. That functioning was no doubt assisted by the anti-depressant medication. There is no reason to think that the plaintiff would not have continued to take that medication while it provided a benefit to him.

184.  While it is true that the plaintiff has suffered a number of specific aggravations of his condition by life events since the 2016 injury those aggravations have occurred in the context of his condition having spiralled out of control in 2017 due to that injury and its consequences.

185.  I do not accept either of the alternative approaches suggested by the defendant. It seems to me that the evidence falls well short of supporting either the assumption of a 5 year life expectancy or the alternative of a 30 year life expectancy combined with a discount for vicissitudes of 50%.

186.  Having regard to the approach required by Malec it seems to me that the risk of the

plaintiff suffering an incapacitating “trigger” before the present time, assuming that the

2016 injury had not occurred, was fairly low. It was not “speculative”, in the sense

discussed by Deane, Gaudron and McHugh JJ, but I do not assess it as having been anything like a small possibility in the past four and a half years. Doing the best I can I see it as no more than a 5% possibility of an intervening incapacitating event. That is to say, there was a 5% chance that such an event might have occurred at some time during the past four and a half years.

187.  The assessment of the future provides a similarly difficult exercise. In relation to the

plaintiff’s future earning capacity it seems to me that I must attempt to adjust the usual

discount for vicissitudes to account for both the risk of an intervening incapacitating event (assuming no back injury) and the risk that the plaintiff might have a reduced life expectancy due to his depressive illness. As to the latter, I cannot ignore the overwhelming expert opinions which emphasise the significance of the risk of suicide.

188.  The plaintiff is now just under 36 years of age. It is not unreasonable to assume a further working life of around 34 years. Having regard to all of the circumstances I assess the combined risks that some non-tortious intervening event might have caused significant incapacity and that the plaintiff might succeed in ending his life, notwithstanding all of the care and treatment which will be made available to him, at 25%. This figure must be applied in addition to the standard 15% discount, although I am conscious of the need not to double count, particularly in relation to the issue of the

plaintiff’s life expectancy. Having regard to all of the circumstances, it seems to me that

an appropriate total discount is 35% in relation to future loss of earning capacity.

189.  It is also necessary to make an assessment in relation to the damages claimed for future treatment, and care and assistance. In relation to the assessment of those risks

for the balance of the plaintiff’s statistical life expectancy, which according to the 2017-

9 ABS Australian Life Tables is 46 years, doing the best I can I estimate that risk to represent a 30% chance. I have not assumed a 15% discount for vicissitudes as a starting point in arriving at this estimation. The discount of 15% has been adopted to

account for the particular uncertainties associated with the exercise of a person’s

earning capacity many years into the future. I have concluded that a discount of 30% is appropriate to these heads of damage, rather than the figure of 25%, to account for the longer period into the future under consideration.

190.   In the light of those findings, I will address each of the heads of damage claimed by the plaintiff separately.

General Damages

191.  Mr Campbell SC submitted that a very substantial award should be made having regard to the catastrophic nature of the effects on the plaintiff of his physical and mental conditions. I agree that the chronic pain which the plaintiff now suffers, combined with the extreme mental anguish which has led him to contemplate, and attempt, suicide on numerous occasions must sound in a significant award. This is particularly so given the uniformly bleak prognoses made by the medical experts. The

plaintiff’s life has been fundamentally changed for the worse by the injury to his back

and its consequences.

192.  Mr Campbell SC was not able refer me to any comparable awards in this Territory. Mr Shillington, who suggested an award of $250,000 referred me to the case of Roberson

v Icon Distribution Investments Limited and Jemena Networks (ACT) Pty Ltd trading as

ActewAGL Distribution [2020] ACTSC 320 (Roberson) in which I awarded the plaintiff $140,000 for general damages. That award was made in respect of the serious disc injury suffered by the plaintiff to his low back. However, it does not seem to me that that case is comparable to the present matter. The pain and suffering of the plaintiff here, plus the extreme loss of amenity caused by the combination of chronic pain and mental illness places this matter into the category of a much more significant case.

193.  Murrell CJ helpfully surveyed a number of awards of general damages in the case of Ryrie v Tanner (No 2) [2020] ACTSC 104 at [110]-[125]. Her Honour awarded the plaintiff in that case (who was then 32 years old) $160,000 for general damages for a lumbo-sacral disc injury which would require operative treatment. Again, however, in none of those cases was the physical injury complicated by the complications which

have made the plaintiff’s situation here so catastrophic.

194.  In the absence of a truly comparable Territory award, I regard the figure of $425,000 suggested by Mr Campbell SC as too high. At the same time, the figure of $250,000 advocated for the defendant is disproportionately low. In my view the appropriate award of general damages here is $350,000. I award that sum. In relation to interest I apportion half of the award to the past. That leads to an interest calculation as follows: $175,000 x 4.5 years x 2% = $15,750.

Past Out of Pocket Expenses

195.  As noted above, these were agreed at $493,000. No claim was made for interest on this figure.

Future Out of Pocket Expenses

196.  The plaintiff claims a total of $59,000 for future psychiatric treatment on the bases outlined in the Further Amended Statement of Particulars. Having regard to the

evidence of Dr Phillips in relation to plaintiff’s psychiatric treatment requirements, it

seems to me that this estimation is a little too high. I propose to allow $50,000 on this
basis, subject to what follows.

197.  In relation to the cost of future hospitalisation, the plaintiff assumes that he will require not less than 70 days per annum at Hyson Green, at a cost of $1,708 per day, which averaged over a year converts to a weekly cost of $2,300. This is claimed over the lifetime of the plaintiff (using a 3% multiplier of 1,325) leading to the figure of $3,047,500.

198.  Having regard to the pattern of the plaintiff’s admissions to Hyson Green since his first

admission in October 2017, I consider the claim of 70 days per year to be reasonable. Although there can be no certainty that the plaintiff will require such treatment over his lifetime it seems to me that such an outcome is more probable than not given the

prognoses of the relevant medical experts. I propose to calculate the plaintiff’s gross

damages under this sub-head on the basis of 70 days per year over the plaintiff’s

lifetime. It seems to me that the risk that the plaintiff will not need that level of treatment over the whole of his life is balanced out by the risk that he may during some years require significantly more than 70 days per year.

199.  In relation to the daily cost there is no direct evidence as to the likelihood or otherwise that the plaintiff would be able to negotiate a lower rate than the $1,708 quoted by the hospital. However, there must, at the least, be a real prospect that as a regular and

significant user of the hospital’s services he would be able to negotiate a lower rate,

although perhaps not as low as the $650 per day apparently negotiated by the health fund BUPA. Doing the best I can, I propose to assess damages here using the figure of $1,400 per day.

200.   I therefore assess damages under this head thus: [($1,400 x 70)/52] x 1,325 = $1,885 x 1,325 = $2,497,625.

201.  The plaintiff claims a buffer of $30,000 for ongoing pain management treatment by Dr Gawarikar, including cortisone injections and ketamine infusions. He also claims $20,000 in respect of the possible participation by the plaintiff in a multidisciplinary pain management program such as the ADAPT program at the Royal North Shore Hospital in Sydney. Having regard to the disappointing outcomes of the cortisone and ketamine interventions in the past, I have real doubts that these modalities will be repeated in the future. Nevertheless, I do accept that the plaintiff will have an ongoing need for specialist pain management, and that at some stage he might well undergo a course of pain management such as the ADAPT program. I allow a buffer of $25,000 to account for these claims.

202.  The plaintiff claims for psychotropic medication for the rest of his life at the rate of $23

per week. This seems to exceed slightly the figures contained in Ex “P9” which I

understand to list the plaintiff’s medication expenses since October 2017. I note that

the exhibit includes prescription analgesia. The plaintiff claims a small buffer of $2,500 for over the counter and prescription analgesia. I allow the aggregate sum of $30,000 for both of these claims.

203.  The plaintiff claims $2,500 for ongoing radiological investigations and specialist reviews. He also claims $5,000 for exercise physiology, and $10,000 for physiotherapy and hydrotherapy. I regard these claims as somewhat speculative. I will award a small buffer of $5,000 to cover all of these possibilities.

204.  Finally, the plaintiff claims that he will need to consult his GP at least once per month for the rest of his life at a cost of $90 per attendance. It seems to me that this probably overstates the reality somewhat. I allow a buffer of $20,000 for future GP care.

205.   In gross terms before discounting, I thus assess the plaintiff’s damages for future out of

pocket expenses as ($50,000 + $2,497,625 + $25,000 +$30,000 +$5,000 + $20,000) which equals $2,627,625. Applying the discount of 30% discussed at [189] above gives the damages award under this head of $1,839,338.

Past Loss of Earning Capacity

206.  Subject to the small risk referred to in [186] above, it is reasonable to expect that the plaintiff would have remained in employment during the past four and a half years earning no less than his average earnings with the defendant of $730 per week. Indeed, having regard to his work history and the good chance, if not probability, that the plaintiff would have moved to baggage handling work at Canberra Airport, I

consider it likely that the plaintiff’s income would have been a little higher than $730 per

week. However, I do not accept that the plaintiff would have been earning at the level

claimed of $1,200 per week. The plaintiff’s past earnings as a baggage handler do not

support such a claim, nor can I readily calculate such earnings by reference to Ex

“P13”, the Airport Employees Award Pay Guide.

207.  I find that the plaintiff probably would have earned an average net wage of $800 per week during the period from the end of 2016 had he not been injured. On that basis I calculate his loss before any discount to be:

Period No of Weeks Weekly Loss Totals

26.9.16 - 31.12.16	14	$730	$10,220
1.1.17 - 31.3.21	221	$800	$176,800
(Less net earnings)	($38,023)
Total Loss	$148,997

208. Because of the small risk referred to at [186] above it is appropriate to discount this figure to allow for that possibility. Having regard to the reasoning of the larger plurality in Malec I discount the figure allowed for past loss by 5%. I therefore allow damages under this head in the sum of $141,547.

209.   The plaintiff claims interest on the amount allowed for past loss of earning capacity less the net workers compensation received by the plaintiff over the period of 4 years at the average rate of 3%. It appears to me unlikely that the plaintiff would have suffered much actual loss during the first 26 weeks of his incapacity having regard to the workers compensation paid to him. I therefore allow interest on the basis of 4 years at the average rate claimed of 3%. As far as I can determine from the list of payments

forming part of Ex “D1” the plaintiff received a little under $8,000 in gross weekly

compensation payments.

210.   Although the plaintiff claimed an award pursuant to the principles in Fox v Wood (1981) 148 CLR 41 in his Further Amended Statement of Particulars, the quantum of that

claim was not formulated in submissions. Having regard to the level of the plaintiff’s

income in 2016/17, I propose to allow the Fox v Wood (1981) 148 CLR 41 component at 30% of the gross compensation paid, that is the sum of $2,400. On that basis the plaintiff would have received net incapacity payments totalling approximately $5,600. I therefore allow interest as follows: ($141,547 - $5,600) x 4 years x 3% = $16,314.

Future Loss of Earning Capacity

211.  I accept that the plaintiff has suffered a total loss of his earning capacity. As noted above Mr Campbell SC argued that his current earning capacity but for his injury should be quantified as $1,250 net per week. For the reasons discussed in relation to past loss of earning capacity, I do not consider that the evidence supports an award at that rate. I propose to allow a future loss at the rate of $825 per week assuming that by now the plaintiff would have returned to airport work averaging a slightly higher sum than he would have been averaging over the past several years. On that basis, and assuming a working life of 34 years, I would allow damages under this head before discount at $825 x 1119.2 = $923,340.

212.  However, as discussed at [188]-[189] it is necessary to adjust this award having regard to the ordinary vicissitudes which must be taken into account under this head of damages, and also the particular vicissitudes which I have found to apply here. I have decided on a total discount of 35% which I apply to the figure of $923,340 to arrive at the award of $600,171.

Past Care/s 100 of the CLW Act Damages

213.   The plaintiff claims a total of $227,880 under this head based on the propositions that:

(a)	The plaintiff needed and Belinda provided an average of 15 hours per week of assistance with the domestic tasks that he would normally have performed during the periods when he was not in hospital. This was calculated in the Further Amended Statement of Particulars to have been for a period of 146 weeks. This was claimed at the rate of $45 per week, which was the agreed figure for gratuitous care.
(b)	The plaintiff needed and Belinda provided a further average 2 hours per day in support and assistance to the plaintiff once his mental state deteriorated from about March 2017. The claim was thus 14 hours/week x $45 x 200 weeks.
(c)	The plaintiff needed and Belinda provided a further average of 1 hour per day during periods in which the plaintiff was in hospital following acute episodes. This claim was made for 74 weeks.

214.  Mr Shillington for the defendant argued that the evidence sustained an award of 1 hour per day from September 2016 to May 2017, 2 hours per day for the next two years or so, and 20 hours per week from mid-2019.

215.  I note that the expert qualified by the plaintiff, Mr Woolley analysed the level of

assistance required by the family as a consequence of the plaintiff’s incapacity by

reference to a series of specific tasks and concluded that it was reasonable for the
plaintiff to recover damages on the basis that:

(d) The plaintiff’s family had had to perform an extra 10.6 hours per week during

the period from the date of the accident until the end of December 2017;

(e)	The family had to perform an extra 7.15 hours per week from the end of December 2017 until the end of December 2018; and
(f)	The family had to perform an extra 6.5 hours per week from the end of December 2018 up to the time of assessment in February 2019. Mr Woolley saw that need as ongoing.

216.  Mr Woolley did not assess the extent to which the plaintiff required Belinda’s personal

attendance having regard to the fragility of his mental health.

217.  The assessment of this head of damages is difficult, given the hourly figures given in evidence are, as Belinda frankly admitted, at best estimates. No records were kept and the reality is that it is probable that the first time Belinda turned her mind to the matter

was some years after the plaintiff’s injury when the plaintiff and she first started to seek

legal advice. For that reason, I have approached the time estimates made in the oral

evidence with caution. I prefer the reasoned analysis in the occupational therapist’s

report, although I accept that it was somewhat out of date by the time of the hearing given it was completed in February 2019. It does seem likely that the need for assistance in looking after the children rather increased in 2019 after Mr Woolley had

completed his assessment given the plaintiff and Belinda’s third daughter was born that

year.

218.   Doing the best I can, I consider that the evidence here supports the following findings:

(a)	The plaintiff needed, and Belinda (or others) provided, an average of 10.5 hours per week for the first 26 weeks after the work accident, say to the end of March 2017.
(b)	From that time, having regard to the plaintiff’s mental state, Belinda (or others)

provided an average of 17.5 hours per week in either s 100 care and assistance or attendant care including periods when the plaintiff was in hospital; and

(c) During the period of 74 weeks claimed by the plaintiff, when the plaintiff was hospitalised following acute episodes he needed, and Belinda provided, an extra 1 hour per day attendant care and support.

219. Those findings lead to calculations thus:

(a)	26 weeks x 10.5 x $45 = $12,285
(b)	208 weeks x 17.5 x $45 = $163,800
(c)	74 weeks x 7 x $45 = $23,310

220.  On reviewing those figures I consider that the total of $199,395, which I round up to $200,000 represents an appropriate award for this head of damages. I award that amount.

221.   The plaintiff claims interest at the rate of 3%. Mr Shillington did not address the issue of interest. The decision in Grincelis v House (2001) 201 CLR 321 supports the awarding of interest on these damages. However, given that the award appears to be based on what appears to be the agreed rate representing the cost of the gratuitous services as at the present, rather than by reference to the historical rates from time to time, I propose to award interest at the rate of 2% on the basis discussed in MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657. On that basis, I award interest of ($200,000 x 4.5yrs x 2%) or $18,000.

Future Care/ s 100 of the CLW Act Damages

222.   The plaintiff claims damages under this head on three bases. They are:

(a)	5 hours per day Monday to Friday from a community care worker essentially to provide company and support for the plaintiff while Belinda is at work;
(b)	3 hours per day of gratuitous care from Belinda each Monday to Friday; and
(c)	6 hours per day of gratuitous care from Belinda each weekend.

223.  The plaintiff provides the following calculations in the Further Amended Statement of Particulars and submissions:

a)	25 hours/week x $68.75 = $1,718.75/wk;
b)	15 hours/week x $45 = $675/wk; and
c)	12 hours/week x $45 = $540/wk.

The total of $2,933 per week is then claimed over the plaintiff’s lifetime. A discount of

20% is allowed for the periods during which the plaintiff is likely to be hospitalised.

224.   The defendant says that the case for commercial care is not made out. An allowance of 20 hours per week for gratuitous care should be made. If any award is to incorporate a sum for commercial care, it is submitted that it should be allowed at the published NDIS

rate of $55.47 per hour (see Ex “D2”).

225. I have found at [178] above that the evidence does support the level of commercial care claimed by the plaintiff. I have also concluded that the nature and level of gratuitous care and assistance claimed in relation to Belinda is reasonable. So far as

the cost of commercial care is concerned, I note from Ex “D2” and Annexures “B”, “C” and “D” to Ex “P13” (the affidavit of Mr Little) that there is a range of charges in the

market. I note in particular that the organisation, Australian Home Care Services (see

Annexure “D”), charges only $53 per hour for services provided during the hours 6am-

8pm, Monday to Friday. I also note from the “Terms and Conditions” sheet that

personal care services are generally exempt from GST. In all the circumstances I
propose to use the figure of $53 per hour in calculating commercial care damages.

226.   It follows from the above that I assess damages under this head before discount thus:

(a)	25 hours/week x $53 = $1,325/wk
(b)	15 hours/week x $45 = $675/wk
(c)	12 hours/week x $45 = $540/wk

The total amount for all care is $2,540 per week. The 3% multiplier for the plaintiff’s

statistical life expectancy of 46 years is 1,312. The gross damages figure is thus $2,540 x $1,312 = $3,332,480. It is reasonable, as the plaintiff suggests, to discount this figure by 20% to allow for the periods of 70 days per year during which the plaintiff is likely to be hospitalised. This provides a sub-total of ($3,332,480 x 0.8), or $2,665,984. However, as discussed above, application of the approach required by Malec requires a further discount of 30%. I therefore award ($2,665,984 x 0.7), or $1,866,189.

Loss of Superannuation

227.  The plaintiff claims under this head on the basis of 11% of the amount allowed for past loss of earning capacity damages and 12% of that allowed for the future. The

defendant’s figures assume 11% for both past and future. For the reasons I gave in the

matter of Roberson, I propose to allow damages on the basis of 11% for both past and future loss of earning capacity damages. This results in an award of ($141,547 + $600,171) x 11% = $81,589.

Fox v Wood

228.  As indicated above (at [210]), I propose to award damages under this head in the sum of $2,400.

Summary

229.  Having regard to the above I summarise my award of damages in this matter as follows:

Head of Damage Amount

General damages	$350,000.00
Interest	$15,750.00
Out of Pocket Expenses
Past	$493,000.00
Interest
Future	$1,839,338.00
Loss of earning capacity
Past	$141,547.00
Interest	$16,314.00
Future	$600,171.00
Domestic Care/Assistance
Past	$200,000.00
Interest	$18,000.00
Future	$1,866,189.00
Loss of Superannuation	$81,589.00
Fox v Wood	$2,400.00
Total	$5,624,298.00
Conclusion

230.  I am conscious that the award of damages here is a large one. However, having reviewed the figures calculated above, I am satisfied that the award is proportionate and appropriate for the catastrophic effects which the work injury on 26 September

2016 has had, and will have, on the plaintiff’s life. I will enter judgment in favour of the

plaintiff in the sum of $5,624,298.

231.   I will hear the parties on the question of costs.

Orders

232. The order of the Court is:

1.    Judgment for the plaintiff in the sum of $5,624,298.

I certify that the preceding two hundred and thirty-one [232] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Crowe.

Associate:

Date: 12 April 2021