Hogan v Leese - [2011] WADC 14

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: HOGAN -v- LEESE [2011] WADC 14

CORAM: STAVRIANOU DCJ

HEARD: 21-23 SEPTEMBER 2010

DELIVERED : 4 FEBRUARY 2011

FILE NO/S: CIV 1631 of 2009

BETWEEN: JEFFREY SHANE HOGAN
Plaintiff
AND
HAROLD LEESE
Defendant

Catchwords:

Damages - Personal injury - 42-year-old haulpak driver - Extent of loss of earning capacity - Turns on own facts

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943 s 3C

Result:

Judgment for the plaintiff in the sum of $357,085

Representation:

Counsel:

Plaintiff: Mr K J Bradford
Defendant: Mr P R Momber

Solicitors:

Plaintiff: Kuscevich & Associates
Defendant: Peter Momber

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

Malec v JC Hutton Pty Ltd [1960] HCA 20; (1990) 169 CLR 638
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Paul v Rendell (1981) ALR 469
Villasevil v Pickering [2001] WASCA 143

STAVRIANOU DCJ:

Introduction

The plaintiff, Jeffrey Shane Hogan (Mr Hogan) is aged 42 years, having been born on 21 October 1968.
On 13 June 2003 Mr Hogan was the rider of a motorcycle which was involved in a collision with a motor vehicle (the accident) then being driven by the defendant.
Mr Hogan claims damages for personal injury arising out of the accident.
Liability in negligence is admitted and the matter came on for trial as an assessment of damages.

The accident

At about 10.15 am on the day of the accident Mr Hogan was riding a motorcycle in a westerly direction along Westfield Street, Maddington. At the same time the defendant was driving his motor vehicle in the opposite direction when he cut across the path of Mr Hogan's motorcycle and collided with it. In the accident Mr Hogan was thrown from the motorcycle and hit the windscreen and roof rack of the defendant's motor vehicle and eventually landed on his back on the road.
Mr Hogan went by ambulance to Armadale Hospital. He had pain in his left groin, thigh, knees and left forearm and wrist. His left wrist was plastered and he was prescribed analgesics. He was discharged later that evening. Upon discharge his knees, lower back and left elbow were all sore. He subsequently saw his general practitioner who referred him to an orthopaedic surgeon.
Mr Hogan has been reviewed by a number of specialists, including a psychiatrist in relation to his accident caused injuries.

Mr Hogan's background, work history and evidence

Mr Hogan was born in New South Wales. He left school at the age of 16 years. His subsequent employment included work in the construction industry and in orchards. He moved to Victoria where he obtained certificates to enable him to work in security.
In 1996 Mr Hogan moved to Western Australia.
In about the first half of 1997 Mr Hogan commenced security work. This work included acting as a ranger and conducting mobile patrols.
In 2002 Mr Hogan separated from his partner. His daughter Georgia (born 4 March 1998) continued to live with him.
At the date of the accident Mr Hogan was working as a part‑time security officer. By working primarily on Friday and Saturday nights he was able to care for Georgia who was then 5 years old.
Mr Hogan's income tax assessments and taxation returns for the period 2000 to 2003 show that his annual income was:
2000$14,486
2001$21,819
2002$19,807
2003$19,688
About a month after the accident Mr Hogan returned to his employment as a part‑time security officer which he maintained until January 2004. He described in his evidence that he found the work difficult because of pain in the knees and lower back. He had difficulty standing and the knee pain was the main problem.
In August 2003 Mr Hogan entered into a relationship with his wife and began living with her. The ultimate intention was to marry and establish a home and family. At about that time Mr Hogan first saw Mr David Wright, specialist orthopaedic surgeon.
In February 2004 Mr Hogan moved with his wife and Georgia to Derby. He obtained employment as a full‑time security supervisor and worked 30 to 35 hours per week. The work differed from other security work as it did not require prolonged standing. He left that employment, however, as his duties changed and he was again required to stand for lengthy periods.
In July 2004 Mr Hogan began work as a storeman and also did some work at a service station.
In October 2004 Mr Hogan undertook employment as a courier.
In November 2004 Mr Hogan commenced work as a security officer with Werewolf Security. His role was as a supervisor and he remained in that position for about five to six months.
In July 2005 Mr Hogan completed an occupational first aid course and then began work at Chubb Security.
The work with Chubb Security required Mr Hogan to work on a mine site at Port Hedland. His shifts were three weeks on, three weeks off. He continued to live in Derby.
During his time at Chubb Security Mr Hogan's knees were sore but he could cope. His duties included some standing and some sitting.
In December 2005 Mr Hogan's wife was in a motor vehicle accident and suffered significant injuries. She was a hospital inpatient in Perth until July 2006.
In January 2006 Mr Hogan moved to Port Hedland where his wife's parents lived. He worked shifts of four days on, four days off. At that time Mr Hogan was receiving assistance from his mother in the care of Georgia.
Mr Hogan's employment at Chubb Security came to an end in October 2006 when the mine site was decommissioned.
On 23 October 2006 Mr Hogan obtained employment as a security first aid officer with KCGM in Kalgoorlie. When he was working his knees would hurt as would his back. He said in evidence that he 'managed due to having the family to look after'.
Mr Hogan resigned his position as a security officer and on 14 May 2007 commenced as a trainee haulpak driver. He did this because he wanted to improve his situation and thought it would be easier on his knees. He would not have to 'sit down, get up and move around a lot'. When he completed the training he began full‑time work as a haulpak driver.
It was Mr Hogan's evidence that at the end of a day's work as a haulpak driver he felt very tired and sore. On some nights he would fall asleep before dinner. He had difficulty sleeping and his relationship with his wife was affected. Georgia became upset because of his mood changes and he would arrive at work tired.
In December 2007 Mr Hogan and his wife moved into a home they had purchased in Kalgoorlie.
Mr Hogan's employment as a haulpak driver involved 12‑hour shifts. He gave evidence he was in pain and depressed when working as a haulpak driver. His knee pain was aggravated, he had lower back pain and pain in his elbow.
Mr Hogan saw Dr Jane Fitch, consultant psychiatrist, in December 2007. She prescribed medication for depression which he has been taking since that time. It assists with depression but does not alleviate the pain.
Between August 2008 and February 2010 Mr Hogan received counselling from Mr Jeff Devine, registered psychologist.
On 5 December 2008 Mr Hogan resigned from KCGM. He said in evidence he did that so he could obtain better paid work in a better environment. Some of the trucks at KCGM were old, uncomfortable and at times difficult to drive. There were problems with his performance at KCGM and particularly his punctuality.
On 10 December 2008 Mr Hogan obtained employment with Chandler McLeod driving a haulpak truck. The trucks were more modern than those at KCGM and Mr Hogan considered they were more comfortable. Mr Hogan was retrenched from this employment on or about 20 January 2009 because of the global economic downturn.
Mr Hogan was cross-examined at length and in detail about his employment with KCGM. He was asked about why he had not sought any medical intervention from the on site medical officer in relation to knee pain. It was his evidence that he did not want to become a burden. He felt that he could lose his job if he made his employer aware of his injuries. Mr Hogan was asked in cross-examination about why he left KCGM. He said this was because of a combination of factors. As well as knee problems he was also experiencing marital difficulties. I accept Mr Hogan's evidence. He had a wife and child to support. He had a home mortgage to repay and was seeking to establish himself financially. His job security in the circumstances was important to him.
I accept that when employed at KCGM he decided to obtain the same type of work (haulpak driving) and pay level but in better conditions. He therefore obtained the position with Chandler McLeod.
Following his employment at Chandler McLeod Mr Hogan undertook some casual security work and on 16 February 2009 obtained employment driving small dump trucks. This employment caused problems with his knees and back. At about this time Mr Hogan separated from his wife and she went to live in South Hedland.
On 20 July 2009 Mr Hogan obtained employment as a ranger with the City of Kalgoorlie (the City). His duties as a ranger involved acting as a parking inspector, verge controller and dog catcher. There was a lot of computer work required and interaction with the public. At about that time he resumed the relationship with his wife.
On 3 September 2010 Mr Hogan's employment with the City was terminated. It was his evidence that he seemed to manage quite well with the duties at the City. However he was told his employment was terminated due to poor work performance. There was documentation missing and he was late to work on occasions. He said his lack of punctuality was because of restless sleep due to knee pain and waking up tired.
Mr Hogan was unemployed at the time of trial. It was his evidence he intended to seek employment as a courier. Truck driving aggravates the pain level in his knees.
Mr Hogan has previously done courier work. He has prepared a resume but has not made any applications for employment because of his trial commitments.
It was Mr Hogan's evidence that on a daily basis he gets very sore across the kneecap and down both sides of the knee. He cannot kneel or twist and when he does so he experiences pain. In his evidence he described his back problem as manageable.
It was Mr Hogan's evidence that his daughter does vacuuming in the house and helps with the clothes and general cleaning.

Medical evidence relating to Mr Hogan's injuries and extent of his incapacity

Counsel for Mr Hogan tendered into evidence a book of medical reports. The defendant did not require any medical practitioner to attend the trial to give oral evidence.
Mr Wright was Mr Hogan's treating orthopaedic surgeon. In his first report dated 29 August 2003 he noted symptoms of bilateral knee pain and signs of slight quadriceps wasting. Mr Wright referred Mr Hogan for an MRI scan and recommended physiotherapy.
The MRI showed a partial thickness tear of the lateral collateral ligament of the right knee and attenuation of the anterior cruciate ligament consistent with a partial thickness tear. There was also a partial anterior cruciate tear and some partial thickness tearing of the lateral collateral ligament of the left knee.
Mr Wright recommended an arthroscopy of both knees to assess the cruciate ligaments which he performed on 22 October 2003. The procedure revealed a partial thickness tear of each cruciate ligament and mild patella chondromalacia.
It was Mr Wright's view that Mr Hogan suffered from bilateral knee pain due to traumatic patella chondromalacia.
On 4 November 2003 Mr Wright reviewed Mr Hogan and recommended consideration be given to a graduated return to work programme. It was Mr Wright's opinion that the knee symptoms should settle with time and further surgical management was not required.
Mr Wright wrote a report dated 3 December 2003 following a review on 2 December 2003. Both knees were still quite painful. There was still wasting of the quadriceps muscles. Mr Wright described the symptoms as typical of patella chondromalacia and recommended further physiotherapy. No further review was arranged.
Mr Hogan attended for physiotherapy and was advised to perform leg strengthening exercises. He has maintained the exercises.
Mr Wright wrote a report dated 5 July 2005 at the request of the statutory insurer for the defendant following an examination on that date. The report notes a history including that physical activity aggravated the knee pain and difficulty driving for more than one hour because of pain. In response to a series of specific questions Mr Wright opined that Mr Hogan had some disability of moderate severity from his injuries. The disability in each knee was permanent. He considered that Mr Hogan was capable of working full‑time in supervisory duties but had difficulties in performing normal security work because of knee symptoms. In his view it was unlikely Mr Hogan would need to consult a general practitioner for his knee problems in the future.
Mr Wright's most recent report is dated 20 May 2010. He noted bilateral knee pain, lower back pain and left elbow symptoms. He obtained a history of the development of low back pain within a few weeks of the accident with increasing severity. He also noted the development of left elbow pain and intermittent ulna nerve neuropathy.
In relation to work history Mr Wright noted that:
He did return to security work in a supervisory capacity after the crash, but later found work as a Haulpak driver in the mining industry, hoping that would be an easier job for him.
Unfortunately, he found that, in the Haulpak, the cab was quite cramped and sitting with his knees flexed all day caused pain. In addition, there was constant jolting when heavy loads were dumped in the Haulpak and when he drove over rough terrain. It was also quite uncomfortable for him to climb in and out of the Haulpak, which is quite high off the ground.
He therefore left that job and is now working full-time as a Ranger with the City of Kalgoorlie‑Boulder.
Mr Wright's diagnosis was that in the accident Mr Hogan had suffered:
(a)bilateral knee injuries with healed partial thickness tears together with injuries to the surface of the patellofemoral joint;
(b)a soft tissue injury of the lower back;
(c)a soft tissue injury to the left elbow with persisting symptoms primarily from ulna neuropathy.
Mr Wright considered Mr Hogan was able to work full‑time as a ranger and in jobs requiring a similar level of physical activity. He doubted Mr Hogan had the ability to work as a haulpak driver. Mr Hogan was likely to develop some increasing knee symptoms as the degenerative changes became more severe. He doubted that the symptoms would become significantly more severe within the next fifteen years.
On 6 May 2005 Mr Hogan attended for review upon Mr R Genat, specialist orthopaedic surgeon. The review had been arranged by the statutory insurer for the defendant. Mr Genat briefly consulted with Mr Hogan and noted he had significant symptoms consequent on his injury.
In 2007 Mr Hogan was referred by his solicitors to Dr Jane Fitch, consultant psychiatrist. She first saw him on 4 December 2007 and has written reports dated 17 December 2007 and 7 November 2009. When Mr Hogan first attended upon Dr Fitch he was still employed as a haulpak driver. She obtained a history from him that:
Some of the trucks did not have cruise control requiring him to exert pressure through his right leg for prolonged periods. In the cramped conditions of the truck this was very painful. He wears a knee brace at work. On his days off he tries to do as little as possible so as to rest it.
The history Mr Hogan gave to Dr Fitch in relation to problems with haulpak work was similar to that given to Mr Wright.
Dr Fitch in her report noted a history of development of symptoms from late 2003 of low mood, disturbed sleep, irritability, social withdrawal, fatigue, loss of sense of humour, uncharacteristic tearfulness and brooding negative thoughts.
In her report Dr Fitch stated:
Mr Hogan is a thirty nine year old man who was involved in a motor vehicle accident in June 2003. He subsequently developed chronic knee pain. He was previously a fit active man who was very invested in physical activity. He has had minimal orthopaedic management and pain management of his knee pain. He has sought to cope by restricting his activities so the pain is tolerable.
Some months after the motor vehicle accident he described deteriorating mood. This reached full diagnostic criteria for Major Depressive Disorder in accordance with DSM IV TR Criteria (Appendix B). He describes low mood, physiological shift symptoms affecting sleep, appetite and energy as well as intolerance, social withdrawal, irritability and negative cognitive shift.
These symptoms have worsened without treatment.
There is no biological predisposition to Affective Disorder. There was no significant head injury sustained in the motor vehicle accident to suggest an organic basis to the Depression.
Mr Hogan has managed significant stresses prior to the motor vehicle accident without developing psychiatric disorder. He endured the breakdown of his marriage and a Family Court battle prior to 2003 without effect on his mood.
Subsequently, his wife Dana was significantly injured in a motor vehicle accident at the end of 2005. This has undoubtedly increased the stress, responsibility and strain on Mr Hogan and may be contributing to the perpetuation of his current symptoms.
There is no history of personality disorder or alcohol or drug abuse that would otherwise contribute to his presentation. Mr Hogan has begun using excessive amounts of coffee to help manage his fatigue. This may be in turn contributing to his insomnia and there are features of caffeine dependence.
Following his attendance upon Dr Fitch in 2007 Mr Hogan attended upon a general practitioner who prescribed antidepressants and referred him to Mr Devine.
Mr Hogan next saw Dr Fitch in July 2009.
In her report of 7 November 2009 Dr Fitch confirmed her original diagnosis of a major depressive disorder. It was her view that if it were not for the accident Mr Hogan would not have developed increased vulnerability and reduced resilience that resulted in the depression.
Dr Fitch was asked by Mr Hogan's solicitors why his psychiatric state (or at least his symptom level) had deteriorated in the period since her report in December 2007.
Dr Fitch's response in her report of 7 November 2009 was:
Mr Hogan's condition has fluctuated in accordance with his psychosocial complications. He was determined to remain employed to support his family and worked very long hours at KCMG [sic] to the detriment of his pain and his mood. Nevertheless, this role gave him self efficacy, financial security and structure.
Realising he could not cope with the work was a psychological blow to Mr Hogan, as was his subsequent unemployment and separation from his wife. His symptoms deteriorated markedly in that time. He reports some improvement in his mood since he recently restarted work.
Dr Fitch did not consider Mr Hogan's depression was of such severity as to prevent him from working. However, there were limitations. In particular she did not think Mr Hogan's previous haulpak work with long hours, shiftwork, isolation and increasing pain was suitable for someone with depression. Dr Fitch opined that the depression would remain symptomatic, and that Mr Hogan was vulnerable to exacerbation of symptoms 'in times of stress, increased pain, loss or change'.
Dr Fitch recommended continuation of medication and further psychological counselling.
Dr Fitch was asked about complications in social and occupational functioning and responded:
Mr Hogan's Depression has impacted upon his marital relationship resulting in recent separation. He is now a sole parent to his older daughter and is still to develop a close relationship with his infant son.
His social functioning has been altered by his inability to participate in sports and his recent loss of work.
His occupational functioning has been complicated. He left his work as a haulpak driver because of his medical conditions but was unable to secure appropriate work he could physically manage. His mood state worsened during his period of unemployment. He has managed to secure a more appropriate position in the last few weeks and it is hoped that this will be able to be sustained. Further periods of unemployment would be very detrimental to his mental state.

Dr Ross Goodheart, a consultant neurologist, reviewed Mr Hogan on 16 October 2008 at the request of his solicitors. It was Dr Goodheart's view that Mr Hogan suffered a soft tissue injury to the left arm with a component of ulna neuropathy and a soft tissue injury to the thoracolumbar spine.
Dr Goodheart provided a report dated 10 October 2008. The report includes the following questions and responses:
6.If our client is not likely to achieve a complete recovery in the foreseeable future, is it advisable for him to cease his employment, cease particular duties at work or potential occupations …
At the time of my review, it was my opinion that Mr Hogan's symptoms described above were likely to persist for the foreseeable future. He remained partially incapacitated for work activity due to the ongoing symptoms described above. It was possible that truck driving activities could be associated with exacerbation of his left arm and lower back symptoms. He may require intermittent time away from work activities during periods of exacerbation of symptoms.
7.The effect the injuries have had upon our client's level of functioning, enjoyment of life, recreational pursuits and ability to partake in social and family activities.
At the time of my review Mr Hogan remained partially incapacitated with respect to enjoyment of life, recreational pursuits and ability to partake in social and family activities.
8.The effect the injuries have had upon our client's capacity to carry out domestic, gardening and other household requirements. Will our client's pre‑accident capacity to carry out domestic/gardening and household chores be affected in the future?
At the time of my review Mr Hogan was restricted in his capacity to carry out domestic, gardening and other household requirements in relation to the ongoing symptoms described above. It was my opinion that he may continue to rely on family members or paid assistance to complete these duties.
9.Is there a danger of our client's condition deteriorating in future and if so please provide details including any escalating treatment costs.
I did not assess Mr Hogan's nerve irritation at the left elbow to be likely to deteriorate in the future.
10.Whether our client has suffered a permanent disability and if so please provide details in percentage terms.
At the time of my review, it was my opinion that Mr Hogan had sustained a permanent seven point five percent (7.5%) loss of the full efficient function of the left arm as a result of injuries sustained in the motor bike accident of 13 June 2003.
It was my opinion that Mr Hogan had sustained a permanent ten percent (10%) loss of the full efficient function of the thoracolumbar spine as a result of injuries sustained in the motor bike accident of 13 June 2003. This took into account his associated lower limb symptoms.
In addition, it was my opinion that Mr Hogan had a permanent disability in relation to the function of both knees and in relation to his symptoms of depression. I would defer to his Orthopaedic Surgeon and his Psychiatrist for evaluation of the extent of these disabilities.
Mr Stephen Dennis is a consultant occupational physician who saw Mr Hogan on 16 July 2009. The history Mr Dennis obtained from Mr Hogan was that he had ceased work haulpak driving because of aggravation particularly of bilateral knee symptoms.
Mr Dennis opined that it appeared Mr Hogan was not suited to work involving:
1.Heavy or repetitive bending and lifting.
2.Carrying heavy objects.
3.Awkward or prolonged fixed postures,
4.Heights.
5.Repetitive twisting movements of the torso.
It was Mr Dennis' view that with restrictions Mr Hogan did have a capacity to work full‑time.
Mr Dennis' response in relation to specific questions concerning Mr Hogan's future work capacity were as follows:
6.Related to the above, can you advise us of your opinion concerning Mr Hogan's likely work capabilities in the future. In particular:
6.1Do you agree that Mr Hogan's symptoms now make him unsuited to heavy physical work, such as his previous Haulpak work? If so, are you able to provide reasoning for your conclusion in this regard?
In this respect, can you comment on the likelihood that continuation of such work in the future would lead to an increase in his symptoms and potential deterioration in his condition.
Alternatively, even if Mr Hagan [sic] could complete such work, do you accept that it was (and is) a reasonable decision by him to cease such work given the extent to which his symptoms have been aggravated by such work in the past.
I would not consider that by his own account he is suited to undertake heavy physical work. There appears to have been a significant financial disincentive for him to cease Haulpack [sic] work to change to his current work as a Ranger. There is objective evidence of his specific knee pathology that would explain his symptoms and this is consistent with his reported difficulties with undertaking a range of work and home activities. It is certainly understandable that a continuation of his work as a Haulpack operator could result in a gradual increase in symptoms though this would not be a certainty. I think it is perfectly reasonable for him to decide that the symptoms are sufficiently intolerable for him to wish to change occupations.
6.2What restrictions do you consider should reasonable be imposed upon Mr Hogan's future work, in terms of physical demands and hours of work.
He would not appear to be suited to work which involves heavy or repetitive bending, lifting or carrying of heavy objects, work in awkward or prolonged fixed postures, work at heights or work requiring repetitive twisting movements of the torso or work in awkward spaces. Within those restrictions however I would expect him to be able to undertake full time work.
Nicholas Anastas, an orthopaedic surgeon, reviewed Mr Hogan at the request of the defendant's solicitors in May 2010, gave oral evidence at trial. He provided a report dated 24 May 2010.
In the report he noted that:
1.It is likely that he sustained a wrenching injury to his lumbar spine in the motorcycle incident on the 13^th June 2003.
2.It is likely that he suffered some bone bruising to his left elbow in the motorcycle incident.
3.He has features of his right knee consistent with chondromalacia patellae.
4.He has features of his left knee consistent with chondromalacia patellae.
5.Since onset of his symptoms he complains of a 90% increase of symptoms with respect to his low back, right knee, and left knee. The body does have a natural tendency to heal itself from injuries such as his and one would not expect him to have had a 90% increase of his symptoms as a result of the motorcycle incident on the 13^th June 2003 per se.
He further opined:
On his presentation to me today I assess him as being fit to work full‑time in his occupations as a security officer, truck driver, or ranger.
The injuries he sustained in the motorcycle incident on the 13^th June 2003 would not have decreased his earning capacity, compromised his ability to compete in the workforce, or shortened his working life.
Mr Anastas noted in his report that Mr Hogan had complained of pain in the low back area with simulated rotation of the spine. In his view this was an inconsistency suggestive of symptom magnification and that the incapacity was not as great as Mr Hogan perceived. Mr Anastas also noted Mr Hogan had groaned and exclaimed excessively during examination.
Mr Anastas reviewed Mr Hogan on one occasion only many years after the accident. His evidence as to inconsistency in presentation was limited to the spinal injury. It was the evidence of Mr Anastas that upon examination there was tenderness in the knees, back and elbow. Mr Anastas gave evidence that he asked Mr Hogan what difficulties he was having but probably did not ask about difficulties at work. In cross‑examination Mr Anastas accepted that Mr Hogan would have restrictions in a work situation. If employment involved prolonged crouching and bending there would be problems. If his knees were in a flexed position for extended periods of time then Mr Hogan would experience discomfort.
Insofar as there is any conflict between the evidence of Mr Wright and the other medical practitioners who had seen and reviewed Mr Hogan, I would prefer the opinion of Mr Wright. He was the treating specialist and saw him soon after the accident and performed the arthroscope. He reviewed Mr Hogan on a number of occasions. The views expressed in his reports as to the injuries, treatment, prognosis and residual disabilities were clear, concise and logical.

Assessment and findings

Mr Hogan's credibility was very much in issue at trial. In closing submissions lack of complaint by Mr Hogan as to his symptoms and lack of attendance upon medical practitioners for treatment was emphasised by counsel for the defendant. Counsel referred to the absence of any record of injury or complaint of symptoms by Mr Hogan during the period when he was employed at KCGM. When he was employed by KCGM Mr Hogan did not take medication for knee and back pain. He did take Nurofen for headaches and did not consider there was a need to see a doctor at any time.
In late 2003 when Mr Hogan attended upon Mr Wright he was advised to continue physiotherapy. There was no recommendation that he attend for reviews. In the period when Mr Hogan was residing in Derby obtaining medical attention was inconvenient. After he had seen Mr Wright Mr Hogan did not believe he needed to see a general practitioner. This was consistent with Mr Wright's evidence. He did take medication at times whilst employed at KCGM but did not like to take painkillers in relation to his knees. His general attitude was to do the best he could to deal with the problems he had.
Mr Hogan was cross-examined as to why, when applying for employment, he had not disclosed his knee problems. His explanation that he considered it would affect his chances of obtaining employment does not in all the circumstances affect the view I have formed as to credibility.
Mr Hogan was supporting his wife and child. His income was important to the family. He was concerned about the ongoing stability and continuity of his employment. He agreed to leave KCGM after receiving warning letters concerning his performance. I am satisfied that his decision to leave KCGM, as he said, was because of a combination of factors including the problems he experienced as a result of the injuries he suffered in the accident.
I am satisfied and find that work as a haulpak driver aggravated the symptoms arising from the injuries Mr Hogan suffered in the accident.
The evidence of Mr Anastas concerning Mr Hogan's presentation does not affect the view I have formed as to Mr Hogan's evidence. The evidence of Mr Anastas confirms the injuries as described. He agreed that Mr Hogan did have problems with certain kinds of activity. He has a history of employment since the accident. There was no suggestion of exaggeration in the presentation to the other medical practitioners.
Mr Hogan was a reliable and truthful witness and I have no hesitation in accepting his evidence. His evidence did not appear exaggerated, was consistent and not materially affected by detailed cross‑examination. The history he related to medical practitioners was consistent with his evidence. The evidence as to absence of treatment does not in the circumstances affect my view as to Mr Hogan's credibility. He has done the best he can to deal with the injuries he suffered and consequent residual disabilities. He has spent very little time away from work since the accident. I accept that he has simply carried on with his employment notwithstanding his symptoms. I am satisfied that Mr Hogan is a hard-working individual. His work history after the accident reveals stoicism. I accept his evidence as to the consequences of the accident. He has made a sustained effort to engage in employment and earn income since the accident notwithstanding the effects of his injuries.
At the date of accident Mr Hogan was 34 years of age and in good health and participated in a range of leisure and recreational activities including martial arts and body building. He is now unable to do so. In his evidence he described his injuries in detail. The description he gave was confirmed by Mr Wright.
I accept and find that as a result of the accident Mr Hogan suffered the injuries to each knee as described by Mr Wright, soft tissue injuries to the left arm (with ulna neuropathy) and spine and a stress disorder.
As a result of his injuries Mr Hogan has required and received treatment. He has had physiotherapy and has taken medication for his symptoms of depression. There is an ongoing requirement for medication which helps stabilise the depression.
The prognosis is that Mr Hogan's disability will continue.
As a result of the accident Mr Hogan is restricted in the nature of employment he is able to engage in.

General damages

General damages in this case are to be assessed in accordance with s 3A to s 3C of the Motor Vehicle (Third Party Insurance) Act 1943.
Non-pecuniary loss is defined in the Act as pain and suffering, loss of amenities of life, loss of enjoyment of life, curtailment of expectation of life and bodily or mental harm.
Section 3C(2) reads:
(2)The amount of damages to be awarded for non-pecuniary loss is to be a proportion, determined according to the severity of the non-pecuniary loss, of the maximum amount that may be awarded.
Section 3C(3) reads:
(3)The maximum amount of damages that may be awarded for non-pecuniary loss is Amount A, but the maximum amount may be awarded only in a most extreme case.
Amount A is $337,000.
Mr Hogan has a psychiatric condition as outlined by Dr Fitch. As well as the problems arising from the knee injuries, he has elbow and back problems. He is restricted in relation to the range of domestic, recreational, sporting and social activities he can engage in.
I find that Mr Hogan's initial injuries and symptoms, their progression and treatment, loss of amenities, pain suffered, the residual disabilities and effect on enjoyment of life, puts his position at 15% of a most extreme case. I assess general damages in the sum of $33,550 nett of the statutory deductible.

Loss of earning capacity

As at the date of accident Mr Hogan was employed as a part‑time security officer. Since leaving school he has maintained employment. In 2005 he obtained a licence to drive haulpak trucks. Mr Hogan's income whilst employed by KCGM as a haulpak driver was the equivalent of $1,217 nett per week. His most recent employment has been as a ranger with the City at the rate of $812 nett per week.
I am satisfied that because of the injuries he sustained in his accident Mr Hogan has lost the capacity to engage in employment as a haulpak driver and has thereby suffered a loss of earning capacity. There should be an allowance made to Mr Hogan for the lost opportunity to exercise his earning capacity to its fullest extent.
I am satisfied that but for the injuries sustained in the accident Mr Hogan would have continued in his employment as a haulpak driver. However continuation in that employment would have been subject to the impact of the economy and demand for services as with any form of employment. He had purchased a home in Kalgoorlie and borrowed money for that purpose.
Mr Hogan's evidence which I accept was that he could not do truck driving.
The medical evidence supports the view that Mr Hogan has a restricted capacity to work.
Mr Wright considered that it was reasonable for Mr Hogan to have left haulpak driving because his symptoms were being aggravated. It was likely Mr Hogan would develop increasing symptoms as the degenerative changes increased in severity. He considered Mr Hogan could cope with full‑time work as a ranger or jobs requiring a similar level of physical activity. Dr Goodheart considered that Mr Hogan was partially incapacitated for work due to ongoing symptoms and that he may require time away from work activities. Dr Fitch considered that whilst the depression did not bar Mr Hogan from employment, there were limitations and his previous employment as a haulpak driver was not a suitable occupation given his depression. Mr Dennis considered Mr Hogan was not fit for heavy physical work and that there were other restrictions including working in awkward and prolonged fixed positions. Mr Anastas made only a general enquiry as to difficulties Mr Hogan experienced and in the circumstances I am not prepared to attach any significant weight to that aspect of his evidence.
I am satisfied given his history Mr Hogan will obtain employment in the future but will be restricted in the nature of the duties he can perform. As Mr Wright opined, he does have the capacity to work as a ranger or in positions involving a similar level of activity. Because of his condition he is less competitive in the marketplace.
Mr Hogan puts his claim for past and future loss of earning capacity on the basis that he would have retained employment as a haulpak driver if it had not been for his injuries.
The claim for past loss of earning capacity is for $400 nett per week from when Mr Hogan ceased haulpak driving to judgment.
For the year ended 30 June 2009 Mr Hogan's taxable income was $53,583 representing a nett weekly sum of $825.
The claim for $400 nett per week is reasonable. I consider that the claimed global sum of $45,000 inclusive of all components of past loss of earning capacity to be reasonable. I allow $45,000.
The claim for future loss of earning capacity is for $1,393 per week to age 70. By application of a multiplier (720.3) the sum of $1,003,378 is obtained and it is submitted the reduction for retained earning capacity and normal vicissitudes of life should be no more than 40%.
In Medlin v State Government Insurance Commission (1995) 182 CLR 1 [3] the High Court identified that a court in assessing loss of earning capacity must be satisfied as to two matters:
The first of those requirements is the predictable one that the plaintiff's earning capacity has in fact been diminished by reason of the negligence caused injuries. The second requirement is also predictable once it is appreciated that damages for loss of earning capacity constitute a head of damages for economic loss awarded in addition to general damages for pain, suffering and loss of enjoyment of life. It is that the "diminution of ... earning capacity is or may be productive of financial loss" (Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 at 347).
Lord Diplock in Paul v Rendell (1981) ALR 469, 471 expressed the matter of assessment as follows:
... The assessment of economic loss involves the double exercise in the art of prophesying not only what the future holds for the injured plaintiff but also what the future would have held for him if he had not been injured.
In Malec v JC Hutton Pty Ltd [1960] HCA 20; (1990) 169 CLR 638 the approach to the assessment of the likelihood of future or potential events occurring was dealt with by the High Court. Deane, Gaudron and McHugh JJ in their joint judgment said (642 – 643):
... 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 - say over 99 per cent - the court will take that chance into account in assessing the damages. Where proof is necessarily unobtainable, 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 174; Davies v Taylor [1974] AC 207 at 212, 219; McIntosh v Williams [1979] 2 NSWLR 543 at 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.

Brennan and Dawson JJ stated that the ascertainment of future earning capacity involves an evaluation of possibilities as distinct from establishing a fact as a matter of history. Their Honours said (639 – 640):
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.
In his employment with the City Mr Hogan demonstrated a capacity to earn approximately $800 nett per week. I am satisfied that sum represents a fair and reasonable assessment of his retained earning capacity. The difference between what he earned working for the City and whilst employed by KCGM was approximately $400 per week. I am satisfied $400 represents a fair and reasonable estimate of his nett weekly loss.
I consider it reasonable to calculate Mr Hogan's loss of capacity to age 65 years.
On the basis of a diminution of earning capacity of $400 nett per week the future loss of capacity would be:
$400 x 661 (multiplier applicable to 23 year period) = $264,400
The discount for ordinary contingencies is rarely more than 15% and usually between 5% and 10%: Villasevil v Pickering [2001] WASCA 143, 38.
Mr Hogan's employment as a haulpak driver was terminated in January 2009 because of the global economic downturn. His ability to maintain employment as a haulpak driver was uncertain. I also bear in mind that the nature of the work he was doing may have led him to seek lighter work as he got older. In this case I consider that a reduction of 10% is appropriate.
The loss after deduction of 10% for contingencies is $237,960 which I allow.

Future loss of superannuation benefits

Mr Hogan's gross weekly loss is approximately $618.
At the rate of 9% to age 65 years and after deductions for fund costs and taxation, the sum of $31,250 ($618 x 0.09 x 661 x 85/100) is derived.
The allowance after contingencies at 10% is $28,125.

Past and future gratuitous services

Gratuitous services are claimed on the basis of a requirement of one hour per week from December 2007 when Mr Hogan purchased his home in Kalgoorlie. Twenty dollars is the agreed hourly rate.
There was evidence Mr Hogan's daughter assists with duties in the home. The evidence was to some extent imprecise and only a broad estimate is possible. Only a modest allowance for past and future services is established. I allow $7,500 under this head.

Future treatment

Mr Hogan seeks to recover the cost of medication and the cost of occasional reviews.
I am satisfied based upon the medical evidence that Mr Hogan will require medication and some reviews.
I consider a reasonable allowance is $4,000.

Special damages and travelling

Travelling expenses are agreed at $1,000 which I allow.
I am satisfied that past psychological and psychiatric treatment was required as a result of injuries sustained in the accident. I would make an appropriate allowance subject to proof of quantum.

Summary of award

I consider Mr Hogan is entitled to a judgment of $357,085 as follows:
General damages  $ 33,500
Past loss of earning capacity, including interest
and superannuation         $ 45,000
Past and future gratuitous services  $    7,500
Future loss of earning capacity  $237,960
Future loss of superannuation  $ 28,125
Future treatment  $    4,000
Special damages and travelling  $    1,000
Total$357,085