Hula v Hui Yu

[2020] NSWDC 203

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Hula v Hui Yu [2020] NSWDC 203

Hearing dates:

24, 26, 27 September; 28 October; 25, 26, 27, 28 November 2019; 28 February 2020

Date of orders:

15 May 2020

Decision date:

15 May 2020

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

1. Verdict and judgment for the plaintiff in the sum of $249,511;

 

2. The defendant is to pay the plaintiff's costs on the ordinary basis unless otherwise ordered;

 

3. The Registry is to return the exhibits to the parties after the expiry of 28 days;

 4. Liberty to apply on 7 days notice if further or other orders are required.

Catchwords:

TORTS – negligence – motor accident – plaintiff was riding a bicycle into a roundabout when struck by defendant’s motor vehicle causing the plaintiff to suffer injury – liability admitted; DAMAGES – assessment of claimed heads of damage in light of plaintiff’s five previous motor vehicle accidents – plaintiff self-represented

Legislation Cited:

Civil Liability Act 2002 (NSW), s 5D, s 5E
Civil Procedure Act 2005 (NSW), s 26, s 58(2)
Evidence Act 1995 (NSW), s 29(2)(b), s 56
Motor Accidents Compensation Act 1999 (NSW), s 61, s 126, s 136, s 141B
Surveillance Devices Act 2007 (NSW), s 7
Uniform Civil Procedure Rules 2005 (NSW), Sch 7, r 31.27(1)(c)

Cases Cited:

Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538; [1940] HCA 45
Alcan Gove Pty Ltd v Zabic [2015] HCA 33; (2015) 257 CLR 1
Bourhill v Young [1943] AC 92
Browne v Dunn (1893) 6 R 67
Cupac v Cannone [2015] NSWCA 114
Dixon v Whisprun Pty Ltd [2001] NSWCA 344
Dulieu v White [1901] 2 KB 669
Glen v Sullivan [2015] NSWCA 191
Graham v Baker (1961) 106 CLR 340; [1961] HCA 48
HG v The Queen [1999] HCA 2; (1999) 197 CLR 414
Larson v Commissioner of Police [2004] NSWCA 126
Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5
Moage Ltd (in liq) v Jagelman [1998] 153 ALR 711
Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383; [1970] HCA 60
Nominal Defendant v Saleh [2011] NSWCA 16
Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505
Paric v John Holland Constructions Pty Ltd [1985] HCA 58; (1985) 59 ALJR 844
Penrith City Council v Parks [2004] NSWCA 201
Pham v Shui [2006] NSWCA 373
Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164
Seltsam v Ghaleb [2005] NSWCA 208
Smith v Leech Brain & Co Ltd [1962] 2 QB 405
State of NSW v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133
Strinic v Singh [2009] NSWCA 15
Watts v Rake [1960] HCA 58; (1960) 108 CLR 158
Whalan v Kogarah Municipal Council [2007] NSWCA 5

Category:

Principal judgment

Parties:

Roman Hula (Plaintiff)
IAG/NRMA Ltd (Defendant)

Representation:

Counsel:
Plaintiff In Person
Mr B Wilson (Defendant)

  Solicitors:
Sparke Helmore (Defendant)

File Number(s):

2018/154452

Publication restriction:

None

Judgment

Table of Contents

Nature of case	[1]
Issues for determination	[2]
Procedural history	[3] – [21]
Pre-trial procedural problems	[4]
Self-representation by plaintiff	[5]
Intra-trial mediation	[6]
Opportune pro-bono assistance from counsel	[7] – [11]
A particularisation problem	[12] – [21]
Evidence overview	[22] – [24]
Credibility and reliability of testimony	[25] – [27]
The plaintiff	[26]
Mr Wicharia	[27] – [31]
Mr Rabi	[32] – [37]
Submissions of the parties	[38] – [41]
Facts	[42] – [167]
Plaintiff’s background circumstances	[43] – [46]
Plaintiff’s pre-accident injury and health issues	[47] – [57]
Accident circumstances	[58] – [60]
Injuries and initial treatment	[61] – [64]
Plaintiff’s post-accident medical and allied reviews	[65] – [66]
Consideration of the medical and allied evidence	[67] – [135]
Surveillance evidence and other video evidence	[136] – [142]
Disabilities that remain	[143] – [156]
Work effects	[157]
Domestic effects	[158] – [160]
Mitigation	[161]
Most likely circumstances but for injury	[162] – [167]
Assessment of damages	[168] – [230]
Non-economic loss	[170] – [179]
Past economic loss	[180] – [188]
Past loss of superannuation	[189]
Future economic loss	[190] – [194]
Future loss of superannuation	[195]
Past domestic assistance	[196] – [212]
Future domestic assistance	[213] – [218]
Future out-of-pocket expenses	[219] – [226]
Past out-of-pocket expenses	[227] – [229]
Summary of damages assessment	[230]
Disposition	[231]
Costs	[232]
Orders	[233]
Appendix (54.8 KB, doc)

Nature of case

1. At about 8.45am on Monday, 5 September 2011, the plaintiff, Mr Roman Hula, then aged 56 years, was riding a bicycle for exercise. He rode into a roundabout at the intersection of Heffron Road and Banks Avenue at Pagewood, NSW. At that time his bicycle was struck by a motor vehicle driven by the defendant, Ms Hui Yu, as her vehicle entered the roundabout from the plaintiff’s left. In that collision he sustained multiple soft tissue injuries, principally to his neck, low back and elbows. According to the medical records tendered, that accident was the sixth motor vehicle accident in which the plaintiff had sustained injuries in a period spanning 27 years between 1984 and 2011. The plaintiff has received monetary compensation in respect of some of those accidents. The proceedings are governed by the Motor Accidents Compensation Act 1999 (NSW) (“MAC Act”) and the Civil Liability Act 2002 (NSW) (“CL Act”).

Issues for determination

2. Notwithstanding a history of a series of interlocutory procedural disputes between the parties, the defendant ultimately admitted liability for the plaintiff’s damages arising from the injuries he sustained in the subject accident. Consequently, the residual issues that remain to be determined in these proceedings relate to the assessment of whether the plaintiff has satisfactorily proven his claims for damages for past and future loss of earning capacity, the extent, if any, of his entitlement to damages for domestic assistance, and for past and future treatment expenses, where the plaintiff carries the onus of proof, in circumstances where he has previously claimed and received compensation for such heads of damage relating to his prior injuries: s 5D and s 5E of the CL Act. The parties submitted disparate damages assessment should be made. The plaintiff submitted damages should be assessed at $1,257,609: MFI “7”. In contrast, the defendant submitted the plaintiff’s damages should be assessed at $75,000 plus out-of-pocket expenses: MFI “2”. Those matters will be considered and determined after identifying my findings on factual matters.

Procedural history

3. Known and documented sequelae of the injuries the plaintiff sustained in the plaintiff’s prior accidents have, in combination with the plaintiff’s self-representation, inevitably meant that these proceedings have been beset and complicated by a number of pre-trial and intra-trial procedural difficulties, some of which required separate rulings.

Pre-trial procedural problems

4. Litigation of this kind is necessarily complicated when it arises against a background of prior injury and the need for a plaintiff to discharge the onus of proof for particular claims for damages. In this case such complexity is compounded by the fact that throughout the litigation the plaintiff has been self-represented, although he said that this was not his preference. He explained that all the lawyers whom he had approached for assistance had declined to act for him. There have been a number of interlocutory hearings due to the case becoming complicated because of the way in which it was originally formulated by the plaintiff. The plaintiff’s case has been reformulated several times. On 27 November 2018, the List Judge extended the time by which the plaintiff could bring these proceedings, and at that time, some of the claims the plaintiff made against other parties had been struck out on account of inappropriate joinder of parties.

Self-representation by plaintiff

5. Each of the plaintiff’s successive motor vehicle accidents have had a deleterious impact upon the amenity of his life, as is evident from the medical evidence that will be identified and analysed in my reasons. It is unfortunate, that in this complex case, for whatever reason, the plaintiff was unable to obtain legal representation to ensure that his case was appropriately structured for presentation in court. The plaintiff’s self-representation has obviously influenced the limited extent to which he has gathered and presented evidence to support his claims in the context of needing to observe the distinction between evidence and commentary. It is well understood that the availability of legal aid for cases such as this is, in current times, severely curtailed due to overstretched resources and limited funding. In his case, those circumstances have unfortunately placed more onerous and undue burdens on the resources of the Court where the obligation is to wrestle with the material presented in evidence in order to determine the issues calling for decision with appropriate reasons: Whalan v Kogarah Municipal Council [2007] NSWCA 5, at [1].

Intra-trial mediation

6. Sensibly, in light of the inherent background complexity of the case, on 24 September 2019, at the commencement of the hearing which was listed with an overly optimistic estimate of three days, the parties jointly requested that the Court refer them for mediation to try and resolve the proceedings by alternative means to a full hearing, if possible. In conformity with that request, pursuant to s 26 of the Civil Procedure Act 2005 (NSW), an eminent and experienced mediator was appointed for that purpose. Unfortunately, despite this, the matter remained unresolved. At this point it is necessary that I record there will be no adverse inferences drawn against any party from the fact that the proceedings remained unresolved at the conclusion of that mediation.

Opportune pro-bono assistance from counsel

7. Before the post-mediation resumption of the hearing on 26 September 2019, a short listed mention took place in another matter in the list for that day. Ms Michelle Campbell of counsel appeared for a party in that other case.

8. At that time, Ms Campbell was present in Court and heard my indication to the parties in the present case that the plaintiff would be permitted, pursuant to s 29(2)(b) of the Evidence Act 1995 (NSW), to give his evidence in narrative form because he was self-represented. Having observed the plaintiff’s procedural bewilderment, Ms Campbell offered to provide some pro bono assistance for the plaintiff to aid him in the presentation of his evidence-in-chief in this case.

9. Soon after taking the opportunity of a short conference with the plaintiff, Ms Campbell proceeded to lead his evidence-in-chief in a logical and efficient manner before withdrawing to attend to her other professional commitments on that day: T28 – T67.

10. To further assist the plaintiff and the Court, Ms Campbell also gave the plaintiff some out of Court pro bono advice in the form of an outline of some questions he might wish to ask in evidence-in-chief of important damages witnesses who were to be called at a later point in his case.

11. Enabled by the foundations laid by that pro bono assistance, the plaintiff continued to represent himself, as was his undoubted right. Courts are always grateful for any pro bono assistance the legal profession is able to extend and provide selflessly, to unrepresented litigants in order to further the interests of the proper administration of justice. In that regard, it is therefore appropriate to here acknowledge that Ms Campbell has acted in the best traditions of the legal profession in providing the plaintiff with such assistance. The plaintiff also expressed his gratitude to her on that account.

A particularisation problem

12. Notwithstanding that the plaintiff’s evidence-in-chief had concluded on the first day of the hearing, on the second day of the hearing, before cross-examination of the plaintiff by counsel for the defendant was due to commence, the plaintiff indicated that on reflection, he felt the need to augment his evidence-in-chief with some further evidence concerning his claim for damages for domestic assistance, and some related factual matters.

13. In view of the circumstances, absent significant prejudice to the defendant being shown, the plaintiff was permitted to expand upon aspects of the evidence-in-chief that he had already given before cross-examination commenced.

14. Significantly, the essential focus of that further evidence was that assistive domestic services had been provided to the plaintiff by the National Disability Insurance Scheme, NDIS. The plaintiff wanted to claim damages for the cost of such domestic assistance. In the pre-trial period, on 29 July 2019, unbeknown to the defendant at that time, the plaintiff had undergone a formal occupational therapy assessment at the referral of the support co-ordinator from Austcare Support on behalf of NDIS. The report of that assessment only became available to the plaintiff on 17 September 2019. The plaintiff served that report on the defendant on 18 September 2019. The defendant objected to the tender of that report because of the late timing of service, which was just days before the hearing. Such circumstances ought to ordinarily have been drawn to the attention of the List Judge prior to the hearing for facilitative orders to be considered. Unfortunately that did not occur. For reasons given at the time, in accordance with the dictates of justice, after hearing argument on the question, the NDIS occupational therapy report was admitted into evidence: s 58(2) of the Civil Procedure Act 2005 (NSW). It requires careful evaluation.

15. Late expansion of the plaintiff’s claim had, in those circumstances, understandably led to the defendant making an application for an adjournment in order to obtain a responsive report from a consultant occupational therapist. In the circumstances, the defendant’s application for an adjournment was irresistible. As a result, the proceedings were stood over part-heard to be resumed on a date to be fixed, and in the interim, an examination date of 8 October 2019 was nominated for an occupational therapist retained by the defendant to assess the plaintiff at his home.

16. Other procedural orders were then made including allowing for the return of subpoenas. A directions hearing date was also appointed for 28 October 2019. At that later time, a date was set for a resumed hearing to commence on 25 November 2019.

17. When the part-heard hearing resumed on that date, the plaintiff was also permitted to give some additional oral evidence-in-chief and tender some additional documents concerning the likely cost of disputed proposed future surgical treatment, as well as a copy of his CV before cross-examination commenced: Exhibits “F”, “G”, “H”; T121 – T130.

18. Essentially, the focus of the lengthy cross-examination of the plaintiff undertaken by counsel for the defendant (T130 – T238), was to the effect that it was suggested to the plaintiff he had, in respect of earlier injuries, already claimed and received compensatory damages for loss of earning capacity, assistive domestic services and treatment expenses, and in these proceedings, he was seeking to minimise the effects of his pre-accident physical problems by maintaining he was almost symptom free as at the 5 September 2011 accident (T233.10), the implication being that he was seeking to maximise the potential for a damages award in these proceedings. It was also suggested to the plaintiff that he was seeking to exaggerate the effect of his injuries from the 2011 accident (T233.25), and that he had exaggerated his account of the amount of time his late mother had spent in providing him with domestic assistance (T219.44), and not withstanding his evidence to the contrary, he was physically capable of undertaking light domestic activity: T222.15.

19. Regrettably, and unhelpfully at times, in the course of the plaintiff’s evidence, and in some of his statements to the Court, he made inflammatory remarks that alleged fraud and mal-intent on the part of various persons and legal representations in the defence camp: T116.35 – T116.39, and in other places. I here record that I have disregarded those remarks as they had no probative value and were not supported by evidence.

20. The defendant’s legal representatives took a patient and pragmatic approach to the taxing circumstances arising from such statements made by the plaintiff, recognising that objections had been recorded to such remarks, and also recognising that the Court would only have regard to admissible and probative evidence: s 56 of the Evidence Act.

21. Having to consider and deal with the described comments and arguments along those lines, as made by the self-represented plaintiff, in addition to considering the evidence, has taxed the resources of the Court. This has doubtless displaced the convenience of other procedurally compliant litigants in seeking timely access to justice.

Evidence overview

22. At the centre of the plaintiff’s case was his own oral evidence and that of his two NDIS funded carers, Mr Allan Wicharia and Mr Haribrasthanth Rabi. They were the only witnesses who gave oral evidence. Despite the plaintiff’s at times inflammatory approach to the litigation, I consider that he otherwise did his best to comply with the Court’s Standard Orders Practice Direction. The plaintiff produced a compendious and extensive cross-referenced chronology along with relevant bundles of selected documentary evidence and medical reports.

23. Noting that the plaintiff intended to present the described documentary evidence which was in a form that was difficult to manage, in the interests of saving time and achieving a more efficient and convenient means of common reference to the material, the defendant’s legal representatives pragmatically agreed to the suggestion that the plaintiff’s documents be professionally indexed, paginated and copied for more convenient analytical reference as a Court book: Exhibit “C”. I acknowledge the defendant’s assistance in that regard. These documents will be referred to where it becomes relevant to do so.

24. As the plaintiff’s ultimate court book also contained documents that the defendant had intended to rely upon, this lessened the extent of the defendant’s exhibits. The plaintiff’s exhibits were tendered in the series Exhibits “A” to “ZC(1) and (2)”, and the defendant’s exhibits were tendered in the series Exhibit “1” to “10”.

Credibility and reliability of testimony

25. Consideration of the credibility and reliability of testimony became a challenging task in this case because of the content of the various commentaries by the plaintiff as already referred to above, some of which were embedded within his answers to questions asked of him in cross-examination, and the need to disregard such remarks that were irrelevant to the case. What now follows records the contemporaneous observations I made concerning matters of credibility and reliability of testimony.

The plaintiff

26. Unfazed by directions, for the plaintiff to refrain from making objectionable comments, he nevertheless continued at times to express considerable criticism, if not antipathy and mistrust, towards the legal representatives for the defendant, and to a legal practitioner who apparently had acted for him in respect of a prior personal injury damages claim. He insisted on repeating those remarks at various times. He also made witheringly critical written attack in his remarks about a medical expert retained by the defendant, Dr David Maxwell, by reference to a purported transcript of a secret recording he had made of the consultation which based that expert’s report: Exhibit “C”, pp 303 – 341. It was plain that the plaintiff had a prior litigation experience which caused him to mistrust aspects of the legal system, some of its practitioners, and medico-legal experts. That said, I consider that the plaintiff impressed as an intelligent and resourceful man, and his CV supports that view: Exhibit “D” and Exhibit “H”. He gave no overt indication of consciously embellishing his evidence. He gave his evidence mostly in a calm, understated and matter-of-fact manner. In his evidence-in-chief he identified relevant qualifying limits when matters were raised with him for comment but which were beyond his recollection. He readily made concessions against his interests where it was appropriate for him to do so, although some of his answers to questions asked in cross-examination included combative responses. On balance, I considered that attitude on his part reflected his lack of recognition of the distinction between evidence and advocacy, and such misperception was not of mischievous intent. To the extent of his recollection, I considered him to be a satisfactory and reliable witness on some factual matters. That said, his evidence nevertheless required close analytical consideration where some historical details were more accurately recorded in contemporaneous historical medical records and correspondence. I have not accepted the defendant’s suggestion to the effect that the plaintiff had consciously exaggerated his evidence to seek to maximise his damages award. In arriving at that conclusion, I have not overlooked the content of the surveillance material obtained by the defendant and tendered by the plaintiff: Exhibit “ZC”.

Mr Wicharia

27. NDIS, through one of its related agencies, employed Mr Allan Wicharia to provide the plaintiff with domestic assistance. He provided the plaintiff with such assistance for a period of about 14 weeks, between 23 July 2019 and 27 October 2019: T239.

28. The assistance of Mr Wicharia was required because of the unkempt disarray of the plaintiff’s living circumstances, as cited in the following passage extracted from his evidence:

“…

Q. Could you just give me a general description of the work that you had to tackle when you initially started?

A. When I initially started I - the house was in - sorry to use this word - but in a complete mess. Forgive me for using that word

PLAINTIFF: I know.

HIS HONOUR: No problem.

WITNESS: yeah, it was quite unkempt. Cobwebs and untidy so there was a lot of cleaning that I had to do. The walls, the ceiling, the floor, cleaning up everything, moving all the furniture. Doing literally, like, entire clean up of the house. Also the compound, it was bushy. I had to really tidy up the whole compound.”

[T240.14 – T240.27]

29. Mr Wicharia described the work which he had been required to carry out on the plaintiff’s house, and to his front and backyards, as representing quite a task, which initially took him about 6 hours of work per day, 5 of those hours being “hands on”, for about 6 weeks, and which sometimes included the task of shopping: T240.37 – T240.45; T241.21. At the most generous calculation in favour of the plaintiff, this equates to about 252 hours.

30. After that initial period of about 6 weeks of Mr Wicharia’s work, the hours of work he later carried out were reduced to about 2 hours per day on an as need basis, but this was not carried out according to a set routine. The range of tasks variously involved shopping, cleaning, preparing meals, washing, bed making, tidying up, garbage disposal, gardening, and some aspects of personal care, such as assisting the plaintiff to shower his back, helping him put on his shoes, and to provide some social support because of his isolated existence: T241 – T244; T246.22.

31. There were no credit challenges made to the evidence of Mr Wicharia. I considered him to be a credible and reliable witness. I have accepted his evidence.

Mr Rabi

32. In October 2019, after Mr Wicharia had moved on to other employment, as arranged by the NDIS agency, Mr Haribrasthanth Rabi took over the task of providing the plaintiff with domestic assistance.

33. Mr Rabi described those tasks as including vacuuming, mopping, bed making, washing, gardening, landscaping, shopping, and some personal assistance with back washing similar to that described by Mr Wicharia. He described carrying out those tasks for about 19 hours per week over 3 to 4 days per week: T248 – T250.

34. Over the period of about 4.5 weeks to the date of the commencement of the trial, on the most generous view of that evidence in favour of the plaintiff, that assistance involved about 85 hours.

35. Mr Rabi, who was present when the defendant’s appointed occupational therapist examined the plaintiff at his home on 8 October 2019, disagreed with Mr Williamson’s summary to the effect that the plaintiff was verbally provocative throughout the assessment process and had declined to provide specific details of treatment, or that the plaintiff had made disparaging comments about Mr Williamson’s “paymasters”: T251 – T252. He disagreed with Mr Williamson’s opinion that the plaintiff had been resistant to requests for information: T253.3.

36. The cross-examination of Mr Rabi revealed him to have a limited understanding of the full meaning of some words used when he was asked questions: T255. However, he was adamant that the plaintiff had not been argumentative with Mr Williamson, and he did not agree, that he himself was mistaken as to his recollection of that event: T257.4.

37. I considered Mr Rabi did his best to accurately recount the events about which he was questioned. I considered him to be a credible witness whose evidence was reliable as to the domestic work he undertook for the plaintiff. Although there were differences in the recollections of Mr Rabi and Mr Williamson as to the plaintiff’s alleged argumentative attitude at the time of Mr Williamson’s assessment, in view of Mr Rabi’s limited understanding of some words in the English language, I do not see the need to resolve those differences by making credit findings.

Submissions of the parties

38. The defendant provided detailed written submissions on 20 December 2019, at the end of term. The defendant’s counsel spoke to those submissions on the eighth day of the trial on 28 February 2020: T322 – T338.

39. The plaintiff prepared a complex schedule arranged in chronological form that incorporated comments on aspects of the medical evidence: Exhibit “E”. He made succinct oral submissions on 28 February 2020, following which judgment was reserved: T339 – T345.

40. In those oral submissions the plaintiff was critical of the medical opinions relied upon by the defendant. Those opinions require detailed analysis. The plaintiff was also critical of the defendant’s characterisation of the accident as having been a low speed impact.

41. On 6 March 2020, after judgment had been reserved, the plaintiff forwarded an affidavit purporting to set out further submissions. The defendant objected to those submissions being read. I considered it necessary to examine those submissions to determine if they contained anything of consequence. I concluded that they did not include any material of a useful or persuasive nature.

Facts

42. Unless otherwise qualified, my findings of fact concerning the plaintiff’s background circumstances, his prior accidents and health issues, the accident circumstances, his injuries and initial treatment sustained in the subject accident, his post-accident medical and allied reviews, findings on matters arising from the medical evidence, his remaining disabilities, work and domestic effects, mitigation, and most likely pre-accident circumstances, are as follows.

Plaintiff’s background circumstances

43. The plaintiff is presently aged 64 years. He was married for a short time. He petitioned for divorce in 1996 and since then he has lived alone. At the time of his injury on 5 November 2011, he was aged 56 years. He arrived in Australia from the former Czechoslovakia in 1982, at the age of 27 years.

44. Since that time, and before the subject accident, the plaintiff has pursued a number of diverse skilled and semi-skilled, but nevertheless remunerative occupations. These included, cameraman, video editing, laboratory work, screen printing, manufacturing circuit boards, graphic artwork, supervising and the assembly of the despatch of computer systems, designing and making hearing aids, security guard at schools and in a biscuit factory, consulting with regard to the computer needs of some businesses, a battery replacement technician working for the NRMA on weekends, working part-time as an extra actor in television commercials, delivering pizzas, project manager, delivery driver for a food outlet, and monitoring and testing equipment for electromagnetic radiation. He was also seeking to develop his own business at the time of the subject accident. He also did some voluntary work for the Spinal Cord Injury Association.

45. In addition to pursuing the abovementioned occupations and activities, between 1993 and 2001 he also pursued full-time studies at Macquarie University. Between 2009 and 2011 he was enrolled at Macquarie University for a Master’s Degree in policing, intelligence and counter-terrorism. The subject accident occurred in that year. This delayed the completion of his studies by two years: T36.40 – T36.50; T200.8.

46. The plaintiff was able to pursue those multifaceted endeavours despite having been injured in a series of motor vehicle accidents. I accept that before the subject accident, he was able to largely carry out his normal domestic activities without the need for assistance to perform commonplace domestic tasks except for heavier tasks, and save for mobility and dexterity issues arising from fusion surgery the plaintiff had to his right foot due to the effects of an injury he received in a motor vehicle accident on 1 May 1984.

Plaintiff’s pre-accident injury and health issues

47. The plaintiff had a number of pre-accident health issues which stemmed from a series of motor vehicle accidents. The plaintiff’s medical records shows that the documented dates of those earlier accidents and the injuries received in them, were as follows:

1. 26 January 1984, in which he injured his neck and lower back;

2. 1 May 1984, in which he injured his right foot and ankle, right knee, neck and low back, and lacerated his scalp;

3. 29 August 1992, in which he injured his neck, shoulders, lumbar spine, left knee and head;

4. 6 February 1993, in which he injured his right ankle and foot;

5. 8 March 2004, in which he injured his neck, back, right shoulder, right arm and hand;

6. The sixth accident, on 5 September 2011, is the one with which these proceedings are concerned.

48. In addition to the injuries the plaintiff sustained in those motor vehicle accidents, he has been the victim of two assaults that respectively took place first, in either May or July 2007, and secondly, in January 2008, which have apparently resulted in him having an acknowledged diagnosis of post-traumatic stress disorder for which he received some treatment from a psychiatrist. The plaintiff said after a few psychiatric consultations, those problems resolved before the accident which is the subject of this claim: T202 – T205.

49. In essence, the consequence of the plaintiff’s previous accidents has been that the plaintiff was left with some residual problems involving pain and discomfort in his cervical and lumbar spines, his right ankle and in his knees. The neck and back injuries in all of those accidents were of a musculo-ligamentous nature.

50. Although the plaintiff in effect stated in his evidence that in his perception he had essentially recovered from his earlier injuries except for the injury to his right foot, the medical evidence that was tendered suggests otherwise.

51. The details of those earlier injuries, and some of the treatment that the plaintiff had obtained in respect of them, appears in the medical material forming part of Exhibit “C” between pages 1 and 75.

52. The chronology of the plaintiff’s pre-accident medical and allied attendances for those matters is extensive but incomplete. The available material reveals some 74 separate historical points of consideration. The chronological details of those items of the plaintiff’s medical history are more fully and conveniently set out and summarised in items (1) to (74) of the Appendix to these reasons as if incorporated into this judgment.

53. In essence, the reports summarised in the Appendix show that the plaintiff had a significant prior history of neck and back problems, and mobility restrictions before the subject accident. He had degenerative changes in his neck and back, including disc bulges. He had problems with his right shoulder. These problems made him stressed and depressed. He also had visual problems due to a convergent squint that required ophthalmic surgery. He was also affected by pre-existing asthma.

54. The plaintiff’s previous right ankle injury involved calcaneal fractures that required surgical pinning and arthrodesis. This has left the plaintiff with a stiff right ankle.

55. On account of the difficulties described above, before the subject accident in 2011, the plaintiff must be regarded as having restrictions as to the nature and extent of any work or physical activity, including some aspects of domestic work that he could have undertaken before the subject accident.

56. That said, the defendant must take the plaintiff as he is found at the time of injury, including concerning any underlying pre-disposition that may have made him vulnerable to incurring further or aggravating injuries: Alcan Gove Pty Ltd v Zabic [2015] HCA 33; (2015) 257 CLR 1, at [44]; Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383; [1970] HCA 60, at [18]; Bourhill v Young [1943] AC 92, at pp 109 – 110; Dulieu v White [1901] 2 KB 669, at 679; Smith v Leech Brain & Co Ltd [1962] 2 QB 405, at p 414.

57. On my reading of the medical evidence tendered in this case, the substance of the plaintiff’s case is that in the subject accident, he sustained injuries that have had a materially aggravating effect on his underlying state of health. This will be revisited after my analysis and findings on the medical evidence and the plaintiff’s relevant disabilities.

Accident circumstances

58. On examining the objective medical records relating to the plaintiff, it is plain that immediately post-accident, on 5 September 2011, the plaintiff was recorded as having given both the attending ambulance officer and the examining hospital emergency doctor historical accounts of the occurrence of a low speed impact from his left side, and of having then been thrown onto the roadway onto his right side: Exhibit “C”, pp 76 – 77.

59. The plaintiff also described the forces involved in the subject accident was as follows:

“… I was rammed with such a force that, I was propelled PERPENDICULAR to the direction I was travelling, several meters in front of the vehicle, followed by my pushbike landing between me and the still approaching Toyota at the bike and myself, hence consistent with the police report driver stating that, she did not see me at all until it was too late!!!”

[Exhibit “C”, p 304]

60. It is therefore entirely plausible that the physical forces involved in the accident so described, could have, and most likely did, cause the plaintiff to suffer soft tissue trauma and multiple injuries to various parts of his body as he has claimed, namely his neck, right side and shoulders, back, left and right knees, and bruising to the left ankle. I accept his evidence in that regard.

Injuries and initial treatment

61. Immediately following the accident, on 5 September 2011, the plaintiff found that he could not stand. The evidence did not make it clear as to whether the plaintiff’s inability to stand at that time was due to back problems, lower limb problems, or due to pain or shock generally. When the police arrived he was assisted to sit in the police vehicle to await the arrival of an ambulance. In the meantime the attending police officer provided him with a green whistle, which I take to refer to a pain relief inhaler.

62. The plaintiff initially complained of experiencing pain at the back of his neck, in his low back, and in his right elbow when the ambulance officers examined him. He was given oxygen to increase his oxygen saturation response and he was given a 3ml dose of methoxyflurane through an inhaler in order to reduce his pain: Exhibit “C”, p 76.

63. At hospital, the plaintiff’s injuries were noted to be pain in the neck at C7, thoracic pain at T4-6, lumbar pain at L1/L2, right hip pain, an abrasion to his left little finger and an abrasion to the lateral side of his left elbow. A CT scan was noted to show something that was the subject of an indecipherable word relating to “C3 in the area of pain”. It is documented in the hospital notes that whilst awaiting a formal report of that scan, and despite having been advised that he risked quadriplegia or death, the plaintiff nevertheless discharged himself from hospital against medical advice: Exhibit “C”, pp 77 – 78. Fortunately for him, those potential adverse consequences did not come to pass.

64. Whilst at the hospital, the plaintiff was given four 2.5mg doses of intravenous morphine at 11:10, 11:20, 11:45 and 14:50 hours: Exhibit “C”, p 80. On the available evidence it is not ascertainable as to whether his decision to discharge himself against medical advice was influenced by the effect of those doses of opiates, although that is a possibility.

Plaintiff’s post-accident medical and allied reviews

65. Since the subject accident, the plaintiff has undergone numerous post-accident medical and allied reviews. He has also been the subject of multiple MAS assessments. The copies he provided of those assessments within Exhibit “C” were incomplete. The defendant’s tender bundle contained full copies of those assessments. References to those assessments have been included in the chronological summary that will shortly follow.

66. Before identifying my findings concerning the plaintiff’s accident-related disabilities, it is necessary to review available medical evidence and consider that material. In that regard, I set out a summary of my review of the chronology of the plaintiff’s medical post-accident treatment and assessments, including the MAS assessments, as follows:

1. On 5 September 2011, a CT scan of the neck from the base of the skull taken of the plaintiff’s cervical spine at hospital to investigate the plaintiff’s complaint of tenderness in that region, between C7 and T1, revealed mild degenerative changes at the C1/2 joint, a moderately large central soft disc herniation apparent at C3/4. An MRI scan was suggested in the event these findings were considered to be clinically significant: Exhibit “6”, p 16;

2. On 22 September 2011, the plaintiff was seen at Prince of Wales Hospital by Dr Stanford, an orthopaedic surgeon, for tenderness in the right rotator cuff for which he was referred for physiotherapy: Exhibit “C”, pp 81 – 82;

3. On 13 October 2011, the plaintiff’s shoulder condition was assessed at Prince of Wales Hospital. He was referred for physiotherapy for his shoulder and back pain: Exhibit “C”, pp 83 – 85;

4. On 30 October 2011, the plaintiff was referred for physiotherapy to treat his back and shoulder pain. That treatment continued until 5 December 2011: Exhibit “C”, pp 86 – 92;

5. On 31 October 2011, Dr O Finkelstein, a general practitioner, referred the plaintiff to Professor Ashish Diwan, a spinal surgeon, for an orthopaedic assessment and treatment of his post-accident cervical and lumbar pain: Exhibit “C”, p 93;

6. On 3 November 2011, the plaintiff was assessed at Prince of Wales Hospital for constipation and urinary urgency. His lower lumbar nerves were assessed as having normal sensation and his pain was assessed at Grade 5. A CT scan was ordered to investigate his lumbosacral pain: Exhibit “C”, p 83;

7. On 14 November 2011, the plaintiff was assessed and treated by a physiotherapist at the Prince of Wales Hospital. A programme of hydrotherapy and stretching was commenced to be followed by strengthening exercises. That treatment continued until 5 December 2011. That treatment programme apparently became complicated when the hospital became aware that the plaintiff had a claim for his injuries. It was not hospital policy to treat insurance cases. This situation came about during contact with the treating physiotherapist and Ms Lauren Farrar, an NRMA case manager, who was described as a Health Recovery Consultant: Exhibit “C”, pp 94 – 99;

8. On 17 November 2011, the plaintiff was assessed at Prince of Wales Hospital for ongoing neck, shoulder and knee pains. A CT scan of the lumbar spine was reported as showing no fractures. The plan was for a shoulder MRI to be performed: Exhibit “C”, p 83;

9. On 30 November 2011, Dr Finkelstein referred the plaintiff to Dr Michael Solomon, an orthopaedic surgeon, for an assessment: Exhibit “C”, p 104;

10. On 13 December 2011, the plaintiff underwent a multipositional MRI scan of his cervical spine. The images were reported in the neutral seated position and in dynamic studies in extension and flexion. At C3/4 there was a moderate midline central disc protrusion causing a moderate focal cord canal stenosis with cord contact. On dynamic imaging the degree of canal stenosis of the spinal cord at C3/4 showed there was a midline central disc protrusion causing spinal cord stenosis and cord contact. This was significantly exaggerated and at C4/5 it was mildly exaggerated on extension, and a little relieved on flexion. At C5/6 osteophytes were evident and canal stenosis was mildly exaggerated on extension and a little relieved on flexion. At C6/7 there were posterior diffuse osteophytes creating a mild canal and left foraminal stenosis, and on dynamic imaging the cord was mildly exaggerated on extension and a little relieved on flexion. At C7/T1 in the neutral sitting position, no canal or foraminal stenosis was demonstrated but on dynamic imaging canal stenosis was mildly exaggerated on extension and a little relieved on flexion: Exhibit “C”, pp 105 – 109; Exhibit “6”, pp 17 – 21;

1. On 14 December 2011, at the request of Dr Finkelstein, the plaintiff was seen by Professor Diwan, a spinal surgeon, at St George Hospital. That assessment was for a second opinion, which was shared with NRMA. Professor Diwan noted the plaintiff’s cervical and thoracolumbar spinal movements were grossly restricted, there was altered sensation in the right arm, and some weakness in right grip. His impression was that the plaintiff was recovering from a whiplash injury, there was C3/4 herniation, exacerbation of L5/S1 degenerative disc disease, exacerbation of new symptoms and a possible right rotator injury. Pain management, analgesia and anti-inflammatory medications were suggested. He suggested a cognitive motor relearning programme through the Special Spinal Rehab unit, for physiotherapy and treatment by a psychologist. Cervical and lumbar surgery was identified as a possibility if all non-operative care failed to alleviate the plaintiff’s problems: Exhibit “C”, pp 117 – 118;

2. On 25 December 2011 the plaintiff presented to POWH Emergency department with sudden onset exacerbation of low back pain whilst reaching forward and to the side, resulting in significant pain, including shooting pain and paraesthesia into the buttocks. He was treated with morphine and Panadeine Forte and discharged for follow-up by his general practitioner: Exhibit “C”, pp 119 – 120;

3. On 5 January 2012, the plaintiff’s right shoulder MRI was reported as supporting a diagnosis of sub-acromial impingement syndrome with features of sub-acromial/sub-deltoid bursal inflammation, distal supraspinatus tendinopathy, with partial thickness tears of the articular surface. A postero-superior para-labral cyst was seen associated with a degenerative labrum and labral base tears: Exhibit “C”, p 121; Exhibit “6”, pp 22 – 23;

4. On 11 January 2012 continuing to 21 December 2012, the plaintiff underwent an osteopathic assessment and treatment by Mr Nicholas Calfas. That treatment was directed at his cervical and thoracic spines: Exhibit “C”, pp 122 – 123;

5. On 11 January 2012, the plaintiff underwent an MRI scan of his left knee which was reported as showing a complex tear of the meniscus with maceration of the body of the meniscus and medial displacement of meniscal fragments, a full thickness cartilage loss at various bony locations in that knee, mucoid degeneration of the anterior cruciate ligament, and a mild Grade 1 tear/sprain of the proximal medial collateral ligament: Exhibit “C”, pp 124 – 125; Exhibit “6”, pp 24 – 25;

6. On 18 January 2012, the plaintiff was seen at a podiatry clinic by Mr Edward Pickersgill. That assessment noted that the plaintiff had a bilateral varum deformity, a 2cm leg length difference due to right heel fusion and fusion of the calcaneal structures, which had left the right calcaneus in an inverted position. An orthosis was supplied to correct the compromised right heel: Exhibit “C”, p 126;

7. On 22 February 2012, the plaintiff was re-assessed by Professor Diwan after the completion of a cognitive motor relearning programme. Continuing neck, low back and left knee issues were noted. Professor Diwan considered that the plaintiff’s accident-related neck problems required an anterior disc excision and fusion at C3-4. He sought approval for that procedure from the CTI insurer, NRMA: Exhibit “C”, p 127;

8. On 27 February 2012, Professor Diwan prepared a surgical plan for the plaintiff to have an anterior cervical decompression and fusion to be followed by post-operative treatment and rehabilitation: Exhibit “C”, pp 128 – 130;

9. On 9 March 2012, the Spinal Rehab Service prepared a discharge summary relating to the plaintiff’s completion of the abovementioned spinal cognitive motor relearning programme: Exhibit “C”, pp 131 – 145;

10. On 13 March 2012, Professor Diwan noted that the CTP insurer, NRMA, had declined to pay for the plaintiff’s neck surgery that he had recommended: Exhibit “C”, p 130;

11. On 30 March 2012, the plaintiff was seen by Dr John Stephen at the request of NRMA. Dr Stephen had beforehand studied material described as “extensive documentation” concerning the plaintiff’s five previous motor vehicle accidents. Dr Stephen reported that when he had twice asked the plaintiff about his pre-accident employment, the plaintiff had twice replied “none of your business”. The plaintiff had reportedly told Dr Stephen it was his business to examine the plaintiff’s neck and not to inquire as to his occupation. The plaintiff apparently told Dr Stephen that if he did not accept that proposition he would leave. Dr Stephen then told the plaintiff to leave. The plaintiff recorded a dictated version of that event in Dr Stephen’s presence. Dr Stephen stated he was not prepared to see the plaintiff again: Exhibit “X”, p 29;

12. On 11 April 2012, Professor Diwan wrote to Dr Finkelstein and the NRMA reiterating the need for the surgery he had suggested be performed on the plaintiff’s cervical spine. In that letter he contested what he described as being the “very damaging” assertion by the NRMA CTP claims officer, Ms Lauren Farrar, a person of unstated qualification, who had suggested the proposed surgery was not reasonable or necessary. He rejected her assertion that there was inadequate medical support for that treatment. He also rejected her assertion that there was inadequate medical support for that treatment. He also queried the insurer’s view which doubted or did not accept the causal connection between the plaintiff’s neck condition and the accident on 5 September 2011: Exhibit “C”, pp 146 – 147;

13. On 26 April 2012, the plaintiff underwent an x-ray of his left knee which was reported as showing that, on bilateral weight bearing, there was significant medial joint space narrowing bilaterally, but worse on the left. It was also reported that there was some associated small marginal osteophyte formation. Some early lateral osteophytic lipping of the patellofemoral articulation on the left was reported: Exhibit “C”, p 148; Exhibit “6”, p 26;

14. On 1 May 2012, Dr Finkelstein referred the plaintiff to Dr Wade Harper, an orthopaedic surgeon, for assessment of the plaintiff’s painful right shoulder, a problem that arose since the plaintiff’s accident on 5 September 2011: Exhibit “C”, pp 149 – 150;

15. On 8 May 2012, the plaintiff underwent an x-ray examination of his left knee which was reported as showing medial compartment degenerative joint space narrowing with some mild patellofemoral compartment changes evident: Exhibit “C”, p 151; Exhibit “6”, p 27;

16. On 20 June 2012, Professor Diwan wrote to Dr Finkelstein following his further review of the plaintiff on that date. He noted that the plaintiff’s condition had remained the same, without relief, with 9 to 10 on the pain scale, and with gross limitation of activity. He identified the essential problem to be a large central herniation of the nucleus pulposus at C3/4, now also associated with dizzy spells. He reiterated the plaintiff’s need for C4/5 disc excision and stabilisation by disc replacement or cervical fusion. In expressing that view, he noted that a comparison of the 2005 and 2012 MRI scans showed a definite increase in the size of the C3/4 disc herniation. Professor Diwan suggested the plaintiff take those scans to a proposed or forthcoming independent medical evaluation: Exhibit “C”, p 152;

17. On 17 July 2012, at the request of NRMA, the plaintiff attended for an examination by Dr FJ Harvey, an orthopaedic surgeon: Exhibit “5”, p 30. Dr Harvey’s note of that encounter indicated that the examination did not proceed due to an obstructive attitude on the part of the plaintiff;

18. On 29 August 2012, Dr Finkelstein referred the plaintiff to Dr Neville Rowden, an orthopaedic surgeon, for assessment of the plaintiff’s painful left knee: Exhibit “C”, p 153;

19. On 30 August 2012, the plaintiff underwent imaging of his left knee in a standing series. This was reported as showing left-sided medial compartment chondromalacia: Exhibit “C”, p 154; Exhibit “6”, p 28;

20. On 19 September 2012, the plaintiff had an arthroscopy of his left knee. He was discharged from St George Private Hospital on crutches and in bandages following that procedure: Exhibit “C”, p 157; Exhibit “6”, p 29;

21. On 27 September 2012, the plaintiff was examined by Dr Rowden post-left knee arthroscopy that was carried out on 19 September 2012. He was referred for special spinal rehabilitation at that time: Exhibit “C”, p 160;

22. On 10 October 2012, Dr Finkelstein referred the plaintiff for physiotherapy at the Prince of Wales Hospital post-left knee arthroscopy. It appears that the defendant’s CTP insurer had declined to pay for that treatment: Exhibit “C”, pp 159 – 160;

23. On 22 October 2012, Dr Rowden again referred the plaintiff to the physiotherapy department of the Prince of Wales Hospital for post-arthroscopy physiotherapy rehabilitation: Exhibit “C”, pp 161 – 166;

24. On 4 January 2012 (sic for 2013), the physiotherapy department at the Prince of Wales Hospital reported in a discharge summary relating to the plaintiff’s treatment there between 10 December 2012 and 18 December 2012. The treatment was for decreased left leg muscle strength and wasting due to decreased function following meniscus damage in 2011. The plaintiff was given advice to pursue a home exercise programme directed at lower limb strengthening. The plaintiff reported that since his arthroscopy he was able to walk for longer distances, but he remained concerned about muscle wasting around his left knee: Exhibit “C”, p 162;

25. On 8 January 2013, at the referral of Dr Finkelstein, issued on 22 December 2012, the plaintiff was assessed by Dr G Kalrins, an orthopaedic surgeon for a second opinion on the condition of his right shoulder, which had been painful for the previous year: Exhibit “C”, pp 168 – 170;

26. On 8 January 2013, at the referral of Dr Finkelstein, the plaintiff saw Dr Jerome Goldberg, an orthopaedic surgeon specialist in shoulder surgery. Dr Goldberg noted that several months of conservative management of the plaintiff’s shoulder problems had been of limited success. He recommended that the plaintiff consider having an arthroscopic sub-acromial decompression combined with surgery to the biceps tendon and rotator cuff if required. Dr Goldberg indicated that such surgery would involve about 6 months of rehabilitation, and that it would in no way help the plaintiff’s cervical symptoms: Exhibit “C”, p 171;

27. On 17 June 2013, at the request of NRMA, the plaintiff was examined by Dr David Maxwell, an orthopaedic surgeon. Dr Maxwell took a history of the plaintiff’s background circumstances and noted the plaintiff’s current complaints as being discomfort in the right shoulder, burning sensation in the right shoulder, difficulty lifting the right arm above shoulder height, lower back discomfort, difficulty sitting through concerts, and occasional muscle spasm in the back with pain radiating into both buttocks. Dr Maxwell also reviewed undescribed “documentation” and MRI discs containing scans of the cervical spine, left knee, right shoulder and thoraco-lumbar spines. He prefaced his report by saying it was “based entirely upon the evaluation of objective findings identified on 17 June 2013”. He diagnosed the plaintiff to have sustained soft tissue spraining injuries to the neck, aggravation of supraspinatus tendonitis of the right shoulder, healed abrasions and soft tissue injuries around the right elbow, healed bruising and soft tissue injury to the right middle finger, low back discomfort without evidence of significant nerve root irritation, and meralgia paraesthesia of the right thigh of constitutional origin. He considered the changes seen on the investigations were likely to be longstanding, with a central disc protrusion at C3/4 not appearing to be causing significant canal compression or radicular compression. He considered the arthroscopy of the plaintiff’s left knee showed “mainly degenerative changes in relation to the medial compartment osteoarthritis”. Dr Maxwell’s 16 page report was issued a month later, on 16 July 2013. Those opinions require analysis after reviewing the other medical materials tendered, along with the plaintiff’s oral evidence: Exhibit “7”, pp 67 – 83;

28. On 24 June 2013, at the request of NRMA as CTP insurer, Dr John Korber, a consultant radiologist, undertook a radiological review of what he described as being “this complicated matter”. He reviewed the plaintiff’s:

1. Cervical MRI dated 13 December 2005;

2. Lumbar spine CT dated 14 March 2007 (report only, no films);

3. Cervical spine CT dated 5 September 2011;

4. Cervical MRI dated 13 December 2011;

5. Lumbar spine MRI dated 13 December 2011;

6. In summary Dr Korber expressed the opinion that in relation to the cervical spine, there had been a significant alteration at the C3/4 level of a sub-ligamentous postero-lateral disc herniation on both CT and MRI studies comprising the plaintiff’s pre and post-accident cervical imaging. In relation to the lumbar spine he noted there were no pre-accident studies for comparison. However, he considered that it would appear there was disc degeneration at L4/5 and L5/S1, more advanced at L5/S1. He expressed the view that the disc degeneration had preceded the accident as evidenced by the changes seen on the 14 March 2007 CT of the lumbar spine. He reserved for clinical evaluation the question of whether the pre-existing condition had been aggravated: Exhibit “C”, pp 172 – 175; Exhibit “7”, pp 31 – 35; Exhibit “6”, pp 30 – 34;

39. On 23 January 2014, the plaintiff was reassessed by Professor Diwan in relation to his right shoulder and right arm pain, and his low back pain and associated bilateral leg pain, predominantly in the right thigh and right foot. He suggested the plaintiff’s treatment should be with ongoing pain medication. He agreed with a suggestion by Dr Goldberg that the plaintiff’s neck and shoulder problems would be benefitted by a combined surgical approach to both regions, first with shoulder surgery. He also confirmed that the plaintiff’s neck pain was due to herniation of nucleus pulposus at C3-4 and cervical spondylosis, which contributes to the plaintiff’s right arm pain: Exhibit “C”, p 176;

40. On 21 November 2014, the plaintiff underwent an x-ray of his left knee which was reported as showing significant medial compartment osteoarthritis with bone on bone contact and mild patella-femoral osteoarthritis: Exhibit “6”, p 35;

41. On 16 February 2015, the plaintiff was assessed by MAS Assessor Burns to determine whether for MAS purposes, the treatment proposed by Dr Rowden comprising left knee arthroscopy, the proposed right shoulder arthroscopic decompression with surgery to the biceps tendon and rotator cuff, as well as the C3/4 disc replacement surgery as proposed by Professor Diwan, related to the injury caused in the subject motor vehicle accident. That assessment also considered whether the injuries to the plaintiff’s cervical spine and right shoulder gave rise to a need for the plaintiff to have domestic assistance: Exhibit “5”, pp 1 – 17;

42. On 20 August 2015, a MAS review panel comprising Assessors Couch, Camera and Maloney reviewed the certificate issued by Assessor Burns on 18 February 2015 following his assessment of the plaintiff on 16 February 2015. In their report dated 31 August 2015, the review panel agreed with Assessor Burns that the plaintiff had sustained soft tissue injuries to his cervical spine, right shoulder and left knee, and that the treatment proposed for the plaintiff’s left knee and right shoulder was reasonable and necessary, but found that the disc replacement surgery at C3/4 proposed by Professor Diwan was not reasonable and necessary: Exhibit “5”, pp 24 – 31;

43. On 8 September 2015, Dr Maja Markovic, a general practitioner, referred the plaintiff to Professor Diwan for further review of his chronic neck pain: Exhibit “C”, p 177;

44. On 9 October 2015, Dr Mathew Lee reported on a series of multipositional cervical MRI scans. That report indicated the plaintiff had: (1) central C3/4 herniation contacting the spinal cord; (2) disc-osteophytes at C4/5, C5/6, C6/7, where those seen at C4/5 and C5/6 were accentuated by extension movements; (3) instability at C4/5; (4) in comparison with the previous report, there may be slight worsening of findings: Exhibit “6”, pp 36 – 37;

45. On 12 October 2015, the plaintiff was reviewed by Professor Diwan in relation to his neck and shoulder problems, including the related radiculopathies. He advised that whilst the cervical spine surgery was more costly and more risky compared to shoulder surgery, his recommendation remained that the plaintiff first undergo shoulder surgery, and if afterwards, he is still left with residual pain that is unresponsive to non-operative care, then he should be reviewed to address his cervical spine issues. Professor Diwan’s letter annexed some information on symptoms of a C3 herniated disc and annular ligamentous tears of the annulus fibrosis of cervical discs: Exhibit “C”, pp 178 – 182;

46. On 12 October 2015, Dr Lee’s amended radiological report interpreted the plaintiff’s multipositional lumbar MRI scans being that: (1) there was a degenerative L5/S1 disc with a broad disc osteophyte causing moderate left foraminal stenosis, but with a more central component of the disc osteophyte contacting the right S1 nerve root; (2) instability at L3/4 and L4/5 with anterolisthesis that corrected an extension; (3) a broad herniation at L4/5 accentuated by extension and causing moderate stenosis and bilateral foraminal stenosis with impingement of exiting nerve roots, particularly on the right. In an addendum he added that since the last examination, the disc osteophytes at L5/S1 were now seen to be contacting the right S1 nerve root and that there was a tiny anterolisthesis at L3/4 and L4/5 with instability: Exhibit “6”, pp 38 – 39;

47. On 29 October 2015, at the request of Dr Rowden, the plaintiff underwent a long-leg x-ray examination of both knees which was reported as showing the presence of degenerative change in the medial compartment of both knees, with compartment narrowing and bony reaction, and some cartilage narrowing in both hip joints: Exhibit “C”, p 183;

48. On 29 October 2015, the plaintiff was examined by Dr Rowden for a review of his left knee problems. Dr Rowden reviewed a series of consultation notes and imaging concerning the plaintiff’s left knee for the period 31 August 2012 and 29 October 2015, and interpreted the x-rays of that latter date to show bilateral knee osteoarthritis with moderate patellofemoral osteoarthritis. He considered that the plaintiff’s level of significant pain and disability meant it was unlikely that conservative management would provide significant benefit, and he suggested the plaintiff proceed to a total left knee replacement at his earliest convenience. He considered this need arose due to the effects of left knee trauma in the subject accident on 5 September 2011. He attached a series of images and related information to his report: Exhibit “C”, pp 184 – 191;

49. On 21 December 2015, the plaintiff was reassessed by Dr Goldberg as the plaintiff wanted to proceed with the recommended shoulder surgery. Dr Goldberg noted the plaintiff’s shoulder condition had worsened, and that clinical examination revealed limited movement and power. He suggested an MRI arthrogram to ensure that the proposed surgery was still technically feasible: Exhibit “C”, pp 192 – 194;

50. On 9 May 2016, the plaintiff underwent a MAS assessment by Assessor Noll. In his report dated 30 May 2016, he certified that the plaintiff’s cervical, lumbar and right shoulder injuries were assessed at not greater than 10 per cent whole person impairment. Assessor Noll was also asked (at Exhibit “Y”, p 34) to assess the plaintiff’s left knee injury, described as a trauma, complex tear and cartilage destruction to the bone, but he did not assess that injury in percentage terms: Exhibit “5”, pp 32 – 44;

39. On 18 November 2016, the plaintiff was assessed by Assessor Susan Arnold, MAS assessor and occupational therapist. Assessor Arnold’s certificate of that assessment was dated 8 December 2016. She made a series of assessments as to what levels of domestic assistance were, or were not necessary: Exhibit “7”, pp 37 – 66; Exhibit “5”, pp 45 – 75;

40. On 24 February 2017, the plaintiff was assessed by a review panel comprising Assessors Lahz, Stubbs and Chan, to review the certificate issued by Assessor Noll on 30 May 2016. In their report dated 6 March 2017 they included the plaintiff’s left knee problems in the assessment, in in their combined assessment of the plaintiff’s neck, low back, right shoulder and left knee problems, they determined that the plaintiff’s whole person impairment was greater than 10 per cent: Exhibit “5”, pp 77 – 91;

41. On 21 November 2017, Dr Goldberg declined a request from the solicitor for the defendant seeking copies of his notes relating to the plaintiff: Exhibit “C”, pp 195 – 196;

42. On 21 March 2019, at the request of NRMA, the plaintiff was re-examined by Dr Maxwell, whose 19 page report was issued on the same date: Exhibit “7”, pp 84 – 103. Dr Maxwell’s report had some problematic content, a matter which I will revisit in my overall analysis of the medical evidence.

43. On 29 July 2019, the plaintiff was assessed at his home by Ms Jane Hunt, an occupational therapist. The referral was for NDIS to assess his support and assistance technology needs: Exhibit “C”, pp 206 – 228.

44. On 8 October 2019, at the request of the solicitor for the defendant, the plaintiff was assessed at his home by Mr Peter Williamson, a consultant occupational therapist. That assessment was carried out as an investigatory response by the defendant to the occupational therapy report of Ms Hunt dated 29 July 2019. Mr Williamson’s report is dated 17 October 2019: Exhibit “8”. Mr Williamson took a history of the problems the plaintiff was experiencing in relation to his neck, right upper limb, back, left knee and left ankle, and he assessed the plaintiff’s movements in those areas, as well as his pain and functional tolerances. He agreed with some of Ms Hunt’s suggestions but he qualified aspects of his report because of the plaintiff’s refusal to answer questions about his pre-existing complaints. Mr Williamson supported a claim for past assistance with personal care for a limited period between 6 September 2011 and 31 October 2011 for 18 hours 40 mins and past domestic assistance between 6 September 2011 and 26 November 2011 for 165 hours and 20 mins. Mr Williamson’s opinions were not challenged or contradicted by evidence from an expert of like qualifications. Those parts of Mr Williamson’s report dealing with the plaintiff’s need for personal care, assistance devices or appliances, activities of daily living, transportation and domestic chores, will be analysed in connection with the assessment of the claim for damages;

45. On 25 November 2019, the solicitor for the defendant obtained from Dr Frank Machart, an orthopaedic surgeon, a quotation for the cost of left knee arthroscopy in the amount of $8000 “and/or” left knee replacement surgery in the amount of $10,000 and right shoulder arthroscopic decompression together with biceps and rotator cuff surgery in the amount of $12,000. Those estimates related only to fees for the surgeon, the anaesthetist, the surgical assistant, surgical fees and the cost of implants. The cost of an associated stay in hospital and post-operative rehabilitation treatment was not identified. Dr Machart, who did not examine the plaintiff or identify the materials provided to him for those estimates to be made, expressed the understandable caution that it was inadvisable that any of those operations be undertaken at the same time: Exhibit “10”;

46. On 25 November 2019, the solicitor for the defendant obtained a further and separate cost estimate from Dr Machart for L5/S1 lumbar disc replacement surgery in the amount of $35,000 and the cost of C3/4 disc replacement surgery in the amount of $30,000. Those estimates related only to fees for the surgeon, the anaesthetist, the surgical assistant, surgical fees and the cost of implants. The cost of an associated stay in hospital and post-operative rehabilitation treatment was not identified. Understandably, he also cautioned that these surgeries should not be conducted concurrently, and that six weeks should be allowed between operations: Exhibit “10”.

Consideration of the medical and allied evidence

67. In the paragraphs that now follow I set out my review and consideration of the medical and allied evidence and the conclusions that I find should be drawn from that evidence. That consideration involves first, the identification of the medical material to be considered, secondly, the identification of the polarised interpretations of that material, and thirdly, my analysis leading to the conclusions to be drawn from that material.

Medical and allied materials considered

68. The medical and allied evidence tendered in these proceedings comprised the following material:

1. A series of pre-accident historical reports and clinical correspondence spanning the period 1984 to 2011: Exhibit “C”, Index items 1 – 52, pp 1 – 74; Exhibit “6”, Index items 1 – 11, pp 1 – 11;

2. A series of post-accident historical reports and correspondence spanning the period 5 September 2011 to 21 November 2017: Exhibit “C”, Index items 55 – 94, pp 76 – 196; Exhibit “6”, Index items 12 – 23, pp 16 – 39;

3. A bundle of MAS assessments and certificates spanning the period 18 February 2015 to 6 March 2017: Exhibit “C”, Index items 95 – 97, pp 197 – 205; Exhibit “5”, Index items 1 – 7, pp 1 – 91. The plaintiff’s bundle of MAS reports was incomplete, however, the defendant’s bundle was complete;

4. A bundle of medico-legal correspondence and reports obtained by the defendant’s legal representatives: Exhibit “7”, Index items 4 – 9, pp 29 – 103;

5. A functionality and assessment report dated 29 July 2019 by Ms J Hunt, an occupational therapist. That report assessed the plaintiff’s needs for NDIS purposes: Exhibit “C”, Index item 98, pp 206 – 229. That report will be given detailed consideration in connection with the plaintiff’s claim for damages for domestic assistance;

6. Some miscellaneous exhibits comprising quotations for proposed surgical treatment (Exhibit “F” and Exhibit “G”), report forms completed by medical practitioners reporting to the Department of Social Security in 1994 (Exhibit “O” and Exhibit “P”), pre-accident medical correspondence dated 6 February 2004 and 18 February 2004 from a haematologist to the plaintiff’s treating general practitioner (Exhibit “Q”), the general practitioner’s historical clinical notes for consultations spanning the period 1 January 2002 to 19 December 2008 (Exhibit “R”), a general practitioner’s consultation note for a consultation on 9 December 2019 noting that the plaintiff had been given a referral to Professor Ashish Diwan, a spinal surgeon at St George Hospital, at which time the general practitioner also noted disparate measurements of muscle bulk in the plaintiff’s legs, which identified what appears to be reduced bulk or muscle wasting in his left leg: Exhibit “S”.

69. In identifying the above evidence, I have not overlooked the additional bundles of supporting notes and the material on disc that was presented by the plaintiff: Exhibit “C”, Index items 99 – 101, pp 230 – 363. The plaintiff has also prepared a disc incorporating a compendium of his various imaging scans: Exhibit “C”, pp 155 – 156. However, that material requires medical interpretation. When considering the historical clinical material comprising scans and test results tendered in evidence, a Court is constrained from drawing diagnostic medical conclusions that are more properly, if not exclusively, within the remit of medical experts: Strinic v Singh [2009] NSWCA 15.

70. That statement takes on some importance in this case because the parties have taken very different approaches to the interpretation of the medical evidence.

Polarised interpretations of the medical material

71. The approach taken by the plaintiff is to, in effect, seek that the Court draw interpretative diagnostic medical conclusions from that material, without the assistance of expert opinion to explain what medical conclusions should be drawn from that material. That suggested course is fraught with difficulty. Factual interpretation of diagnostic test results, such as radiological imaging scans and reports, is a task for medical experts: Strinic v Singh [2009] NSWCA 15. The plaintiff has not retained or qualified any such medical experts for that purpose.

72. In contrast, the defendant relied upon the unchallenged opinions of two medical experts. The first, a consultant radiologist, Dr John Korber, whose uncontradicted reports are dated 24 July 2007 (Exhibit “C”, Index item 51, pp 73 – 74, relating to the plaintiff’s 2004 accident) and 24 June 2013 (Exhibit “7”, Index item 6, pp 31 – 35), and secondly, two unchallenged reports dated 16 July 2013 and 21 March 2019 from an orthopaedic surgeon, Dr David Maxwell (Exhibit “7”, Index items 7 and 9, pp 36 – 66 and pp 84 – 103). The plaintiff did not seek to cross-examine Dr Maxwell on the content of his reports and he has not introduced expert evidence to contradict Dr Maxwell’s opinions.

73. In his evidence and submissions, the plaintiff was critical of the reports of those two experts.

74. The plaintiff included in Exhibit “C”, between pages 311 and 363, a purported 31 page transcript of a surreptitious recording he made of the verbal exchanges between himself and Dr Maxwell, when Dr Maxwell examined him on 16 July 2013. The plaintiff was critical of Dr Maxwell’s purported remarks. Putting aside questions as to the legality of that recording in light of s 7 of the Surveillance Devices Act 2007 (NSW), none of the matters purported to have been said by Dr Maxwell as appearing in that transcript were put to Dr Maxwell for his comment: Browne v Dunn (1893) 6 R 67.

75. The plaintiff drew upon the purported transcript of that recording of his examination by Dr Maxwell to prepare a highly critical commentary on Dr Maxwell’s report dated 16 July 2013, in which his preamble referred to a supplementary MAS Submission he had made in response to Dr Maxwell’s report, in the following terms:

“ "The only way for a claimant with limited resources is to make good use of the saying that, THE DEVIL IS IN THE DETAIL, and in the spirit of the above, I will attempt to expose the little half-truths, spin-offs, and lies compounded into overwhelming bulk designed to subdue assessors, observers and claimants alike, and which in effect comprises another faucet of insurance companies tactic, I call it death by mud-slide, as opposed to clear water stream reality!”

[Exhibit “C”, p 303]

[Emphasis as in the original text]

76. What then followed was a very pointed 5 page typed critique of Dr Maxwell’s report dated 16 July 2013, in which he referred to what he described as his claimed exposure of Dr Maxwell’s alleged exaggerations, obfuscations, errors, fabrications, embellishments, marginalising comments, a claim of a non-existent MRI report, and what he described as “nonsensical bla bla bla”, that he claimed to have been “peppered” within Dr Maxwell’s report: Exhibit “C”, pp 303 – 307.

77. The difficulty facing the plaintiff in relying on critical comments of that kind is that none of those matters had been fairly put to Dr Maxwell for his comment: Browne v Dunn (1893) 6 R 67. Accordingly, although I have read the plaintiff’s materials, I do not place any weight on those matters in view of the circumstances described above. Instead, Dr Maxwell’s reports must be analysed according to their content.

Analysis of medico-legal opinions

78. Before analysing the reports of Dr Korber and Dr Maxwell, it is relevant to here record that when analysed, the chronologically arranged medical exhibits presented by the plaintiff are not fully representative of all his relevant injury-related medical consultations and treatment, including surgical treatment and other related assessments.

79. This is evident from the schedule of reports appended to the end of Dr Maxwell’s first report and from the content of his second report which reviews some medical material which has not been tendered in evidence in these proceedings.

80. Understandably, the plaintiff has seen many medical practitioners over the decades since 1984, during which time he was affected by various injuries that he had sustained in the series of prior accidents he had encountered. He has had surgical treatment for some of those injuries. It is plain that some relevant surgical reports and related opinions as to residual disability, which I do not propose to here catalogue, are absent. Some of them are sufficiently identified in the reports of Dr Maxwell. As a result, it appears that there are gaps evident in the plaintiff’s medical history. This is an unfortunate circumstance because such gaps have the potential to have an adverse impact upon matters of onus of proof that rest with the plaintiff.

81. That latter issue concerns the requirement that the plaintiff must establish a reliable baseline description of his pre-2011 accident state of health and fitness for work and for his domestic activities. The establishment of that baseline is a relevant preliminary step that must be achieved before proceeding to assess any deleterious effects that the subject accident has had on the plaintiff.

82. Absent reliable expert evidence which identifies that baseline I must proceed cautiously. This is so because the plaintiff has had so many other health-related issues that span the period from 1984 to the present time, and it must be accepted that the reliability of his own recollection and account of his pre-accident status must be considered against the more reliable contemporaneous records which cover that background period, as is evident from the content of the available medical records which span that period.

83. In his approach to the issues, as identified below, the plaintiff has expressed criticisms of the opinions of Dr Korber and Dr Maxwell.

84. In respect of Dr Korber’s opinions, these were generally criticised as having come from a radiologist favoured by insurers in general: T339.32 – T339.33; T342.48. I cannot accept a submission framed in those terms. Dr Korber’s reports must be analysed according to their content.

85. In respect of Dr Maxwell’s opinions, the plaintiff was unapologetically and trenchantly critical in describing Dr Maxwell’s opinions as fiction, rubbish and involving in effect, a superficial analysis. He expressed those criticisms in unflattering terms: T160.23 – T160.35; T263.48 – T264.6; T345.10 – T345.16; T342.50. He made those submissions as a follow-on from his written remarks on Dr Maxwell’s first report: Exhibit “C”, pp 303 – 307. I am unable to accept submissions framed in those terms. Dr Maxwell’s reports must also be analysed according to their content.

86. A number of difficulties face the plaintiff with regard to his criticisms of the evidence of those medical experts.

87. First, although he has criticised the views of Dr Maxwell and Dr Korber, he has not required either of those experts for cross-examination in order to challenge their opinions, nor has he introduced contradictory expert evidence, and by reason of those circumstances, they have not been provided with a fair opportunity to consider and answer any such criticisms: Browne v Dunn (1893) 6 R 67.

88. Secondly, generally, in such circumstances, an advocate’s failure to observe that requirement has well-recognised consequences where absent such a challenge, and where the content or correctness of the opinions in contention are not shown to be either illogical or inherently improbable, they are otherwise capable of being seen as reliable.

89. In such circumstances, generally, the irresistible consequence is, irrespective of whether the party seeking to make such criticisms is represented by lawyers or is self-represented, where such criticisms remain unsupported by contrary evidence, those criticisms must be disregarded.

90. Thirdly, a careful review of the index items 53 – 94 of Exhibit “C” between pages 76 and 196 of the medical evidence, comprising clinical correspondence and opinions as relied upon by the plaintiff, reveals that none of those documents comply with the requirements of UCPR r 31.27 in that they do not refer to the Expert Witness Code comprising Sch 7, nor do they set out analytical reasoning in support of relevant opinions as would be expected in an evidentiary medical report. Plainly, those documents were not intended by the authors to represent expert opinions within the contemplation or meaning of UCPR r 31.27.

91. That is with the exception of Index item 87 appearing between pages 172 – 175 of Exhibit “C”, which comprises a rules-compliant expert opinion from Dr John Korber, a consultant radiologist. That report, and Dr Korber’s second report (at pages 31 – 35 of Exhibit “7”), will shortly be analysed.

92. All of the other medical material relied upon by the plaintiff comprises clinical records, test results, correspondence or quotations for suggested surgery. That material does not contain any comprehensive expert opinion that is rules-compliant, or that it is explained with reasons, to support the case the plaintiff seeks to make: UCPR r 31.27(1)(c).

93. The effect of the plaintiff’s approach, and his arguments is that he seeks from the Court an interpretation of his pre-2011 accident state of health as having been sufficiently robust as would have enabled him to exercise an earning capacity, absent the subject injury.

94. Unfortunately, expert evidence to support that position is glaringly absent. A prime example concerns the plaintiff’s impaired mobility and physical dexterity issues caused by previous ankle and knee surgery. In those circumstances, I must do the best I can to analyse the limited evidence that is available, including the limited probative value of the plaintiff’s own evidence, to determine whether the conclusions sought by the plaintiff can be reasonably sustained.

95. A further problem facing the plaintiff is that he seeks to gain support for his case from the content of the MAS certificates. It must be recognised that those documents are principally gateway reports for a particular statutory purpose on the question of his entitlement to claim damages for non-economic loss. They are not expressions of expert opinions generally. They should not be considered to represent reliable expert opinions on matters in dispute because of the limited issues to which they relate, and because the authors of the respective documents are not compellable to give evidence nor are they compellable to have their conclusions tested by cross-examination: Pham v Shui [2006] NSWCA 373.

96. Pitted against the plaintiff’s case, the defendant relies upon the body of medical opinion evidence obtained from Dr Maxwell and Dr Korber. The defendant has also obtained correspondence from Dr Stephen and Dr Harvey. The correspondence from these two orthopaedic surgeons does not provide any useful opinion evidence as those experts found themselves unable to satisfactorily examine the plaintiff, as explained below.

97. The evidence comprising the reports of Dr Maxwell and Dr Korber remains unchallenged and uncontradicted by opposing expert opinions from specialists of like qualification. Accordingly, those reports must be analysed to determine the extent to which, if at all, they operate to undermine the case the plaintiff seeks to make.

Letters from Dr Stephen and Dr Harvey

98. The reason why medical correspondence obtained by the defendant from Dr Stephen and Dr Harvey do not assist is because of their limited content. They did not examine the plaintiff because he has, by his actions, frustrated that intended process.

143. Whilst the plaintiff also complains of lower limb problems that affect his mobility, on the state of the medical evidence it is difficult to attribute all of his mobility problems to the effects of the 2011 accident. The plaintiff had a fused ankle and had knee problems before the subject accident. Those matters have undoubtedly affected and continue to affect his mobility and dexterity. In my assessment, on the state of the evidence, not all of those problems can be reasonably sheeted home to the effects of the 2011 accident. That conclusion must therefore have a discounting effect on the plaintiff’s claim for damages for the cost of domestic assistance.

144. I conclude that the plaintiff’s current level of ongoing neck, right shoulder, lower back and knee problems are the ongoing sequelae of the aggravating soft tissue injuries which he has sustained to those areas.

145. In my assessment, the trauma described by the plaintiff has taken his previous intermittent residual discomforts, pain and suffering relating to those areas, to a higher plane than would otherwise have been the case if those aggravating injuries had not occurred on 5 September 2011. Those problems are no doubt upsetting and distressing for the plaintiff and I accept that they interfere with the amenity and enjoyment of his life where that amenity has already been reduced by the effects of his earlier injuries.

146. In arriving at that conclusion I have not overlooked Dr Maxwell’s comment that the aggravating effects of the 2011 accident were temporary and that natural healing of those injuries had occurred. I have not accepted Dr Maxwell’s view to that effect because of the limited basis of his assessment as already identified, and because of the sparse reasoning for those opinions in his reports, which I find unpersuasive: UCPR r 31.27(1)(c).

Work effects

157. The plaintiff claims that as a result of the subject accident he has been unable to pursue a range of work-related tasks of a physical nature, and as a result he has suffered a loss of earning capacity, including by pursuing his own business endeavours. The defendant disputes those contentions. My findings on those matters will shortly be identified in that part of my reasons that deal with the plaintiff’s most likely circumstances, had he not been injured.

Domestic effects

158. The plaintiff claims that as a result of the subject accident, he has become unable to carry out a range of domestic tasks such as cleaning, washing, vacuuming, gardening, lawn mowing and shopping. He also claims that he requires assistance with an aspect of his personal care, back washing. The defendant’s position on that part of the plaintiff’s claim is that his evidence concerning that need has been exaggerated.

159. In support of this component of his claim, the plaintiff relies upon his own evidence, that of his NDIS carers, and an occupational report from Ms J Hunt. The defendant’s submissions that seek to refute that claim proceed on the basis of Dr Maxwell’s reports, the surveillance material, and the occupational therapy assessment of Mr Williamson.

160. My findings on this component of the plaintiff’s claim will also be shortly identified in that part of my reasons dealing with the claim for domestic assistance.

Mitigation

161. The defendant did not raise any plea which alleged a failure on the part of the plaintiff to mitigate his damages: s 136 of the MAC Act. Any such plea, if raised, would have been problematic in this case given that the defendant had disputed and declined to pay for a number of surgical treatments that had been suggested for the plaintiff by his medical advisors.

Most likely circumstances but for injury

162. As the plaintiff seeks damages for future economic loss it is necessary to state my findings or assumptions as to what would have been his most likely circumstances or prospects but for the subject accident: s 126 of the MAC Act. That question must be considered in light of the plaintiff’s extensive pre-2011 medical history as summarised chronologically in the Appendix to these reasons.

163. In this case, the plaintiff’s most likely future prospects but for the subject accident are difficult to discern as he has had other health issues, such as visual problems and asthma, and he had experienced a series of earlier accidents which have had lasting effects that have left him with some impairments which were then aggravated by the subject accident.

164. At the time of that accident he was aged 56 years. The earlier injuries he received to his cervical and lumbar spines in the pre-2011 accidents most likely have also aggravated underlying degenerative changes seen on historical radiological imaging of those areas. In addition, he was vulnerable to age-related deterioration in those areas that could have possibly led to him experiencing symptoms in those areas irrespective of the effects of the subject accident. The records of his treating general practitioner identified pre-accident osteoarthritis in the plaintiff’s lumbar spine. These are matters of imponderability that must be taken into account in the assessment of the plaintiff’s damages.

165. In those circumstances, the plaintiff’s work capacity before the injuries he sustained in the 5 September 2011 accident had, to a significant degree, already been impacted upon adversely such that he would have inevitably experienced some restrictions in his earning capacity if he had not been injured on 5 September 2011.

166. The plaintiff has been a pension recipient since 1994. It is most probable this would have continued. The full range of occupations the plaintiff had previously pursued, as summarised at paragraphs [44] to [46] above, were unlikely to be pursuits he could fully exploit. In arriving at that conclusion I have not overlooked his entrepreneurial business ambitions, as evidenced by his printed business cards: Exhibit “Y”. The fact that he took such steps does not necessarily mean his enterprises would have succeeded.

167. I find that but for the subject accident, the plaintiff would have been at a significant disadvantage as a competitor on the open labour market.

Assessment of damages

168. The plaintiff claimed the following heads of damage:

1. Non-economic loss;

2. Past economic loss;

3. Past loss of superannuation;

4. Past domestic assistance;

5. Future domestic assistance;

6. Future economic loss;

7. Future loss of superannuation;

8. Future out-of-pocket expenses;

9. Past out-of-pocket expenses.

169. As already identified at paragraph [2] above, the parties made disparate submissions on damages. In my assessment, the plaintiff’s damages submissions reflect a lack of understanding of the principles which govern the assessment of causation of harm and the quantification of damages. My assessment of the plaintiff’s claimed damages now follows.

Non-economic loss

170. The plaintiff made a claim for non-economic damages to be assessed in the sum of $285,000: MFI “7”. In contrast, the defendant’s submission on this head of damage was for an assessment of $75,000: MFI “2”.

171. The defendant’s non-economic loss submission was founded on the proposition that the aggravating effects of the injuries sustained by the plaintiff in this fifth accident in 2011 were of only a limited or temporary extent. I have not fully accepted that submission as it was plainly based on the opinions of Dr Maxwell which I have not accepted.

172. After the plaintiff’s fifth accident and before the subject accident, I accept that he was largely self-sufficient in his domestic and household tasks that did not involve him moving heavy furniture or lifting heavy objects unassisted. I accept that to a limited degree, he was functioning to the extent of doing his own gardening, maintenance, mowing, cleaning and cooking. He was exercising by riding his bicycle for about 20 minutes several times per week and he did not need painkilling medication. That position, as described by the plaintiff, suggests that all of this changed for the worse after the subject accident, and on that basis, he claims a higher award of damages for non-economic loss than that which was submitted by the defendant.

173. The content of the clinical records and correspondence that I have identified in the Appendix persuades me that at the time of the subject accident, it was more probable than not that before the subject accident he intermittently suffered from some neck, right shoulder and back problems, and possibly left knee problems, but these conditions were made much worse by the effects of the last accident.

174. The increased level of pain and discomfort in the plaintiff’s neck, right shoulder, back and left knee has had and continues to have a significantly adverse effect upon the amenity of his life.

175. That accident-related increase in the plaintiff’s limitations and the reduced amenity of his life still continues, and it represents an unfortunate and unwelcome burden that the plaintiff could ill-afford to incur as he has aged.

176. I accept that the plaintiff’s neck, back, right shoulder and left knee problems, which continue as a result of the 2011 accident, as superimposed upon his earlier injuries, have had a significant and adverse effect on his ability to enjoy the amenity of his life.

177. Added to those considerations is the plaintiff’s need for long delayed spinal surgery to his neck, low back, right shoulder and right knee surgery as recommended to him by his treating doctors, I find those particular procedures have become necessary as a result of the aggravating effects to those parts by the traumatic effect of the forces to which he was subjected in the accident in question.

178. The surgeries to those areas, four in all, are major procedures, which will cause the plaintiff to suffer significant further loss of amenity and they will require significant post-operative rehabilitation. The defendant submits that once the plaintiff has the suggested surgeries, his pain will decrease. That is a difficult position for the defendant to maintain where, in an assessment case such as this, it has declined to pay for those procedures from an early stage.

179. In my view, in combination, the above matters call for a significant award of damages for non-economic loss. In my assessment, on an evaluation of the plaintiff’s evidence and the aspects of the tendered medical evidence which I have accepted, the appropriate sum for such damages is $120,000. I therefore assess the plaintiff’s damages for non-economic loss at $120,000.

Past economic loss

180. The plaintiff submitted that his claim for past economic loss should be assessed in the sum of $202,705: MFI “7”. That submission was based on average male earnings in NSW and some overly optimistic assumptions concerning his possible business ventures. In contrast, the defendant’s submission was that there should be no award for this head of damage: MFI “2”. The defendant’s submission was based on the plaintiff’s history of minimal earnings according to his tax assessments since 1991: Exhibit “9”.

181. In order to justify an award of damages for economic loss, it is necessary for the plaintiff to not only show that the subject accident has caused him to suffer an impairment in his earning capacity but it must also be shown that such impairment is likely to have caused him to suffer financial loss: Graham v Baker (1961) 106 CLR 340; [1961] HCA 48; Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5.

182. I consider that the plaintiff’s pre-existing health problems as summarised from the pre-2011 medical evidence described in the Appendix to these reasons, indicate that the plaintiff already had a significantly impaired and only limited earning capacity before the subject accident. It is difficult to quantify what he could have earned but for the subject accident.

183. In my view the plaintiff’s pre-accident employment history and his history of prior accidents which undoubtedly had debilitating effects upon him do not provide a clear basis for calculating a specific amount for past economic loss based on a pattern of past earnings.

184. Before his accident, since about 1994, the plaintiff had been on a longterm disability support pension. In my view, prior to the subject accident, that position was unlikely to change either in the short or the longterm.

185. The plaintiff’s previous earnings had principally comprised relatively modest wages as is evident from his taxation assessments: Exhibit “9”. His various business ventures, which he pursued with enthusiasm, had not succeeded. His underlying disabilities justified him continuing to receive the disability support pension. As he was in continued receipt of that pension, which had not been easy for him to secure, it seems to me unlikely that the plaintiff would have derived earnings beyond the limited degree permitted without incurring a reduction in his pension entitlements.

186. I consider it is doubtful that, but for the subject accident, the plaintiff would have derived anything other than intermittent or occasional earnings as would have been permitted by his status as a pension recipient.

187. In my assessment, I consider it most unlikely that position would have changed significantly, including to being able to obtain and sustain either full-time or part-time work in the longterm, and certainly not until normal retirement age, given the effects of his pre-existing injuries.

188. Accordingly, I consider that the plaintiff’s claim for past loss of earnings should be assessed in the form of a modest buffer that makes general allowance for claimed past losses. That view also takes into account the very real uncertainties surrounding his employability due to his underlying health issues which are not accident-related. In taking that approach, I consider that a buffer sum that is both fair to the plaintiff and not unfair to the defendant is the amount of $30,000. I therefore assess the plaintiff’s damages for past economic loss in the buffer amount of $30,000.

Past loss of superannuation

189. The plaintiff submitted that his claim for past loss of superannuation should be assessed in the sum of $35,782: MFI “7”. In contrast, the defendant submitted that there should be no assessment for this head of damage: MFI “2”. In my view, the plaintiff’s past post-accident income was likely to be casual, and it was more likely to be of an entrepreneurial nature rather than taking the form of regular paid employment which attracted employer funded superannuation entitlements. I therefore decline to award any damages for past loss of employer funded superannuation payments.

Future economic loss

190. The plaintiff submitted that his claim for future economic loss should be assessed in the sum of $492,442: MFI “7”. In contrast, the defendant submitted that there should be no assessment for this head of damage: MFI “2”.

191. In conformity with my findings regarding the plaintiff’s claim for damages for past loss of earning capacity, I consider it unlikely that the plaintiff would have derived anything other than modest earnings at a level that did not jeopardise his entitlement to continue to receive his disability support pension. In my assessment, those circumstances call for an award of a modest buffer sum for this head of damage.

192. Furthermore, in assessing a limited buffer for future loss of earning capacity a substantial discount should be incorporated within it to acknowledge the plaintiff’s significant unrelated health issues, his advancing age, and his reduced physical strength and dexterity. All of those elements represent significant potentially adverse vicissitudes that must be taken into account, and which militate against a large award of damages for future loss of earning capacity.

193. As there is no reliable basis from within the evidence to project an identifiable weekly sum for quantification of the plaintiff’s future earning capacity, the task of assessing that loss is best served by way of an assessed buffer sum: State of NSW v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133, at [72]; Penrith City Council v Parks [2004] NSWCA 201, at [5].

194. I consider that an appropriate buffer amount that would be fair to both the plaintiff and the defendant would be of the order of $30,000. I therefore assess the plaintiff’s future economic loss in the buffer amount of $30,000.

Future loss of superannuation

195. The plaintiff submitted that his claim for future loss of superannuation should be assessed in the sum of $54,169: MFI “7”. In contrast, the defendant submitted that there should be no assessment for this head of damage: MFI “2”. In my view, if the accident had not occurred, the plaintiff’s future income was likely to be of a casual and entrepreneurial nature rather than to be in the form of regular paid employment. I therefore decline to award any damages for future employer funded superannuation.

Past domestic assistance

196. The plaintiff’s initial claim for past domestic assistance was for three periods which totalled $10,136: MFI “7”. That claim comprised the following elements:

1. Between 11 September 2011 and 31 December 2011, being 16 weeks and 5 days at 6.68 hours per week, totalling $2728.70;

2. Between 1 January 2012 and 5 December 2012, being 48 weeks and 3 days at 3.68 hours per week, totalling $4664.46;

3. Between 6 December 2012 and 18 February 2015, being 114 weeks and 6 days at 0.86 hours per week, totalling $2743.45.

197. The defendant submitted that claimed assistance did not satisfy the statutory test for awarding such damages.

198. The plaintiff’s claim for past domestic assistance was based on his own limited evidence, and as supported by the evidence of Mr Wicharia and Mr Rabi. The plaintiff also relied upon the occupational therapy report dated 29 July 2019 from Ms Jane Hunt.

199. The focus of the occupational therapy assessment by Ms Hunt concerning the plaintiff’s need for domestic assistance was on account of all of the plaintiff’s needs for independent living, mobility, self-care and home maintenance, and not just in relation to accident-related issues.

200. In making that observation, I intend no criticism of Ms Hunt, who was not asked by the commissioning agency to confine her assessment to only the relevant matters that could be the subject of the present claim.

201. Accordingly, Ms Hunt’s assessment identified the cost of 10 hours of professional occupational therapy time to help the plaintiff to improve his independence: Exhibit “C”, p 211. Ms Hunt’s assessment included mobility issues, which did not relate to the subject accident: Exhibit “C”, pp 212 – 213. Her recommendations were based on her observation that the plaintiff was able to feed himself independently; wash himself independently, albeit with difficulty; dress himself, albeit with difficulty with some types of clothing, footwear and socks; groom himself independently; walk independently, but with aids, but that he needed some help with housework, meal preparation and with his laundry needs.

202. Ms Hunt also noted that the plaintiff receives the assistance of an agency-employed support worker for 6 hours a day for 5 days per week for personal care, housekeeping, cleaning and yard maintenance, as well as including assistance with meal preparation and shopping tasks. Ms Hunt also noted that the plaintiff was assisted by a support worker to wash his back, and lower limbs, including hair drying and shaving.

203. The plaintiff expanded the claim for domestic assistance in presenting a series of schedules covering the period 11 September 2011 to 25 December 2016 for a total of 1248 hours with a monetary claim totalling $53,221.16: Exhibit “C”, pp 242 – 252. That claim bears close analysis.

204. The defendant obtained a responsive occupational report dated 17 October 2019 from Mr Peter Williamson: Exhibit “8”. Mr Williamson provided only limited support for this element of the plaintiff’s claim. In his report Mr Williamson was critical of the plaintiff’s lack of cooperation with the assessment he had attempted. Mr Williamson’s assessment was hampered by the plaintiff’s attitude which was described as being one of non-disclosure of matters of personal detail. Mr Williamson described the plaintiff as being pain focussed.

197. The effect of the evidence adduced by the plaintiff on the issue of past domestic assistance was that such assistance was provided to him by his mother, until she passed away on 16 December 2018, following which it was provided to him by NDIS funded carers, namely, Mr Wicharia and Mr Rabi.

198. The plaintiff’s claim for past domestic assistance must be assessed according to whether he has adduced evidence that satisfies the statutory assessment requirements for determining whether or not he should be awarded damages for domestic assistance that he has received to date, on a gratuitous basis.

199. In that regard s 141B of the MAC Act provides:

141B Maximum amount of damages for provision of certain attendant care services

(1) Compensation, included in an award of damages, for the value of attendant care services:

(a) which have been or are to be provided by another person to the person in whose favour the award is made, and

(b) for which the person in whose favour the award is made has not paid and is not liable to pay,

must not exceed the amount determined in accordance with this section.

(2) No compensation is to be awarded if the services would have been provided to the person even if the person had not been injured by the motor accident.

(3) Further, no compensation is to be awarded unless the services are provided (or to be provided):

(a) for at least 6 hours per week, and

(b) for a period of at least 6 consecutive months.

(4) If the services provided or to be provided are not less than 40 hours per week, the amount of compensation must not exceed:

(a) the amount per week comprising the amount estimated by the Australian Statistician as the average weekly total earnings of all employees in New South Wales for:

(i) in respect of the whole or any part of a quarter occurring between the date of the injury in relation to which the award is made and the date of the award, being a quarter for which such an amount has been estimated by the Australian Statistician and is, at the date of the award, available to the court making the award—that quarter, or

(ii) in respect of the whole or any part of any other quarter—the most recent quarter occurring before the date of the award for which such an amount has been estimated by the Australian Statistician and is, at that date, available to the court making the award, or

(b) if the Australian Statistician fails or ceases to estimate the amount referred to in paragraph (a), the prescribed amount or the amount determined in such manner or by reference to such matters, or both, as may be prescribed.

(5) If the services provided or to be provided are less than 40 hours per week, the amount of compensation must not exceed the amount calculated at an hourly rate of one-fortieth of the amount determined in accordance with subsection (4) (a) or (b), as the case requires.

(6) Unless evidence is adduced to the contrary, the court is to assume that the value of the services is the maximum amount determined under subsection (4) or (5), as the case requires.

(7) Except as provided by this section, nothing in this section affects any other law relating to the value of attendant care services.

208. I have considered the plaintiff’s evidence together with that of Mr Wicharia and Mr Rabi concerning the assistance that he claims has been provided to him. I am not persuaded that all the assistance was provided to the plaintiff as a consequence of an accident-related need caused by the subject accident: s 141B(2) of the MAC Act. In my view the plaintiff has failed to satisfactorily prove that the extent of assistance he has received arose as a result of a relevant injury-related need.

209. I consider that whilst some of that assistance may have been provided to a minor degree due to the plaintiff’s experience of neck and back problems, the evidence does not permit a reasoned assessment of that degree of assistance in the context where the vast majority of the assistive activities and presence of the plaintiff’s late mother appear to have been related to matters of familial compassion for the plaintiff’s bleak and beleaguered existence due to the combined effect of his health issues and his social isolation where not all of these problems can be reasonably attributed to the effects of the subject accident.

210. In arriving at that view, I have not overlooked the content of the defendant’s surveillance evidence, and the material provided by the plaintiff, some of which contains images of the plaintiff’s late mother, and the plaintiff’s evidence that she performed some household functions. In my view, that evidence, in combination with the plaintiff’s evidence, does not serve to satisfy and satisfactorily discharge the onus of proof within the statutory test required by s 141B(3) of the MAC Act, for continuous care for at least 6 hours per week for 6 months, either by his mother, Mr Wicharia or Mr Rabi, or a combination of those persons.

211. The evidence on this issue does not permit a reliable rational dissection that demonstrates, without exaggeration, the nature and extent of the time spent by the plaintiff’s late mother on carrying out domestic tasks that he needed to have performed for him as a result of an inability on his part that was caused by the subject accident: s 5D and s 5E of the CL Act.

212. As the plaintiff has not satisfied the necessary statutory requirements for basing an award of damages for past domestic assistance, I therefore make no award for that head of damage.

Future domestic assistance

213. The plaintiff’s claim for future paid domestic assistance was initially identified in the amount of $27,617: MFI “7”. That amount was simplistically calculated over 23 years (1200 weeks) for 0.92 hours per week at $41.52 per hour but discounted for deferral on the 5 per cent tables. That method did not accord with conventionally accepted assessment principles. The defendant submitted that no such damages should be awarded.

214. The claim was later expanded on the basis of Ms Hunt’s assessment.

215. Whilst Mr Williamson did not support the plaintiff’s claim for future domestic assistance, and whilst Ms Hunt’s assessment, by its limited nature, was not fully informed because it was commissioned according to NDIS requirements and not for this case, the plaintiff’s claim must nevertheless still be assessed. This is because of the aggravating effects of the subject accident and the plaintiff’s related limitation for the heavier aspects of housework and home maintenance.

216. The plaintiff’s evidence of the need for such assistance was in my view overstated. In coming to that view I do not intend that finding to reflect adversely on his honesty or on the truthfulness of his evidence, instead, that conclusion arises because of his misconception and his limited understanding of the need to satisfy the legal test that would enable an award for such damages.

217. To satisfy that test the plaintiff must adduce satisfactory evidence that identifies in a reasoned way the particular tasks requiring him to have such assistance as a consequence of the subject accident, and reasonably identifying the time required to be spent on those tasks as a consequence of the accident. I find that the plaintiff has not discharged the onus of proof in relation to those matters so as to permit a particular and reasoned cost projection of calculable damages for domestic assistance. This is where he had obvious pre-accident limitations in carrying out domestic tasks of a heavier nature.

218. I therefore decline to assess damages for future domestic assistance.

Future out-of-pocket expenses

219. The plaintiff submitted that his claim for future out-of-pocket expenses should be assessed in the sum of $178,000: MFI “7”. In contrast, the defendant’s submission on this head of damage was that there should be no such allowance: MFI “2”.

220. In support of his claim for future expenses the plaintiff relied on the following costings:

1. $23,496, being the estimated cost of knee replacement surgery, including hospital fees, and all medical components, according to an estimate provided by Dr Neville Rowden: Exhibit “F”;

2. $38,000 to $42,000, being for a one level anterior cervical fusion procedure, or $40,000 to $45,000 if a two level procedure was required, according to an estimate provided by Professor Ashish Diwan: Exhibit “6”;

3. $45,000 to $50,000, being for a fusion of the lumbar spine, according to an estimate provided by Professor Ashish Diwan: Exhibit “6”.

221. Viewed maximally, those potential costs could involve costs of the order of $120,000, noting there would be no synergistic savings by having any of the procedures performed at the same time: Exhibit “10”.

222. The defendant has provided lesser costs estimates: Exhibit “10”. However, it appears those costings put forward by the defendant make no mention of hospital fees, which may explain the differences in the respective estimates.

223. Absent a comprehensive report from either Dr Rowden or Professor Diwan, I am not persuaded that the plaintiff will, at this stage, have all of the recommended surgeries. This is an imponderable factor that I must take into account in assessing damages for future treatment expenses.

224. The state of the evidence justifying the claimed future treatment is sparse. In those circumstances, I must do the best I can in considering the relevant factors that relate to likely future treatment expenses.

225. The plaintiff’s ongoing accident-related disabilities as identified at paragraphs [143] to [156] above, justify the conclusion that the plaintiff will continue to consult his general practitioner from time to time for reviews, consideration of his treatment needs, the prescription of painkilling medication, and referral to specialists where necessary. Those specialists may at some stage recommend surgical treatment according to the above estimates, and the plaintiff may possibly either accept or reject those recommendations at those times.

226. All of the above considerations represent uncertain imponderable factors. In my view, this state of the evidence does not permit a precisely formulated award to compensate the plaintiff for possible future treatment expenses. In those circumstances, I consider the appropriate approach to assessment of such damages is an award of a buffer sum to cushion the plaintiff for the cost of future treatment. I therefore assess the plaintiff’s future out-of-pocket expenses in the buffer amount of $60,000.

Past out-of-pocket expenses

227. The plaintiff submitted that his claim for past out-of-pocket expenses should be assessed in the sum of $9511: MFI “7”.

228. The defendant initially resisted liability for such expenses. Ultimately, at paragraph 87 of its written submissions, the defendant indicated its preparedness to agree to the sum claimed.

229. I therefore assess the plaintiff’s past out-of-pocket expenses in the buffer amount of $9511.

Summary of damages assessment

230. A summary of my assessment of the plaintiff’s damages is as follows:

(a) Non-economic loss	$120,000
(b) Past economic loss	$30,000
(c) Past loss of superannuation	$Nil
(d) Future economic loss	$30,000
(e) Future loss of superannuation	$Nil
(f) Past domestic assistance	$Nil
(g) Future domestic assistance	$Nil
(h) Future out-of-pocket expenses	$60,000
(i) Past out-of-pocket expenses	$9,511
Total	$249,511

Disposition

231. The plaintiff has established his entitlement to a damages award for $249,511 and he should have a judgment for that amount.

Costs

232. As the plaintiff has succeeded in obtaining a judgment in his favour, he should have an order that the defendant should pay his costs of the proceedings on the ordinary basis.

Orders

233. I make the following orders:

1. Verdict and judgment for the plaintiff in the sum of $249,511;

2. The defendant is to pay the plaintiff’s costs on the ordinary basis unless otherwise ordered;

3. The Registry is to return the exhibits to the parties after the expiry of 28 days;

4. Liberty to apply on 7 days notice if further or other orders are required.

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Amendments

22 September 2020 - Paragraphs [66(1)] and [151] - change reference C4/5 to C3/4;

Paragraphs [66(15)], [66(17)], [174] and [176] - change reference right knee to left knee

Decision last updated: 22 September 2020