Hurcum v Domino's Pizza Australia Pty Limited

[2007] NSWDC 73

CITATION:	Hurcum v Domino's Pizza Australia Pty Limited [2007] NSWDC 73
HEARING DATE(S):	05/12/06, 06/12/06, 13/12/06, 02/02/07, 16/02/07
JUDGMENT DATE:	8 March 2007
JURISDICTION:	Civil
JUDGMENT OF:	Gibson DCJ
DECISION:	1. Judgment for the plaintiff for $4,518.00; 2. Defendant pay plaintiff’s costs; 3. Liberty to restore in relation to order 2; 4. Exhibits retained for 28 days.
CATCHWORDS:	Tort – personal injury – defence of fraud – quantum – claim for non-economic loss falls below threshold – claim rejected for past and future economic loss by a plaintiff with no work history and transient injury
LEGISLATION CITED:	Civil Liability Act 2002 (NSW) Occupational Health & Safety Act 2000 (NSW) Trade Practices Act 1975 (Cth)
CASES CITED:	Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 Briginshaw v Briginshaw (1938) 60 CLR 336 Goodrich Aerospace v Arsic [2006] NSWCA 187 Jones v Dunkel (1959) 101 CLR 298 Luxton v Vines (1952) 85 CLR 352 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd & Ors (1992) 67 ALJR 170 Penrith City Council v Parks [2004] NSWCA 201 Premier Group v Lippis [2007] NSWCA 36 Rufo v Hosking (2004) 61 NSWLR 678 State of New South Wales v Burton [2006] NSWCA 12 Steffen v Ruban [1966] 2 NSWR 622 The Nominal Defendant v Kostic [2007] NSWCA 14
PARTIES:	Plaintiff: Wayne Walter Hurcum Defendant: Domino's Pizza Australia Pty Limited
FILE NUMBER(S):	No. 2705 of 2005
COUNSEL:	Plaintiff: G B Hall QC, V Jurisich Defendant: J Turnbull
SOLICITORS:	Plaintiff: P K Simpson & Co Defendant: Lee & Lyons

1 The plaintiff brings proceedings against the defendant for negligence for injuries he suffered on 19 October 2003 when he slipped and fell at the Domino’s Pizza outlet at 230 Elizabeth Street Surry Hills. The plaintiff does not press a claims (pleaded in the alternative) for breach of the Trade Practices Act 1975 (Cth) or of the Occupational Health & Safety Act 2000 (NSW). The defendant’s defence pleads, inter alia, an allegation that the plaintiff’s fall was fraudulently contrived.

2 The circumstances of the plaintiff’s accident were as follows. At about midday on 19 October 2003 the plaintiff went to Domino’s Pizza outlet at 230 Elizabeth Street Surry Hills and ordered a pizza. Having placed his order he went outside to have a cigarette. When he finished his cigarette he went back into the store to see if his pizza was ready. When he was told that it was not ready he walked towards the exit and stepped on the metal strip which was mounted on the edge of the right hand side of the sloping ramp leading from the service counter out towards the street.

3 When the plaintiff stepped on the metal strip it moved. The plaintiff said his legs went from under him and he fell landing on his bottom on the floor of the shop. He was unable to get to his feet.

4 Mr Okkes Yildiz, the shift supervisor, who was making the plaintiff’s pizza, heard a sound and turned around and returned to the counter, where he saw the plaintiff lying on the tiled surface on his back. The plaintiff responded to an enquiry as to his well-being by asking Mr Yildiz to call an ambulance.

5 Mr Yildiz who was called by the defendant, gave evidence that he was curious as to what caused the plaintiff to fall. He went to the back of the shop to look at the CCTV of the plaintiff’s fall (T-188) as soon as he realised the plaintiff had fallen down. He watched it for about ten seconds. He had occasion to look at the videotape on a second occasion, when he was with the manager, Nick Knight, and a gentleman named Kai. It was his recollection (T-192) that the plaintiff stepped on and off the metal strip “multiple times”. He qualified about this by saying “about two times he stepped on and off” and that he “looked around a couple of times” (T-192-193). He then “just kicked out his right foot as if he was kicking something, and then he fell back and his hand break (sic) his fall, and he must have hit his hand on the tile because that’s the noise I heard” (T-193). He was quite sure what the noise was because he had tiles in his home and when his little brother hits his hand on the tile it makes a similar noise (T-194).

6 The only other person present at the time was a trade assistant named Rory Erwin. He could not remember anything about the CCTV footage although he recalled the plaintiff being injured and the ambulance being called.

7 The difficulty the defendant has is that the CCTV footage that Mr Yildiz refers to in his evidence has since been lost. Evidence was given by Mr Nicholas Knight, the manager, and by Mr Salem Zakkaur concerning the circumstances in which this videotape, which both of them said they saw, was either thrown out by mistake or damaged by a fault in a computer onto which the videotape was copied, or both. Although the circumstances in which the plaintiff fell over in the defendant’s premises in circumstances requiring an ambulance where there was an immediate suspicion on attempted fraudulent conduct was clearly something out of the ordinary, there is no contemporaneous documentation of any of these events, including the circumstances in which the CCTV footage was copied and placed in a computer.

8 In addition, a matter of days later a person was observed taking photographs of the premises for the plaintiff. Once again, this was recorded on the videotape. Once again, it would appear that this videotape was damaged or destroyed and no other contemporaneous record kept either of this event or of the need to retain this tape.

9 After the plaintiff commenced these proceedings, the defendant filed a defence, answered subpoenas and conducted the litigation for some time without bringing the allegation of fraud. This allegation was first raised approximately two weeks before the first time the matter was listed for hearing; the hearing had to be vacated as a result.

10 The relevant interlocutory steps in which the defendant failed to raise the claim of fraud were as follows:

(a) The defendant filed a defence on 22 September 2005 which did not raise this allegation (the allegation was not made until an amended defence filed on 13 December 2005).

(b) The defendant was served with subpoena to provide documentation on or about 17 November 2005 but produced no documents, including no documentation about any attempts made to locate the missing footage.

(c) The defendant filed a list of documents which disclosed no documents on this issue. Significantly, no claim was made that documents or other material that had once been in the defendant’s possession which was no longer available.

(d) The defendant failed to answer particulars and to put the plaintiff on notice of the proposed claim.

11 Thus, in addition to there being no contemporaneous documentation, there was a delay in bringing the allegation. This delay is unexplained.

12 However, the most significant problem with the evidence is that the lay witnesses called by the defendant gave conflicting accounts not only as to what they saw on the tape when the plaintiff fell and where he fell, but also the time involved in the incident, what the plaintiff did whilst in the premises of the defendant and, most importantly, circumstances in which the original video tape and computer copies were either lost, damaged by a computer fault or both. In addition, it was never made clear to me how or when the loss or destruction of the video tape of the plaintiff’s friend visiting the premises a matter of days after the accident to take photos was similarly lost, destroyed, or both.

13 Finally, there is an inherent implausibility in the proposition that the plaintiff, whose evidence was that he had only been to the defendant’s premises once before, had gone there for the purpose of faking a fall, or alternatively made an on-the-spot decision to do so. While I am conscious of recent Court of Appeal decisions concerning the dangers of having regard to a witness’ demeanour, and while I have reservations about the plaintiff’s reliability on other issues relating to damages, the plaintiff is nevertheless a man of very limited intellectual ability, who is illiterate and has never worked, and whose ability to think up and put into action a fraudulent plan which involved injury to himself seems far-fetched.

14 In considering issues of liability concerning the plaintiff’s fall, I must take into account, when considering the claim that the plaintiff’s fall was fraudulently contrived, Section 142 of the Evidence Act 1995 (NSW). The appropriate test, generally referred to as the Briginshaw test (Briginshaw v Briginshaw (1938) 60 CLR 336), is that the court must feel an actual persuasion of the occurrence of the fact alleged: Neat Holdings Pty Limited v Karajan Holdings Pty Limited & Ors (1992) 67 ALJR 170 at 170-1, explained in Amalgamated Television Services Pty Limited v Marsden [2002] NSWCA 419 at paragraph 61 per Levine J. I accept the submissions of counsel for the plaintiff is that what must be proved is what the video actually showed, as opposed to the opinion of those who saw it. In addition, the evidence must give rise to a reasonable and definite inference as opposed to conflicting inferences of equal degree of probability where the choice between them is a matter of opinion or conjecture: Luxton v Vines (1952) 85 CLR 352 at 358.8.

15 None of the witnesses who gave evidence had turned their minds to the incident in question for some years. One of those witnesses, Rory Erwin, who was the trainee in the shop with Mr Yildiz, said he could remember the accident because he heard someone yell and he saw the plaintiff on the ground but when asked if had a recollection of the CCTV video he said “no, not really”. The ambulance officer had no recollection, unsurprisingly.

16 The other witnesses who were cross-examined gave accounts of having watched the video and attempted to describe what they saw. They gave a general description of seeing the plaintiff walking backwards and forwards, conduct Mr Knight said, significantly, was typical for people waiting for pizzas. Mr Yildiz said the plaintiff scuffed the metal strip numerous times but then corrected it to two or so times. Differing descriptions were given of how the plaintiff fell. Mr Knight said quite frankly he could not see what caused the plaintiff to fall. About the only issue that the witnesses were agreed upon was that the metal strip was loose.

17 The defendant’s submissions largely deal with the claim in paragraph 9 of the defendant’s amended defence that the plaintiff’s fall was fraudulently contrived. No submission was made in relation to negligence by the defendant other than to challenge the report of Mr Burns, the expert retained by the plaintiff, on the basis that he used the word “tripped” while the plaintiff’s case was that he “slipped”.

18 In fact the report of Mr Burns if of little assistance to me because it states the obvious, namely that if the plaintiff caught his foot in a metal strip and fell, where that metal strip was loose, then this was the reason for the fall. There is no doubt the metal strip was loose, because this was conceded by the defendant’s witnesses. The use by the plaintiff of the words “slip” or “trip” to Mr Burns needs to be treated with caution because the plaintiff is a man of limited intelligence.

19 Mr Burn’s report contains the photograph that was taken by a friend of the plaintiff. That photograph is of significance. It shows not only the strip out of place but the worn tiles adjacent. The defendant submitted to me that I should draw the Jones v Dunkel (1959) 101 CLR 298 presumption from the failure to make enquiries to locate the photographer and to call him to be cross-examined. However, the circumstances in which a friend of the plaintiff went to the pizza shop several days after the accident for the purpose of taking photographs is not in dispute. Not only was this gentleman filmed on CCTV taking photographs, but he informed the staff that the plaintiff was going to bring proceedings for damages. Unfortunately, this videotape is also missing.

20 By reason of vagueness of recollection and inconsistencies between the evidence of these witnesses, particularly as to the length of time that the film in question took and when and where the videotape was subsequently lost, I am of the view that the evidence is not of sufficient probative weight to establish that the plaintiff’s fall was fraudulently contrived as asserted in paragraph 9 of the amended defence.

21 I permitted the calling of the evidence subject to objection to enable a finding as to its probative weight to be made. Mr Hall QC later withdrew the objection. It was, however, an objection that was well taken. Although the witnesses purport to be describing something they actually saw (i.e. the CCTV footage) there is a real likelihood of their evidence being misleading, because the fact that they claim to have seen CCTV footage confers an aura of veracity on their observations as opposed to the observations of a witness who actually saw the witness fall. I have no way of knowing how accurately the CCTV tape portrayed the plaintiff’s fall, as no evidence was led on this issue. Further, I am not satisfied by the explanations concerning the circumstances in which the CCTV footage of the plaintiff having his accident and the plaintiff’s friend visiting to take photographs was lost, destroyed or both.

22 Accordingly, I am satisfied that the plaintiff has established that by reason of the defendant’s negligence in permitting a metal strip to become loose and to be a hidden risk to persons entering and leaving the defendant’s pizza shop.

23 I now turn to consider the issue of damages.

The plaintiff’s evidence

24 The plaintiff was born in Sydney on 30 May 1975. He had only a fairly rudimentary education, leaving school in 1990 at the end of Year 9. He commenced a course in carpentry and joinery at Randwick TAFE, but had difficulties because of literacy problems and had to abandon his studies. In 1991 he completed a TAFE course and he also attended some literacy courses at Randwick TAFE. After leaving TAFE he was involved in the Work for the Dole Scheme for approximately six months during which time he tended gardens at Sydney Park in Tempe. Apart from this he has never had any employment. In about 1997 the plaintiff’s mother underwent triple bypass surgery and the plaintiff applied to become her carer. He has received a pension as her carer since that time.

25 The plaintiff gave evidence that prior to the accident he enjoyed touch football, cycling, swimming and other sporting activities. His prior medical history is uneventful apart from a fracture of both forearms when he jumped from a tree when he was about ten years old. He was a shy, short, overweight man (Dr Revai notes he is 85 kilograms and 5’ 3” tall) with a marked squint. He told the court he had never worked apart from his brief “work for the dole” stint after a TAFE course, although he had been looking for work in the months before his accident because his mother, for whom he is a carer, seemed to be in better health.

26 It was evident from the plaintiff’s answers to questions when he gave evidence that his intelligence was, as Dr Revai notes in his report of 23 May 2005 (at page 5) at the lower end of that considered normal. He was not an articulate witness and in the witness box showed the same passivity that Dr Revai said he was struck by.

27 In cross-examination, the plaintiff agreed that he was still helping his mother around the house and that he still received a carer’s pension for this (T-61). His claim about his sporting activities and assistance to his mother prior to the accident contains some elements of exaggeration. By comparison, the plaintiff’s mother gave evidence that the plaintiff did “some sport and swimming with the boys” but that in the winter time he mainly watched sport (T-136) but the only other activity she could recall was that he liked to go fishing. She described his activities around the house as being cleaning up, washing up, putting the washing out but not working in the garden because he was “not a garden person” (T-136). In contrast to the plaintiff portraying himself as being in constant pain, she described him as taking Panadol after the accident (T-137-138) and complaining “at least a couple of times a week” (T-137) about his back. She said that as a result he was more cranky and not as active and that his post-accident housework activities consist of occasionally putting a bit of washing out and that he no longer mopped the floor.

28 In cross-examination Mrs Hurcum agreed that her son not only put the washing into the washing machine but sometimes hung the clothes out on the Hills hoist and helped her in her movements around the house including helping her into and out of the bath.

Assessing the credibility of the Plaintiff

29 Assessing the credibility of a witness involves an assessment of two overlapping considerations, reliability and honesty.

30 Attacks on the credibility of a witness can be made on a number of bases:

1. Where a prior inconsistent statement or document shows that a person has told a lie on an issue material to the case. There is a helpful discussion of this in Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510 at 39 ff (under the heading “Admissions by Conduct”). An example in personal injury litigation would be a denial in the witness box of back injury prior to the accident, when medical records show this is not the case, or where there is film showing a plaintiff who can barely hobble into the witness box able to perform activities without difficulty.

2. A statement by a witness which is uncontradicted by other evidence but hard to explain. An example in personal injury litigation would be long delay in seeking medical attention, or failure to seek regular medical advice despite claims of being in severe pain.

3. Evidence which is not directly critical of the witness, but where there are competing versions from either side, either of the facts or of the interpretation of the facts. This commonly occurs in personal injury litigation in accounts of how the injury occurred and in the competing medical reports. The court has to decide which version of the evidence to accept.

4. Evidence that is not directly challenged by other witnesses or independent documentary evidence.

31 The written submissions of the plaintiff and defendant contained requests that I should accept the plaintiff as a witness of credit. A typical example was the statement by senior counsel for the plaintiff that “the plaintiff seeks a finding that the plaintiff was a truthful witness, and a finding that his evidence is to be preferred to the lay evidence given on behalf of the defendant …” and “the evidence of the plaintiff’s mother was not weakened in cross-examination, and should be accepted”. In addition, it was put to me that Dr Neophyton, who gave oral evidence, had given evidence that “was not weakened in cross-examination, and it should be accepted”. The Court of Appeal in a series of decisions commencing with Goodrich Aerospace v Arsic [2006] NSWCA 187 and most recently in the Premier Group v Lippis [2007] NSWCA 36 has stressed that (to quote Mason P in the Premier Group at [25]) findings as to demeanour are not the "be all and end all" and need to be tested against the probabilities and objective material.

32 This is difficult in personal injury cases for several reasons. The first is that a detailed analysis of the objective material is rarely undertaken by the medico-legal reports, and doctors frequently accept without question claims that the plaintiff suffers pain (or alternatively, state without giving proper reasons that the plaintiff ought not to be in pain at all). Rarely is it the case that doctors give the kind of careful analysis of the plaintiff’s prior medical history which enables an objective analysis as to whether the plaintiff has in fact suffered injury and, if so, if that injury is the result of the accident. Fortunately, as will become clear from an examination of the medical evidence, Dr Matheson has undertaken such an exercise.

33 A second problem is that it is not uncommon, as in the present case, for the plaintiff not to be cross-examined upon the objective findings, with the result that the trial judge is left to make up his or her own mind without the benefit of hearing the plaintiff’s explanation for some particular form of conduct. In the present case, it is clear beyond doubt from Dr Youssef’s report that not only did he carry out an MRI which showed that the plaintiff’s results were normal but he shared with this good news with the plaintiff, as his report of 29 January 2004 states. Although the plaintiff was told this information, none of the doctors retained for the plaintiff or defendant were ever given this MRI and although the plaintiff must have known the result from his discussions with Dr Youssef, he never mentioned to any of his own doctors (except Dr Bleasel) that he ever saw Dr Youssef.

34 The difficulty I have is that if these questions had been put to the plaintiff, there could well have been an honest explanation for this. The plaintiff is a man of limited intelligence. He may not have understood what Dr Youssef was telling him, or he may not have accepted it. He may never have had the MRI in his possession and this may explain why although he took all other test results to doctors, he did not take this test result with him.

35 By reason of the failure of the defendant to appreciate the importance of this missing MRI and to ask the plaintiff questions about it, I am really not in any position at all to determine this or other issues that might be relevant to the plaintiff’s injuries. Accordingly, it is my view that I should make up my mind in relation to issues by paying as little regard as possible to demeanour. What little regard I pay to demeanour will err in the plaintiff’s favour, because I do propose to have regard to the fact that he is a person of limited intelligence and I can have regard to his demeanour in the witness box as being a very simple person unlikely to be capable of sustained dishonesty such as hiding MRI results from all the doctors.

36 The central issue for determination concerning quantum is whether to accept conflicting opinions of Dr Neophyton (for the plaintiff) or Dr Matheson (for the defendant) concerning the nature and extent of the plaintiff’s back problems.

37 Prior to considering this issue I should first carefully analyse all of the medical evidence tendered on behalf of the parties.

The medical evidence

38 It is common in personal injury claims for there to be widely differing views of the plaintiff’s condition in the medico-legal reports. One of the reasons for this is that although the contents of these reports comply with the requirements for experts’ reports set out in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, medico-legal doctors prepare their reports without seeing some or all of the treating doctors’ records and investigations and the opposing party’s medico-legal reports. The medico-legal reports for both sides often merely accept (or reject) without analysis whether the plaintiff is honest and reliable in his account of his symptoms and in his presentation in the doctor’s rooms. The trial judge is left to reconcile the doctors’ differing opinions where some or all of the doctors have not been provided with the opposing party’s medico-legal reports or treating doctors’ investigations and where the submissions of the parties essentially are that the plaintiff is or is not a witness of credit.

39 The problem in the present case is that the plaintiff had an MRI scan on 14 January 2004 which was not shown to any of the doctors who provided written reports for either side. His treating specialist, Dr Youssef, wrote to the plaintiff’s treating doctor on 29 January 2004 saying:

“ There was no significant abnormality in the sacroiliac region that would explain his symptoms. In fact, I am pleased with the result and reassured [the plaintiff] that there is no significant musculoskeletal disorder. He is symptomatically much improved and was pleased with the results of the MRI scan.

I have recommended that he continue to mobilise. He does not require any further intervention from a musculoskeletal point of view.”

This letter was not shown to any of the doctors either.

40 What the MRI did discover was that the plaintiff had a left pelvic kidney with dilated calyces and this was the reason for his problems. Dr Youssef arranged a follow up with a renal physician, Dr Eris, and gave no further treatment to the plaintiff. (The results of the ultrasound were essentially normal, according to the report of 2 February 2004).

41 Apart from having a second MRI performed at the request of Dr Dan on 15 June 2005 the plaintiff saw no other treating doctor. He only consulted his general practitioner, Dr Small. No patient cards or medico-legal reports (apart from the brief referral letters to Dr Youssef and Dr Dan) from Dr Small were tendered. According to Dr Matheson, an expert retained by the defendant, the plaintiff saw Dr Dan at the suggestion of a friend (the handwritten referral letter to Dr Dan from Dr Ravi, Dr Small’s partner at the medical centre, is illegible).

42 The plaintiff attended a number of medico-legal appointments but he only took his second MRI with him. I have checked each of the doctors’ reports and none of them refer to the first MRI. Dr Neophyton in his evidence in court listed with care the reports he saw and he did not refer to this MRI, although he was shown it for the purpose of his evidence in court. The 14 January 2004 MRI was served on 17 November 2005 which was well after the plaintiff had seen the defendant’s medico-legal experts. The defendant did not send this document to any of its medico-legal experts for further comment. The report of Dr Youssef of 29 January was, however, included in the defendant’s bundle of medico-legal reports.

43 I shall first consider the treatment and diagnoses from the plaintiff’s treating doctors

Hospital and treating doctors’ reports

44 The plaintiff was taken by ambulance to Sydney Hospital and hospital records show that X-rays taken of his spine. The X-ray of the lumbosacral spine by Dr Roberts on 19 October was normal and he was allowed to go home.

45 On 3 November 2003 the plaintiff appears to have gone to Sydney Hospital again, where he had a CT scan of his lumbar spine. This CT scan report is signed by Dr Bruce Roberts, the same doctor who prepared the 19 October report. He noted that while the L4/5 disc was normal, at L5/S1 “there is broad based disc bulging indenting the thecal sac and entering the lateral recesses bilaterally” and that there was “associated canal stenosis at this level.”

46 The treating doctor the plaintiff also saw that day wrote a referral, addressed to “Dear Dr” (see the first report in the Exhibit A bundle), noting this CT scan showed a disc bulge and the notes at the bottom of his report appear to read: “PD Disc prolapse with L sided sciatica”. Following this the plaintiff saw his general practitioner, Dr Small, who wrote a referral to Dr Youssef inquiring whether the plaintiff had a missed fracture and whether he required further investigation.

47 Dr Youssef referred the plaintiff for a bone scan on 1 December 2003. Dr Youssef in his report of 4 December 2003 noted that the appearances in the bone scan “are those of a fracture” and that he had organised for him to have a CT scan through this area “to confirm the diagnosis”. He also referred him for bone density, 25 hydroxy vitamin D, PTH and thyroid function tests and said he would review him again after the CT scan.

48 Dr Youssef’s report of 12 December 2003 was that although the increased uptake in the left sacroiliac joint and the adjacent sacrum had been considered to be “most consistent with a recent fracture”, the CT was normal. Dr Youssef noted that if the problem was simply a fracture, then the symptoms should settle. He arranged an MRI scan to try to determine the cause of the increased uptake in these areas of the plaintiff’s body, as well as vitamin D levels, thyroid function and testosterone tests. He said he would review him after the MRI but that ‘[a]t the present moment I fee that the prognosis is good.”

49 At about this time the plaintiff had two steroid injections from his general practitioner.

50 The MRI report dated 14 January 2004 from Dr Thompson said there was no evidence to support the presence of an underlying fracture. The report did note:

“There is a small central disc herniation at L5/S1 and there is a little lateral recess narrowing bilaterally, without evidence of nerve root impingement. There is a slight narrowing of the lateral foraminae bilaterally, without evidence of nerve root impingement.”

51 This MRI report is the report not referred to in any of the medico-legal reports and as previously stated it is quite clear that all doctors not only never saw this first MRI but never saw Dr Youssef’s report either. Dr Harvey referred only to the MRI scan of 14 June 2005 and noted that it showed no evidence of any compression of the 1st sacral nerve root. Dr Matheson also only saw the second MRI but still considered there was no encroachment on neural structures, Dr Neophyton’s report of September 7, 2004 lists the documents he was provided with and this MRI is not amongst those documents; his interpretation of the 2005 MRI was, however, very different from that of Dr Matheson. Dr Stenning, Dr Matalani, Dr Mahony, Dr Bleasel and Dr Kendall do not refer to it. It would appear that Dr Dan did not know about this earlier MRI either, because he does not refer to it in either of his reports of 9 June 2005 (when he says the plaintiff should have an MRI) and his report of 11 July 2005 (when he discusses the results).

52 The plaintiff had some physiotherapy at the suggestion of Dr Youssef. According to Dr Harvey (report dated 19 July 2005) he saw a Dr Valkoni at the request of his own solicitors. Dr Valkoni was, however, described as a treating doctor by Dr Stenning in his report of 20 April 2004 (no reference is made to Dr Youssef). Whoever Dr Valkoni is, no report was tendered to the court.

53 In June 2005 he consulted Dr Dan and had the X-ray and MRI scan referred to above but has had no other treatment apart from regular prescription of painkillers.

54 This outline of the plaintiff’s medical evidence identifies a number of problems:

(a) The reports from the plaintiff’s treating specialist, Dr Youssef, only cover the three months after the accident, and he considers the plaintiff to have recovered.

(b) Dr Youssef’s 29 January 2004 report and Dr Thompson’s MRI are not provided to any doctors retained by either the plaintiff or the defendant’s solicitors.

(c) There is no report from the plaintiff’s general practitioner (although he is the only treating doctor to have seen him since, or on a regular basis).

(d) There is no medical evidence (eg notes from the general practitioner or from the physiotherapist) about what other ongoing medical treatment the plaintiff had, including any treatment from Dr Valkoni.

(e) There is no information in the treating reports to explain the difference between the first and second MRI.

The plaintiff’s medico-legal reports

55 The plaintiff was sent to Drs Stenning, Kendall, Legg, Neophyton, Mahony, Bleasel and Matalani for the purpose of medico-legal reports.

Dr Stenning

56 Dr Stenning saw the plaintiff on 2 April 2004. He noted that the X-ray of 19 October 2003 was normal and that the CAT scan on 3 November 2003 indicated L5/S1 bulging with associated canal stenosis but did not have the follow up tests ordered by Dr Youssef or Dr Youssef’s reports. He thought the plaintiff’s specialist was Dr Peter Valkoni. He diagnosed the plaintiff as suffering from chronic soft tissue damage, chronic pain state and a discogenic lesion. He considered the plaintiff needed to see an orthopaedic surgeon on a regular basis but made no other recommendations. His conclusions are based on incomplete information and are of little assistance.

Dr Kendall

57 Dr Kendall saw the plaintiff on 11 August 2004. He noted that the plaintiff showed him the X-rays and the CT scan and said he agreed with what this report said, namely that there was “an L5/S1 impingement”. He noted the reference in the nuclear scan of 1 December 2003 to the possibility of a recent fracture injury but does not record the result of the CT scan that “no fractures are identified.” In fact, he goes on to assert, on page 4, that the nuclear scan evidence shows “evidence of recent fracture” and that “the L5/S1 disc lesion and sacroiliac fracture must have been caused by his fall.”

58 Dr Kendall makes no comment about Dr Youssef’s conclusion in his letter of 12 December 2003 that even if this is a fracture, his symptoms should settle, that an MRI has been ordered and that even with this diagnosis “the prognosis is good”. However, perhaps he was not shown this document. I do not have any way of knowing, since Dr Kendall did not list the documents he was given.

59 Dr Kendall has made an incorrect diagnosis because he was not given all the reports and tests of Dr Youssef. His report is of little assistance. His recommendations for further treatment (physiotherapy, hydrotherapy and exercise) are criticised by Dr Matheson.

Mr C Legg

60 Mr Legg is a psychologist who saw the plaintiff on 17 August 2004. The only medical report he was given was Dr Stenning’s report. He notes that the plaintiff was told by “the specialist” had he “had a slight fracture” (p.2) and that he stopped going to physiotherapy after two sessions because it increased his pain and he found it difficult to get to the appointments. He diagnosed the plaintiff as suffering with Adjustment Disorder with Depressed Mood and recommended 20 counselling sessions and attendance at the pain management clinic.

61 Mr Legg accepted the plaintiff’s claims of pain without analysis. This must substantially undermine the value of his conclusions that the plaintiff’s problems arose from the pain he was suffering as a result of the accident. By comparison, Dr Revai (for the defendant) analysed these matters in detail.

Dr Neophyton

62 Dr Neophyton prepared a report dated 7 September 2004 and gave evidence. He is the doctor principally relied upon by the plaintiff.

63 Dr Neophyton lists the documents he saw as the report of Dr Stenning of 2 April 2004, the X-ray (which was normal) and the CT scan of 3 November 2003. He also refers elsewhere in his report to the bone scan of 1 December with the provisional diagnosis of a fracture and the 11 December CT scan which was normal. He describes the plaintiff’s medical history as being a referral to Dr Valkoni, who he says organised the 3 November 2003 scan.

64 Based on these reports, Dr Neophyton says that the plaintiff’s condition will not improve “until such time as [the plaintiff] has surgery to his back.” He goes on to add:

“Because the problems with his back have only been present for 10 months it is quite likely that Mr Hurcum’s orthopaedic specialist is waiting to see whether or not there is a chance he will make some kind of recovery without having to resort to surgery.”

65 Dr Neophyton went on to say that it was probable the plaintiff would need surgery to his lower back in the form of a laminectomy and a possible spinal fusion, at a cost or about $50,000. He repeats his conclusion that “until such time as Mr Hurcum has surgery he will not make a good recovery” on the last page of his report.

66 Dr Neophyton’s medical opinion is expressed as being based upon the plaintiff’s history, examination and X-ray findings.

67 Although Dr Neophyton in his evidence said that an MRI was better evidence than a CT scan, and that this was why the 2005 MRI was such an important diagnostic tool, he made no reference to any need for one in his report. More importantly, it was clear from his evidence in the witness box, when he listed the documentation he was given to prepare his report, that he never saw the first MRI report or the reports of Dr Youssef before preparing it. He was shown this MRI (but not the reports of Dr Youssef) for the first time on the day he gave evidence.

68 Dr Neophyton said the following when asked if the two MRI and CTs caused him to change his opinion. He had previously seen the CT scans but not the MRIs and said:

“ Well, I won’t change my opinion, only because I do not base an opinion purely on an X-ray report. It does, however, if I take it in connection with his progress over the last two years since I saw him, if there has been improvement. I would be inclined to suggest that the MRI scan has a lot more weight. In fact, I do believe that an MRI scan has more weight than a CT scan in making an opinion. For that reason I must conclude perhaps that I will vary my opinion, but only dependent on the patient’s current symptomatology.”

69 This is the closest Dr Neophyton ever gets to referring to the 14 January 2004 MRI. What he appears to be saying is that while he might be prepared to vary his opinion if the 2004 MRI says what it does, any variation is dependent on the plaintiff’s description of his symptoms. Thus if the patient says he is in pain, the fact that the 2004 MRI says there is no nerve impingement makes no difference.

70 Dr Neophyton was not cross-examined about the first MRI, the significance of which did not appear to have leapt out at the defendant. He was, however, cross-examined about the differences between his opinion and the opinion of Dr Matheson. His answers clearly demonstrate the level of discomfort he felt about this. Dr Neophyton praised Dr Matheson in glowing terms, saying that if he had a patient with a difficult neurosurgical problem he would refer that patient to Dr Matheson. This was not however an answer to the question. As Dr Neophyton conceded, not only did Dr Matheson have the advantage of seeing the patient almost a year after Dr Neophyton had seen him, but he had available to him the second MRI scan of the plaintiff’s lumbar spine on 14 June 2005. Dr Neophyton agreed that this was a better diagnostic tool than the CT scan Dr Neophyton had seen. Dr Neopyhton said that there must have been improvement in the plaintiff’s lumbar spine problem. Dr Neophyton’s evidence does not really deal with the first MRI, which shows that there are no problems.

71 Dr Neophyton was effectively conceding that Dr Matheson was in a better position to assess the plaintiff.

Dr Mahony

72 Dr Mahony saw the plaintiff on 11 November 2004. He was told the plaintiff had not yet had physiotherapy or other active treatment apart from a cortisone injection from Dr Small and prescriptions for Tramal. Again, he thought the plaintiff had also been referred to a doctor named “Dr Peter Valconey”.

73 Dr Mahoney had the X-ray of 19 October, the bone scan of 1 December, the CT scan of the lumbar spine of 3 November 2003 and the CT scan of the sacroiliac joints of 11 December 2003. Helpfully, he has attached these three documents to his report, and it can be seen that he did not receive any of the reports of Dr Youssef.

74 He diagnosed lumbosacral disc lesion and coccydynia and recommended physiotherapy, hydrotherapy and wearing a lumbar support. The cost is $17,000.

Dr Bleasel

75 Dr Bleasel saw the plaintiff on 30 November 2004. Dr Bleasel noted that the plaintiff told him his “main adviser has been Dr Peter Youssef and he plans to go back to see him again because he is not happy with his lack of progress” (p. 2). Dr Bleasel then sets out excerpts from the bone scan of 1 December and the CT scans of 3 November and 11 December 2003. He does not refer to the MRI or to Dr Youssef’s reports and he clearly was not shown these by the plaintiff, although it is clear from Dr Youssef’s report that he showed the MRI result to the plaintiff, whom he described as being happy at the good news.

76 Dr Bleasel concludes that the plaintiff suffered musculoligamentous injury and probable disc damage at the lumbosacral area and a probable strain in the sacroiliac joints, and muscular pain around the left shoulder blade. He notes the plaintiff “is planning to see Dr Youssef and it is likely that further physiotherapy will be tried”, adding “I do not believe that surgery will be recommended.”

Dr Matalani

77 Dr Matalani saw the plaintiff on 4 July 2005. In addition to the two CT scans of 3 November and 11 November 2003, the X-ray taken the day of the accident and the bone scan of 1 December 2003, he was given the MRI scan of 15 June 2005. He and Dr Dan are the only doctors who provide written reports for the plaintiff referring to this second MRI scan. He considered the plaintiff suffered from soft tissue injury and chronic musculoligamentous strain of the back on a background of discogenic lesions and symptoms consistent with nerve root irritation affecting the left leg. He recommended conservative treatment such as physiotherapy, pain counselling and intensive rehabilitation. Should his symptoms persist, a possible course would be a laminectomy which would cost $15,000 - $20,000.

Professor Dan

78 Professor Noel Dan saw the plaintiff in June and July 2005 and ordered the second MRI. He noted the plaintiff had ongoing lower lumbar pain with left partial sciatica and that some of the toes tingle and others were numb. He dragged the left foot and had worsened in the past year. He noted that the test results were normal, although the pinprick test was dull. The lumbar CT was “unremarkable” and the CT showed no abnormality. Because the plaintiff was complaining about worsening he recommended further X-rays and a lumbar MRI.

79 Professor Dan’s report of 11 July 2005 showed a bulge that he considered was not surgically manageable. As I indicate further below, I have accepted the explanation of Dr Matheson for this bulge.

80 Professor Dan must have been unaware that the plaintiff had a prior MRI. He had no prior history of the plaintiff having treatment from Dr Youssef or Dr Youssef’s encouraging reports. When seen in the context of the analysis of Dr Matheson, Professor Dan’s reports cannot take the matter further.

The defendant’s medico-legal experts

Dr Revai

81 Dr Revai is a psychiatrist who examined the plaintiff on 23 May 2005. He described the plaintiff as a thirty year old single man who had hardly ever worked since leaving school. He noted he was illiterate and for the past seven years had been on a carer’s pension looking after his mother, which he had remained on since the accident. He noted the plaintiff’s treatment as being merely to take analgesics and that he had never had physiotherapy. He did obtain a history that the plaintiff’s GP referred him to Dr Youssef, who ordered further X-rays, “but according to Mr Hurcum, did not order any treatment”. On direct questioning Mr Hurcum said he could not afford to have physiotherapy treatment.

82 Dr Revai said that while the plaintiff “led me to believe that since that time Dr Small has prescribed Tramal SR150MG twice a day, which Mr Hurcum still takes” he concluded that the plaintiff “just takes analgesics”.

83 He was not satisfied that the plaintiff suffered from a psychiatric disturbance as a consequence of the fall. He did not consider he required any treatment or that from psychiatric viewpoint he was unfit to carry out any occupation.

Dr Harvey

84 Dr Harvey also ascertained that the plaintiff was seen by Dr Peter Youssef on referral by Dr Small and noted that Dr Youssef saw him on four occasions “but he didn’t institute any further treatment”. He said the plaintiff told him that he “does still try to do as much as he can in the house” including cooking his mother’s meals, putting things in the washing machine, doing some cleaning and mopping and sometimes hanging the washing out. The plaintiff said his brother always did the shopping before his accident because his brother had a car. This history was dictated in front of the plaintiff and verified by him as correct (page 3 of the report of 19 July 2005).

85 Dr Harvey carefully noted all of the plaintiff’s complaints of pain and looked at the X-ray and the second (but not the first) MRI. He diagnosed the plaintiff as having suffered a soft tissue injury to the lower back. He noted that prior to the accident the plaintiff was caring for his invalid mother “and apparently he is still doing much of this work although he says he has difficulty with the heavier tasks”. Dr Harvey considered it would be consistent that he would have difficulty with heavier tasks which involved much bending or heavier lifting. He considered the continuing use of Tramadol which was a potentially habituating medication, to be inappropriate and recommended that he should take simpler analgesics.

86 Dr Harvey also noted that the MRI scan showed no evidence of any compression of the first sacral nerve root and there is other evidence of such compression. The plaintiff had quite a brisk left ankle jerk and normal power in the muscles in the foot and ankle. He commented that there were “some features which would suggest a non-organic component”, a polite way of saying that the plaintiff is exaggerating. Dr Harvey noted that the pain on straight leg raising was not relieved by knee flexion and that “one does not normally expect hip flexion to cause low back pain”. He also noted that the straight leg raising and hip flexion was not consistently restricted, as could be demonstrated by asking the patient to sit up on the couch. In other words, the plaintiff’s symptoms were inconsistent, which is an indication of exaggeration. He also dismissed the question of whether there was any problem in the left sacroiliac joint, noting that this had been “clearly excluded by the normal CT scan”. He considered that the plaintiff had at best a 5% whole person impairment.

Dr Matheson

87 Dr Matheson, like Dr Revai and Dr Harvey, obtained a correct history of the plaintiff’s treatment following the accident. He noted that the plaintiff consulted his GP Dr Small but that no treatment followed apart from a referral to Dr Youssef who organised some tests and put him through two courses of physiotherapy which the plaintiff discontinued because he felt it made him worse. He was not given the first MRI, but he saw the second MRI.

88 Dr Matheson helpfully comments on the reports of the plaintiff’s doctors, and although the comments concerning Dr Neophyton, Dr Mahony and Dr Bleasel are brief, there is an extensive analysis of the report of Dr Matalani. He describes Dr Matalini’s opinion as “a studied opinion”. He notes that Dr Matalani’s diagnosis as a soft tissue injury and muscular ligamentous strain is the same as his own and that his disagreement with Dr Matalani’s report relates to what he calls “outcome” not the medical problem. He notes that even by Dr Matalani’s own reporting the “outcome” (i.e. the opinion as to the plaintiff’s disability) is due to his underlying degenerative condition and not to the strain that he sustained on 19 October 2003.

89 Dr Matheson had the following to say about the plaintiff:

“He has a fairly typical situation of incorporation of L5 into the sacrum and the beginnings of some early degenerative changes in the disc above. This disc takes more work because of the congenital fusion and these people commonly get some disc degeneration above this transitional level. This can be a source of benign back pain. It can not possibly cause any sciatica. The fall he had could have produced some buttock pain at the time but would not have worsened his condition which is congenital and not cause any persisting problems over a long term. Mr Hurcum shows some clear inconsistent features such as his straight leg raising and is obviously exaggerating such disability that he has. Finally, he may have some intermittent disability but it has nothing to do with the incident of the 19th October 2003. This accident produced no additional damage and did not make him any worse. Any effects of the incident of the 19th October 2003 have long since ceased. His current symptoms can not be attributed to that incident. His capacity for work is unchanged as to prior to this event”.

90 Dr Matheson has objectively analysed the plaintiff’s medical history. He has picked up on the fact that Dr Youssef gave up on the fact that Dr Youssef gave no further treatment. Although Dr Matheson did not know about the MRI, he was able to correctly deduce the advice Dr Youssef gave. This is significant.

91 The second significant advantage Dr Matheson has is his ability to assess and comment upon the reports of the plaintiff’s specialists. Unlike Dr Neoplyton, he saw and commented upon the second MRI and I prefer Dr Matheson’s explanation of what this MRI means, not least because his explanation in the only logical way to explain the normal results of the first MRI.

Dr Youssef

92 The defendant served the report of Dr Youssef of 29 January 2004 concerning the first MRI. I have summarised the contents of this document elsewhere in this judgment.

Conclusions concerning the defendant’s medical reports

93 Each of the defendant’s doctors has carefully analysed the plaintiff’s medical history and has noted not only the fact that he consulted Dr Youssef but also they have been able to infer from the treatment history and a careful analysis of the plaintiff’s inconsistent claims of pain that the plaintiff had not suffered injuries requiring treatment.

94 The defendant’s medical reports are to be preferred because by taking a careful history of the plaintiff’s medical treatment and by giving due and proper weight to the test results, as opposed to uncritically accepting complaints by the plaintiff of pain, they are in a better position to provide an objective analysis and to fulfil their role as experts whose first duty is to report accurately on the plaintiff’s medical condition and to do so by way of an independent assessment.

95 I have set out a summary of each of the medical reports tendered by both sides so as to illustrate the problem of reconciling the very different medical reports. Each of the reports tendered by the plaintiff sets out a description of the plaintiff’s complaints of pain without any objective analysis of the plaintiff’s prior medical history. Where there is a gap in the information, or a matter that should have put a doctor preparing a report on notice, or even an MRI scan that appears to show the plaintiff has not suffered any injury, that makes little or no difference because what matters to these doctors is what Dr Neophyton called “the patient’s current symptomatology”. In other words, there is an uncritical acceptance of the plaintiff’s complaints of pain rather than an objective analysis of the patient’s history.

96 A somewhat factually similar situation occurred in The Nominal Defendant v Kostic [2007] NSWCA 14. In order to resolve a dispute between the plaintiff’s and defendant’s medico-legal experts, the judge had to determine a number of factual issues, notably the date on which the plaintiff first experienced lower back pain, the degree and extent, the progress of the pain, when it was first reported to a medical practitioner and what subsequent treatment she had. The trial judge in those proceedings rejected the opinion of the defendant’s expert although the defendant’s expert did identify some objective facts on which the plaintiff’s claims of pain could be identified.

97 While I note the comments of the Court of Appeal concerning the obligation of judges to determine these issues, the same could be said concerning the doctors who provide reports for the purpose of these proceedings. As the above summary of reports shows, Dr Matheson immediately picked up on the unusual circumstances of the plaintiff having only brief treatment from Dr Youssef and thereafter having no further treatment. The plaintiff’s own treating doctors appear to have made only superficial enquiries about what kind of treatment the plaintiff had and to have uncritically accepted the plaintiff’s statements that he was in pain.

98 It is the prime duty of experts in giving opinion evidence to furnish the trier of fact with criteria enabling evaluation of the validity of the experts’ conclusions (at 729). Many of these medical reports suffer from the same defects as the report referred to in Steffen v Ruban [1966] 2 NSWR 622 where Jacobs JA described the report as “a confusion of observation, statement and opinion given with little precision but much lack of consistency”. Heydon JA set out this extract in Makita at 733 before noting the observations of Lawton LJ in R v Turner [1975] QB834 at 840:

“If the expert has been misinformed about the fact or has taken irrelevant facts into consideration or has omitted to consider relevant ones, the opinion is likely to be valueless.”

99 Heydon JA notes the importance which the law attaches to identification of the assumed facts by looking not merely at the expertise of the expert witness but to examine the substance of the opinion. In cases where experts differ, the lay tribunal must apply “logic and common sense” to the best of its ability in deciding which view is to be preferred or which parts of the evidence are to be accepted. Heydon JA notes that the substance of an opinion therefore depends upon “the essential integers underlying it” (at 735). The absence of such evidence deprives the court of an important opportunity of testing the validity of the process by which the opinion was formed.

100 In Makita at 739-740, Heydon JA sets out seven obligations that experts have to the court. The first two of these relate to the need for expert reports to be the independent report of an expert uninfluenced by the exigencies of litigation and that the experts should provide independent assistance to the court by way of an objective unbiased opinion.

101 Fundamentally, expert evidence is no better than the facts on which it is based. If it is based on an uncritical acceptance by the medical expert that the plaintiff is in pain, then the reasoning process which must be exposed as part of the report is simply never gone into. Just as it is unacceptable for a judgment to be based upon an unexplained acceptance of a plaintiff, doctors, including medico-legal experts retained for plaintiffs, ought to consider in an objective and fair fashion, the plaintiff’s history of medical treatment as well as his complaints of pain. Doctors are rarely cross-examined, so if they do not provide some kind of objective analysis of the plaintiff’s medical history, the trial judge is faced with a series of reports which do little more than uncritically accept the plaintiff as suffering from pain.

102 All that was called for in the present case was the kind of analysis that Dr Matheson has done, namely to obtain an accurate account of the plaintiff’s treatment following his injury. The plaintiff clearly knew the result of his MRI from Dr Youssef because Dr Youssef told him about it. The circumstances in which the plaintiff saw Dr Youssef only a few times and thereafter had no further treatment from him was something that put Dr Matheson on notice. It should, with respect, have put the plaintiff’s doctors on notice as well. If they had been treating the plaintiff as a patient, rather than providing a medico-legal report, they would make such an enquiry, because it would be an important tool in diagnosing the plaintiff’s medical problems to know what previous treatment he had received.

103 Accordingly, it is my view that I should accept the opinion of Dr Matheson and the medical experts retained for the defendant rather than the opinion of Dr Neophyton.

104 However, I should also consider the issue of whether in his accounts of pain and suffering the plaintiff is able to persuade me that notwithstanding the opinions expressed by Dr Matheson, which I have indicated that I prefer, he is suffering from pain and restriction of movement of the kind that he gave evidence about. This requires me to determine the credibility of the plaintiff as a witness.

105 I have set out above my reasons for rejecting the claim brought on behalf of the defendant that the plaintiff’s fall was fraudulently contrived. However, in considering an assessment of the damages I should have regard not only to Dr Matheson’s diagnosis but also to the plaintiff’s symptomatology. This is particularly the case in relation to a plaintiff who is very much at the lower end of the normal scale of intelligence and whose coping mechanisms are the subject of psychological and psychiatric assessment.

General Damages

106 As the Statement of Claim was filed on 30 June 2005 the action is subject to the Civil Liability Act 2002.

107 The plaintiff was born on 30 May 1975 and is currently 31 years of age. He will turn 65 in 33 years. His life expectancy on the 2004 life tables is 47.5 years.

108 The plaintiff claims non-economic loss between 30% and 32% ($98,000.00 to $128,000.00).

109 I have accepted the medical evidence of the defendant and I am satisfied that while the plaintiff has some soft tissue injuries and suffered some distress from the fall, particularly by reason of his limited intellectual capacity, his non-economic loss would not be assessed at greater than 15% of the most extreme case. I am satisfied that he recovered and that any ongoing back problems he has are a combination of his congenital condition (which I find was in no way worsened or added to by the fall, for the reasons explained by Dr Matheson), his emotional response to the accident (as recorded by Dr Harvey) and, if he is taking Tramal, by taking inappropriate medication, and I accept Dr Harvey’s comments in this regard. I do not accept that he suffers any psychiatric problems and I prefer the diagnosis of Dr Revai for the reasons stated more fully above.

110 I accordingly assess the plaintiff’s non-economic loss as nil.

Out-of-pocket expenses

111 Past out-of-pocket expenses have been agreed as $2,518.50 as at the date of trial.

112 Future out of pocket expenses of $38,480.00 are claimed by the plaintiff. This is to allow for $50,000.00 for future operative care postponed for ten years ($30,700.00) plus an allowance for ongoing care, specialist review and medication.

113 The submission to me is that the plaintiff, still a young man, may suffer some exacerbation of his injuries and that there is a high probability that ultimately he will require surgery. It is submitted that the risk that he will suffer exacerbation and require surgery is sufficient to justify an award of damages.

114 I am satisfied that the plaintiff has suffered a musculoligamentous injury from which he has recovered. He does not require surgery. He does not in my view require heavy medication for pain either.

115 I am prepared to allow a small buffer because I am of the view that the plaintiff may require some ongoing review by his general practitioner, including some form of counselling or other treatment, particularly if there is a risk that he has become habituated to Tramal. I have no information as to what kind of treatment he is having apart from his own evidence, but if as a result of the fall he has been complaining of pain and has been over-medicated then this is a matter which is connected to the plaintiff’s fall. I have particular regard to the plaintiff’s limited reasoning ability in this regard; if he was prescribed medication which is inappropriate, he would not be in any position to assess this in any independent fashion. Accordingly, I am prepared to allow a small buffer for ongoing visits to Dr Small and any other counselling or assistance he may need in this regard. I propose to allow the sum of $2,000.00.

Gratuitous and paid care

116 No claim is made under this head.

Past and future economic loss

117 The plaintiff continued to receive his pension as a carer for his mother. A claim is made for loss of opportunity to work.

118 A claim is made for $50,000.00 for loss of opportunity to work to the date of the trial and past and economic loss of $128,000.00 is claimed. The average weekly earning of all males in New South Wales as at 19 May 2006 was $996.80 per week (gross). Bearing in mind that the plaintiff has effectively never worked, the plaintiff’s senior counsel has suggested reduced income of $500.00 per week net which is $26,100.00 per annum net. Accordingly the amount claimed represents less than two year’s earning.

119 It is submitted that the plaintiff has effectively lost the opportunity to work because the impact of such an injury on a person of low intellect who is illiterate who would at best be able to perform a labouring type job means that even this kind of simple employment would be denied him. He has lost the chance of obtaining such work: Rufo v Hosking (2004) 61 NSWLR 678.

120 The plaintiff gave evidence that he was looking for work prior to his injury and therefore the loss of a chance in this case was the loss of “a very substantial chance” (State of New South Wales v Burton [2006] NSWCA 12 at [93]).

121 Section 13 Civil Liability Act 2002 provides as follows:

Future economic loss – claimant’s prospects and adjustments

(1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant’s most likely future circumstances but for the injury.

(2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury.

(3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.

122 In Penrith City Council v Parks [2004] NSWCA 201 Giles JA noted that the meaning and effect of Section 13 was “most obscure” (at [2]) but that fundamentally a claim in its entitlement to damages for future economic loss, in concept or loss of earning capacity, involves a comparison between the economic benefit to the claimant from exercising earning capacity before injury to earning capacity after injury. The purpose of Section 13 is to confine claims for future economic loss to those claims which fall within the ambit of Section 13. The correct method to follow when determining an appropriate award for future economic loss was outlined by McClellan A-JA Parks at [51] as being the following:

(a) The court must determine the most likely future circumstances of a claimant but for the injury, which requires the court to assess matters such as the prospects of a claimant gaining or remaining in employment, for what period, and the rate at which he or she may earn during that employment;

(b) The court must make an adjustment to any such award by reference to the percentage possibility that the events might have occurred but for the injury; and

(c) The assumption and the percentage must be stated.

123 I have found that the plaintiff recovered relatively quickly from those injuries he suffered in the accident. I have accepted the views expressed by Dr Matheson concerning the injuries he suffered in the accident. I have accepted the views expressed by Dr Matheson concerning not only the plaintiff’s past but also his future economic loss.

124 The plaintiff’s prior work history is effectively non-existent. While I am prepared to accept he may have given consideration to looking for some work prior to the accident, he failed to find any. Clearly his ability to work is something that would be dependant upon any such work fitting in with his duties caring for his mother. There is no evidence to suggest that this situation would change. In the immediate future he is likely to continue to be his mother’s carer. Consequently, I do not accept that the plaintiff has lost any chance, let alone a very substantial chance, of future employment. Quite apart from the fact that he has recovered from his injuries his intention in the past and in the future for some considerable time will be to continue to care for his mother. Even if the plaintiff’s injuries were more serious, he would have difficulty satisfying me pursuant to Section 13 that he has suffered any compensable future economic loss. However, as I have found that he has in fact completely recovered from his injuries and is fit for work, he has suffered no compensable loss and I accordingly make no award.

Orders

125 Before making orders in relation to the plaintiff’s entitlement, I should first note that a very considerable part of the hearing before me was taken up with cross-examination of the plaintiff’s witnesses concerning the circumstances of the plaintiff’s fall. I note that a prior hearing date was vacated by reason of the calling of this evidence. The defendant’s case on this issue was a very weak one. This may be relevant in relation to any arguments concerning costs.

126 I have awarded nil for non-economic loss and for economic loss. Accordingly, the plaintiff’s sole entitlement is to past and future out-of-pocket expenses which total $2,518.00 (agreed past out-of-pockets) and $2,000.00 (buffer for future out-of-pocket expenses).

127 Accordingly, the orders to be made are:

1. Judgment for the plaintiff for $4,518.00.
2. Defendant pay plaintiff’s costs.
3. Liberty to restore in relation to order 2.
4. Exhibits retained for 28 days.