Huseyin v Qantas Airways Ltd - [2010] NSWSC 372

No judgment structure available for this case.

CITATION: Huseyin v Qantas Airways Ltd & Anor [2010] NSWSC 372
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 12-16 Oct; 4 Nov 2010

JUDGMENT DATE :
30 April 2010

JUDGMENT OF: Fullerton J

DECISION: 1. Judgment in favour of the plaintiff in the amount of $ 2,268,137.86.
2. The second defendant to pay the plaintiff’s costs as assessed or agreed.

CATCHWORDS: TORTS - negligence - liability admitted by defendants - personal injury - plaintiff struck on head by metal roller shutter door - fibromyalgia - causation - damages

LEGISLATION CITED: Civil Liability Act 2002

CATEGORY: Principal judgment

CASES CITED: Amoud v Al Batat [2009] NSWCA 333
Australian Iron and Steel Ltd v Connell (1959) 102 CLR 522
EMI (Australia) Ltd v Bes [1970] 2 NSWR 238
Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190
Fox v Percy [2003] HCA 22; 214 CLR 118
M and EM Hull Pty Ltd v Thompson [2001] NSWCA 359
Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638
Penrith City Council v Parks [2004] NSWCA 201
Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99
Seltsam Pty Ltd v McGuiness; James Hardie & Coy Pty Ltd v McGuiness [2000] NSWCA 29; 49 NSWLR 262
State of New South Wales v Moss [2000] NSWCA 133; 54 NSWLR 536
Tubemakers of Australia Ltd v Fernandez (1976) 10 ALR 303
Zreika v State of New South Wales [2009] NSWCA 99

PARTIES: Huseyin Huseyin (Plaintiff)
Qantas Airways Ltd (First defendant)
Sydney Night Patrol & Inquiry Co Pty Ltd (Second defendant)

FILE NUMBER(S): SC 2008/20160

COUNSEL: M Joseph SC/M Maxwell (Plaintiff)
R Williams QC/B O'Donnell (Defendants)

SOLICITORS: Gerard Malouf & Partners (Plaintiff)
Norton Whyte Lawyers (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

FULLERTON J

30 APRIL 2010

2008/20160 HUSEYIN v QANTAS AIRWAYS & ANOR
JUDGMENT

1 HER HONOUR: By statement of claim dated 5 May 2008 the plaintiff seeks an award of damages to compensate him for an injury he suffered on 10 July 2006 when a metal roller shutter door, located at a security inspection point at Terminal 3 at Sydney Domestic Airport, unravelled and struck him on the head as he was being processed to board a flight to Brisbane for work-related purposes.

2 The first defendant is the owner and occupier of the premises where the plaintiff was injured. The second defendant is responsible for the management and control of those premises.

3 By letter dated 11 June 2009 both defendants admitted liability in negligence for failing to ensure that the roller shutter door was properly secured (or failing to implement any adequate system to secure the shutter door in the overhead housing) leaving issues of causation and quantum for determination in the proceedings. In final submissions it was agreed that such damages as are awarded in the plaintiff’s favour will be ordered against the second defendant only and that the second defendant would also assume liability for the plaintiff’s costs. The plaintiff’s counsel undertook to file a notice of discontinuance against the first defendant. The notice was filed in the Registry on 19 February 2010. The balance of the judgment will refer to “the defendant” in the singular.

The plaintiff’s education and work history prior to July 2006

4 The plaintiff was born on 5 November 1977. At the time of the proceedings he was almost 33. He married in 2003. His only child was born in September 2007.

5 He was educated at Lake Illawarra High School but did not complete his secondary schooling at that school electing to transfer to TAFE in his final year to undertake two years of full-time study in computer technology and network support.

6 His father described him as an active and industrious adolescent who assisted in the family business from a young age. The plaintiff gave evidence that prior to the injury he played squash and tennis regularly. He also enjoyed motorcycle riding. He owned a 1000cc sport motorcycle and a sports car.

7 In March 1988, after completing his TAFE course, the plaintiff commenced employment with Optus as a business development manager before taking up a position in March 1999 as a software sales specialist with Computer Associates, a subsidiary of Tech Pacific Australia Pty Ltd. He was employed by that corporation at the date of the injury. He met his wife soon after he joined the company. She held the position of New Accounts Coordinator. She described him in her evidence as a confident and vibrant person, who was well-liked and easy going. She described their relationship as sound from the outset and that they enjoyed an active social life and an active and regular sex life. They enjoyed riding motorcycles together. They did not live together until they were married in 2003. The plaintiff remained in the employ of Computer Associates on reduced hours following the accident until his redundancy in April 2007.

8 Computer Associates is a corporation that markets a range of computer software products to corporate clients who resell the product to end users. The plaintiff's primary responsibility from the time of his engagement until May 2006 was as a specialist consultant to resellers of the specialist software. His responsibilities changed over the course of his employment from the provision of telephone sales advice to what was described in the evidence as an “outbound role” where he worked on site with resellers of the software providing training and advice to end users. In the months leading up to July 2006, the plaintiff’s role within the company changed in circumstances where, in the view of senior management, he was failing to achieve his sales quota levels and where his work performance generally was regarded as inconsistent. These concerns were formally communicated to the plaintiff in what were described as “warning letters” in March and May 2006 and in a meeting with the National Senior Manager in April 2006.

9 Notwithstanding the issue of the warning letters, in May 2006 the plaintiff was offered a position as salesman for a new product portfolio that had been recently acquired by the company. He confirmed his acceptance of the position in writing on 18 May 2006. The plaintiff described the new position as a “side step” as distinct from a promotion, but a changed role he undertook willingly, regarding it as part of a new direction for the company and a way of securing his employment prospects in the company in the future. In the month prior to his travelling to Brisbane he underwent training for two weeks in the United States to equip him for the new role. His flight to Brisbane was for the sole purpose of participating in a seminar, also as part of his new role within the company.

10 There was no challenge to the evidence of the plaintiff’s work colleagues as to his capacity for hard work and his commitment to achieving high standards of performance and output in a highly competitive industry.

The immediate sequelae of the incident at Sydney Airport on 10 July 2006

11 It was either common ground at the hearing, or not seriously challenged, that when he was struck by the roller shutter door the plaintiff did not fall to the ground (as distinct from collapsing to his knees) or lose consciousness (as distinct from feeling dazed with his vision blacking out for a few seconds). After he was spoken to by security personnel and by Ms Lisa Shanahan, a representative of the first defendant, and after purchasing some Nurofen for a headache, he considered himself well enough to board the flight to Brisbane. However, he gave evidence that during the flight he felt as if his neck and back had seized up to the extent that within hours of his arrival in Brisbane he was unable to participate actively in the seminar or the scheduled work-related activities because of worsening pain.

12 He presented at the Mater Hospital in Brisbane on the morning of 11 July 2006, and again the following day, complaining of vomiting, dizziness, bleeding from the left ear, stiffness and soreness in the neck and back, and tenderness in the mid cervical spine. Investigations of his head and spine by CT scan were performed which revealed no abnormality. There was no obvious explanation for his claim that there was bleeding from his ear and no bruising was detected on his head or forehead. He was prescribed Stemetil for nausea and dizziness and Panadeine Forte for neck pain.

13 On his return to Sydney on 12 July 2006 the plaintiff was treated by his general practitioner, Dr Peter Vo, for stiffness in the neck and lower back. He was prescribed analgesics for pain relief and referred for physiotherapy.

14 He attended on Mr Adam Parsonage, physiotherapist, on 14 and 17 July 2006 before discontinuing the therapy because of what he described in his evidence as rough treatment that seemed to aggravate the pain despite it improving his mobility.

15 He was certified by Dr Vo as unfit for work due to what Dr Vo nominated on the Workcover documentation dated 24 July 2006 as “soft tissue injury to neck, upper and lower back, headaches, dizziness”.

16 The plaintiff took his scheduled four weeks annual leave from 29 July 2006 during which time he visited his family in England and Turkey. Whilst travelling by road and by air he experienced pain in his shoulders and upper back and a tingling effect in his left leg. He felt his condition worsening in the second phase of the holiday which interfered with his ability to socialise and participate in family events.

17 On his return to Australia at the end of August 2006, but before returning to work, he again consulted with Dr Vo because of continuing pain. Dr Vo arranged for him to attend a physiotherapist closer to his work in Artarmon. He attended the physiotherapist but discontinued the therapy when, after the fifth day back at work, the pain in his head, neck and back became intolerable and he was forced to retire to home-based work on reduced hours.

18 From 7 September 2007 until 12 December 2006 the plaintiff was certified by Dr Vo as fit to work from home but on reduced hours. The Workcover documentation completed by Dr Vo each successive fortnight from that date described the injury as a “soft tissue injury to neck, upper and lower back, headaches, dizziness”. The accuracy and reliability of Dr Vo’s diagnosis of a soft tissue injury was an issue of some controversy in the proceedings.

19 From December 2006 until the plaintiff’s redundancy in April 2007 Dr Ahmed, general practitioner, certified the plaintiff as unfit for full-time work due to chronic neck and back disability.

20 As at 11 January 2006 it was proposed that the plaintiff convert his home-based working hours of three hours per day, five days per week to two hours each Monday, Wednesday and Friday at his workplace contingent at that time upon being provided with a work environment that conformed with Occupational Health and Safety standards. This did not eventuate before a meeting was scheduled in early April which resulted in the plaintiff accepting a redundancy. He did however return to work, on reduced hours in a markedly junior role, before consulting with Dr Jim Bertouch, a rheumatologist, in February 2007 and being diagnosed with fibromyalgia. It would appear, however, that the plaintiff’s employer was not genuinely supportive of providing the plaintiff with ongoing employment and that the company structured their dealings with the plaintiff upon his return to work with a view to him accepting a redundancy.

A summary of the medical treatment the plaintiff has received since the date of injury

21 Between the first CT scan performed at the Mater Hospital in Brisbane on 11 July 2006 and an MRI of his cervical spine in November 2007, a comprehensive range of radiological investigations, MRIs and other scans were undertaken on the recommendation of various treating specialists with a view to identifying the cause and/or the source of the plaintiff’s pain and an explanation for his compromised function. None revealed any abnormality. They are itemised as follows:

On 11 July 2006 a cervical spine X-ray was performed at the Mater Hospital. The report indicated no abnormality.

On 12 July 2006 a CT scan of the brain and cervical spine was performed at the Mater Hospital. These were normal.

On 23 July 2006 an X-ray of the lumbosacral spine was performed at Dr Vo’s request. The scan was normal.

On 25 September 2006 a CT scan of the lumbosacral spine was performed at Dr Vo’s request. This scan was also normal.

On 10 October 2006 an MRI scan of the brain and of the entire spine was performed at the request of Dr Ashish Diwan, an orthopaedic surgeon. The MRI scans revealed no abnormalities in either the spinal cord or vertebral column.

On 14 December 2006 a CT scan of the neck, chest, abdomen and pelvis was performed at the request of Associate Professor Peter Youssef, Consultant Rheumatologist. The scans were normal.

22 In September 2006 Dr Vo referred the plaintiff to Dr Diwan, an orthopaedic surgeon, who referred him to Dr David Gorman, a pain specialist within the Department of Orthopaedic Surgery at St George Hospital, and Ms Danielle Clifford, a clinical psychologist. Since that time he has consulted with and been treated by an array of specialists in rheumatology, orthopaedics, neurology and psychiatry. He has also been prescribed a variety of medications of increasing strength and intensity to address his complaint of chronic pain and to enhance his mobility and function. He has also participated in pain management programs under the direction of Dr Gorman and orthopaedic therapy under Dr John Simone without any sustained improvement in his condition.

23 Despite interventions of various kinds and a prescribed course of opiate based medication and other medications, the plaintiff’s report of generalised pain has progressively intensified and his level of physiological and psychological functioning has deteriorated. He now uses a walking stick, walks with a guarded gait and has had occasion to use a wheelchair. He has not worked since his redundancy in April 2007.

The plaintiff’s primary position on causation and damages in summary

24 The plaintiff submitted that the range and extent of his current disabilities, the intensity of generalised pain throughout his body and localised pain in the upper and lower back, and the progressive deterioration in his level of functioning are consistent with a diagnosis of post-traumatic fibromyalgia (sometimes referred to as a chronic pain disorder or generalised chronic pain syndrome). This is a condition which the plaintiff claims is causally related to the trauma he suffered when the roller shutter door struck him on the head. The causal connection is forged, so it was submitted, because trauma is recognised in the medical literature as a possible cause of the condition and because the preponderance of evidence favours that being the cause in this case in circumstances where the symptoms that ultimately crystallised in the diagnosis of fibromyalgia in February 2007 first presented at the time of, or soon after, the plaintiff was struck on the head and that they have continued largely unabated since that time. The plaintiff also emphasised that no alternative, or sufficiently cogent alternative cause was suggested by the evidence and that, in all these circumstances, I would be satisfied that the blow on his head materially contributed to the disabling condition from which he suffers. The soft tissue injury diagnosed by Dr Vo is rejected by the plaintiff.

25 The diagnosis of fibromyalgia was first made after clinical examination and assessment by the plaintiff’s treating rheumatologist, Dr Bertouch, a diagnosis which Dr Bertouch has confirmed in his regular review of the plaintiff since that time. Dr Evan Dryson, a specialist occupational physician, also diagnosed fibromyalgia in October 2007.

26 I interpolate to note that Dr Dryson’s report was commissioned by the plaintiff’s workers compensation insurers in October 2007 for the purposes of proceedings that are pending in the District Court between the insurer and the defendants in these proceedings. Dr Dryson’s report was served by the insurer in the District Court proceedings, but first came to the notice of the plaintiff’s lawyers in this Court when it was produced under a subpoena addressed to the insurer after the hearing commenced. Accordingly, the report was not served by the plaintiff in accordance with r 31 of the Uniform Civil Procedure Rules. It was, however, tendered without objection in the proceedings and arrangements were made to have Dr Dryson attend for cross-examination. Although it is somewhat surprising that the plaintiff’s solicitors were unaware of the existence of Dr Dryson’s report, and unaware that he also diagnosed fibromyalgia, I accept that to be the case. Were it otherwise I am confident it would have been served as part of the plaintiff’s case.

27 While the fact that Dr Dryson’s report was not served is explicable, what is neither explicable nor acceptable is the failure of the parties to schedule a joint conference of the experts in accordance with orders made by the Registrar in May 2009 with a view to the experts preparing a joint report and giving their evidence concurrently in the proceedings. It was obvious from the service of the balance of the experts’ reports that there were contentious issues of causation, and divergent views about diagnosis, in which case every effort should have been made to facilitate that process. In the result both Dr Bertouch and Dr Dryson gave evidence in the proceedings separately and were cross-examined without any of the defendant’s experts having the opportunity to hear them give their evidence or to engage in a meaningful dialogue on the question as to whether fibromyalgia was an available diagnosis. It also deprived the Court of the considerable advantage in having the experts give their evidence concurrently, an approach which is designed to assist in identifying, with precision, those matters about which the experts are ultimately agreed (or about which there is no relevant conflict) as well as isolating the extent of any disagreement between them and the reasons for it. Given the discursive nature of some of the experts’ reports (particularly the defendant’s experts who furnished reports in 2008 and 2009), I am of the firm view that the failure of the parties to comply with the orders of the Court has made resolution of the issues of causation and prognosis in this case unnecessarily burdensome.

28 The plaintiff submitted that under cross-examination neither Dr Bertouch nor Dr Dryson departed from nor qualified their views on the question of the diagnosis of fibromyalgia and its likely cause being trauma associated with the roller shutter door striking the plaintiff on the head. In addition, the plaintiff submitted that the defendant’s experts did not reject the diagnosis of fibromyalgia per se, as distinct from them expressing doubts about the reliability of the diagnosis given the complexities of the plaintiff’s presentation. The plaintiff also emphasised that of the experts relied upon by the defendant only Drs Smith, Chase and Winer examined the plaintiff (while Ms Roberts examined him with Professor Watson), none of whom are specialist rheumatologists. Although the defendant tendered a report from Dr Neil McGill, a specialist rheumatologist, he did not examine the plaintiff before offering the opinion in his report of 29 August 2009 that abnormal illness behaviour was the preferable diagnosis to that of fibromyalgia. His opinion was based on his review of the opinions of various clinicians across a range of specialties and his commentary on their views.

29 Mr Joseph SC submitted that when the evidence of Dr Bertouch and Dr Dryson is considered in light of all the evidence bearing upon the plaintiff’s presentation over the eight months after the incident and before he was diagnosed with fibromyalgia in February 2007, the doubts expressed by the defendant’s experts about the reliability of the diagnosis and its causal connection to the blow to his head should be resolved in the plaintiff’s favour. It was further submitted that the defendant’s experts offer opinions of little weight on the issue of causation in any event, and their various reports raise more issues than they resolve. In the result, so it was submitted, their evidence does not undermine the plaintiff’s case on either causation or prognosis. It was for this reason (so I am informed) that Mr Joseph made the considered decision not to require any of the defendant’s experts to attend for cross-examination, despite being afforded the opportunity by me to adjourn the proceedings to allow that to occur.

30 Mr Williams QC submitted that because none of the defendant’s experts were cross-examined their reports should be accepted without qualification in accordance with what the Court of Appeal has determined in M and EM Hull Pty Ltd v Thompson [2001] NSWCA 359 to be the appropriate approach in such circumstances per Rolfe JA (Sheller AJA and Davies AJA agreeing):

“[20] Because of the way in which the parties, and particularly the appellant, chose to conduct the case, his Honour had before him only the reports of four expert engineers, none of whom was required for cross-examination. This Court has, on a number of occasions, remarked on the difficulties a Court confronts when asked to decide matters involving various types of expertise without the benefit of at least the principal expert witnesses being cross-examined.

Prima facie

ex facie

31 After I have reviewed all of the evidence it will be necessary to consider the consequences that flow from the fact that none of the defendant’s experts were cross-examined since it is only at that time that an assessment can be made of the weight of their unchallenged or untested views on the issue of causation and, in the event that causation is resolved in the plaintiff’s favour, their views as to the plaintiff’s likely prognosis for the purposes of an assessment of damages.

The plaintiff’s alternate case on causation and damages

32 The plaintiff submitted that an axial compression injury, or a lumbar disc injury is an alternate explanation for at least some features of his condition and associated disabilities. The evidence of Dr Simone, orthopaedic physician, and Dr Gorman, both of whom gave evidence in the proceedings, is the primary source of the alternate basis for the plaintiff’s claim for damages related to injuries of that kind. Mr Joseph conceded, however, that if the plaintiff failed to make out the causal link between the traumatic injury to his head and fibromyalgia, but established an entitlement to damages on the alternate basis of a spinal injury by the same mechanism, the plaintiff’s entitlement to what would otherwise be a substantial award of damages on the basis of his permanent incapacity due to fibromyalgia would be very significantly reduced, as would any award of damages for non-economic loss under the regime provided for in the Civil Liability Act 2002.

33 That said, Mr Joseph submitted that the plaintiff had discharged the onus of proving the necessary causal relationship between his injuries and the defendant’s negligence in accordance with the principles of causation embodied in ss 5E and 5D of the Civil Liability Act, whether on the primary basis of the diagnosis of traumatic fibromyalgia or the alternate basis of spinal injury.

The defendant’s position on causation and damages in summary

34 The defendant conceded the plaintiff’s entitlement to damages, but submitted that where the evidence did no more than establish that the plaintiff suffered a soft tissue concussive type injury as a result of the roller shutter door striking his head, he should be awarded only a modest sum in damages and for a closed period not exceeding two months.

35 In so far as the plaintiff’s claim extended beyond that closed period, the defendant submitted that the plaintiff had not discharged the onus of establishing that he suffers from fibromyalgia (or any other chronic pain disorder that is trauma based) as an explanation for what the defendant accepted is the plaintiff’s subjective experience of chronic pain and his associated functional disabilities.

36 After taking into account what was submitted to be a degree of hysteria and exaggeration in the way in which the plaintiff gave his evidence, coupled with the views of some of the defendant’s experts that the plaintiff’s presentation to them was indicative of abnormal illness behaviour and exaggeration, and after taking into account the divergent anatomical sites where the plaintiff complains of pain and the varying degrees of functional compromise reported upon by his treating doctors, the defendant submitted that the plaintiff’s current disabilities are equally as likely to be explained either by a disabling condition of an unknown or uncertain aetiology, or a condition of psychosomatic origin causally unrelated to the single blow to his head when he was struck by the roller door.

37 Even if fibromyalgia were an available diagnosis in 2007 (which is disputed), the defendant submitted that because it was made for the first time eight months after the plaintiff suffered the blow to his head the probabilities do not favour trauma being the cause. While trauma is recognised in the medical literature as a possible cause of fibromyalgia it is simply one of a number of possible explanations identified by clinicians and academics in an attempt to understand the aetiology of a condition that is otherwise without any definitive cause.

38 In so far as the alternate diagnosis of spinal injury is concerned (whether that is to be understood as an axial compression injury or cervical/lumbar disc injury - the two options suggested respectively by Drs Gorman and Simone), the defendant submitted that where comprehensive radiological and neurological investigations have produced no evidence of any physical damage to the plaintiff’s spine or spinal processes, I would not be satisfied that an injury of either kind is attributable to the blow to his head, or that his disabilities are capable of being explained on that basis.

39 The defendant further submitted that even were I satisfied that the plaintiff suffered a compressive injury to his spine or a lumbar disc injury, since the injury has not been confirmed by imaging or radiology, I would not be satisfied that it was either prolonged or disabling and, for that reason, the plaintiff would not be entitled to damages beyond a closed period of two months in any event. It was also submitted that since the injury was neither prolonged nor disabling he has failed to meet the threshold of 15 per cent of a worst case entitling him to any award of damages for non-economic loss as provided for in s 16(1) of the Civil Liability Act.

40 In the event that the plaintiff established the necessary causal link between the blow to his head and his current and continuing disabilities beyond a closed period of two months, the defendant submitted that any award of damages for future economic loss must be heavily discounted by the fact that the plaintiff’s current condition is not only productive of varying levels of disability, but also by the very real prospect that within a reasonable period of time the condition will resolve sufficiently to enable him to return to full-time work with an undiminished earning capacity. It is submitted that for this reason his claim for future economic loss and damages associated with his future medical and pharmaceutical expenses should also be heavily discounted.

What is fibromyalgia and what are its characteristic features?

41 In seminal research first published in 1990 after extensive clinical and controlled trials in the latter part of the previous decade, the American College of Rheumatology proposed a classification criteria for what was at that time understood as a “fibromyalgic condition” - a condition characterised by a complaint of persistent widespread pain and abnormal tenderness over much of the body for which there is no physiological or neurological explanation. For clinical purposes, the classification criteria was specified at that time (and has been consistently specified ever since) as chronic widespread pain in combination with a report of pain under digital palpation, associated with the application of at least four kilograms of pressure at eleven or more of eighteen specific locations concentrated in the thoracic, lumbar and cervical areas. These specific locations were given the designation “tender points” or “trigger points”.

42 Professor Frederick Wolfe is recognised as one of the leading researchers into fibromyalgia, a condition which is currently recognised as a disease by the International Classification of Diseases, ICD-10. It was suggested to Dr Bertouch in cross-examination that in an article published in the Journal of Rheumatology in 2003, Professor Wolfe recanted any reliance on the classification criteria proposed by the American College of Rheumatology for clinical or diagnostic purposes. After my own review of that article, and taking into account the consideration given to it by Dr Bertouch at Mr Williams’ invitation during a break in cross-examination, I am satisfied that although Professor Wolfe expressed concern at the way in which the classification criteria has been, or might be misused by pharmaceutical companies or by litigants, he regarded the utility of the classification criteria for diagnostic purposes in a clinical setting as sound.

43 According to Professor Geoffrey Littlejohn, Director of Rheumatology at Monash University Melbourne, acknowledged as the leading Australian researcher into fibromyalgia and its causes by Dr Bertouch and Dr Dryson, the key to diagnosing fibromyalgia is the consideration given to the overall clinical picture of the patient. In a peer-reviewed article in November 2006 in the publication Medicine Today Professor Littlejohn expressed the view that the clinical criteria for diagnostic purposes should focus not only on the classification criteria propounded by Professor Wolfe (a criteria which is directed at locating and identifying the severity of the musculoskeletal pain) and the fact that the condition is usually associated with sleep disturbance, fatigue, stiffness and high levels of emotional distress, but also whether the patient presents with one or more other dysfunctional somatic syndromes, including irritable bowel syndrome, a chronic headache syndrome, restless legs syndrome, poor concentration and memory disorder. He also emphasised that there is a wide spectrum of what he describes as “illness severity” in fibromyalgia. In the same article he expressed the view that:

“…Many people with the condition have mild disease (mild pain and minor impact on key life issues) and management is relatively easy - indeed, many self-manage key fibromyalgia problems and do not consult health practitioners. At the other end of the spectrum are those patients with severe symptoms and disabilities. These patients often need a multidisciplinary approach to treatment, and many are enmeshed in societal safety net deliberations such as compensation, litigation and disability determinations, which can make management very difficult.”

44 Professor Littlejohn also noted that since the research into the condition by Professor Wolfe in the 1980’s, more than 2000 publications have evaluated different facets of fibromyalgia in a committed effort to seek a better understanding of the causes of the condition and optimum ways of managing it. He also noted that research into the condition and its causes has progressed over the last two decades and is continuing. He described fibromyalgia as an “ubiquitous condition” affecting 500,000 people in Australia alone.

45 Dr Bertouch agreed that the tender points (or trigger points) do not follow any particular neurological pattern or dermatone, and that restricted movement or compromised function forms no part of the diagnostic criteria for the condition. Dr Bertouch emphasised, however, that patients with fibromyalgia are usually tender in many areas of the body, in addition to the specific trigger points utilised for diagnostic purposes. He emphasised that the classification of the trigger points or tender points in diagnosing fibromyalgia does not preclude the fact that a patient may present with generalised tenderness. He said in that regard:

"…that's not out of the equation, that is, in fact, what we would expect that there would be…”

46 He went on to say that while restriction in a patient’s range of movement was not a usual presenting symptom of fibromyalgia:

“…Most patients with fibromyalgia have restriction of movement and typically it's in the neck and shoulder area…because they have such profound muscle spasm that they are unable to relax their muscles to actually move their joints through a normal range of motion.”

47 In Dr Dryson’s view the high level of restriction that the plaintiff presented with in October 2007 may or may not be typical of the presentation of a person with fibromyalgia. He explained what he meant by expressing that view in the following way:

“A. It is due to the reluctance on the part of the person to move because of pain. It is not due to muscle damage itself or damage to the vertebrae which would restrict the movement and these restricted movements will vary from day to day, from week to week, between one doctor and the next doctor or even with the same doctor who examines on subsequent occasions.

Q. Can I put this to you, what in the first place restriction might occur, that is very profound limitation of movement might occur because the patient is protecting themselves in fear of hurting themselves. That can be one reason?
A. That could be one reason.

Q. Another reason can be, I suggest, and it's common in clinical practice that the patient, particularly with a diagnosis such as this, is trying to emphasise to the doctor that they're in pain, there's a degree of gesturing to reinforce the fact that they've got the pain and want you to know it?
A. That's possible.

Q. You accept that the criteria does not require the presentation of severe limitation of movement or the like?
A. I accept that.

Q. And it's not absent those matters we've discussed, it's not the norm in fibromyalgia people?
A. Again that's a qualified answer.

48 After reviewing reports furnished to him by the defendant, including the reports of Dr Bertouch, Dr McGill noted in his first report of 4 August 2009 that a diagnosis of fibromyalgia had been made. He went on to express the view that the plaintiff's behaviour, as recorded by a number of specialists, was not in keeping with what he described as “the usual pattern of behaviour and reporting in people with this syndrome”. He provided no explanation or elaboration on what comprised the usual pattern of behaviour of sufferers or how the plaintiff's presentation was at variance with it.

49 In a subsequent report, doubtless sought because of the deficiencies in his first report, Dr McGill explained that he relied upon information in Dr Bertouch’s report of 5 February 2008 of the plaintiff’s restricted range of motion in the cervical, thoracic and lumbar spine and information in Dr Gorman’s report of 28 May 2008 that the plaintiff was walking stiffly using a walking stick. Dr McGill was of the opinion that this behaviour was not usual for someone with fibromyalgia. He also noted Dr Robin Chase’s observations in August 2008, that the plaintiff resolutely refused to move any part of his spine and the range of movement in his neck and back was zero. In Dr McGill’s view, although people with fibromyalgia report widespread pain their observed function is normal, or near to normal, and that save for the fact that they may move slowly to express to the treating doctor that they have symptoms which should be dealt with sympathetically, they have a full, or nearly full range of movement. It is clear from Dr McGill’s reports that it is this aspect of the plaintiff's presentation that he relied upon in expressing the view that the label of abnormal illness behaviour is more appropriate than what he described as “the label for fibromyalgia”, behaviour which, in his view, also increased the likelihood that conscious exaggeration, embellishment and malingering is a contributing factor in the plaintiff’s presentation.

50 The conflict between the experts on the question whether restriction in function is a presenting feature of fibromyalgia exemplifies the advantage of having experts within an established discipline give their evidence concurrently. In this case resolving the conflict between the experts on this question is further complicated by the fact that Dr McGill was not required for cross-examination and, accordingly, I have not had the opportunity to consider whether his opinion might have been qualified after he considered the evidence of Dr Bertouch and Dr Dryson on the issue. Despite what is contended for as the approach I should take in those circumstances in accordance with the principle in Hull v Thompson, I am unable to afford Dr McGill's opinion the weight contended for by the defendant in circumstances where I have heard evidence from Dr Bertouch and Dr Dryson and where both doctors have an extensive clinical exposure to patients who suffer from the condition. Dr McGill does not claim to draw support for his opinion from his own clinical experience (the extent of which is not disclosed in the tendered reports in any event). In fact he does not claim to have had any clinical exposure to the condition or to have had personal experience in its diagnosis. As I noted earlier, he did not see the plaintiff and, as he makes clear in his report, his opinion was provided on the basis of the information contained within the materials furnished to him for comment by the defendant.

51 The plaintiff attended on Dr Conrad Winer, a consultant physician in Rehabilitation Medicine and Musculoskeletal Medicine, at the request of the defendant on 4 June 2009. Dr Winer was also invited to consider a large number of reports, some of which had been served in these proceedings by that date, including, in particular, the reports of Dr Bertouch. Dr Dryson’s report was not provided.

52 Dr Winer conducted an extensive examination and also reported, inter alia, extreme restriction of function. He described it in the following terms:

“Most unusual presentation of a rigidly upright tall young man, with a walking stick, who does not turn his head, and therefore in order to look at anything or anyone he turns his whole body with his head held stiffly, and who walks with midget steps (similar to a Japanese Geisha, but more slowly).

He is unable to toe-walk or heel-walk. He explained that he would lose balance and fall backwards or forwards (respectively) if he tried. As an alternative, I asked him to stand on the one spot whilst raising both heels at the same time; he was cautiously able to do this but lifted his heels no more than 1½cm (the normal would be about 10cm). He was unable to squat. In attempting to do so he flexed his knees to no more than 15 degrees, even though he was holding onto furniture for support. He explained that he could go no further down because of back pain, yet at this moment his body remained vertically upright.”

53 He went on to report that:

^th

54 He reported similar restriction in the hips, knees, neck and shoulders. In respect of the plaintiff’s examination overall he commented as follows:

“It is difficult to explain his extreme disability in the absence of objective abnormal neurological signs on examination of the central and peripheral nervous systems, and in the absence of any injury or structural pathology demonstrated on X-rays and scans of the cervical and thoracic spine.

55 He noted Dr Bertouch’s diagnosis of fibromyalgia, and commented upon the condition in uncontroversial terms noting that it is a differential diagnosis made by exclusion. He did not, however, express disagreement with the diagnosis per se despite his examination of the plaintiff and his findings of gross restriction. I note that he also found the plaintiff to be experiencing widespread tenderness and hypersensitivity that prevented the isolation of trigger points. That said, he did not suggest that his findings on examination on that occasion contradicted the diagnosis Dr Bertouch had reached sixteen months earlier, a diagnosis confirmed by Dr Bertouch on review at regular intervals thereafter. He simply recommended the defendant’s solicitor to what he described as “the balanced and readable summary (of fibromyalgia) published online in Wikipedia”.

56 In the result, Dr Winer diagnosed a chronic pain syndrome with altered pain mechanisms and tolerance associated with a dependence on opioid based narcotic drugs coupled with what he described as a strong psychosomatic base. He regarded the severity of the plaintiff’s symptoms as closely linked with psychological factors, as distinct from any primary physical pathology. He also expressed agreement with the need to include malingering as part of the differential diagnosis.

57 I will return to consider the weight of that opinion when considering the question of causation in greater detail. Suffice to note at this point that Dr Winer's report does not assist in resolving the question whether restriction in function is a presenting feature of fibromyalgia or not.

58 None of the other experts’ reports relied upon by the defendant were directed to the issue. In those circumstances, having expressed my views about the preponderant weight of the evidence of Dr Bertouch and Dr Dryson on the question, I do not regard the plaintiff's restriction of function as having any bearing upon whether fibromyalgia is an available diagnosis in this case.

59 It is appropriate at this time that I deal with the defendant’s submission that there are two further features, or suggested features, of fibromyalgia which undermine the diagnosis in this case.

60 The first concerned the question whether it is usual for the symptoms of fibromyalgia to fluctuate in intensity over time, the second whether it was usual for symptoms of fibromyalgia to be exacerbated by stress, the second a question which is quite separate from whether stress is an independent cause of the condition. In Dr Bertouch’s opinion neither of these features operated to undermine the availability of the diagnosis. He was asked the following questions by me at the conclusion of cross-examination by Mr Williams:

“Q. Doctor, you said it is typical of the condition that it waxes and wanes over time, and it's not unusual for stress to be an exacerbater; that is, an explanation for an increase in the presentation of symptoms in the context of symptoms perhaps appearing to resolve. That much is agreed?
A. Yes.

Q. Would it be in your view typical or atypical for a person to present with symptoms of pain in the spinal upper back area within weeks of suffering the trauma but to complain of the pain being mild to moderate, and then over the progression of weeks and months after that initial period of, say, eight weeks or so, for the condition to become very significantly worse? So rather than a waxing and waning, a waning and waxing?
A. Yes.

Q. Is that typical or atypical?
A. It's something which we observe in patients with this condition but perhaps, as has been pointed out by Mr Williams, there are other factors which might exacerbate that. I mean, he referred to the situation when Mr Huseyin attempted to return to the workplace, which I was not aware of, where there appeared to be a lot of conflict and so on.

Q. …Extracting that from the hypothetical scenario for the moment and simply focusing on a physically traumatic incident, where there is an immediate presentation of pain that sustains complaint over a period of weeks but where the pain is described by the person experiencing it as mild to moderate, and located in what I understand to be the tender or trigger regions of the upper back, shoulders and neck, and thereafter, for no particular reason, for the condition to become very, very significantly worse. Is that typical, atypical or is this condition such that there is really no typical course that a patient suffering the condition presents with over weeks to months and then subsequently to years?
A. It's a very good question, and in the sense of saying, "Well, something is typical of fibromyalgia," it's extremely hard to really define what's typical of fibromyalgia. So we would see this scenario where a patient starts off with relatively minor symptoms that may escalate. In fact it's not quite the same as, say, for example, you have an accident like this and you have a fractured leg or something where pain is obviously much worse at the beginning and then tails off. So it's a very different situation from that. So I think the fluctuation part of it, we've already agreed, is part of the syndrome. He is a lot worse than he was at the beginning - there's no doubt about that - over the period of time that's elapsed. I couldn't say that was typical of fibromyalgia. I couldn't say it was outside my observations for people who have fibromyalgia and which there is no litigation involved.

61 While the defendant's experts considered that the variation in the plaintiff's presentation of symptoms over time was relevant to the question of causation generally, they did not regard it as significant for diagnostic purposes. The extent to which it is relevant to causation remains to be considered in the context of all the evidence in the case. Similarly, the extent to which stress is available to be considered as an independent cause of the plaintiff’s condition (that is, a cause unrelated to the trauma he sustained when he was struck on the head) will also be considered in the same context.

62 The defendant also advanced the submission that cognitive dysfunction (in particular impaired concentration and/or memory deficit) is one area of objective testing associated with the diagnosis of fibromyalgia. The defendant emphasised that despite the plaintiff’s complaint of memory loss and impaired concentration in his presentation to various clinicians, the deficit has not been clinically validated.

The competing causes of fibromyalgia

63 Dr Bertouch confirmed under cross-examination that the precise cause of fibromyalgia is unknown and for that reason it calls for a differential diagnosis. Dr Dryson agreed that the diagnosis calls for a differential approach but emphasised that was simply an approach consistent with standard diagnostic practice. He rejected the suggestion that fibromyalgia was a “waste paper diagnosis”.

64 Both doctors agreed that various hypotheses have been advanced in the medical literature as to what might trigger the condition including, inter alia, trauma, medical illness, infection, a deficit in growth hormones and other biochemical deficiencies. They also agreed that stress and an individual’s reaction to it (entirely independent of trauma) is gaining ground and credibility as a potential cause of the condition, and that the work currently being undertaken by Professor Littlejohn into the condition, and the explanations for it, is directed to identifying potential stressors. Dr Bertouch accepted that exaggeration is often considered as a potential explanation for the presentation of a person with persistent widespread pain but qualified his answer by adding:

“(Exaggeration) is always mentioned when, as I said before, there is no clinical biological marker for the condition then the fall back condition is always the patient must be feigning … as I said, these patients (those suffering from fibromyalgia) are very consistent in relationship to where the trigger points are, the involuntary muscle spasm we have referred to already. The long list of information in the papers you have given me from all these different practitioners who produced this criteria for this diagnosis are very consistent. The patients are very consistent. They don't collude with each other…”.

65 Whatever the probabilities of a particular event or set of circumstances triggering the onset of the condition in any given case, Dr Bertouch expressed the view that the research was suggestive of the condition reflecting a process whereby a person’s pain receptors are reset at a level where they respond adversely to a stimulus that would not be productive of any adverse effect in others subjected to the same stimulus or, to put it another way, that the threshold at which the pain receptors “fire off” in a sufferer is lower than it would be for others in the general population. He went on to explain that the lowering of the pain threshold appears to relate to the fact that the trigger points in a sufferer are often demonstrated on clinical examination to be associated with profound muscle spasm. He said:

“What seems to happen in fibromyalgia is this hyperactivity or hyperactivity of nerve endings generally. If those nerves are the nerves which go to muscle groups then the muscles will contract so when you examine a patient under those circumstances, it is very clear that they have very tight muscles that are knotty, that are contracted, that are standing up from the surface if you like. This is not a voluntary thing. This is an involuntary reaction.”

66 Dr Bertouch’s evidence is consistent with the detailed discussion of what Professor Littlejohn described in Medicine Today as the “neurobiology of fibromyalgia” which, in summary, involves an amplification of the functioning of the pain system leading to whole body sensitivity to pain or an abnormal central processing of pain.

67 Dr Dryson was of the opinion that fibromyalgia is a disease of the central nervous system in the way pain is registered. He accepted that although there was no neurological evidence to support his view he considered that chemical changes in the way the nervous system processes or registers pain result in a sufficient departure from normal brain function to justify fibromyalgia being classified as a disease.

A principled approach to resolving the question of causation in this case

68 In Seltsam Pty Ltd v McGuiness; James Hardie & Coy Pty Ltd v McGuiness [2000] NSWCA 29; 49 NSWLR 262 Spigelman CJ observed that causation, as with any other fact in dispute, is open to be established by a process of reasoning by inference from the united force of primary facts, including expert opinion, even when the expert evidence does not rise above the causal connection contended for being expressed in terms of possibilities. In his Honour’s view the authoritative approach in those circumstances is as stated by Glass JA in Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197:

Nicolia v Commissioner for Railways (NSW)

EMI (Australia) Ltd v Bes

69 In the same case the Chief Justice accepted that it is sometimes difficult to distinguish between permissible inference at one end of a continuum and conjecture on the other since there is no bright line that divides the reasoning process involved. Nevertheless, the distinction between the two exists. In reasoning by inference, as the Chief Justice observed, evidence of possibility (in this case that fibromyalgia might be caused by trauma) should be regarded as circumstantial evidence which, alone or in combination with other evidence, may establish causation for legal purposes. In this case the issue is whether the evidence persuades me by a process of reasoning by inference that the defendant’s admitted negligence probably caused or materially contributed to the disabling chronic pain condition from which he suffers, however it is described.

70 As the defendant correctly submitted, this case calls for the application of the principles of fact finding enunciated in Fox v Percy [2003] HCA 22; 214 CLR 118 requiring me to reason to a conclusion on the question of causation by reference to contemporary materials and the objectively established facts. The defendant also submitted, and I accept, that the first eight months after the incident at Sydney airport on 10 July 2006 call for critical attention given that fibromyalgia was not diagnosed until February 2007, and that there was some variation in the plaintiff’s presentation prior to that date at a time when he was subject to other environmental stressors which may have independently contributed to the onset of a chronic pain syndrome.

71 The evidence bearing upon the plaintiff’s condition and presentation in that eight month time frame emerged from a number of sources. The plaintiff gave evidence as did members of his family. The plaintiff also relied upon extracts from his journal which he maintained for a period of weeks in October 2006. The journal was admitted over objection (Huseyin v Qantas Airways Limited and Anor, Supreme Court of New South Wales, Fullerton J, 30 October 2009). He also relied upon what Mr Joseph submitted was a consistent clinical picture of emerging symptoms of fibromyalgia, albeit not diagnosed as such, in the reports of various treating specialists and other clinicians he attended upon within weeks of the incident and for successive months thereafter.

72 An evaluation of the united force of this evidence has a significant bearing on the issue of causation, consistent with the Chief Justice’s observation in Seltsam, that causation, like any other fact, can be established by a process of inference from primary facts.

73 Mr Williams cross-examined the plaintiff to suggest that he had deliberately exaggerated the effect of the injury to his head and the range and extent of his disabilities, and that he deliberately understated the extent of improvement in his condition from time to time to advance his case. There was, however, no challenge to the evidence of the plaintiff’s wife or his father’s description of his condition, initially on his return from Brisbane on 12 July 2006, then whilst overseas during the month of August 2006, and thereafter in the months leading up to February 2007 when he was first diagnosed with fibromyalgia.

74 I will return to consider the principles to be applied in resolving the issue of causation where there is no definitive cause of the disabling condition from which it is said the plaintiff suffers and only a gathering understanding of the complexities associated with its onset, and where a temporal connection between the onset of symptoms in an otherwise fit and healthy young man and the blow to his head is relied upon to support the reasonable inference that the condition he suffers from was caused by that mechanism.

The evidence from members of the plaintiff’s family

75 The plaintiff’s wife picked him up from the airport on 12 July 2006 because she knew he had been injured and was ill. He complained to her of a very bad headache and nausea associated with vomiting. He also complained of a stiff neck and back. She gave evidence that the vomiting continued on at least a weekly basis over the first six months and was much worse when he was in extreme pain. She also gave evidence that during this time he complained of a constant headache and constant back pain. Under cross-examination she rejected the suggestion that there was any improvement in his condition before leaving for overseas, or that the plaintiff told her that he was feeling better, or that at a consultation with Dr Vo the day before leaving he said he was feeling better. The plaintiff’s father said when he saw his son two days after his return from Brisbane he was “white like a ghost”, and that he did not want anyone to touch him as he was in constant pain and being touched made his body feel like it was burning. As the plaintiff’s wife had work commitments, the plaintiff’s mother stayed for a week to look after him (and then for some weeks thereafter).

76 During the flight to London via Singapore in August 2006 the plaintiff complained to his wife of being in pain alternating his position between standing, sitting and trying to lie down to relieve the pain. She said that during a stopover in Singapore he had a massage and lay on the airport lounges or on the floor in the terminal. By the time they arrived in Turkey she said he did not leave the hotel very often preferring to stay in bed, lying down on couches or beds in the homes of the family members they visited and that when he walked he do so very slowly.

77 The plaintiff’s father said his son told him that when he was overseas he was in constant pain, and felt dizzy and drowsy and that he was vomiting. The plaintiff’s father said that two months or thereabouts after the injury he visited his son (as he did every second week because his son could not make the drive to Mt Annan to visit the family as he did before he was injured) and that he accompanied him on a walk because he had been advised by his doctors to keep mobile. The plaintiff’s father said he was moving very slowly and complaining of pain. The plaintiff’s father said in cross-examination that he saw no improvement in the plaintiff’s condition during the first six months after the incident and no particular deterioration in his condition when he told his father of his erectile dysfunction in September 2006. The plaintiff’s wife gave evidence that he was progressively worse at that time with the pain, which started in his neck and back, and moved to his arms and his legs.

78 The plaintiff’s wife confirmed that he was unable to cope with work after their return from overseas because of what he described to her as extreme pain which interfered with his ability to concentrate. She also said that he was having difficulty with the drive from their home in Eastlakes to Artarmon and that from the latter part of 2006 he ceased driving altogether. She also said that where prior to July 2006 the plaintiff participated in the maintenance of the domestic setting, after the accident he was unable to share the domestic workload because of his condition and even less so with the progressive deterioration his condition.

The medical evidence bearing upon the plaintiff’s condition in the first eight months after the incident at the airport

79 The defendant placed considerable reliance upon Dr Vo's clinical notes to contradict the plaintiff’s claim that his symptoms did not abate after the blow to his head and that his pain has progressively worsened. Mr Williams accepted that the clinical records of a general practitioner should be approached with some degree of caution, but submitted that there was an established judicial practice of attaching a degree of reliance and importance to a general practitioner’s clinical notes, absent some specific reason for not doing so. For my own part, I do not propose to attach any presumptive weight to Dr Vo’s clinical notes or to the plaintiff’s self-report to various treating specialists during this period, any more than I propose to attach presumptive weight to the plaintiff’s journal. In this case, the weight of the evidence bearing on the issue of causation can only be determined in light of all the evidence concerning the plaintiff’s condition at this time.

80 Both parties tendered comprehensive documentary evidence from medical experts across a number of disciplines ranging from rheumatology, orthopaedics, neurology and psychiatry, each of whom endeavoured over the course of the months that followed the incident at Sydney airport to reach a settled diagnosis or explanation for the plaintiff’s chronic pain. Where the plaintiff relied upon the evidence of Dr Bertouch and Dr Dryson, both of whom diagnosed fibromyalgia, the defendant relied upon the report of Associate Professor Youssef, also a specialist rheumatologist, who did not arrive at a diagnosis at all. Both parties relied upon Dr Raymond Schwartz, a neurologist, who diagnosed a post-traumatic syndrome with somatisation. Ms Clifford, a clinical psychologist, did not find any evidence of a psychiatric disorder. The defendant also relied upon Dr Ronald Joffe, a neurologist, who diagnosed a soft tissue injury, a diagnosis consistent with Dr Vo’s diagnosis and the treatment he provided to the plaintiff. The plaintiff relied upon Dr Gorman who diagnosed an axial compression injury to the spine as the basis for his alternate case on damages.

81 Some of these specialists also addressed the plaintiff’s likely prognosis and proposals for the treatment and management of his condition in the future. Obviously enough, this is an issue which only arises for consideration if causation beyond the closed period of two months is resolved in the plaintiff’s favour. For that reason, it is necessary to refer to the expert evidence in two parts. At this stage, I confine my attention to the medical evidence bearing upon the question of causation, with particular focus on the eight months prior to the diagnosis of fibromyalgia in February 2007 and for a period of months thereafter so as to include reference to Dr Dryson’s report. I have summarised that evidence, inclusive of Dr Vo’s clinical notes and, where relevant, references to the plaintiff’s journal and his evidence in the proceedings in a chronological format as the most practical way of dealing with the competing submissions of the parties. It is also the most practical way of revealing consistencies and exposing discrepancies in the plaintiff’s presentation to various clinicians ultimately with a view to resolving whether the plaintiff has discharged the onus of establishing the necessary causal connection between the blow to his head and the diagnosis of fibromyalgia for which he contends.

A chronology of relevant events and the evidence concerning those events between 12 July 2006 and 6 February 2007

82 I have already noted at [12] the plaintiff’s presentation to the Mater Hospital in Brisbane on 11 July 2006, and his complaint of soreness in the back and neck and tenderness in the mid cervical spine which revealed no abnormality after a CT scan was performed.

83 12 July 2006 The plaintiff first consulted Dr Vo on his return from Queensland complaining of stiffness in his neck and lower back. On examination it was determined that his trapezius muscles were stiff, his bilateral muscles were “achey”, as were his quadrants on the right side. No neurosensory deficits were detected on straight leg raising. There was no bony tenderness and only mild to moderate paraspinal spasm. Dr Vo diagnosed a soft tissue injury, prescribed Panadeine Forte and referred the plaintiff for physiotherapy. Lumbar X-rays were ordered.

84 14 July 2006 The plaintiff was assessed by Mr Parsonage, physiotherapist, who noted that he complained of the following:

constant frontal headaches,
mid to lower cervical spine pain,
radiating bilateral upper trapezius pain,
sharp and constant left sided lumbar spine pain, and
occasional tingling to the left hand.

He also noted that the plaintiff’s cervical rotation and flexion was between one half to one third of a normal range with restriction in the lumbar spine.

85 17 July 2006 Mr Parsonage noted that the plaintiff’s range in all regions had improved by almost 50 per cent, with the plaintiff reporting an increase in range of motion in the cervical spine and “a small amount of loosening up”. The plaintiff did not attend the following day for a scheduled appointment or on any date thereafter.

86 In his journal the plaintiff describes the first visit to Mr Parsonage as excruciatingly painful with his entire neck/back in spasm. He records that he tried soft remedial massage as an alternative to physiotherapy two to three times a week which was also very painful but bearable.

87 The plaintiff gave evidence that he informed Dr Vo of the considerable pain he experienced in the physiotherapy sessions with Mr Parsonage despite there being some improvement in his mobility, and that Dr Vo proposed massage as an alternative. He was not cross-examined to suggest this was untrue or exaggerated. Although there is no note to that effect in Dr Vo’s clinical notes, the agreed out of pocket expenses record the cost of nine massage sessions between 19 July and 28 July 2006.

88 In his journal the plaintiff described his symptoms at this time as:

89 24 July 2006 Dr Vo’s clinical notes record that on examination the plaintiff had 15 degrees flexion and extension in the neck with lateral flexion and rotation of 45 degrees. Straight leg raising was reported as normal. The following was also noted: “mild tension paraspinal mm…muscular” (which I interpret to reflect mild tension in the paraspinal region and mild to moderate muscular tension). He was prescribed Digesic for the pain.

90 28 July 2006 The clinical notes record that the plaintiff reported that the Digesic was helping to relieve the pain. On examination Dr Vo noted “back and upper neck slowly better” with a scheduled review on the plaintiff’s return from overseas.

91 In cross-examination the plaintiff agreed that the clinical notes were accurate in the sense that he informed Dr Vo that he was obtaining some relief from the medication. He did not, however, recall advising him of any improvement in his back and upper neck. This is consistent with the evidence of the plaintiff’s wife.

92 4 September 2006 The clinical notes record that after having returned from overseas the plaintiff complained of being “achey” in the neck and back, but without the accompanying headaches. After what was noted as a “long discussion” concerning the appropriate course of management for the pain, Dr Vo recommended the plaintiff recommence physiotherapy.

93 8 September 2006 After a week of recommencing physiotherapy (arranged by Dr Vo at this time near the plaintiff’s workplace because he had resumed full-time work that week), Dr Vo noted that the plaintiff still complained of being “achey and stiff” in his upper and lower back. On examination “mild mm spasm paraspinal mm” was noted. Dr Vo prescribed Tramal, an opioid analgesic used in the treatment of moderate to severe pain. He also prescribed Valium.

94 The plaintiff agreed in cross-examination that he quite possibly used the words “achey” and “stiff” to describe the condition of his neck, back and shoulders at the end of the first week back at work. He said he also told Dr Vo he was “in a lot of pain, very stiff in my neck, in my back”.

95 The plaintiff’s journal records the following:

^th

96 The plaintiff went on to record in his journal that he was in severe pain at every physiotherapy session he attended but that he continued with the treatment after he commenced working from home as he was determined to recover from the injury and because Dr Vo had advised that the pain associated with the treatment might get worse before it improved.

97 15 September 2006 Dr Vo reduced the plaintiff’s prescribed dosage of Valium after the plaintiff complained that it was making him drowsy. The clinical notes on this date record a “sl (slight) ache” in the plaintiff’s upper to lower back on examination and flexion at 70 degrees. Again, “mild paraspinal mm spasm” was noted.

98 It was put to the plaintiff in cross-examination that he had described the ache in his upper, middle and lower back as slight and that he was experiencing mild spasm. He said that did not sound correct as he did not use the descriptors “mild” or “slight”. He said he did recall explaining to Dr Vo how stiff and tight he felt.

99 On this date the plaintiff noted in his journal that, at what he describes as his weekly review with Dr Vo, he advised the doctor of:

“…continued severe pain in my neck and whole back shoulders (sic) and increased severity in the aches in my arms and legs…”.

He also noted:

“None of my symptoms had ceased since injury and some had gotten worse…”.

100 21 September 2006 Dr Vo prepared a referral letter for Dr Diwan. (The letter was not in evidence.) No note was made in Dr Vo’s clinical notes of any attendance of the plaintiff on this date or any review of his condition. On the other hand the plaintiff’s journal entry of 21 September 2006 records the following:

“… my headaches had not ceased since the incident … the aches in my legs were getting to a point where I was wobbly on my feet and losing co-ordination, this coincided with even more severe lower back pain...”

He went on to detail in the journal the erectile dysfunction experienced on the evening of 21 September 2006.

101 25 September 2006 The clinical notes record that the plaintiff telephoned and spoke to Dr Vo complaining of erectile dysfunction issues, together with a mild sensation of weakness in his legs, but that he was otherwise mobilising without issue. An urgent CT lumbar X-ray was ordered which on the following day revealed no abnormality. Examination in Dr Vo’s room on that day (26 September 2006) revealed that the plaintiff was able to squat with full power and stand and hop from one foot to the other with what was noted as “Straight Leg Raising - power 4/5 extension, flexion of hips”. He also noted no neurosensory deficits, and that the reflex in the plaintiff’s knees and ankles was intact. In his evidence the plaintiff agreed that the notes were accurate.

102 The plaintiff was also cross-examined about the impact of his experience of erectile dysfunction on his emotional state. He agreed that it was a “major problem” given that he and his wife were trying to conceive their first child and that his pre-injury libido and capacity were unproblematic.

103 4 October 2006 A week later (two days before the next scheduled weekly appointment with Dr Vo), the plaintiff attended on Ms Ann Liebert, physiotherapist, on referral from Dr Diwan. In her report of 25 October 2006 to Dr Diwan, she recorded that the plaintiff first presented with extreme cervical thoracic spasm, a limited cervical range of motion and complaining of pain and stiffness on bilateral arm elevation. She noted that the plaintiff complained of pain and aching in all four limbs, and a history of distal leg dyaesthesia following the injury. She also noted that:

“Despite gentle treatment, valium and working from home, the symptoms have become more severe, more irritable and more distal. We have not been able to progress or change the treatment without being able to exclude cervical or thoracic disc disruption or the presence of a syrinyx”.

104 In the plaintiff’s journal on that day he recorded the following:

^th

^st

105 6 October 2006 Dr Vo noted that the plaintiff attended Dr Diwan for an MRI scan of his brain and spine. No examination was undertaken by Dr Vo on that occasion and his condition was not otherwise reported upon. The plaintiff’s journal written on that day notes as follows:

Today

106 At about this date, in his first consultation with Dr Diwan, the plaintiff completed an anatomical diagram indicating the sites of bodily sensation inclusive of aching, numbness, pins and needles, burning and stabbing. He did not indicate any sites of burning or stabbing. There were, however, multiple and widespread sites of aching concentrated in the neck, cervical and lumbar regions and pins and needles down the inner arms, ankles and buttocks. He also reported sleep disturbance and stiffness in the mornings with the pain being worse when straining, sitting and standing, but that it was no worse while coughing.

107 10 October 2006 An MRI was performed which was reported to Dr Vo as revealing no structural issues.

108 On that date the plaintiff’s journal recorded:

“Continued irregular pins and needles…in my left leg right down to my foot. This normally precedes the severe leg pain, though not always, no pins and needles in right leg to date, though the same pain level affects my right leg. Also consistent (bad to severe) pains in both arms right down to the palm and some fingers.

109 13 October 2006 Following an extensive discussion about the results of the MRI scan and the plaintiff’s continuing pain, Dr Vo commenced the plaintiff on OxyContin at a dose of 5 mg two to three times daily to address the pain. (OxyContin is described in the evidence as a powerful opiate based analgesic.) On 13 and 14 October 2006 the plaintiff’s journal recorded:

“…I (am) yet to have a day of bearable pain in the three months or so since my injury…”.

110 16 October 2006 Dr Vo increased the plaintiff’s OxyContin dose to 20 mg daily. No examination was undertaken on that occasion or on the next consultation with Dr Vo on 20 October 2006. However, on 16 and 18 October 2006 the plaintiff records in his journal as follows:

^nd

Visited Pain Physician (Dr Gorman)…I advised him of all my neck/whole back/shoulders and described that pain as muscle spasm and extreme tightness, also advise of the consistent moderate to severe daily headaches, very painful aches in both arms right down both arms right down to fingers…”

111 The plaintiff was referred to Dr Gorman at the pain clinic at St George Hospital at the suggestion of Dr Diwan. After seeing Dr Gorman on 18 October 2008 when Dr Gorman reported to Dr Diwan that the plaintiff suffered from “widespread pain” since being struck by the roller door for which there was no clear neurological or musculoskeletal cause, the plaintiff was referred to a neurologist, Dr Schwartz, and a clinical psychologist, Ms Clifford. (As I have noted Dr Gorman was of the opinion that he had suffered an axial compression injury to his spine but accepted there was no accompanying structural damage. This grounds the plaintiff’s alternate case on damages.)

112 20 October 2006 Dr Vo noted that the plaintiff had attended the pain clinic and that he was referred to specialists by Dr Gorman. He does not otherwise note that he undertook any review of the plaintiff’s condition by examination or in consultation with him other than confirming the prescribed medication should be continued. On this date the plaintiff’s journal recorded:

220 I accept the devastating consequences of the plaintiff’s injury given that he remains a relatively young man with an established work ethic and the proven drive and initiative to improve his career prospects in a dynamic industry. I also take into account that at the time of the injury he was literally in the process of proving himself to his employer in a new role and that the injury prevented him from seeking to demonstrate his worth to the company for the future. I am not invited to take into account any disappointment or distress resulting directly or indirectly from the fact that in April 2007 his employment was terminated since the plaintiff did not seek to make the case that the termination was relevantly related to the defendant’s negligence. Although there is uncontradicted evidence that the plaintiff was subjected to considerable stress and anxiety in the months leading up to his employment being terminated because of the particular workplace dynamics and a gathering sense of insecurity as his employer set about restructuring its operations, and that he felt belittled and intimidated as a consequence, I am not persuaded that should be taken into account as a measure of non-economic loss for which the defendant is legally liable. I do, however, take into account that the plaintiff has a diminished sense of self worth due to his current inability to undertake paid employment and that the pharmacological regime to which he has been subject since September 2006, and which is likely to be maintained for some time into the future, has an adverse impact on his ability to function in other areas of his life.

221 I also accept, without qualification, his evidence concerning the devastating impact of the injury on other aspects of his daily life, from the difficulties he has with even the most menial aspects of shared parenting and domestic responsibilities to having abandoned altogether any thoughts of resuming his pre-injury recreational, sporting and social pursuits. I also take into account his wife’s evidence concerning the impact of the injury upon their relationship and the encroachment of his illness into their marital and family life as the plaintiff has struggled to deal with the reality of his disabilities.

222 I am not, however, persuaded that the severity of his non-economic loss justifies an assessment of more than 45 per cent of a most extreme case of its kind. In coming to that view, I am mindful of the prospects of improvement in the plaintiff’s condition which will not only positively impact on his capacity for employment in the future but will also ameliorate the loss of opportunity and amenity he has suffered to date such as to permit him to regain some level of independence and social confidence with a consequential diminishment of the current levels of his frustration, anxiety and disappointment.

Past economic loss

223 I am satisfied that the plaintiff achieved consistently high standards in his work as a sales and client representative for Computer Associates prior to the injury. His colleagues, his supervisor and his clients regarded him as a person who applied himself diligently to his work. This, together with his proven capacity to learn quickly and to adapt to the changing demands of an evolving industry, meant that his base salary of $72,000 per annum between 2003 and 2006, was supplemented by a commission component consistently within an annual target of $90,000. Having regard to the terms of the plaintiff’s most recent employment in his employer’s letter of 11 May 2006 (which I note also provides for a commission target of $90,000 on a base salary of $72,000) and the fact that the plaintiff achieved 25 per cent of that target in November 2006 despite working reduced hours, satisfies me of the likelihood of his achieving his target but for the injury. For these reasons I do not regard the warning letters the plaintiff received prior to accepting the new position in the company as having any impact on the calculation of his past or future economic loss.

224 In assessing the plaintiff’s past economic loss, s 12 of the Civil Liability Act dictates that I am to disregard the amount (if any) the plaintiff’s gross weekly earning would have exceeded the amount that is three times the average weekly earnings as at the date damages are awarded but for the injury. Thus, in this case, s 12 operates to cap the value of the plaintiff’s hypothetical earning capacity to three times $916.10, that figure being the most recently available gross weekly earnings for all employees in New South Wales as at 1 October 2009. After appropriate adjustments as outlined in Schedule 1 to this judgment, the plaintiff’s past economic loss to 4 November 2009 is $304,367. The loss of superannuation benefits for this period is also calculated in the attached schedule. I note that the defendant did not challenge the appropriateness of the plaintiff’s approach to the calculation of past economic loss or the method of calculation.

225 In so far as the award of damages for past gratuitous attendant care is concerned, the defendant did not challenge the plaintiff’s entitlement to an award, the threshold to recovery under s 15(3) of the Civil Liability Act having been satisfied in the detailed assessment undertaken by Ms Bolger in Part 14 of her report.

Future economic loss
The application of s 13 of the Civil Liability Act to assessing damages for future economic loss

226 In assessing damages for future economic loss s 13 of the Civil Liability Act obliges the plaintiff to satisfy me that the assumptions about his future earning capacity accord with his most likely future circumstances were he not injured, and to adjust the award by reference to the percentage possibility that the events might have occurred but for the injury. The extent to which damages are adjusted, in accordance with the requirement in s 13(3), is a statutory implementation of the established practice of reducing an award of damages for future loss for vicissitudes.

227 The plaintiff referred me to Amoud v Al Batat [2009] NSWCA 333 where the Court of Appeal reviewed the collected authorities on the interpretation of s 126(1) of the Motor Accidents Compensation Act 1999, which is in identical terms to s 13 of the Civil Liability Act. The Court noted that the section is not a code but assumes the operation of general law principles and went on to note:

[24] It appears that sub-s (1) deals only with the baseline earning capacity which might have been achieved but for the injury. Of course, an assessment of post-injury future earning capacity will also be required, but if sub-s (1) were addressing the assumptions necessary for that part of the exercise it would be unlikely to require them to “accord with” the most likely future circumstances but for the injury. The operation of this provision will vary from case to case and will depend in part on the level of particularity or generality at which the exercise is undertaken. Because there is no challenge in the present case to the findings by the trial judge in respect of the most likely future circumstances, or the assessment of future earning capacity, but for the injury, the operation of this provision need not be addressed further.

[25] Subsection (2) requires an adjustment to an otherwise appropriate amount to take account of the possibility that “the events concerned might have occurred but for the injury”. There is clearly a step between the exercise addressed in sub-s (1) and that required by sub-s (2). That step must be to identify the departure from the baseline earning capacity (calculated in accordance with sub-s (1)) caused by the injury. The third step is to calculate, as a monetary amount, the present value of the difference between the baseline and the assessment of post-injury earning capacity. The diminution caused by the tortious injury will provide a figure for assessing the appropriate award of damages. It may not be the final figure, because the diminution caused by the accident might have occurred, in part or in whole, in any event, within the working life of the claimant. Some allowance must be made for that circumstance: it is that allowance which constitutes the adjustment required by sub-s (2).

[26] Subsection (3) is designed to ensure transparency in respect of the two steps in the process identified in sub-ss (1) and (2). In the course of the missing steps, namely the assessment of the extent of the disability caused by the accident, further findings will be made as to hypothetical future circumstances. Whether or not those findings must be identified and stated in the Court’s reasons, pursuant to sub-s (3), is largely immaterial: they should in any event be stated in accordance with general law principles.

Norris v Blake (No 2)

Nominal Defendant v Lane

228 While the plaintiff accepts that no-one’s future employment is guaranteed, I am also invited to view the industry in which the plaintiff has a proven work history as a growth industry, with innovation and expansion its hallmarks, and that the plaintiff’s aptitude, drive and initiative were likely to have assured him ongoing opportunities for promotion and advancement with a flow on effect to his entitlements to superannuation benefits.

229 In so far as there might be an allowance made for the plaintiff’s residual earning capacity (ie his capacity for work as assessed by Dr Dryson as distinct from the restoration of his earning capacity to some measure approximating his pre-injury levels) the plaintiff submitted that it should be a modest allowance only given that the range of potential employment is very narrow largely because he cannot drive or use public transport such that his employment will need to be home-based.

230 The defendant invited me to assess the plaintiff’s baseline earning capacity as precarious both because of the volatile nature of the workplace environment in which the plaintiff worked pre-injury and because the level of his income was largely dependent on commission earnings, a notoriously uncertain source of income being linked to such variables as product sales, a shifting customer base and shifts in macro-economic environment. For these reasons I was invited by the defendant to calculate damages for the plaintiff’s future economic loss on the basis of extended periods of reduced income, through not earning commission, and the likelihood of the plaintiff being unemployed from time to time.

231 Taking those competing considerations into account, and taking into account the plaintiff’s guarded but not wholly pessimistic prognosis, I propose to assess the plaintiff’s future economic loss on the basis of average nett weekly earnings of $1944.47 (referable to the multiplier of 555.0) equating to a permanent incapacity for work for 15 years, this being my best estimate of the duration of the plaintiff’s permanent incapacity before he is able to resume paid employment at his pre-injury levels. I have also applied an additional discount of 15 per cent for vicissitudes. The loss of superannuation entitlements and the need for future domestic assistance are calculated on the same basis. I have approached the assessment of future economic loss in this way mindful of the views of Heydon JA in State of New South Wales v Moss [2000] NSWCA 133; 54 NSWLR 536. His Honour emphasised that an assessment of damages for loss of the capacity to earn income in the future in a manner productive of financial loss is by its nature an imprecise enquiry, being an exercise in the estimation of possibilities not proof of probabilities.

232 At [87] of Moss Heydon JA said:

“…The task of the trier of fact is to form a discretionary judgment by reference to not wholly determinate criteria within fairly wide parameters. Though the trier of fact in arriving at the discretionary judgment must achieve satisfaction that a fair award is being made, since what is involved is not the finding of historical facts on a balance of probabilities, but the assessment of the value of a chance, it is appropriate to take into account a range of possible outcomes even though the likelihood of any particular outcome being achieved may be no more than a real possibility…”

233 In the same judgment his Honour noted at [71] the views of the majority (Deane, Gaudron and McHugh JJ) in Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638 at 643:

“… when the law takes account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring in a range from just above the speculative to just below the certain. The inquiry - the process of estimation of possibilities - is thus an imprecise and indeterminate one to be carried out within very broad parameters. The trier of fact may have to form conclusions on “slender materials”…”

234 In assessing the cost of the plaintiff’s future attendant care needs I again rely on the comprehensive assessment undertaken by Ms Bolger. In Section 15 of her report she qualifies the extent of his care needs in two ways. First she notes that the hours per week allocated to personal hygiene, domestic duties including shopping and transfers should not be allowed in full if the costs of other services, equipment and housing modifications are provided for. Second, that as intervention in the form of occupational therapy and other rehabilitative services are designed to improve and maintain improvement in his physical condition and associated functioning, then the need for ongoing attendant care should be reduced. I also take into account that as the plaintiff ages his care needs will be greater and increase more rapidly than an aging person in good health. Since I propose to award damages for professional services, and for equipment and significant modifications to the home environment, I propose to reduce Ms Bolger’s assessment of the plaintiff’s weekly attendant care needs to 12 hours per week at the week day commercial rate of $38 per hour applying a multiplier of 15 years.

235 I propose to allow the full cost of occupational therapy and associated travel costs as set out in Ms Bolger’s report save for the therapy associated with use of the scooter since provision is to be made for a wheelchair. I do not propose to allow the counselling sessions for the plaintiff and his wife as I am not persuaded that there is a current or continuing need for such intervention. In addition I have not allowed all of the equipment and home modification costs. For example, I propose to allow the full cost of a bathroom modification, as per Ms Bolger’s report, as distinct from the cost of equipment and installation of the same given that I am allowing for his current incapacity and the probabilities of some improvement in his condition in the short term. I consider some adjustment is required for what is claimed as the cost of replacement of the wheelchair on the same basis. Since the wheelchair is not used on a permanent basis, but rather to facilitate the plaintiff’s participation in family and social or sporting events, a one off cost is, in my view, a sufficient allowance. I am satisfied that modifications to the family vehicle are justified and allowance will be made for that also on a one off basis.

236 The orders I make are as follows:

Assessment of damages

5.11.1977 Date of Birth (32 years)
10.7.2006 Date of Accident

984.9 Multiplier Life Expectancy
35 (to age 50) Working Life Expectancy
555.0 Multiplier Working Life Expectancy

Schedule of damages

Head of damages Amount

NON-ECONOMIC LOSS

Damages for non-economic loss (45% of most extreme case)
213,075.00

PAST ECONOMIC LOSS

Past economic loss (as per Schedule 1)
353,543.00

Interest on past loss of income (as agreed)
25,950.00

Past superannuation benefits (as per Schedule 2)
45,299.00

Interest on past loss of superannuation (as agreed)
4,646.00

Gratuitous attendant care (as per Schedule 3)
95,950.30

Out of pocket expenses (as agreed)
28,754.13

554,142.43

FUTURE ECONOMIC LOSS

Loss of earning capacity (as per Schedule 4)
917,303.72

Loss of superannuation benefits (as per Schedule 4)
116,673.21

Future professional attendant care (as per Schedule 5)
253,080.00

Equipment and home modifications
69,100.00

Future treatment (as per Schedule 6)
115,717.50

Fox v Wood (as agreed)
29,046.00

1,500,920.43

TOTAL
2,268,137.86

Schedule 1

PAST ECONOMIC LOSS

PROJECTED LOSS OF INCOME FOR 2006/07

2007 Average weekly total earnings
for all employees in NSW (based on the most recently published award – Furzer Crestani handbook, page 8, published 1.10.09)
916.10 gross

Gross income
as defined by s 12 of the Civil Liability Act 2002:
3 x $916.10 = $2,748.30 x 52.178
143,401.00

Less actual income received
The plaintiff’s income in the financial year 2007 ($69,239) less income received in the 2006 financial year but paid in 2007 ($26,137)
43,102.00

Gross income loss
100,299.00

Less tax
On first $75,000: $17,850
Plus 40% (in excess of $75,000 to $150,000) on $25,299: $10,120
Total tax payable
27,970.00

After tax loss for 2006/07
$ 72,329.00

Schedule 1 (cont.)
PROJECTED LOSS OF INCOME FOR 2007/08

2008 Average weekly total earnings
for all employees in NSW (based on the most recently published award – Furzer Crestani handbook, page 8, published 1.10.09)
916.10 gross

Gross income
as defined by s 12 of the Civil Liability Act 2002:
3 x $916.10 = $2,748.30 x 52.178
143,401.00

Less tax
On first $75,000: $17,100
Plus 40% (in excess of $75,000 to $150,000) on $68,401: $27,360
Total tax payable
44,460.00

After tax loss for 2007/08
$ 98,941.00

PROJECTED LOSS OF INCOME FOR 2008/09

2009 Average weekly total earnings
for all employees in NSW (based on the most recently published award – Furzer Crestani handbook, page 8, published 1.10.09)
916.10 gross

Gross income
as defined by s 12 of the Civil Liability Act 2002:
3 x $916.10 = $2,748.30 x 52.178
143,401.00

Less tax
On first $80,000: $18,000
Plus 40% (in excess of $80,000 to $180,000) on $63,401: $25,360
Total tax payable
43,360.00

After tax loss for 2008/09
$ 100,041.00

Schedule 1 (cont.)

PROJECTED LOSS OF INCOME FOR 2009/10

2009 Average weekly total earnings
for all employees in NSW (based on the most recently published award – Furzer Crestani handbook, page 8, published 1.10.09)
916.10 gross

Gross income
as defined by s 12 of the Civil Liability Act 2002:
3 x $916.10 = $2,748.30 x 52.178
143,401.00

Less tax
On first $80,000: $17,850
Plus 38% (in excess of $80,000 to $180,000) on $63,401: $24,092
Total tax payable
41,942.00

Annual after tax loss to 30.6.2010
101,459.00
or
1,944.47 per week

Loss from 1.7.2009 to 30.4.2010
$ 82,232

TOTAL PAST ECONOMIC LOSS TO 30.4.2010
$353.543

Schedule 2

LOSS OF SUPERANNUATION BENEFITS
PAST

2006/7 Year: 9% of $100,299 $ 9,027.00

2007/8 Year: 9% of $143,401 $ 12,906.00

2008/9 Year: 9% of $143,401 $ 12,906.00

From 1 July 2009 to 30 April 2010 $ 10,460.00

TOTAL $ 45,299.00

Schedule 3
(as per Part 14 of Ms Bolger’s report)

GRATUITOUS ATTENDANT CARE

Initial 4 months post accident (17.3) weeks
16.74 hours pw x $22.90 per hour x 17.3 weeks = $ 6,632.00

From 4 months post accident to 23.3.2009 (123 weeks)
22 hours pw x $22.90 per hour x 123 weeks = $ 61,967.00

From 23.3.2009 to 30.4.2010 (54.29 weeks)
(assuming the same hours as in the 123 week period to 23.3.09)
22 hours pw x $22.90 per hour x 54.29 weeks = $ 27,351.30
TOTAL $ 95,950.30
Schedule 4

FUTURE ECONOMIC LOSS

Based on average nett weekly earnings of $1,944.47
$1,944.47 x MWLE (555.0) $ 917,303.72
less 15% for vicissitudes

FUTURE LOSS OF SUPERANNUATION BENEFITS

9% of $2,748 x MWLE (555.0) $ 116,673.21
less 15% for vicissitudes

Schedule 5

FUTURE PROFESSIONAL ATTENDANT CARE
12 hours per week at $38 per hour
x MWLE (555.0) $ 253,080.00
Schedule 6

FUTURE TREATMENT

Medication
(Based on information from Pharmacy First, Exhibit G)
Cost of Medication from 1.7.2009 to 30.9.2009:
$25 pw x MWLE (555.0) $ 13,875.00

Treatment Regime for the future
(Cost based on cost of treatment, travel and massage, Exhibit S)
From 1.7.2009 to 30.9.09 (12 weeks):
$156.00 pw x MWLE (555.0) $ 86,580.00

Consultations
Visits to Dr Ahmed (From Exhibit S): from 1.7.2009 to 30.9.2009:
1 per month @ $60 per visit or $15pw

Visits to Dr Bertouch (From Exhibit S): from 30.6.2009 to 30.9.2009:
1 per quarter @ $150 per visit or $12.50pw
Total: $27.50pw x MWLE (555.0) $ 15,262.50
TOTAL $ 115,717.50

20/10/2010 - Judgment varied pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005.Schedules amended as agreed by parties. - Paragraph(s) 236 - delete $2,169,369.56 and insert $2,268,137.86.

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Citations

Huseyin v Qantas Airways Ltd [2010] NSWSC 372

Cases Citing This Decision

0

Cases Cited

13

Statutory Material Cited

1

Hull v Thompson [2001] NSWCA 359

Seltsam Pty Ltd v McGuiness [2000] NSWCA 29

Fox v Percy [2003] HCA 22

CITATION:	Huseyin v Qantas Airways Ltd & Anor [2010] NSWSC 372 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	12-16 Oct; 4 Nov 2010
JUDGMENT DATE :	30 April 2010
JUDGMENT OF:	Fullerton J
DECISION:	1. Judgment in favour of the plaintiff in the amount of $ 2,268,137.86. 2. The second defendant to pay the plaintiff’s costs as assessed or agreed.
CATCHWORDS:	TORTS - negligence - liability admitted by defendants - personal injury - plaintiff struck on head by metal roller shutter door - fibromyalgia - causation - damages
LEGISLATION CITED:	Civil Liability Act 2002
CATEGORY:	Principal judgment
CASES CITED:	Amoud v Al Batat [2009] NSWCA 333 Australian Iron and Steel Ltd v Connell (1959) 102 CLR 522 EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 Fox v Percy [2003] HCA 22; 214 CLR 118 M and EM Hull Pty Ltd v Thompson [2001] NSWCA 359 Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638 Penrith City Council v Parks [2004] NSWCA 201 Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 Seltsam Pty Ltd v McGuiness; James Hardie & Coy Pty Ltd v McGuiness [2000] NSWCA 29; 49 NSWLR 262 State of New South Wales v Moss [2000] NSWCA 133; 54 NSWLR 536 Tubemakers of Australia Ltd v Fernandez (1976) 10 ALR 303 Zreika v State of New South Wales [2009] NSWCA 99
PARTIES:	Huseyin Huseyin (Plaintiff) Qantas Airways Ltd (First defendant) Sydney Night Patrol & Inquiry Co Pty Ltd (Second defendant)
FILE NUMBER(S):	SC 2008/20160
COUNSEL:	M Joseph SC/M Maxwell (Plaintiff) R Williams QC/B O'Donnell (Defendants)
SOLICITORS:	Gerard Malouf & Partners (Plaintiff) Norton Whyte Lawyers (Defendants)

Head of damages	Amount
NON-ECONOMIC LOSS
Damages for non-economic loss (45% of most extreme case)	213,075.00
PAST ECONOMIC LOSS
Past economic loss (as per Schedule 1)	353,543.00
Interest on past loss of income (as agreed)	25,950.00
Past superannuation benefits (as per Schedule 2)	45,299.00
Interest on past loss of superannuation (as agreed)	4,646.00
Gratuitous attendant care (as per Schedule 3)	95,950.30
Out of pocket expenses (as agreed)	28,754.13
554,142.43
FUTURE ECONOMIC LOSS
Loss of earning capacity (as per Schedule 4)	917,303.72
Loss of superannuation benefits (as per Schedule 4)	116,673.21
Future professional attendant care (as per Schedule 5)	253,080.00
Equipment and home modifications	69,100.00
Future treatment (as per Schedule 6)	115,717.50
Fox v Wood (as agreed)	29,046.00
1,500,920.43
TOTAL	2,268,137.86

2007 Average weekly total earnings for all employees in NSW (based on the most recently published award – Furzer Crestani handbook, page 8, published 1.10.09)	916.10 gross
Gross income as defined by s 12 of the Civil Liability Act 2002: 3 x $916.10 = $2,748.30 x 52.178	143,401.00
Less actual income received The plaintiff’s income in the financial year 2007 ($69,239) less income received in the 2006 financial year but paid in 2007 ($26,137)	43,102.00
Gross income loss	100,299.00
Less tax On first $75,000: $17,850 Plus 40% (in excess of $75,000 to $150,000) on $25,299: $10,120 Total tax payable	27,970.00
After tax loss for 2006/07	$ 72,329.00

2008 Average weekly total earnings for all employees in NSW (based on the most recently published award – Furzer Crestani handbook, page 8, published 1.10.09)	916.10 gross
Gross income as defined by s 12 of the Civil Liability Act 2002: 3 x $916.10 = $2,748.30 x 52.178	143,401.00
Less tax On first $75,000: $17,100 Plus 40% (in excess of $75,000 to $150,000) on $68,401: $27,360 Total tax payable	44,460.00
After tax loss for 2007/08	$ 98,941.00

2009 Average weekly total earnings for all employees in NSW (based on the most recently published award – Furzer Crestani handbook, page 8, published 1.10.09)	916.10 gross
Gross income as defined by s 12 of the Civil Liability Act 2002: 3 x $916.10 = $2,748.30 x 52.178	143,401.00
Less tax On first $80,000: $18,000 Plus 40% (in excess of $80,000 to $180,000) on $63,401: $25,360 Total tax payable	43,360.00
After tax loss for 2008/09	$ 100,041.00