Jeffrey Milliken v Valda Medenis;; Jeffrey Milliken v Insurance Australia Ltd ACN 000 016 722 - [2006] ACTSC 100

JEFFREY MILLIKEN v VALDA MEDENIS;
JEFFREY MILLIKEN v INSURANCE AUSTRALIA LTD ACN 000 016 722
[2006] ACTSC 100 (20 October 2006)

NEGLIGENCE – contributory negligence – failure to keep proper lookout – failure to turn engine off – failure to erect barricades or warning signs – no contributory negligence – no issue of principle
NEGLIGENCE – contributory negligence – statutory contributory negligence under NSW motor accidents legislation – formal finding of statutory contributory negligence – no evidence that plaintiff’s negligence affected severity of injuries – nil reduction
DAMAGES – personal injury – two incidents in which plaintiff injured – low back injury – post-traumatic stress disorder – no issue of principle
EVIDENCE – personal injury action – expert medical opinion evidence – evidence by written report – no oral medical evidence – history and presentation exaggerated and embellished – assumptions on which opinion based not established – effect on weight of evidence

Motor Accidents Compensation Act 1999 (NSW), ss 124, 126, 127, 128, 131 & 138
Nicholson v Nicholson (1994) 35 NSWLR 308

No. SC 344 of 2001
No. SC 252 of 2004

Judge: Master Harper
Supreme Court of the ACT

Date: 20 October 2006

IN THE SUPREME COURT OF THE  )
  )  No. SC 344 of 2001
  No. SC 252 of 2004
AUSTRALIAN CAPITAL TERRITORY  )

BETWEEN:JEFFREY MILIKEN
Plaintiff

AND:VALDA MEDENIS
Defendant

AND
BETWEEN:JEFFREY MILLIKEN
Plaintiff

AND:INSURANCE AUSTRALIA LTD
ACN 000 016 722

Defendant

ORDER

Judge:  Master Harper
Date:  20 October 2006
Place:  Canberra

THE COURT ORDERS THAT:

The further hearing of both actions be stood over generally with liberty to the parties to apply on two days’ notice.

The plaintiff brings two actions for damages for personal injury, each caused by the negligence of the driver of a motor vehicle. The first accident occurred on the apron of a service station at Belconnen on 29 November 1999 and the second on the Princes Highway, Minnamurra, New South Wales on 24 August 2001. The same company was authorised insurer of the vehicles at fault in both accidents. By agreement the actions have been heard together. In each action, it is admitted that the driver of the vehicle at fault was negligent, but the defendant asserts that the plaintiff was guilty of contributory negligence. Because the second accident happened in New South Wales, legislative provisions of that State apply which are relevant to contributory negligence and to the assessment of damages. No similar legislation affects the case arising out of the first accident.

Pre-accident background

The plaintiff was born on 5 February 1967 and is now thirty-nine years old. He has lived all his life at Moruya on the south coast of New South Wales. He attended Moruya High School. He had great difficulty at school with reading, writing, spelling and mathematics. He was functionally illiterate when he left after Year 10.

After he left school, he worked as a labourer with a carpet company for about a year. At age eighteen, he obtained a licence to drive a truck and started work with his parents’ company, carting sand and gravel. When he was twenty, he took over the lease of a truck from his parents and worked for himself for a year or so in and around Moruya. During this period he also did some work at the Skitube site at Bullocks Flat. In May 1988 he transferred the lease of the truck back to his parents. At about the same time he got married, and started work as an employee of a Moruya company, driving a truck delivering feed and grain to local farms. During that year he obtained a licence to drive a vehicle transporting dangerous goods.

In 1989 he injured his low back lifting a gas bottle. He saw a chiropractor in Moruya. His evidence is that he made a complete recovery following treatment.

During 1990, whilst employed by the same company, he commenced driving a rigid tanker delivering liquid petroleum gas from the company’s depot in Moruya. At the end of October 1990 he was admitted to Moruya Hospital with what was described as an acute flare-up of chronic back pain. He spent three days in hospital. His evidence is that again he made a complete recovery. He returned to work.

At the end of August 1991 he was admitted again to Moruya Hospital after hurting his back during an impromptu indoor rugby game at a hotel. He complained of back symptoms again. His evidence is that once more he made a complete recovery.

The plaintiff has three children, born in 1992, 1993 and 1995. After the birth of the first, he and his wife bought a house in Moruya where they still live.

In February 1997 the plaintiff and his family moved to Maryborough in Queensland to help his wife’s parents manage a caravan park they had bought. The caravan park was very run down. It occupied seven and a half acres and included an amenities block with toilets and showers. There were concrete slabs to be broken up with a sledge hammer and the concrete carted to the tip, and fresh slabs to be poured, new water and electricity mains put in and kerbing and guttering needed for internal roads. The plaintiff did most of this work himself, with some assistance from his father-in-law. He also mowed the grass, which covered the whole caravan park. He used a ride-on mower, and a hand mower and whipper snipper for the edges. It took him about two days to mow the whole park. He also looked after garbage runs, tree planting and installation of barbecue areas. He scrubbed the floor and toilets in the amenities block. He described the work as heavy but said that he had no problem doing it.

On a few occasions he saw a general practitioner in Maryborough with complaints of back pain. In October 1997 he was referred for a bone scan. He denied that his back symptoms prevented him from undertaking any of his duties at the caravan park. After a year in Queensland, as a result of a falling out between the plaintiff’s wife and her mother, the family returned to Moruya in February 1998. The plaintiff started work with his brother Ian, working as a truck driver.

In August 1998, the plaintiff was referred by his then general practitioner in Moruya, Dr Carlson, to Dr Corry, a specialist rehabilitation physician in Canberra, for advice about bouts of low back pain. On Dr Corry’s advice, the plaintiff gave up fast bowling though he continued to play cricket. He also continued with touch football, which Dr Corry thought would not have any adverse impact on him. Dr Corry arranged an MRI scan of the low back.

In November 1998, the plaintiff started work with Advantage Petroleum Pty Ltd, a Shell distributor in Moruya, as a tanker driver. This was a full-time permanent job. He got the job through another truck driver in Moruya, Steve Ziegler. The tanker he was driving was an expensive one, and the company kept it on the road, as far as possible, twenty-four hours a day. Mr Ziegler drove the day shift and the plaintiff drove the night shift, starting at about 5.00 pm, Monday to Friday, and driving until 5.00 am or sometimes 7.00 am, twelve to fourteen hours a shift. On the weekends Mr Ziegler and the plaintiff would wash and grease the tanker and otherwise maintain it. The system was that at about 3.00 pm each day from Monday to Friday, the plaintiff would receive a telephone call at his home from the Canberra office of the company, giving him instructions as to where he was to deliver or collect a load of fuel during his shift. He would usually take possession of the tanker from Mr Ziegler at Moruya at about 5.00 pm. On some days he would be instructed to deliver fuel to three or four service stations in Canberra. After this he would load the tanker, return to Moruya and park it in the company’s yard full of fuel. On other days he might drive to Sydney, refuel the tanker at Rosehill and drive it back to Canberra. On other occasions he would drive from Moruya to Canberra and then to Eden with a full load which would be pumped into the tanks of a fishing boat. He was provided with a new truck, which he said was worth half a million dollars. He thoroughly enjoyed the job and was conscious of it being a big responsibility. He was provided by the company with a uniform including shoes. He was sent on courses dealing with dangerous goods and defensive driving. There was considerable overtime available.

From about the middle of 1998 the plaintiff also had a second job on weekends, as a console operator at the BP service station at Moruya. He worked five or six hours, from about 4.30 pm to 10.00 pm when the station closed for the night. In addition to operating the console, the job involved sweeping and cleaning toilets, stocking refrigeration units, stocking shelves with oil, checking the underground tank levels and carrying gas bottles. He ceased this second job in about the middle of 1999.

The plaintiff’s evidence was that until the first accident, he was very fit, playing regular Saturday and Sunday golf as a member of Moruya Golf Club off a handicap of three. He played A-grade cricket for Moruya. He played touch football and basketball. He owned a surf ski and rode this in the surf. He maintained a large vegetable garden at home, and generally looked after home maintenance including gardening and lawnmowing. He enjoyed barbecue cooking and helped around the house in other ways. At the time of the first accident he was in the process of undertaking some home renovations, and on the morning of the accident he had removed the fittings from an old bathroom, intending to replace these with new fittings. His intention was to engage qualified tradesmen but to assist by providing labouring work.

The first accident

The first accident happened on 29 November 1999, in the course of the plaintiff’s work as a tanker driver with Advantage Petroleum Pty Ltd. On the day of the accident, he set off in the tanker and drove to the Shell depot at Fyshwick. He picked up a clipboard with instructions for the day. The first job was to deliver a load of fuel to the Shell service station at Lathlain St Belconnen. He drove the tanker onto the apron of the service station, between the pumps and the main building on the site. It was about 6.00 pm and daylight. There was a car in the carwash and the plaintiff had to move the tanker a little to allow room for the car to get out. He stopped the tanker but left the engine running. He checked his paperwork and got out of the vehicle to check the level of one of the tanks. This involved removing the lid of an access point to the tank. The plaintiff crouched over to open the lid, facing the direction in which cars would be expected to move towards him. As he bent over to remove the lid, he was struck from behind by a car. The car stopped on impact and the driver got out and had a conversation with the plaintiff, asking if he was all right. He immediately felt pain in the lower back and into his legs. He felt quite sick. He was able to get up and make his way into the building. The console operator telephoned for an ambulance.

The plaintiff’s evidence was that he was not provided with any warning sign or barrier such as witches’ hat-style cones, or with a coloured safety vest.

Mr Ziegler gave evidence in the course of which he was asked whether he usually turned the engine of his tanker off before getting out at a service station. His answer was that he did not do so, but rather left it on to allow the engine to cool down. He explained that the turbo might crack if it was turned off immediately. His practice was to allow the engine to idle for at least five minutes before turning it off. Mr Ziegler also recollected that at about the same time as the plaintiff’s first accident, there was another similar accident in which a car backed into a driver at a Shell service station, he thought in Victoria. He said that after this, the company equipped the tankers with witches’ hats and reflective coloured vests for the drivers. They had not been provided previously.

The plaintiff was taken by ambulance to Calvary Hospital. After about five hours there he was transferred to the emergency department at the Canberra Hospital. By the time the plaintiff reached the Canberra Hospital it was about midnight, and he stayed in the emergency department overnight, being moved to a ward the next morning. He was in considerable pain. He was admitted under the care of Dr Chandran, neurosurgeon. He was seen by a pain team and given a self-release pain device attached to a needle into the back of his hand.

His wife came to Canberra to be with him, and arranged for the children to go to his parents. His wife bathed him in a bed bath and helped with cleaning his teeth, rubbing his back and legs, and reading to him. She spent every day at the hospital with him, from about 8.00 am until about 9.00 or 10.00 pm, while he was in the Canberra Hospital. On 7 December he was transferred by ambulance to Moruya Hospital, on oral medication, MS Contin, a morphine derivative. By the time of that transfer he was walking with a frame. He spent about four days in that hospital. His wife continued to spend time with him and look after him in Moruya Hospital. She would take him into the shower and wash him. By the time he was discharged and sent home he was still in great pain but could relieve this with his medication. He had some physiotherapy at home, and was able to move around at home though his wife still did a lot of things for him. He was unable to do much for himself.

The plaintiff saw his general practitioner, Dr Sheppard. He was starting to feel a little better and asked for advice about coming off the medication. Dr Sheppard told him to stop taking the tablets. He developed withdrawal symptoms. He went to Moruya Hospital on Christmas Eve, 24 December 1999. The doctor on call was a general practitioner from another Moruya practice, Dr Ellwood. The plaintiff was sent from the hospital to Dr Ellwood’s rooms. Dr Ellwood advised him to continue with MS Contin, and also with physiotherapy. He referred the plaintiff to a psychologist, Mr Erskine. The workers’ compensation insurer approved the plaintiff being treated at its expense by a psychologist employed in Mr Erskine’s practice, Ms Dragisic. The plaintiff saw her on numerous occasions for help with emotional problems he had developed following the accident. He did not return to Dr Sheppard’s practice after this, he says because of dissatisfaction with Dr Sheppard’s advice about the MS Contin. He remained thereafter a patient of Dr Ellwood’s practice. The MS Contin was reduced over time to a lower dose.

The plaintiff continued to use the walking frame for about three or four months. His wife continued to assist him with washing and showering, dressing, driving him to physiotherapy and monitoring his medication. Over this time the plaintiff became more mobile and was able to attend to some tasks around the house, though he was still in a lot of pain in the low back and the legs. He was not sleeping soundly. He would wake in the middle of the night in pain. He would do exercises prescribed by the physiotherapist. These helped to ease the pain. He would go back to sleep for a few hours but would wake in pain again.

For some months the plaintiff and his family had no shower or bath or basin. The plaintiff’s wife hooked up a hose from the laundry taps to a shower head, and the family showered in an improvised shower recess in the outside laundry. In March 2000 the new bathroom was installed but the plaintiff was unable to assist with this, resulting in increased expense.

Also at some time in March 2000, the plaintiff fell from a chair in the garden at home. He saw his general practitioner and was referred for physiotherapy. He was also referred to see Dr Chandran, whom he had seen a few weeks earlier, again. He spent a week in bed recovering. For a few days his left leg was numb. The immediate back pain was so bad that he vomited. He became very depressed. He told his psychologist that the pain at the time was worse than the pain of the impact in the first accident.

During 2000, the plaintiff had some voluntary assistance, for about an hour once a week, with reading and writing.

Through a rehabilitation provider arranged by the workers’ compensation insurer, the plaintiff was provided with part-time employment in August 2000 at the Shell service station at Batehaven as a console operator. He worked from 6.00 am to 9.00 am, three days a week. He was able to drive from Moruya to Batehaven, and able to cope with the work.

In September 2000, he went back to work with Advantage Petroleum, though not as a driver. He accompanied Mr Ziegler as a passenger. He used a cushion recommended by his physiotherapist. His duties were to attend to paperwork. He was not required to do any of the heavier work involved in loading and unloading the tanker. His evidence is that he was still in pain, and that his pain was worse at the end of a shift. His shifts were generally about four or five hours at a time. He controlled his pain with medication. He was working five days a week, and on at least one occasion worked a shift of thirteen hours. The plaintiff’s recollection was a little unclear, but it is apparent from medical records that he must have returned to some driving by the end of 2000. He was also by then attempting to lift 20-litre drums of oil. He was warned not to lift such weights by Dr Ellwood.

At Christmas 2000, the plaintiff assisted with the installation of an above-ground swimming pool with a timber deck at home. He found that the pool was helpful in relieving his pain.

Whilst the plaintiff did not volunteer this in chief, he agreed when shown records produced by Moruya Golf Club that he had returned to competitive golf at the end of March 2001. Soon after his resumption of golf, probably in April, he won the monthly medal at the Club. At Easter 2001, the plaintiff and his family went away to a camping ground on the Araluen Road, and stayed in an old bus for two or three nights.

In April 2001 he commenced driving the tanker on his own, but not for such long shifts as before the accident. He would drive to Canberra or Mittagong to fill the tanker. He explained that filling at Mittagong caused him problems because the equipment at that depot required him to fill the tanker from above, crouching and pulling a lever, and manually checking the tank level from time to time to avoid overfilling. He said that this caused greatly increased pain in his low back and legs. He found it painful driving back to Moruya after filling the truck at Mittagong. He said that in April 2001 he felt that he had had enough, and formed an intention to drive his car onto the highway and into a tree. He must have talked to his wife about this: she rang his brother, who drove over and blocked the driveway to prevent the plaintiff getting his car out. He described feelings of failure and anger at that time. He was pleased to have got back to golf, which he enjoyed very much, but after a round of golf he felt emotionally negative, and the level of pain in his back and legs was significantly increased.

Early in May 2001, the plaintiff was involved in an incident at the Golf Club. He drank too much, and the effect was probably exacerbated by his medication. A barman refused to serve him further. He lost his temper and caused some damage in the bar. He was suspended from the clubhouse for six months.

It appears that the plaintiff completed his psychological counselling with Ms Dragisic during May 2001. He commenced proceedings in respect of the first accident on 4 June 2001.

The plaintiff explained that at about this time he stopped wearing a seatbelt when driving the tanker. The seats were equipped with some kind of shock absorber or air suspension, and on hitting a bump, the seatbelt would sometimes lock into position. The combination of the bouncing of the seat and the locked seatbelt caused the plaintiff considerable pain. This happened on a number of occasions, and he eventually stopped wearing the seatbelt. He meant to obtain a certificate, if he could, from his general practitioner, exempting him from the requirement to wear a seatbelt, but had not got around to this before the second accident.

The second accident

The second accident happened on 24 August 2001. The plaintiff had driven the tanker to Sydney on 23 August to have some repairs carried out. He left the depot at Rosehill at about 10.00 pm to return to Moruya. At 12.15 am on 24 August, he was driving the tanker south along the Princes Highway, Minnamurra, when a car being driven at high speed in the opposite direction, pursued by police, crossed to his side of the road and collided with the tanker head on. The driver of the car was killed, though the plaintiff did not realise this immediately. The plaintiff described the tanker as flying into the air. He thought that a tyre had blown and was unable to steer. He ran into a fence and eventually into a tree on an adjoining golf course. Although there has never been any suggestion that the plaintiff was to any degree to blame for the collision, he has always blamed himself for the death of the other driver. He realises that this is irrational.

The plaintiff spent some two and a half weeks in Wollongong Hospital. His wife came to Wollongong to be with him. Eventually he was discharged to Moruya Hospital where he spent two days before going home.

The second accident aggravated the plaintiff’s low back and leg pain. This aggravation persisted for about six months, after which the plaintiff thought that his condition had returned to the level it had been at immediately before the second accident.

In addition, the plaintiff complained of some new symptoms after the second accident: pain in the neck and left shoulder, pain in the left ear, and pain in the front of his forehead. Those new pains still troubled the plaintiff at the time of the hearing.

He also developed nightmares, specifically directed to a fear of burning to death in an accident. He recalled having a rational fear at the time of the accident that the full tanker might burst into flames. By the time of the hearing, the plaintiff said, he had nightmares of this kind about three times a week, and found himself mentally revisiting the accident frequently. This might be triggered by seeing television footage of a collision or an accident scene. He tried to learn techniques to control these emotional problems. It was the psychological rather than the physical symptoms which prevented him from getting back to driving a fuel tanker.

The plaintiff was unable to work at all after the second accident until May 2002. He returned to work as a passenger with Mr Ziegler and another driver. The plaintiff found himself suffering anxiety attacks with sweating and shaking. His psychologist developed a programme, part of which involved him walking around the truck and sitting in the truck while stationary. This would trigger his attacks and fear of incineration. It took him a couple of months before he could return to work as a passenger. After being in the truck he would relive the accident over and over, perhaps three times a night. When he returned to work in May 2002, he had a lot of time off because he could not cope, partly for physical and partly for emotional reasons. He was working up to four hours a day as part of a programme developed by the rehabilitation provider arranged by the workers’ compensation insurer. He had the impression that his employer regarded him as a nuisance and was not committed to making the rehabilitation programme work effectively. He asked whether he could go back to Shell Batehaven as a console operator but was told that this work was unavailable. He asked whether work might be available for him at the depot answering the telephone and ringing farmers for fuel orders, but was told that this was also unavailable.

Although the plaintiff did not volunteer this in chief, it emerged in cross-examination that in mid-2002 he bought himself a new set of golf clubs, and at the beginning of August 2002 resumed competitive golf. This is verified by Moruya Golf Club records. He played some social rounds and put in score cards as a result of which his handicap was set at eight. He reduced this over time, and by January 2003 it was down to four.

At the end of November 2002, the plaintiff received a telephone call to tell him that his job had ceased to exist and that he had been made redundant. The tanker was being relocated to Canberra. He was not offered any opportunity to move to Canberra. Mr Ziegler was made redundant at the same time: he purchased a business in Moruya.

From 6 January 2003 the plaintiff started work as a casual driver for his brother Ian. He had previously worked for his brother during 1998.

On 7 April 2003 he was playing pennant golf at Catalina Golf Club at Batemans Bay. He had to give up half way through the round because of severe back pain. The severity of the pain was such that he vomited on the golf course. He telephoned his wife, who collected him and took him to hospital at Moruya. He was admitted and spent almost three weeks there. He was depressed. According to the hospital records, he was angry and frustrated with the compensation system. He thought that he was not performing as expected in his work with his brother. He kept trying to work and to play sport, but he thought that he had no support from anyone. He recalled wishing at that time that he could die. He later acknowledged that he was hiding his problems from his treating practitioners and also from his wife and himself. He was frustrated that he was unable to cope with gardening, lawnmowing and the odd jobs around the house. He would attempt these but suffer pain afterwards.

After the second accident the plaintiff started drinking heavily. He ceased work with his brother in October 2003, and by the hearing had not worked again since then. A few days after he stopped work, his wife demanded that he leave home. He did so, and went to live with his parents. He and his wife remained apart for about six months. They were reconciled in April 2004 and the family has remained together since.

The plaintiff had a number of discussions with his psychologist about the possibility of eventually owning and operating a landscaping materials yard. He said in evidence that this was something he would like to do but that he was not in a financial position to establish a business, and would not be able to cope with the physical demands of the work.

In December 2003 the plaintiff was admitted to Moruya Hospital for a colonoscopy arranged by his general practitioner, Dr Ellwood. He was in hospital overnight. His stomach symptoms were attributed to the painkilling medication he had taken.

On 28 February 2003 the plaintiff saw Dr Lawson at the request of his solicitors. Dr Lawson recorded a complaint of inability to return to his usual sport of golf. The plaintiff conceded that this was incorrect at the time. He could not explain it other than as due to confusion or misunderstanding.

Cross-examination of the plaintiff

During the course of cross-examination of the plaintiff he was shown video film, taken on 1 May 2004, showing him shopping in Moruya with his mother and his son, and carrying shopping bags. On 2 May 2004, video showed the plaintiff and his wife and three children at a market at Candelo, about two hours’ drive south of Moruya. His recollection was that the family spent a few hours at the market that day, during which time he was on his feet. He did not recall that this caused him any problems. He was shown at one point bending, apparently without difficulty. He agreed that by the time the video was taken he was in much better physical condition than he had been a year earlier. He was no longer playing competition golf, but he said that this was because he had a lot of issues to deal with, related to his separation from his wife and overcoming his heavy drinking pattern. Over the years his wife had from time to time shown some irritation at the amount of time the plaintiff had spent at the golf club rather than at home with the family, and by May 2004 he was at pains to demonstrate that his wife and family were a greater priority than golf. He agreed that he was physically capable of playing golf but was not playing for those reasons. The day of the trip to Candelo market was the day the plaintiff’s wife gave back his wedding ring, and was clearly a memorable and emotional day for him. The film showed the plaintiff driving the family vehicle away from the market. His recollection was that he drove as far as a lookout near Bega where the family had lunch.

Further video film was shown, taken at Moruya Golf Club on 16 October 2004, a Saturday morning. The plaintiff was seen with his wife setting up to run the junior golf for the morning. His recollection was that he had taken on this role at the Golf Club in about 2002. It involved his attendance on most Saturdays from 7.00 or 7.30 am until perhaps 10.30 am.

The plaintiff was then shown video film taken in October 2004 depicting him mowing the lawn and clipping the edges with a whipper snipper. He agreed that he was shown mowing his own lawn and also a neighbour’s lawn. He conceded that he sometimes mowed the lawns of his neighbours on both sides. He was also shown emptying the catcher from his lawnmower over a fence into an adjoining paddock. He agreed that he took pride in doing a good job when mowing the lawn. Senior counsel for the defendant put to him that far from needing assistance with gardening and lawnmowing as claimed in his case, the plaintiff in fact was capable of providing assistance to his neighbours in carrying out the same tasks. He agreed with this proposition. He agreed that he also cleaned the swimming pool, sometimes twice a week, including removing leaves from the surface of the pool with a scoop. The pool from time to time needed chlorine. This came in 10 kilogram buckets, and the plaintiff agreed that he was capable of lifting these to put chlorine in the pool. Film on the same day showed him working in his vegetable garden with a hoe.

Film was also shown of the plaintiff on 2 February 2005 flying from Moruya to Sydney to see one of the defendants’ doctors. He was shown walking along a footpath near the doctor’s rooms in North Sydney. Senior counsel for the defendants put to the plaintiff that he appeared to be walking in Sydney more slowly and with a slight limp, by comparison with the way he was shown walking on the golf course three days later. She put it to him that he was conscious of the likelihood of surveillance on the day of the medical appointments, and subsequently submitted that the gait was deliberate. It seemed to me from a viewing of the videotape that there was some force in the submission. The plaintiff did not agree that there was anything deliberate about it but was unable to give any other explanation for the difference in presentation. He gave his evidence about it some five months after the event.

Whilst in Sydney on that day, the plaintiff was assessed by a clinical psychologist, Mr Peter Defina, at the Vocational Capacity Centre at North Sydney. The plaintiff agreed that he had told Mr Defina he would like to work outdoors, ideally in his own landscape supply yard. He had said that he thought that the physical demands of the work could be managed with the assistance of an employee, and that such a business would be likely to succeed having regard to population growth in and around Moruya over the previous few years. Counsel put to him that the only impediment to his setting up such a business was that he did not have funds to do so, and that it was his intention to do so as soon as he received an award of damages from the case. The plaintiff denied this, although he agreed that he was keen to return to work and that he had been told by his psychologist, Ms Dragisic, that this would be very good for him. He agreed that it was important to him to be in a position to support his family. Counsel asked him whether he was saying that he would never set up such a business, no matter how much he was awarded. His answer was “I’ve got no idea”. He said that he had no plans, and no idea what he would do after the case was over.

Further film showed the plaintiff, on the next day, 3 February 2005, preparing for a wake for a friend who had died. The plaintiff was shown carrying tent poles for a tarpaulin at the widow’s home. He was then shown the following day, carrying a trestle table above his head, carrying a stack of five chairs to a utility truck, and placing the chairs on the back of the truck. He was seen to carry stacks of five chairs at least twice. He agreed that he had delivered all the equipment and furniture to the house the day before the wake, and helped to set up the trestle tables, unpack the chairs and arrange them in the back garden under the tarpaulin. He agreed that he helped to erect and dismantle the tarpaulin. The video showed the plaintiff returning the trestle table and chairs to a church in Moruya. He agreed that he unloaded the tables and chairs and set them back in the church hall. He also conceded that since then he had helped the widow with gardening and handyman tasks, including mowing her lawn with his lawnmower, which he lifted in and out of his vehicle for that purpose.

On the following day, Saturday 5 February 2005, the plaintiff was seen at Moruya Golf Club organising the children’s golf competition. He was seen to be walking without restriction, standing without apparent difficulty and bending from time to time to pick up a golf ball or place a ball on a tee.

The plaintiff was cross-examined about an application to renew his driving licence which he completed and signed in October 2004. He agreed that he had answered the question “Have you ever had attacks of giddiness, blackouts, fainting or other sudden periods of unconsciousness?” in the negative, and that his answer had not been a truthful one. He could not explain why he had given an untruthful answer. He accepted that it was a serious matter to give a false answer in a licence application to the New South Wales Road Traffic Authority and said that he regretted it.

The plaintiff was also cross-examined about an assessment by Ms Radbron, occupational therapist, at his home in Moruya on 16 February 2005. He agreed that he had kneeled and crawled on the floor using furniture to support him. He did not agree that he had refused to attempt to squat. He conceded that he had been able to squat for the photograph demonstrating his position at the time of the accident at the Shell Service Station at Belconnen, and that he had no difficulty bending down to pick up a golf ball or to put a tee in the grass. He could not recall telling Ms Radbron that he was unable to reach below his knees. He agreed that if he had said that it would have been completely untrue. He agreed that he had told Ms Radbron that he did occasional lawnmowing for about ten minutes. He conceded that this was incorrect: he was capable of mowing the whole lawn and, if required, the lawns of his neighbour as well.

The plaintiff eventually agreed with senior counsel for the defendants that he would at some time in the future return to paid employment or set up his own business, though he could not say when.

The medical evidence

There was no oral evidence by medical practitioners. A substantial number of reports were tendered. I am generally of the view that a contemporaneous note or report by a medical practitioner is more likely to be factually accurate than the recollection of a lay witness years after the event. The lay evidence is likely to be even less reliable where the witness has an underlying, perhaps subconscious, motivation to influence the outcome of the proceedings: in this case, the magnitude of the damages. I shall briefly summarise the documentary medical evidence chronologically.

Dr Carlson, general practitioner of Moruya, sent the plaintiff to Dr J R Corry, a specialist in rehabilitation medicine in Canberra, in August 1998, about fifteen months before the first accident. The plaintiff gave Dr Corry a history of occasional bouts of low back pain since the age of about twenty, the first bout triggered by lifting a heavy gas bottle. The plaintiff said that he had required occasional days off work and obtained treatment from a chiropractor. The back pain usually settled rapidly. Since February 1997 the character of the low back pain had changed. He had developed pain more at night than during the day, sufficient to wake him. There was some morning stiffness which usually settled when he began to move about. He still had periodic episodes of acute pain, for which he saw the chiropractor. He described the pain as like a spasm in the low back. He had managed quite well in Queensland for twelve months, working at his wife’s family’s caravan park. Since his return to Moruya he had been driving a truck, and found that prolonged sitting aggravated his symptoms. He was still attempting a wide range of activities but had ceased rugby and bowling at cricket. He still played golf but with difficulty. Dr Corry thought that the symptoms were probably inflammatory in origin. He referred the plaintiff for an MRI scan which showed extensive changes in the lower back, far greater than the average for the plaintiff’s age. He thought that there was probably significant internal disruption to the L4-5 disk, possibly there since the gas bottle incident at age twenty. Dr Corry recommended a conservative approach, with the plaintiff avoiding extremes of lifting and manual handling, combined with a reasonable level of physical activity such as social cricket (not including fast bowling) and touch football. There was a risk of further injury of the order of five percent.

Dr K N Chandran, neurosurgeon, treated the plaintiff following the first accident. He was aware of the past history of back pain. A post-accident MRI scan was suggestive of a further disc protrusion or reaction at L4-5 within a pre-existing annular tear apparent from the earlier scan. Dr Chandran advised physiotherapy and swimming. The plaintiff’s back and leg pain were likely to continue for a number of months and might require surgery. He thought that the plaintiff needed domestic and gardening assistance for the next three months and was unfit for work during at least that period.

Also in February 2000, following two or three sessions with the plaintiff, Mr Peter Erskine, clinical psychologist of Mossy Point, reported symptoms of adjustment disorder with mixed anxiety and depressed mood as a direct result of the accident. The symptoms did not justify a diagnosis of post-traumatic stress disorder. The plaintiff had improved over the treatment sessions. His psychological prognosis was favourable, subject to recovery from his physical symptoms.

In July 2001, a month before the second accident, the plaintiff was seen at the request of his own solicitors by Dr G G Griffith, consultant surgeon. Dr Griffith accepted the plaintiff as genuine and saw no evidence of exaggeration or embellishment in his presentation or complaints. He was told that the plaintiff had been off work for about nine months, then on light duties for about three months, after which he had resumed truck driving. At the time of the consultation, the plaintiff was discharging his normal work duties. Dr Griffith thought it unlikely that the plaintiff would require surgery, though he was likely to need analgesics and anti-inflammatories in the future. The prognosis was for gradual progression of the underlying disease process over a period of years and perhaps decades, accompanied by periodic exacerbations and remissions. The plaintiff could expect stiffness, worse in cold weather, but controllable by medication. The prognosis of his mental state was good. He had already improved dramatically with advice as to stress and pain management. A slide into depression was possible: the plaintiff’s psychological condition should be monitored at intervals of three months. Whilst the plaintiff had a history of back pain and treatment for it, and there was evidence of degenerative change in the lumbar spine before the accident, he was able to work without impediment. Dr Griffith considered on balance that the plaintiff’s complaints were significantly if not completely caused by the accident.

The plaintiff’s solicitors sent him at about the same time to see Dr Kevin Bleasel, a neurosurgeon of vast experience and very high reputation. Dr Bleasel’s consultation with the plaintiff was on 21 August 2001, three days before the second accident. He concluded that the plaintiff had continuing back pain and diffuse leg pains caused by disc damage at L4-5. He accepted that the plaintiff was to some degree restricted in his work as a truck driver. There would undoubtedly be further deterioration in his back as time passed, with development of arthritic changes in the affected facet joints. On the balance of probabilities Dr Bleasel thought that the dehydration of the discs in the lumbar spine was a result of the accident. There was no indication for treatment other than exercise, physiotherapy and medication. He doubted that the plaintiff would be able to continue as a truck driver for more than a few years. It would be better for him to have a lighter driving job. Prognosis was not good and the plaintiff faced the prospect of further troubles as the years passed.

In a report in February 2002, Ms Kristel Dragisic, a psychologist with Mr Erskine’s practice at Mossy Point, recorded the symptoms with which the plaintiff presented after the second accident, and arrived at a diagnosis of post-traumatic stress disorder in accordance with DSM IV criteria. The symptoms included insomnia and nightmares, constant brooding about the accident, loss of appetite, stomach cramps, hypervigilance, tearfulness, irritability and suicidal ideation. His treatment had comprised cognitive behaviour therapy and supportive counselling. The treatment had dealt specifically with anger management, relaxation, anxiety management, pain management and management of relationship issues. Ms Dragisic thought that the prognosis was guardedly favourable, provided that the plaintiff continued to receive regular treatment. He had made a good recovery psychologically following the first accident and she was optimistic that he would do so again. However, his psychological symptoms were markedly more severe after the second accident. It would be inadvisable for him to return to truck driving immediately, and questionable as to whether he should ever do so.

The defendants’ solicitors sent the plaintiff to Dr R J Kitchin, a retired Canberra orthopaedic surgeon, in March 2002. Dr Kitchin took the view that the plaintiff had recovered from his first accident by the time of the second one. The first accident had produced a temporary aggravation of a pre-existing lumbar disc disorder, particularly at L4-5. The second accident had mostly caused emotional stress. Dr Kitchin accepted that the plaintiff remained depressed and unable to face driving a tanker after the trauma of the death of the driver of the other vehicle.

The defendants’ solicitors sent the plaintiff to Dr Klaas Akkerman, a psychiatrist with a medico-legal group practice. Dr Akkerman saw the plaintiff in November 2002. He took the view that the plaintiff had suffered a considerable psychiatric injury following the first accident and that Mr Erskine had probably underestimated its effects. He had in Dr Akkerman’s view returned to seventy or eighty percent of normal in psychological terms prior to the second accident, which triggered a post-traumatic stress disorder and a secondary major depression. His treatment had been inadequate. Dr Akkerman thought he was in urgent need of specialist psychiatric treatment, including anti-depressant medication. He thought that the treatment from Ms Dragisic had not been particularly effective. The plaintiff had started a return-to-work programme about two months before Dr Akkerman saw him, spending two hours a day three days a week as a passenger in a truck. Dr Akkerman thought that this programme was cruel and unnecessary. He did not believe that the plaintiff would ever work as a truck driver again. The programme was not improving his condition, and was, if anything, worsening it: it should be stopped immediately. With appropriate treatment the plaintiff would improve and his prognosis should be reasonably good, but he would never work as a truck driver again. He would be able to work in other capacities where he was unlikely to encounter motor vehicle accidents. His disabilities had not yet stabilised.

Dr Bleasel saw the plaintiff again in January 2003. He did not think that the plaintiff would ever be able to return to the fuel transport industry. It would be difficult for him to find work on the open market. His prognosis was not good; he was unfit for work involving prolonged sitting or standing, heavy lifting or bending. The plaintiff had resumed golf and lawnmowing but was still very much troubled by his back pain and was touchy and irritable. Dr Bleasel had the benefit of a fresh MRI taken a few days after the second accident. In his view this showed evidence of more damage at L3-4, L4-5 and L5-S1 than the earlier scans.

In February 2003, the plaintiff’s solicitors sent him to Dr Christopher Canaris, a forensic psychiatrist. Dr Canaris practises at Ashfield in Sydney. He generally accepted the history he was given by the plaintiff and confirmed the diagnosis of post-traumatic stress disorder and major depressive disorder. In his opinion some symptoms of post-traumatic stress disorder had been present before the second accident. He took the view that the plaintiff was made more vulnerable by the first accident to the effects of the second accident, despite his substantial recovery prior to the latter event. The plaintiff’s condition would remain stable, probably for a number of years. Under no circumstances should he ever drive a fuel truck again.

The plaintiff saw Dr Bleasel again in March 2004. The plaintiff and his wife had separated some five months earlier and he was living with his parents. He was still playing golf. His handicap had dropped a little. He suffered back pain which he was prepared to put up with. In April 2003 he had caught his foot in the grass on a golf course and jerked his back: he had to discontinue the game and was taken to hospital with pain severe enough to cause vomiting. He got back to work after this, as a truck driver, as he had no money. He had to give this up in October 2003. By that time he was taking significant doses of painkillers and drinking heavily at the end of the week, resulting in bad temper and irritation. He had gained a considerable amount of weight. By the time he saw Dr Bleasel he had come to grips with this and reduced his consumption of food and drink. He had been made redundant in November 2003 and was concerned that NRMA as authorised insurer of the vehicle at fault in his earlier accident had attributed his more recent problems to his April golf injury and refused to accept liability for his disabilities thereafter.

Dr Bleasel regarded the first accident as of great significance, and the second accident as a severe aggravation of its effects. The further aggravation on the golf course in April 2003 he saw as a minor matter, illustrating the susceptibility of the plaintiff’s damaged back to minor incidents. The plaintiff was not capable of a return to work, and his prognosis was poor. It might be possible for him to return to the workforce doing clerical or supervisory work but he would not be able to drive a truck again. The plaintiff told Dr Bleasel that he was able to mow lawns at home. For what it is worth, Dr Bleasel apportioned the plaintiff’s back symptoms as to seventy percent to the first accident and thirty percent to the second.

The second accident having occurred in New South Wales, although the insurer at risk was the same insurer (NRMA Insurance) as for the first accident, the plaintiff found himself within the regime of the NSW Motor Accidents Authority. He was referred to Dr Alana Kossoff, a psychiatrist. She saw him on 31 May 2004. Her task was to arrive at conclusions which fitted in with the NSW legislation, and are of limited relevance to my task in assessing damages. Relevantly, she concluded that whilst the plaintiff had suffered from an adjustment disorder with depressed mood after the first accident, his symptoms had virtually resolved before the second accident. For the purposes of the NSW legislation, Dr Kossoff concluded that there was no objective symptomatic evidence of psychiatric or psychological impairment caused by the second accident.

In respect of the second accident, the plaintiff was referred by the NSW Medical Assessment Service, a statutory authority created by the Motor Accidents Compensation Act 1999 (NSW), to Dr Philippa Harvey-Sutton, a consultant occupational physician. Dr Harvey-Sutton saw the plaintiff on 31 May 2004. She wrote a lengthy report, focused on the requirements of the NSW Act. She found that the plaintiff had suffered injuries to the neck and low back, with associated symptoms in the legs, and also post-traumatic stress disorder as a result of the second accident. She accepted that the plaintiff had given his history in a genuine and straightforward manner and presented without embellishment. Her diagnosis was a whiplash injury of the cervical spine and a whiplash injury of the lumbar spine. The prognosis was guarded. There might be some improvement in the future. She expected no substantial deterioration. The plaintiff’s condition had stabilised by the time she saw him.

The solicitors for the defendants arranged for the plaintiff to be assessed in February 2005 by Mr Peter Defina, clinical psychologist at the Vocational Capacity Centre in North Sydney. I have already mentioned this in connection with the video film of the plaintiff on his way to the appointment. He gave Mr Defina a detailed history, including a concession that at the peak of his heavy drinking period he was drinking twelve to fifteen schooners of beer every Friday, Saturday and Sunday night. He described his decision to cease heavy drinking as a relief. He referred to his completion of an adult literacy programme. He said that he would like to improve his literacy skills further, and to undertake courses in small business management and computer operation. He would eventually like to open a landscaping materials yard. He had been in the process of locating a suitable block of land for the business when the second accident happened. He thought that such a business would be successful, having regard to the level of development in the Moruya area in recent years.

He was less than frank with Mr Defina about his golf. He said that he had been unable to continue with his pre-accident recreational pursuits. He had attempted to play golf, he said, but found that it hurt too much and became unenjoyable. He said that he was no longer able to be competitive. He did not mention that he had resumed competitive golf after the first accident by March 2001, or that he had returned to competitive golf after the second accident by early August 2002.

Mr Defina carried out a number of tests on the plaintiff. His personality assessment showed that he was socially introverted, easily hurt emotionally by conflicts with others, and likely to report higher levels of pain than normal when sick or injured. He might behave insensitively or with suspicion of the motives of others. He was likely to respond inappropriately under pressure, to anticipate disaster, and to experience distress as a consequence.

Mr Defina accepted that the plaintiff was still suffering from post-traumatic stress disorder. He thought that he was predisposed to this by the psychological effects of the first accident, though he may well have developed post-traumatic stress disorder as a consequence of the second accident if the first accident had not occurred. He concluded that the most suitable outcome for the plaintiff would be the establishment of his own business, a landscape supplies yard. A return to work in this capacity would require sensitive management and ongoing support, preferably including involvement by his treating psychologist and a rehabilitation provider. Mr Defina nominated a small number of other occupations for which the plaintiff might be suited.

The plaintiff told Mr Defina that he had had numerous telephone calls from prospective employers offering him work as a truck driver, receiving the first offer the day after he was made redundant. He had refused the offers because of his psychological symptoms. This accords with Mr Ziegler’s evidence about the availability of truck-driving work in the Moruya area, and I am inclined to accept it as correct.

In March 2005 the plaintiff was seen by Dr J W Fuller, neurosurgeon, in Canberra, on referral from his general practitioner. Dr Fuller referred him for a bone scan of the lumbar spine. This showed some increased activity within the L3-4 joints on both sides, consistent with facet joint arthropathy. Dr Fuller thought that a trial of facet joint injections would be worthwhile. The injections were administered in April 2005. The plaintiff did not respond particularly well to them.

His physiotherapist, Andrew Bonatakis, noted at that time that the plaintiff had seen him six to eight times a year for the previous three years. He said that the ideal would be for the plaintiff to self-manage by exercise and safe practices at work and at home, to prevent severe acute episodes of pain. I take it from his report that he does not expect this ideal to be achieved but rather that the plaintiff will continue to require physiotherapy from time to time.

The plaintiff’s treating psychiatrist, Ms Dragisic, in a report to his solicitors in June 2005, said that she was continuing to see him every two to four weeks as required. He was still suffering from post-traumatic stress disorder resulting from the second accident. She saw him as a highly motivated patient who was making a genuine effort to manage his symptoms. She thought it likely that he would experience some symptoms of post-traumatic stress disorder permanently, and that he needed to learn to manage and subdue the symptoms. She thought that he could and should work again. This would require retraining for appropriate work which interested him. Psychologically he should never drive a truck again. He should continue working with the rehabilitation provider to achieve this goal. It was important for him to continue with psychological treatment as needed. The need, she expected, would be less frequent once his court case was over.

Dr Ellwood, the plaintiff’s general practitioner, in a report in June 2005 thought that the plaintiff would always have a background level of back pain, with periodic exacerbations. During these times he might be totally unable to work and barely able to function. These acute periods might last for a number of weeks, and could be precipitated by a quite minor incident. It was likely that he would occasionally need periods of time off work. Dr Ellwood thought that the plaintiff’s dream of establishing a landscaping materials yard was unrealistic, I gather mainly because he thought that the job would necessarily involve heavy lifting. He was concerned that the plaintiff’s literacy and educational levels might be an impediment to establishing and running such a business.

In February 2005 the plaintiff was assessed in his own home in Moruya by Ms Lesley Radbron, an occupational therapist, at the request of the solicitors for the defendants. It is clear from her report that she had access to a number of the medical and psychological reports. She took a history from him, including details of his current symptoms. She accepted that he was unable to bend to reach below his knees and that he required assistance if he dropped the soap in the shower. He told her that even on good days he sometimes needed help from his wife with washing his legs, to avoid the risk of aggravating his back pain. He told her that every three to four months he experienced a severe exacerbation of his low back pain, requiring bed rest and assistance with showering and dressing. At such times he needed a walking frame for support. The exacerbations usually lasted for two days or more. His contribution to housework was limited by the fact that he was unable to bend or squat. He needed help from his children to unload the washing from the washing machine and place it in a basket on the washing trolley. He went shopping with his wife but rarely pushed the shopping trolley as this aggravated his low back pain. He had been unable to resume gardening except for occasional lawnmowing for about ten minutes at a time, and occasional digging and weeding. He was unable to start the lawnmower: most of the lawnmowing was now the responsibility of his elder son, with occasional help from the plaintiff’s father. He had been unable to attend to home maintenance and this was now looked after by family or friends. He was able to drive a utility provided that he could stop for a rest, for example twice during the two-hour trip to Canberra.

Ms Radbron thought that the plaintiff would be unlikely to be able to return to work successfully without help from a rehabilitation provider and a pain management programme. She generally accepted the plaintiff’s assertions, and came up with a number of recommendations for the purchase of such items as elastic shoelaces, a long-handled shoe horn, a long-handled toe wiper, a lightweight upright vacuum cleaner, a grabrail in the shower recess, and long-handled garden tools. She arrived, on the basis of the information given to her, at figures for the number of hours of assistance he would need for his personal care and in the house and garden: something over four hours per week. She did not agree with a recommendation made by an occupational therapist who had seen him in June 2003, that he required a wheelchair or would be likely to do so in the future.

Liability – the first accident

The defendant in the action arising out of the first accident did not give evidence, and the investigating police officer was unable to locate her to obtain a statement. The court accordingly does not have the benefit of her version of the circumstances of the accident. Her negligence is admitted on the pleadings. The evidence does not permit me to make a finding as to how far she reversed her vehicle before striking the plaintiff, or as to whether she reversed in a straight or curved line.

The contributory negligence alleged against the plaintiff is particularised as follows:

(a) failing to keep a proper lookout;

(b) leaving the engine of his fuel tanker running so that he could not hear the approach of the defendant’s vehicle;

(c) failing to erect barricades or warning signs around the place where he worked.

I am satisfied by Mr Ziegler’s evidence that the plaintiff acted reasonably in leaving the engine of the fuel tanker running: it was necessary to do so to allow it to cool before turning it off. It would not have been practical in the context of the plaintiff’s duties as a delivery driver to turn the engine off and wait for it to cool down before checking the tank levels and filling them.

I accept the evidence of the plaintiff and of Mr Ziegler that drivers were not provided with barricades or warning signs at the time of the first accident, although they were subsequently. This allegation of contributory negligence might have substance if the plaintiff had been provided with and carrying barriers or warning signs, or if there was evidence of their availability at the service station. In the absence of any such evidence the defendant has not established any factual basis for this particular of contributory negligence.

It is a reasonable expectation that a man who is to undertake a task from a crouching or squatting position on the apron of a service station will keep a proper lookout in the interests of his own safety. In the absence of any evidence from the defendant, I am unable to make a finding as to where her vehicle was immediately prior to the plaintiff squatting to check the fuel level in the tank. The plaintiff’s evidence is that he adopted a position facing the direction from which vehicles might be expected to come towards him. In performing the task, it was inevitable that he would be facing in a particular direction, and hence would have his back to the opposite direction. It was also inevitable that he would be looking at what he was doing. I cannot be satisfied that if the plaintiff had kept any better lookout than he did, the accident would have been avoided. On the contrary, it seems to me that the plaintiff did all he could in the circumstances to take reasonable precautions for his safety, having regard to the nature of the task he was required to perform. The defendant has therefore not made out its case in relation to contributory negligence, and the plaintiff is entitled to succeed against the defendant in relation to the first accident without any reduction.

Liability – the second accident

It is admitted on the pleadings in relation to the second accident that the driver of the stolen car was negligent and that his negligence was a cause of the collision. The defendant pleads that the plaintiff was guilty of contributory negligence in failing to wear the seatbelt provided. The only evidence about the second accident is that of the plaintiff. His oral evidence is clear: he was not wearing a seatbelt. He had stopped wearing it some time earlier, because it caused him back pain when it locked in position, which it sometimes did if the tanker went over a pothole. He understood that he was required by law to wear a seatbelt. He had intended to ask Dr Ellwood for a certificate of exemption from this requirement, but had not got around to doing so by the time of the accident. There is no suggestion that the seatbelt was not functioning as designed. I accept that the plaintiff was required by legislation to be wearing it and was not doing so at the time of impact.

The second accident having happened in New South Wales, it is common ground that the Motor Accidents Compensation Act 1999 of that State is applicable. Section 138 of the Act relevantly provides as follows:

138 Contributory negligence – generally
(1) The common law and enacted law as to contributory negligence apply to an award of damages in respect of a motor accident, except as provided by this section.
(2) A finding of contributory negligence must be made in the following cases:
…
(c)where the injured person … was, at the time of the motor accident, not wearing a seatbelt when required by law to do so.

…
(3) The damages recoverable in respect of the motor accident are to be reduced by such percentage as the court thinks just and equitable in the circumstances of the case.
(4) The court must state its reasons for determining the particular percentage.

…
(6) This section does not exclude any other ground on which a finding of contributory negligence may be made.
…

Being satisfied that I am required to do so, I make a finding of statutory contributory negligence against the plaintiff. Statutory contributory negligence will not necessarily be contributory negligence at common law: failure to use an available seatbelt is relevant for common law purposes only if, and to the extent that, the injury complained of would have been less serious if the belt had been worn. The Court of Appeal of the Supreme Court of New South Wales held in Nicholson v Nicholson (1994) 35 NSWLR 308 (per Kirby P at 318):

It is permissible for a court to reduce damages for statutory contributory negligence by reason of failure to wear a seatbelt by nought percent if the failure did not contribute to the severity of the injuries.

In the present case, the plaintiff suffered some physical injury in the collision, which had the effect of temporarily exacerbating the injuries he had suffered to his low back in the first accident. More seriously, he suffered psychological injury resulting in post-traumatic stress disorder. The failure to wear a seatbelt did not contribute in any way to the latter.

There is no evidence capable of satisfying me that the fact that the plaintiff was not wearing a seatbelt contributed to the severity of his physical injury. Indeed, I have some concern from the plaintiff’s evidence that his physical injury might have been worse if he had been wearing the seatbelt, though it is unnecessary for me to make a specific finding about this. None of the medical practitioners gave oral evidence, and there is simply no expression of opinion one way or the other in any of the medical reports about this question. Despite the statutory obligation to make a finding of contributory negligence, it seems to me that there must remain at least an evidentiary onus on the defendant to establish whether, and if so to what extent, the failure to wear the seatbelt contributed to the severity of the injuries. In the absence of any evidence about it, it seems to me that it would not be just or equitable to reduce the plaintiff’s damages by any percentage. In case it is seen as necessary for me to do so for the purpose of giving effect to section 138(3), I determine the percentage at nought percent.

Analysis of the evidence as to damages

This is an action in which the plaintiff, I think, has damaged his own case by pitching it too high. In chief he tended to play down any low back symptoms he had experienced before the first accident, and to exaggerate his physical symptoms following his injuries in both accidents. This did not emerge until he was effectively cross-examined by senior counsel for the defendants. Until the cross-examination he had appeared a genuine person and an acceptable witness deserving of considerable sympathy. He must bear personal responsibility if his exaggeration and lack of candour casts doubt on other parts of his evidence which may well be entirely truthful.

His evidence about his episodes of back pain before the first accident is directly relevant to my findings about his condition at the time of the first accident and his likely course in the future. I must find that he had a vulnerable back with early degenerative changes typical of a much older man than thirty-two. The heavy work required of him during his year at the caravan park in Queensland had further increased the vulnerability of his back to future trauma, as well as causing the symptoms for which he needed treatment at the time. Nevertheless, the plaintiff was coping with the demands of his job as a tanker driver without problems apparent to others. If it had not been for the first accident, it seems to me more likely than not that he would have continued as a tanker driver with the same employer until he and Mr Ziegler were made redundant in November 2002. Thereafter, I think it likely that, like Mr Ziegler, he would have looked for opportunities to start his own business. Both his parents and his wife’s parents had owned their own businesses, and it seems likely to me that the freedom of being his own boss would have been attractive to him. I accept that other truck-driving work would have been available to him after the redundancy, until he was able to finalise arrangements to start a business. With his already vulnerable back, it seems to me unlikely that he would have chosen to work indefinitely as a truck driver.

In relation to his credit, I do not accept that he changed general practitioners within a month of the first accident in order to quarantine the records of his previous general practitioner from the non-party production process, as was put to him by senior counsel for the defendants. I accept that the plaintiff may have a degree of cunning, but duplicity at that level of sophistication, so soon after the accident, stretches my credulity too far. It is a more credible explanation that he experienced a loss of confidence in his old general practitioner over his withdrawal symptoms from morphine, and that he decided to stay with the new practice to which he had been referred by the hospital.

As to the plaintiff’s level of disability after the first accident, it seems to me that the reality lies somewhere between the picture he painted in chief and the findings urged on me by counsel for the defendants. I accept that the plaintiff was able to return to work as a truck driver, following a period of light work, by October 2000, and that he returned to competitive golf by the end of March 2001. I am not persuaded that he had made a full recovery from the injuries he suffered in the first accident by either of those dates, or indeed by the date of the second accident. I am satisfied that immediately prior to the second accident, the plaintiff continued to suffer from exacerbations of his back pain from time to time, caused by prolonged sitting in the driving position as well as by other physical activity. I accept that his disabilities, whilst not severe enough to prevent him from playing golf, did leave him feeling worse at the end of a day on the golf course. I find that he was slowly improving, but that by the date of the second accident the vulnerability in his low back was a great deal worse than it was at the date of the first accident. I am not satisfied that absent the second accident his earning capacity would have been affected in any mathematically measurable way. He would, I think, have been able to continue driving the tanker, with exacerbations of symptoms from time to time, until redundancy, and he would have been able to engage in other truck driving following redundancy until he was able to establish his own business. His loss of earning capacity caused by the first accident, in respect of the period notionally starting from the date of the second accident, and on the assumption that the second accident had not happened, would have been modest and compensable by a generalised allowance in damages rather than a figure calculated by reference to a mathematical formula. The same considerations apply to any award for notional treatment expenses from the date of the second accident. By the date of the second accident, it seems to me that any need for Griffiths v Kerkemeyer damages arising for the first accident would also have been very modest.

I referred earlier to the report of Dr Griffith, who saw the plaintiff a month before the second accident. As I said, Dr Griffith accepted the plaintiff as genuine. It is clear from my factual findings that the plaintiff to some extent exaggerated his disabilities and embellished his history when seen by Dr Griffith. Whilst I have great respect for Dr Griffith as an expert medical witness, it seems to me that his conclusions are tainted by his acceptance of the plaintiff’s history and presentation. This is not a case where the disparity between the assumptions accepted by Dr Griffith and my factual findings robs his opinion of any value. It is a matter of some regret, though inevitable in practical terms, that I do not have the benefit of Dr Griffith’s opinion as to diagnosis and prognosis based upon my factual findings.

Similar observations apply to the opinions expressed by Dr Bleasel. I found his reports of considerable assistance, having regard to the fact that he saw the plaintiff just before the second accident and again afterwards, but again, Dr Bleasel’s opinion is based upon the somewhat exaggerated history and embellished presentation of the plaintiff.

As to the effect on the plaintiff of the second accident, I accept his evidence that his low back and related symptoms were aggravated for a period of time, but that after about six months his condition had settled at about its level immediately prior to the second accident. I note that by August 2002 he had bought himself a new set of golf clubs and returned to golf.

However, I also accept, and the defendant does not seriously contest, that the second accident has had a severe psychological effect on the plaintiff. He still had symptoms of post-traumatic stress disorder by mid-2005, and there is no reason to suppose that he has yet recovered, or that he will do so other than very gradually over time. I accept that he will never be able to drive a truck again because of the psychological impact on him when he attempts to do so.

Consequently, I accept that after he was made redundant in November 2002, the plaintiff was unable to take on truck-driving work. I accept that he was offered such work and reasonably refused it. I also accept that he has applied for other jobs from time to time without success. The vocational psychologist who assessed him for the solicitors for the defendants could come up with only a very limited range of employment for which he might be suited. Living in a small coastal town, he has, unsurprisingly, been unable to find anything. I take account of the fact that he remains entitled to workers’ compensation and that this reduces his incentive to find work until his case is over. If he had had available to him a capital sum, he might have taken concrete steps to buy or start a business, perhaps in his preferred area of landscaping materials, but without capital or income other than his workers’ compensation, one cannot criticise him for not having done so.

I think it likely that once the case is behind him and he has some funds as a result of it, he will purchase a site and start a business. I am unable to foretell its likely level of profitability, but in one sense this is a neutral factor because I think he would have moved towards starting or buying his own business in any event by now. His prospects of making a success of such a business are to some extent impaired by his physical level of disability, by comparison with the position which would have obtained had he not been injured in either accident: although it must be acknowledged that he already had a vulnerable lower back.

His damages for loss of earning capacity must reflect the possibility that his attempts to run his own business will be unsuccessful and that his capacity to work in other employment, particularly as a driver, is impaired.

As to the Griffiths v Kerkemeyer component, I find that by now there are only a few things around the house which the plaintiff is unable to do and with which he needs assistance at times of periodic exacerbations of back pain. I think that he can do most things around the house and look after himself almost all the time. I accept that there is a level of need, past and future, which warrants a modest award of damages.

Damages

There are three relevant time periods into which the various components of damages need to be divided for the purpose of calculation of interest: the period from the first accident to the second accident, the period from the second accident to the date of judgment, and the future.

In respect of the first accident, it seems to me that a reasonable sum to compensate the plaintiff for his injuries by way of general damages, taking account of the pre-existing vulnerability and of the intervention of the second accident, is $55,000. The second accident should be seen for the purpose of this exercise as the happening of an event which would otherwise have been merely one of the possible contingencies in the future. I apportion those damages as to $25,000 for the period between the first accident and the second accident, $20,000 for the period since the second accident, and $10,000 for the future. The past components attract interest which I allow in the sum of $7,000.

The bulk of the treatment expenses have been paid, either by the workers’ compensation insurer or by the authorised motor vehicle insurer. I have been provided with a schedule which does not assist me in apportioning the expenses between the two accidents, and I shall invite further submissions from counsel in the light of these reasons, in the hope that agreement can be reached about this. Counsel for the defendants submit that I should be satisfied on the evidence that the plaintiff had made a complete recovery by 3 August 2002, the date he resumed competitive golf after the second accident, and that I should not allow any expenses after that date, notwithstanding that there has been considerable treatment and that its cost has been paid, presumably by the workers’ compensation insurer.

Counsel for the defendants also submit that, regardless of the previous submission, I should not be satisfied that either accident is a relevant cause of the plaintiff’s admission to Moruya District Hospital in April 2003.

As to that admission, the plaintiff’s evidence was that he was playing pennant golf at Catalina. His back became very painful and he was unable to complete the round. He vomited on the course, and his wife had to come and collect him and take him to hospital. He told Dr Bleasel in March 2004 that he was simply walking on the course at about the seventh hole when his left foot caught in the grass, jerking his back. The plaintiff’s oral evidence in cross-examination in 2005 was a little vague about the precise mechanism of the injury, but there is no doubt that he was admitted to hospital and spent some days there as a result. There is no evidence of any traumatic incident sufficient to amount to a novus actus interveniens: no such proposition was put to any of the plaintiff’s doctors, nor was any such opinion expressed by any of the defendants’ doctors. In the circumstances I am satisfied that the incident represented an exacerbation of the earlier injuries and that the plaintiff’s admission to hospital in April 2003 was relevantly caused by a combination of the two accidents.

As to the more general submission, whilst I am satisfied that the plaintiff had recovered sufficiently to resume competition golf by August 2002, and that his physical condition had recovered within six months of the second accident to its pre-accident level, I am not satisfied that by August 2002 the plaintiff had completely recovered from all of his physical injuries occasioned by the first accident. I am satisfied that the treatment since then was relevantly caused by the accidents and that its cost is recoverable.

It is agreed between the parties that if I find a need for voluntary care in the future, the appropriate rate is $19 per hour. For commercial care the agreed rate is $30 per hour. It is agreed that the cost of a regime of medication of Endone, Panadone, Stillnox, Brufen and Somac is $33 per week. It is agreed that the present cost of a general practitioner visit is $54, of a consultation with a neurosurgeon $102, of a session with a psychologist $176 and of a physiotherapy session $75. The defendants do not concede that the plaintiff has any continuing need for any such medical treatment or medication.

There is agreement as to a Fox v Wood overall component but no evidence as to how I should apportion it between the two actions.

For the second accident, I allow general damages of $50,000, which I apportion as to $30,000 to the past and $20,000 for the future.

In relation to the Griffiths v Kerkemeyer component, I propose to make a generalised allowance on the basis that for four weeks after the first accident, the plaintiff required care twelve hours a day seven days a week. For the next six months his need was for two hours’ care a day, and for the following nine months for one hour a day. For the period between the first and second accidents I allow $18,000, plus interest of $10,000. For the period following the second accident, I allow twelve hours a day for the first month, two hours a day for the next three months and one hour a day for another five months, to take the plaintiff up to his resumption of work in May 2002. For that period I allow $12,000. For the period from May 2002 to the date of judgment I allow $5,000. Of the award for the period after the second accident, I apportion $3,000 to the first accident, plus interest of $700. I allow $2,000 for future care in the first action and $3,000 in the second action.

I note that pursuant to section 124 of the Motor Accidents Compensation Act 1999 of New South Wales, no damages for economic loss due to loss of earnings or impairment of earning capacity are to be awarded in respect of the first five days of loss. In awarding damages for future economic loss, the court must be satisfied that the assumptions on which the award is based accord with the plaintiff’s most likely future circumstances but for the injury. The award must be adjusted “by reference to the percentage possibility that the events concerned might have occurred but for the injury”. The court must state the assumptions on which an award for future economic loss is based and the percentage by which damages were adjusted, if appropriate: section 126. Section 127 prescribes a discount rate of 5% for calculating future losses. Section 128 sets out some restrictions on the amount to be awarded for the Griffiths v Kerkemeyer component of an award of damages: I shall invite counsel to ensure that my award complies with that section.

Section 131 precludes an award for non-economic loss (defined in section 3 to mean pain and suffering, loss of amenities of life, loss of expectation of life and disfigurement) unless the degree of permanent impairment of the plaintiff caused by the motor accident is greater than 10%. The only evidence about this is the report of Dr Harvey-Sutton, who concluded that the plaintiff failed to reach the threshold. Despite this, no point was taken in the pleadings or at trial on behalf of the defendant in the second action about the application of the section and I take it that the 10% permanent impairment threshold is conceded.

Under section 137, a court cannot order the payment of interest on the Griffiths v Kerkemeyer component, or the non-economic loss component. It appears to me that the other components of damages in relation to the second accident which might attract interest were it not for the NSW legislation are made up in amounts paid by insurers so that the plaintiff could not justify a claim for interest in any event.

For the purpose of calculation of loss of earnings, I take as a base figure the plaintiff’s taxable income for 1998-99, $53,128, or $708.50 per week after tax. Some inflationary increase in that figure over the ensuing seven years should be taken into account by way of judicial notice, in the absence of specific evidence about it.

I propose to make an allowance for loss of superannuation benefits for the past, calculated at 9% of the amount awarded for past loss of earnings. In addition I would make a modest allowance for future loss of superannuation benefits, taking account of my finding that the plaintiff is likely, and would in any event have been likely, to start his own business at some time in the fairly near future.

I propose to deliver these reasons for my factual findings, and to invite submissions in relation to the amounts I should award in each action for treatment expenses and loss of earning capacity, past and future, and for the Fox v Wood component. The parties should inform my associate as to whether they wish to have the matter listed for further oral submissions, or to proceed by way of written submissions. The matter may be listed by either party, on notice to the other, in my Friday application list on any convenient date.
I certify that the preceding one hundred and nineteen (119) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.
Associate:
Date: 20 October 2006

Counsel for the plaintiff:  Mr R S McIwaine SC
Solicitors for the plaintiff:  Stacks by their agents Snedden Hall & Gallop
Counsel for the defendants:  Ms C E Adamson SC & Mr BAP Kelleher
Solicitors for the defendants:  Phillips Fox
Date of hearing:  4, 5, 6, 7, 25 July 2005
Written submissions completed:  6 September 2005
Date of judgment:  20 October 2006