Keller v Phillips - [2019] TASSC 35

[2019] TASSC 35

COURT: SUPREME COURT OF TASMANIA

CITATION: Keller v Phillips [2019] TASSC 35

PARTIES:  KELLER, Jess Klaas
  v
  PHILLIPS, Jiah Jonathan

FILE NO:  2016/3808
DELIVERED ON:  21 August 2019
DELIVERED AT:  Hobart
HEARING DATES:  22 – 26 July, 14 & 16 August 2019
JUDGMENT OF:  Estcourt J

CATCHWORDS:

Torts – Negligence – Road accident cases – Liability of drivers of vehicles – Traffic lights and road signs – Intersections and junctions – Turning across traffic – Collision with motorcyclist in intersection – Vehicle turned across the path of oncoming motorcycle – Defendant's negligence in moving off from wholly stationary position in front of plaintiff's oncoming motorcycle was sole cause of collision

Langford v Tasmania [2018] TASCCA 1, referred to.
Taub v The Queen [2017] NSWCCA 198, 95 NSWLR 388, referred to.
Road Rules 2009 (Tas) r 57(3), cited.
Aust Dig Torts [91], [92], [93]

Damages – Measure and remoteness of damages in actions for tort – Remoteness and causation – Pre-accident condition of plaintiff – Where plaintiff suffered permanent and significantly disabling aggravation of previously intermittent low back pain caused by pre-existing soft tissue damage in lower back

Aust Dig Damages [24]

Damages – Measure and remoteness of damages in actions for tort – Measure of damages – Personal injuries – Loss of earnings and earning capacity – Particular circumstances – Where plaintiff has done all he reasonably can to mitigate loss – Where chronic and permanent injury suffered is predominant cause for lost earnings

Bresatz v Przibilla (1962) 108 CLR 541, referred to.
Husher v Husher [1999] HCA 47, 197 CLR 138, referred to.
Najdovski v Crnojlovic [2008] NSWCA 175, 72 NSWLR 728, applied.
State of New South Wales v Moss [2000] NSWCA 133, 54 NSWLR 536, referred to.
Aust Dig Damages [44]

Damages – Particular awards of general damages – Tasmania – 17 year old male – 22 at trial – Permanent and disabling aggravation of plaintiff's thoracolumbar spine – Award of $90,000 for general damages for pain and suffering and loss of amenities of life

Aust Dig Damages [61]

REPRESENTATION:

Counsel:
             Plaintiff:  Ken Read SC and Andrew Gaggin
             Defendant:  Sandra Taglieri SC and John Pedder
Solicitors:
             Plaintiff:  Murdoch Clarke Lawyers
             Defendant:  Pedder Schuh Lawyers

Judgment Number: [2019] TASSC 35
Number of paragraphs: 221

Serial No 35/2019
File No 3808/2016

JESS KLAAS KELLER v JIAH JONATHAN PHILLIPS

REASONS FOR JUDGMENT ESTCOURT J

21 August 2019

The plaintiff's claim

The plaintiff, Jess Klaas Keller, claims damages for personal injuries against the defendant, Jiah Jonathan Phillips, which injuries he alleges were caused as a result of the defendant's negligent driving at Devonport on 12 February 2014.
On that date the plaintiff was riding a motorcycle south on William Street in Devonport, intending to travel straight ahead through the traffic light controlled intersection of that street with Best Street. At the same time the defendant was driving a motor vehicle north on William Street, intending to execute a right hand turn into Best Street.
A collision occurred between the plaintiff's motorcycle and the defendant's vehicle in the intersection. The plaintiff asserts that the defendant was wholly to blame for the collision in that he sped up on approaching the traffic lights facing him as, or after they had turned orange, and that he turned his vehicle directly in front of the plaintiff's motorcycle which had already entered the intersection.
The defendant, on the other hand, asserts that the plaintiff and the defendant were each negligent, in that they both fell short of their required duties in driving their vehicle on the road. The defendant says that the plaintiff was not keeping a proper lookout, drove too fast and increased his speed as he approached the intersection when it was not safe to do so, and failed to stop at the orange light, or to slow down or manoeuvre so as to avoid the defendant's vehicle.
The plaintiff claims that as a result of the collision he suffered in particular, a fractured third metacarpal, and an aggravation of a pre-existing mid-low back strain. As well as seeking damages for pain and suffering and loss of amenities of life, he claims that he has lost earning capacity as a result of the back injury.
The defendant, in turn, contends that the plaintiff suffered from back pain, for which he had sought medical advice and treatment, prior to the happening of the collision (and potentially from a subsequent motor vehicle accident in June 2014), and that in any event any pain or disability that can be attributed to the injury to the plaintiff's back is not causative of any reduction in his pre-accident capacity to earn.

The plaintiff's evidence as to the collision

The plaintiff gave the following evidence at trial as to the circumstances of the collision:
"As I approached the intersection, there was – it was clear, the visibility was fine, there was no traffic behind me, sorry in front of me. Behind me there was one car when I left the other set of lights, I had open road in front. As I approached the intersection, doing my speed limit of 50 kilometre an hour, approached, I was doing my visibility checks, looking around and as I got within distance from the solid line where you stop, it went from green to orange and I didn't feel that I could pull (sic) safely, so as I maintained my speed, there was another car already waiting in that – in the centre of the intersection, waiting to turn right into Best Street and as that light had changed, as I've just come out, he's booted it and turned in front of me and I've – all I can remember is, that I reefed on the motorcycle and pulled to try and see if I would be able to try and get round."
He was asked as to the direction in which he had "reefed" and "pulled" and he said it was to his right. He said that he "smashed into the rear quarter" of the defendant's vehicle. He said that upon impact the vehicle "was still placed in the centre of the intersection but turned". The plaintiff couldn't remember if he braked before impact but he denied having accelerated and denied "dropping back" in the gears of his motorcycle.
In cross-examination the plaintiff accepted that when he realised that the defendant's vehicle was waiting in the intersection, he would probably have been about 20 metres away from the plaintiff. He said that at that time he was travelling at a speed of 50 kilometres per hour on William Street "at a maximum". He did not know what gear he was in, he said "possibly third". He said that he knew that the defendant's vehicle was in the middle of the intersection because the defendant was waiting to make a right hand turn into Best Street. He said, "it was all in seconds of a motion of him coming towards me, stopped and waiting to give way to me as I was going to come through, the light's changed, he's turned, I've hit, it's that quick".
It was then suggested to the plaintiff that when the traffic light changed to yellow or orange, he was at least 20 to 30 metres away from the stop line. He disputed that and said by reference to a photograph in evidence that he was "… inside this solid line as it turned. So [he] was within this area of not being safe to pull up". He agreed that the distance he had described was "only a couple of car lengths." He was describing the solid white line that marked the division into two, of the lanes leading to the intersection stop line itself.
It was put to the plaintiff that an average car length was about 4.5 metres and he said that he did not know. I find that it is not reasonably open to question, within the meaning of s 144 of the Evidence Act 2001, that it is common knowledge generally that average sedan cars are between four and five metres in length. I have no reason not to accept the plaintiff's estimate of where he was when the light changed to orange and the defendant commenced to turn, and I find that the length of the "solid line" depicted in the photograph leading to the intersection was about nine metres.
It was put to him in cross-examination that that he was "some distance back" when the light changed to orange and he "sped up because [he] saw the light change and [he] wanted to get through because [he] had right of way." He responded that the suggestion was not correct and he said "I didn't speed up at all, I didn't excess [sic] speed limit or anything, I didn't rev my motorcycle, I didn't drop down in gears". He was not shaken on that evidence.
He agreed that at the time he had one earpiece of a headphone set in place and was listening to music, but that it was not "overly" loud.

The evidence of the plaintiff's witness to the collision

The plaintiff called evidence as to the circumstances of the collision from an independent eye witness, Amadia Eastley. She gave the following evidence:
"When I was proceeding along Best Street with the intention of turning left into William Street, lights were red and I was the second car from the stop line. I saw a dark sedan
Sorry, I just need to stop you there, did you stop?.....I did, I did.
Yes thank you, good, good?.....So, so I stopped, a dark sedan moved into the intersection, maybe a metre past the stop sign and stopped for maybe five seconds, I believe it was going to turn right into Best Street. I saw, to my right, a motorcycle coming towards the intersection, he proceeded to travel through the intersection when the sedan started to turn right, that's when the collision occurred and the motorbike hit the passenger side of the vehicle and unfortunately, went over the bonnet.
Right. And what – what did you – what were your thoughts?.....My thoughts were, that oh my god, he hasn't seen the motorbike when he's decided to turn, no – neither driver appeared to be doing anything out of the ordinary, there was no speed or squealing of tyres or anything. I don't believe anyone was in a hurry to – he was in a hurry to turn, it was all very normal until the car turned right, which left the motorbike nowhere to go."
Ms Eastley stated in cross-examination that when she first saw the motorcycle it was "maybe" two metres before the actual intersection and by that she said that she meant the stop line facing the motorcyclist. She agreed that it was possible that the sedan had stopped to give way to oncoming traffic in the middle of the intersection. And she confirmed that her evidence was that the rider of the motorcycle "went over the bonnet" of the sedan and that she believed that the impact was to the side of the sedan, forward of the passenger door.

The defendant's evidence as to the collision

The defendant gave the following evidence-in-chief as to how the accident occurred:
"I had approached the intersection to turn right. I stopped at about the halfway point entering the intersection to give way to the oncoming traffic. Once that traffic had cleared, I checked there was no immediate traffic and the light turned orange, I then proceeded to complete my turn which was when the collision happened."
He said that he saw the motorcycle before the impact and that it would have been about 50 metres prior to the intersection as the light turned orange. The defendant estimated that he (the defendant), would have been travelling at a speed of between two and seven kilometres per hour as he slowly took off to complete his turn.
The defendant gave the following further evidence:
"Now, as you were making your turn that you've described to your Honour, can you describe what you saw about the motorcycle?.....Yeah.
If anything?.....Um, as I was part-way through the turn I was alerted by what sounded like the clunk of a gear change and a motorcycle engine revving, and as I've looked he's sped up, and then he's ran into the back of my car.
Do you have any, well, are you aware or can you recall where he'd sped up?...Approximately 30 to 40 metres prior to the intersection."
In cross-examination the defendant maintained his position that the traffic light had turned orange before he moved off, that he decided it was "perfectly safe" to complete his turn, and that there was no danger in doing so. He agreed that he had only moved a "tiny bit over a car's length" before the impact occurred. He also said that when he heard a "clunk" and his attention was drawn to the motorcycle it was "[a]pproximately 40 odd metres away" and at that point he, the defendant, had already commenced moving.
Of some interest as regards the defendant's credit, is that in cross-examination he gave evidence that, after the collision, he went over to where the plaintiff was lying on the road and asked him if he was alright. He said the defendant answered that he could not hear him because his (the plaintiff's) music was too loud.
In re-examination he told me that it took him "approximately a second or two" to observe the light change orange and to "take off ". A vehicle travelling at 50 kilometres per hour covers 13.889 metres per second. It would take only a fraction over 1.4 seconds to cover 20 metres.
The parties have agreed that the traffic lights displayed an all red signal for 1.5 seconds for all approaches; that the red traffic light signal illuminated red for a total of 13.5 seconds, which includes 1.5 seconds of the all red period, on William Street, and that the amber traffic light signal illuminated for a total of 4 seconds, on all approaches to the intersection.

The evidence of the defendant's witnesses to the collision

The defendant had two passengers in his motor vehicle, Brodie Gardam and Mary Savage. Ms Savage was in a relationship with the defendant at the time and Mr Gardam was a friend. They were both called to give evidence.
Mr Gardam said that he did not have a vivid recollection of what had occurred but said that the defendant was well into his turn before the impact occurred and his vehicle was just before the white stop line for traffic in Best Street. He said that the vehicle was "well committed into the turn. Like, actually leaving the intersection when the bike hit, come at the car".
Mr Gardam made no mention of hearing "the clunk of a gear change and a motorcycle engine revving". He made no mention of the defendant having "sped up" before impact. He was asked in examination-in-chief whether he noticed "anything else about the bike as it was coming towards the sedan" and his response was "I don't really remember. Sorry just that, it was coming at the car."
Mr Gardam was seated in the back seat of the defendant's vehicle.
Ms Savage was seated in the front passenger seat of the plaintiff's vehicle. She gave the following evidence of her observations:
"Could you tell his Honour in your words what you saw and what happened at the time?.....I remember I was in the passenger seat. The car went up to the green light, stopped in the centre ready for the turn, waited for a couple of vehicles to pass through, started making the turn, noticed the motorbike about as far back as the Fourways newsagency‑
I'll stop you there. You're saying noticed. Who noticed?.....I noticed. I'm talking about myself, yes. This is what I saw. Yes. The motorbike then started to speed up and it was about a metre from the traffic lights when we realised it wasn't going to stop and hit the back side of the car."
In cross-examination Ms Savage agreed when she had first noticed the plaintiff's motorcycle it was 200 to 300 metres away in William Street. She was then asked "[b]ut then you next saw it when it was about a metre away or less from the traffic lights?" She answered "[t]hat's when we've realised it was not going to stop and it was proceeding through the intersection."
There then occurred the following exchange in cross-examination:
"And you would estimate that when you saw the vehicle, the cycle rather, um, at the time you realised it wasn't going to stop, that is a metre or so from the stop line, it was doing about 50 kilometres an hour?.....I couldn't recall an exact speed, possibly more than 50.
Well, look to judge the speed of a cycle coming from the side with a collision imminent would be impossible, wouldn't it?.....I could hear it revving quite loudly so obviously it had sped up but I couldn't recall exactly how fast.
Why do you say obviously it had sped up?.....Well, you would have to rev it to speed it up.
So you assume from the fact you could hear the noise of the motor that it had sped up?.....And it was coming quicker towards the intersection.
It was doing about 50 kilometres an hour, wasn't it?.....I would think more than 50.
Well, look Ms Savage, you made a statement, didn't you, in which you said this, 'When it was about a metre away or less from the traffic lights I estimated the motorbike was travelling at about 50 kilometres an hour at this time'. You made that statement, didn't you?.....Yes.
It was true when you made it, wasn't it? Your answer to that was 'yes'. I think you nodded, but the answer to that was 'yes'?.....Yes."
The only other eyewitness was Elizabeth Green. Mrs Green was the driver of the first car in the right hand lane for vehicles travelling west in Best Street. Her first awareness of the collision was when her vehicle was struck by the rear bumper bar of the defendant's sedan which had become detached from the car when the plaintiff's motorcycle collided with it.
The defendant called Mrs Green, whose evidence was not challenged. She said:
"I was travelling west on Best Street and I suddenly realised there was something which turned out to be the bumper bar, I didn't know what it was, was sliding down the road towards me, making a noise, and so I stopped, I was only going very slowly because the lights had only just changed to green, so I was just coming up and so I just stopped dead and, a car, there was a car near it and, the thing, came sliding down the road on my side and hit the front of my car. But I was stationary when it hit."
Mrs Green said that she saw "a couple of young people" get out of the defendant's vehicle and pick the bumper bar off the road and take it to the nature strip where they stood standing. She parked her car and went to the plaintiff lying on the ground. She said that she was the first person to attend him. She asked him how he was and he responded "my bike, my bike". She said nothing about loud music.

Conclusion as to liability

The commencement point as to the analysis of fault as to the cause of the collision is, to my mind, that the defendant's vehicle was, and was observed by the plaintiff and by Ms Eastley to be, in a stationary position in the intersection waiting to execute a right hand turn at the time the plaintiff approached the intersection. Subject to one exception, for the defendant to move from that stationary position and commence turning, can only logically be because the defendant did not see the plaintiff's motorcycle; or because he saw him but assumed he would stop on the orange light, allowing the defendant to move off and complete his turn; or because he misjudged the speed of the approach of the motorcycle.
I have no reason not to accept the defendant's evidence that he did in fact see the plaintiff before impact.
The defendant's vehicle was stationary but the plaintiff's motorcycle was moving. The plaintiff was reasonably entitled to assume that defendant would not move off in front of him. The defendant was not reasonably entitled to assume that the plaintiff would stop because the light had turned orange. The plaintiff was under no legal duty or customary obligation to stop. On the contrary he was entitled to proceed if he felt, as was his uncontradicted evidence, that he was too close to the intersection when the light changed to be able to safely stop (see r 57(3) of the Road Rules 2009).
I have no reason not to accept the plaintiff's evidence that he was travelling at a maximum of 50 kilometres per hour. It accords with the tenor of Ms Eastley's evidence that neither driver appeared to be doing anything out of the ordinary and that "there was no speed or squealing of tyres or anything".

Ms Eastley's statement that "… it was all very normal until the car turned right, which left the motorbike nowhere to go" is to my mind very telling. It comes from an independent witness whose vehicle was in a stationary position, and it comes on top of her statement that "neither driver appeared to be doing anything out of the ordinary" and that "there was no speed".
It is true that Ms Eastley was confident that the plaintiff on impact "went over the bonnet" of the defendant's vehicle, which could not have been the case. But that to my mind is explicable, as while the defendant was waiting to turn, the bonnet of his vehicle would have been in Ms Eastley's line of sight, but when he moved to complete his turn the boot of the car would have come around closer to her. She could easily have mistaken the two.
In any event I do not find that Ms Eastley's obvious mistake about that aspect of her evidence casts doubt on her observation that neither driver appeared to be doing anything out of the ordinary and that there was no speed or squealing of tyres. Ms Eastley's statement that "… it was all very normal until the car turned right, which left the motorbike nowhere to go" was unshaken in cross-examination and ultimately becomes, to my mind, dispositive as to the issue of liability when taken with the plaintiff's evidence and such objective features as there are.
The plaintiff's evidence as to his own speed also accords with the estimate given by Ms Savage in a statement she made saying "[w]hen it was about a metre away or less from the traffic lights I estimated the motorbike was travelling at about 50 kilometres an hour at this time." Ms Savage's attempt to move away from that evidence to say "…it was coming quicker towards the intersection. …I would think more than 50" indicates, in my view, some partiality when judged against the prior inconsistent statement elicited in cross-examination.
In my view, travelling at a steady legal speed of 50 kilometres per hour and with inter-visibility of at least 40 to 50 metres, the defendant ought not to have moved from being stationary as the motorcycle approached, even on the change of lights. As noted, a vehicle travelling at 50 kilometres per hour covers 13.889 metres per second. It would take only a fraction over 1.4 seconds to cover 20 metres, and similarly, 2.8 seconds to cover 40 metres and 3.5 seconds to cover 50 metres.
If the defendant had remained in a stationary position the collision would not have occurred. The "exception" I alluded to above is if the plaintiff accelerated prior to the collision. However, I do not accept that he did.
I do not accept that the defendant heard "what sounded like the clunk of a gear change and a motorcycle engine revving", from approximately 40 metres away from the impact, or that Ms Savage "heard" the motorbike speeding up when it approached the intersection. The evidence of both witnesses as to this was unconvincing in the giving. It is equally consistent with those witnesses becoming more conscious of the sound of the motorcycle as it was getting very close to them.
I prefer, and accept, the wholly independent evidence of Ms Eastley, and I find that the plaintiff's speed did not increase shortly prior to the impact. The whole tenor of Ms Eastley's evidence is, relevantly, consistent with the plaintiff's version of events.
The defendant submits that his evidence that the plaintiff's motorcycle accelerated on approach to the light should also be accepted as it is corroborated by Ms Savage. However, it is conceded that I cannot be satisfied as to precisely when that acceleration occurred relative to the commencement of the intersection.
The defendant argues that the proper and reasonable inference to be drawn from Mrs Green's evidence is that the immediate result of the impact between the motorcycle and the sedan's bumper dislodging and moving towards her vehicle, was on a green signal. Meaning, it is argued, that the collision was most probably in the 1.5 second inter-red phase or later, allowing for the time it took for the bumper to slide towards Mrs Green's car and impact with it.
I am unable to accept that such a precise inference can be drawn from Mrs Green's evidence. I gained the distinct impression that she was not aware of very much at all prior to becoming aware of the noise of the bumper bar of the defendant's vehicle sliding towards her. Of course the collision had already occurred at that stage. I much prefer the evidence of Ms Eastley, who was a very careful witness, and whose vehicle was essentially in the same alignment as Mrs Green's, westbound in Best Street, although in the adjacent lane and a little further back. Ms Eastley was conscious of the accident looming, before it occurred and her impressions were to my mind the more valuable independent evidence.
To this point I have deliberately not referred to the evidence of the highly respected forensic and safety engineer, Dr George Rechnitzer, who was called to give expert opinion evidence by the defendant. His evidence was based on material provided to him, which included the transcript of the evidence given at the trial to the point at which he was called, but also included witness statements taken by an investigator which were not in evidence before me, other than to the extent set out in his report, which was admitted de bene esse.
Dr Rechnitzer's report posited four scenarios based on assumptions made by him from the material made available to him and from an inspection of the scene. He concluded that both the plaintiff and the defendant "made erroneous assumptions about each other's likely movements" and that "both drivers had the opportunity to avoid the collision."
In cross-examination Dr Rechnitzer accepted that he made a common set of assumptions for each of the four scenarios he posited, except for variables specific to the different scenarios which he had noted.
Those assumptions, common to each scenario, included the assumption that the plaintiff's motorcycle accelerated prior to the collision, that it accelerated 11 metres away from the point of impact, and that it gained speed from 50 to 58 kilometres per hour. Dr Rechnitzer agreed that those calculations in each scenario reflect the common assumptions.
Dr Rechnitzer's evidence is relevant inasmuch as, if it were accepted, it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding. A failure to establish the assumptions underlying the opinion expressed by him is relevant only to the weight of the evidence (see Langford v Tasmania [2018] TASCCA 1 per Brett J at [36]-[41], with whom Blow CJ and Wood J agreed, following Taub v The Queen [2017] NSWCCA 198, 95 NSWLR 388 at [32]).
Provided the reasoning is exposed, the admission of opinion evidence should be allowed, leaving it to the tribunal of fact to determine whether the evidence is sufficient to establish the truth or correctness of the assumptions. However, failure to prove the truth of the assumptions would render the opinion evidence of little or no value.
Accordingly I admit the evidence of Dr Rechnitzer's scenario based opinions as contained in his report, but I give them no weight because I am not satisfied that the evidence establishes that the plaintiff accelerated his motorcycle prior to impact, as assumed by Dr Rechnitzer, or at all.
Another piece of evidence I should mention is that the point of impact of the motorcycle on the defendant's motor vehicle was towards the rear of the sedan. That does not assist me in weighing the competing versions of how the collision occurred. The plaintiff's evidence was that immediately prior to impact he had "reefed" and "pulled" his motorcycle to his right "to … see if [he] would be able to try and get round" the defendant's vehicle. Such an attempt would move the point of impact towards the rear portion of the defendant's vehicle.
I should also mention Mr Gardam's evidence that the defendant's vehicle was "well committed into the turn … actually leaving the intersection when the bike hit, come at the car". [Emphasis added.] That statement is unfortunately ambiguous, however, if the defendant's vehicle was literally "actually leaving the intersection" when the motorcycle was "coming" at the car, as opposed to "hitting" the car, it would be reasonable to suppose that the plaintiff's "reefing" and "pulling" to the right "to try and get round", either would not have been necessary or would have enabled him to pass behind the car without colliding with it.
On a consideration of all of the evidence, I find that the defendant's negligence in moving off from a wholly stationary position in front of the plaintiff's oncoming motorcycle was the sole cause of the collision. The evidence establishes the allegations set out in subpars 5(c) and 5(d) of the statement of claim. The plaintiff's evidence that he judged it unsafe to stop on the traffic light turning orange was not directly challenged and as speed (or acceleration) was not, in my view, a reason why he judged that it was unsafe to stop, I see no basis for a finding of contributory negligence against the plaintiff. The evidence does not establish the particulars of contributory negligence set out in par 9 of the defence.
It may be tempting to say that an intersectional collision occurring on an orange light must involve a want of care on both drivers involved. However, it is common experience that such scenarios as that involved in the present case are encountered on a very regular basis, without resulting in an accident occurring. I repeat, in my view, if the defendant had remained stationary, as he ought, the collision would not have occurred.

The plaintiff's claimed injury and disability

The plaintiff gave evidence that in November 2013, about four months before the motorcycle accident, he attended the doctor and then a physiotherapist. He said that this was because of a pushbike accident. He gave the following evidence:
"I had a pushbike accident out at – basically, they call them, there's local, there's a Forth jumps, some dirt jumps that people have built over the years and what I did, is I um, I hit the jump and come off and went up into the next up-ramp head first and I sort of lost my – my bearings of that and I had a slight bit of, like jarring, so on my indication, I come home and I told my father about it and he said, well we'll take you to the doctor's just to make sure there's nothing there and that actually cleared back as a negative.
He said that he attended physiotherapy on two occasions as a result of his own decision to do so. He said that he did not attend any further physiotherapy because he "didn't have the pain anymore".
The plaintiff's medical records confirm that he did attend a medical practitioner on 21 November 2013 and was recorded as reporting that he had had "diffuse lower back pain on and off in the last 2 years since he fell off the pushbike".
The medical records also show that he had previously attended a medical practitioner on 2 March 2012 and was recorded as reporting that he had been "having persistent pain in lower thoracic and lumbar spine region of his back since 3 months (sic). No radiation. Says he has had numerous tumbles from bikes".
Nonetheless the plaintiff's uncontradicted evidence was that he did not have disabling back pain prior to 12 February 2014, but that he has ever since he commenced to explore his capacity for work upon leaving school shortly afterwards in about March 2014. He denies that any incident after the motor vehicle accident caused any appreciable or lasting increase in his back condition to the present day.
The plaintiff called evidence from a highly experienced orthopaedic surgeon, Mr Stephen Doig, who had examined him on a number of occasions between March 2016 and March 2019 for the purposes of preparing reports for use in these proceedings.
It is of note that the plaintiff did not advise Mr Doig, on any of the occasions that he saw him that he, the plaintiff, was involved in a rollover accident in June 2014. Mr Doig was asked about this in cross-examination. He agreed that a rollover down an embankment may apply significant forces to the spine and he agreed that it may impose forces on the thoracolumbar spine.
On the basis of the history given to him by the plaintiff Mr Doig opined in his proof of evidence as follows:
"What he has had is a significant aggravation of his lower back condition which is fairly certain to be a strain/soft tissue injury. His history has been that beforehand he could undertake pretty much everything without it causing him grief."
Mr Doig was unable to say whether the soft tissue injury was muscular or ligamentous. He was of the view that it was unlikely to be a disc problem as the plaintiff had undergone an MRI scan, and if it was a disc causing the pain there would be an abnormality shown on that scan.
He also opined in his proof of evidence as follows:
"34      So this case is relevant to the above because 90% is reliant on the history. We have a consistent history that before the accident there was some low back issue but since the accident this has been significantly aggravated.
35        The current presentation is due to the significant exacerbation/aggravation caused by the motor vehicle accident not any underlying condition.
36        There really isn't much that can be done for Mr Keller. He isn't a candidate for an operation and there is no point giving him injections or doing much more by way of physiotherapy. He is a candidate for a pain management course but really all that will do is teach him how to manage his low back pain because it isn't going to change to any great degree. He could do self management by way of exercises at home but there really isn't much by way of treatment.
37        What connects his current symptoms with the motor vehicle accident is the history. If he was someone who was able to do most things beforehand without any issues and then since the accident the history is that he has had ongoing problems then common sense and general medical practice will tell you that his current symptoms are due to the accident not any pre-existing condition. That again is relevant on the evidence from him and from those who are close to him."
Mr Doig was cross-examined about the view he had reached, after viewing a relatively small number of Facebook posts of the plaintiff undertaking activities such as motorcycle and quad bike riding and four wheel driving, that the plaintiff had been more active than the impression Mr Doig had gained on his various examinations and assessments of him. He stated that, assuming all those things were correct and that the plaintiff had been more active than the impression he had given him, "that does not necessarily mean that he does not have an ongoing back problem or that he doesn't have a permanent back problem."
Mr Doig was also cross-examined about his view that the plaintiff was a candidate for a pain management course. He agreed that for such a course to be beneficial it requires compliance and requires the individual to be receptive to taking advice and prepared to implement the advice. He agreed that he could not state it any higher than that such a course "may be of assistance" to the plaintiff.
The plaintiff's mother, Leah Keller, gave evidence as to extensive gardening and home maintenance work the plaintiff was accustomed to do for her on her large home block of land. She said that he did not have any incapacity at all to do that type of work before the February 2014 accident, that she did not notice that he had any restriction for such work and that he did not complain to her in relation to back pain in doing any of those duties.
The plaintiff's grandmother, Ms Gail Burgess, gave evidence consistent with that of Ms Keller and also gave some important evidence as to the plaintiff complaining to her of back pain at the Mersey Hospital after the accident. Ms Burgess and Ms Keller also gave evidence of the plaintiff complaining of an aching and bad back during his recovery period at home. Ms Keller stated that he was in constant pain, could not get comfortable, could not stand or sit for any length of time and that his back would seize up on getting out of bed in the morning.
As to the comparison with the plaintiff's post-accident state, Ms Keller gave the following evidence:
"Jess had left college and his evidence was that he was looking for work following the accident. How would you – what were your observations about his demeanour about obtaining work?…..Oh, all he wants to do is work, like, he's always had a really strong work ethic. He's been brought up that you work, you earn money and you get what you want out of life, so he's always, always wanting to work, mm.
And the evidence has also been that Jess has obtained numerous positions–.....Yep.
–numerous jobs. Have you noticed anything about a pattern that applies with, with that type of work that he's done?…..Mm. He's always excited when he's got the job and keen to work but within, depending what he's doing, it's usually within a two, three week period, he's just in a lot of pain. He comes home from work. He's flat on his back. He spends weekends flat on his back, being in pain. He's rung employers, made out that he's had gastro or sick because he physically can't get out of bed and doesn't want the employer to know that his back is the reason why he can't go to work because he's worried that he will then lose his job.
And has that been a consistent pattern since the accident–…..Yes.
–with his work?…..Yep.
Okay. What are the main things that you've noticed, if any, from the pre-accident Jess, to how he is now, so far as his physical – firstly his physical capacities?.....Yes, physical side, he was always outside, he was always active doing things. Now, he hardly does anything at all, so just, his whole lifestyle has just been cut off. Everything that he enjoys doing, physical activities, his motorbike riding, all of that's just come to an end.
Okay, what about fatigue?.....Yep, yeah, he lacks in energy, big time, whereas prior, he was always on the go, like, he just didn't stop, but now, he's gained weight, which is upsetting to him as well, but he's not active, like he tries to do things, but he just physically can't do them.
Yeah, what about his social life?.....That's ceased as well, like, his whole life revolved around motorbike racing, going out with mates, that sort of thing, yeah, that's all ceased, and a lot of times, like, he's in bed early, because he does feel fatigued and his back's aching, so he doesn't go out socialising like he used to. He's not involved in outings and that sort of thing that he used to be involved in.
Yep, what about on the weekends, pre and now?.....Weekends before he was never home. It was always off on his motorbike, which is generally what they did, the kids would take off for the entire day. They'd leave in the morning, they'd come home at dark, they'd go off camping with their bikes, that sort of thing, none of that happens now. He spends a lot more time at home, things at home on weekends, but he's not doing much at all.
Okay, what about assistance with your block at Grandview Drive?.....He doesn't do anything. Every now and then, nine times out of ten, I would do the lawns. On the odd occasion he'll get on the ride-on, but he'll only mow the flat areas, but yeah that's it, he doesn't help out in the yard."
Ms Keller's evidence as to these matters was not challenged in cross-examination and was unshaken as is demonstrated by the following exchange:
"All right. Now you've given evidence that – about the various things that your son can no longer do, do you say that he could no longer do those things that you were telling Mr Gaggin about, work around your property, having social time with his mates?.....He can't walk around my property unless I then want to see him laying flat on his back, for the next two days.
What I'm asking you is, has that been the case from the time of the accident?.....It has.
That's your evidence?.....He can – he can no longer do what he did, prior to the accident.
And your evidence to his Honour, is that that has been the case the whole time?.....It has.
Since the accident?.....It has."

The defendant's case as to the plaintiff's injury and disability

The defendant points to the push bike accidents or "spills" reported by the plaintiff to doctors in 2012 and 2013 and to other motorcycle "spills" and "jarring", predating the motor vehicle accident and occurring when the plaintiff was involved in motorcycle racing. The defendant also points to the rollover accident in June 2014 in which the plaintiff was the driver of a motor vehicle that rolled over twice after he lost control of it in the area of Lake Barrington.
The plaintiff's evidence about that was that the rollover did not aggravate his back. However, not having attended physiotherapy since 15 May 2014, when he had been treated by Pilates, and is noted as saying "reports still going very well, no pain – interview for logging job in 5/7", he again attended on 16 July 2014 when he is noted in the "Free Text Assessment" section of the notes as reporting that he "was in a car accident - 3 weeks ago. No injuries. Car flipped twice. Has not aggravated his back. States back to square one and it aches all the time … Really wants to get back into the pilates as feels it really helps the back for 4-5 days after therapy. Doesn't get any relief from the hands on therapy." [Italics added]. The "Treatment Notes" section of the notes states "P/going to begin pilates with Laura next week."
The plaintiff's evidence about this was not very helpful. The following exchange occurred in cross-examination:
"MS TAGLIERI SC: (Resuming) All right. Mr - Mr Keller, the accident involving the car rollover, when it went down the embankment on the way back from Lake Barrington, was on the 21st of June, 2014, wasn't it?.....I can't recall.
And you saw – you don't recall, but it could have been?.....Possibly. I won't say definite on that, but–
And then you saw the physiotherapist, I'm putting to you, I'm asking you, you saw the physiotherapist on the 16th of July, 2014?.....Like I said, I'm not sure on exact dates.
And you told – well do you agree that you saw the physio sometime after the roll-over?.....Yes.
Yeah, and when you saw the physio, the first time after you'd seen him, after the roll-over, in the car, you told him that you'd 'had an accident about three weeks ago in the car', didn't you?.....I'm unsure on that.
It's likely that you did, isn't it?.....Well I'm not going – I wasn't going to the physio because I had a car accident, that's why I'm not a hundred – that's why I'm not answering that question.
Well, Mr Keller, I want to put to you that you saw a physio, Joseph McCormack after the car roll-over?.....Yes.
You agree with that?.....Yes.
And you told Joseph that 'about three weeks ago you were in a car accident'?.....I'm not sure that I told him that or not.
And you said that your back was back to square one?.....I said I was having problems with it because of the motorcycle accident, that's what I was going to the physio for, all the time.
The fact of the matter is that the plaintiff did attend physiotherapy twice more after 16 July 2014, namely on 28 July and 4 August 2014, but thereafter failed to attend appointments and was discharged from his management plan. After that he did not attend physiotherapy again for over a year.
The notes from the 28 July and 4 August physiotherapy sessions bear scrutiny. In my view, the fact of the plaintiff reporting to a physiotherapist about four weeks after the rollover accident, as he did, telling the physiotherapist what he is reported as saying, and attending two sessions of Pilates before ceasing treatment, is insufficient to support an inference any higher than that, if the rollover accident, and not the plaintiff's ongoing back pain since 12 February 2014, was the reason for him seeking to recommence Pilates, then the rollover accident caused only a temporary or transient increase in pre-existing symptomology.
The notes for 28 July 2014 are, relevantly, as follows:
"Treatment Notes: 1:1 clinical pilates
Free Text Assessment: handover from Joseph that patient was involved in a recurrence of MVA. Patient reports pain is the same as previous presentation, aching up to 5/10 VAS, always there but aggravated by standing, motorbike riding, during the night can be restless and stiffness in the AM
Reports vehicle rolled but unable to get self out, no medical attention sought. Self-referred back to Physio after 4/52.
Reports doing stretches occasionally which helps temporarily, no analgesia."
The notes for 4 August 2014 are, relevantly, as follows:
"Treatment Notes: Pilates 1:1 review in 1/52
Free Text Assessment: reports no better or worse after Pilates last week. Reports starting a new job in 4/52 as an apprentice chef.
Reports no aggravating factors over the weekend, did a lot of sitting/driving – did not make it worse. Just normal constant ache in lower back 4/10 VAS normally worse of AM and sometimes at night." [My emphasis.]
That the plaintiff self-referred to physio after the rollover accident, not having attended for the previous eight weeks, might appear suggestive of some aggravation of his symptoms as a result of the rollover, particularly when, eight weeks earlier, he had reported that he was "still going very well, no pain". However the text and tone of his reporting on 16 July, namely that he "[h]as not aggravated his back. States back to square one and it aches all the time … Really wants to get back into the Pilates as feels it really helps the back for 4-5 days after therapy. Doesn't get any relief from the hands on therapy", is equally consistent with a coincidental desire to return to Pilates which he felt helped him with ongoing pain suffered to varying degrees post the 12 February accident. In my view such a conclusion is supported by the text and tone of the 4 August reporting, namely that it was "[j]ust normal constant ache".
The conclusion that the rollover accident at most caused a temporary flare-up of symptoms is also supported by the fact that the plaintiff discontinued physiotherapy after only two sessions and started a new job as a cook at an establishment known as Sharkies. He was able to do that job, although it was not his preferred job, and in fact the establishment closed down not long after he left to find some other sort of work. It involved "prepping" and cooking food and dishes, and serving and cleaning.
Mr Doig's evidence that a rollover down an embankment may apply significant forces to the spine and may impose forces on the thoracolumbar spine does not go far enough to cause me to reach a conclusion other than the one I have reached on the basis of the reasoning I have adopted.
The defendant called expert opinion evidence from a consultant occupational physician, Dr David Ruttenberg. He gave the following evidence:
"Mr Keller is certainly not totally incapacitated for work.
There is no injury-related reason that Mr Keller could not work in a full-time capacity. There is no injury-related reason that he could not work every day of the week should he choose to.
It is probable, that had the accident of 12 February 2014 not occurred, he might well have been limited in work environments because of pain symptoms. The limitations would however, still have been self-imposed if indeed, the pain symptoms are such that they affect his ability to work in these roles in the first place.
The reason for this opinion, is that there is on review of general practitioner notes, a history of lower back pain that preceded the accident of 2014.
There is a GP note of 2 March 2012, describing persistent lower back pain. There had been too a history of diffuse lower back pain of a relapsing nature, documented in November 2013. The symptom complex noted a year after the event, in August 2015, appears to have been of similar pain in the lower thoracic and lumbar region. This of course, is exactly the same pain that had been documented in March 2012.
It is therefore, in my opinion highly probable, that there would have been perceived impact of vocational functioning, had the accident of 12 February 2014 not occurred.
A further reason for this opinion, is the fact that after the event of 12 February 2014, there was over a one year delay before he met with his general practitioner to report this pain and Mr Keller still engaged in Motocross activities. This appeared to have continued until 2017.
The event of 12 February 2014, did not affect his ability to ride a Motocross bike and participate and compete in events. I consider the jarring and jumping actions, quite incompatible with someone who might be experiencing significant pain symptoms. They lend support to my opinion, that he essentially made a full recovery from any soft tissue injury and that the intermittent back pain the he had, was the same intermittent back pain that predated the injury, and indeed would resolve such that he could participate in significant physical activity at other times.
If Mr Keller had a temporary incapacity for work in the open labour market following the February 2014 accident because of pre-existing back symptoms, it likely would have been for a few weeks to perhaps a month or two at most.
I objectively assessed Mr Keller's true level of functioning, to be compatible with work roles of up to occasional medium physical demand and allowing for postural variation. I am of the absolute opinion, that Mr Keller has a work capacity.
I therefore do not agree with the assumption by Dr McCallum,that it is unlikely that he will be able to go back to normal employment that involves manual labour. There is a spectrum of labouring tasks and employment that he might be able to consider. Mr Keller noted himself, that he would be able to manage the truck driving and that in fact he did so before he had to start doing manual handling and lifting and carrying.
Mr Keller does not require any particular treatment. He is immediately able to return to an appropriate working environment. There appear to be significant psychosocial and personal factors that might be influencing his ability to stay in any employment role."

Conclusion as to the plaintiff's injury and disability

While I accept the force of the defendant's submission that the extent of the plaintiff's disability post the 12 February accident is purely reliant on his own reporting of his pain levels, and while it is clear that he had sought medical and other treatment prior to that accident as a result of "spills" from pushbikes in 2012 and 2013, he was in fact able to and did work after those falls.
He worked part time in 2013 and 2014, commencing while still at school, at a service station at Turner's Beach. That work involved cooking fast food such as dim sims, potato gems and egg and bacon rolls. It also involved work of a heavier nature such as pumping fuel and restocking shelves and pulling out a large rack of flowers for sale and a stand of batteries for sale. The plaintiff's uncontradicted evidence is that he did not have any problems with pain in performing any of that work during the period that he worked there.
Dependent on my evaluation of the truth of the plaintiff's evidence, the expert medical opinion evidence of both Mr Doig and Dr Ruttenberg both admit of the conclusion that the plaintiff suffered a permanent aggravation of his previously intermittent low back pain caused by pre-existing soft tissue damage in his lower back.
So too does the report of the opinion of Mr D'Urso dated 19 April 2018, tendered by the plaintiff. Mr D'Urso's view being that the plaintiff suffered soft tissue injury to his thoracolumbar spine in the accident and continues to have a chronic back problem precipitated by the accident. I place little weight on that report, obtained by the defendant, as the defendant did not call him and his opinion was not tested by cross-examination. And as the defendant points out, he plainly accepted the history he was given by the plaintiff, which included that he had no symptoms in his thoracolumbar spine prior to the collision. The history given also included that the plaintiff gave a history of being unable to perform activities for approximately three months after the collision, suggestive of an effect of the collision on the thoracolumbar spine, which of course is denied by the defendant.
The decision is ultimately for me to make. Mr Doig's and Mr D'Urso's opinions are obviously based on an acceptance of the plaintiff's own history of his symptoms without any objective medical indicators. On the other hand, Dr Ruttenberg's current opinion is based on disbelief as to that history based on the medical records and is influenced by the content of the Facebook posts. However, only I have had the advantage of seeing and hearing the plaintiff's evidence at trial as to his post-accident disability. I accept the truth of his account, supported as it is by his mother and grandmother and as will be seen by Mr Gleeson.
When Dr Ruttenberg saw the plaintiff in mid-2016 he assumed Mr Keller's history, subsequent course and current status to be correct and, on that basis, while noting that he had a lack of full information, he nonetheless expressed the opinion that he "appears to have perhaps suffered soft tissue injuries of the thoracolumbar spine", and added that clinical findings are not inconsistent with the complaint of persisting symptoms. He opined that, essentially, pain is experienced subjectively, and there is no way of confirming or refuting the plaintiff's assertion that he has pain symptoms and attendant restrictions of activity.
Dr Ruttenberg subsequently, upon receipt of more information, changed his view to that which I have set out above from his proof of evidence. One of his reasons was that there was no history of any low back or thoracic spinal injury being suffered following the 12 February 2014 accident. That of course is contrary to the plaintiff's own evidence and that of his mother and his grandmother to which I was made privy on the trial.
The defendant makes the point that the evidence of the plaintiff that he was in extreme back pain immediately after the accident ought not be accepted as it is not corroborated by the evidence contained in the ambulance records or from the discussion the plaintiff had with Mrs Green who was first to reach him at the scene.
As far as Mrs Green is concerned, it is clear that she was the first person to go to the plaintiff's aid and he was more concerned in the immediate aftermath of the accident with the state of his motorcycle. That the plaintiff reported to an ambulance officer that "it was just an ache" that he had, although he refused pain relief, to my mind shows an early nexus between the accident and the back injury, rather than negate it. At its highest, the refusal of pain relief is a neutral consideration, as one would have thought that his other injuries might also have warranted pain relief.
Nor does the absence of recorded back symptoms in either the ambulance record or any hospital record during the period 12 and 13 February 2014 negate the plaintiff's claim. He had significant other injuries at the time and the evidence of his grandmother at the hospital and of his mother as to his later recovery at home shows a pattern of his back pain being present from the outset but coming more to the fore as his kidney injury improved, allowing him to move more.
The defendant submits that the plaintiff's account is not reliable because she was "plainly influenced by her relationship and shock/concern for her son." A mother's love and affection is unsurprising, but I found nothing in Ms Keller's demeanour to suggest that she was exaggerating her observations to assist her son in falsely advancing his claim for damages. I found her to be an impressive witness, who was genuinely distressed at the post-accident changes in her son.
That on 13 February 2014, a nurse at the Mersey Hospital recorded that the plaintiff had stated that he wanted to race his bike, and that later when reviewed at the outpatient's clinic of the hospital on 20 February 2014, he was making the same inquiry as to whether he would be able to race, I ascribe to the exuberance of youth. Any sensible person of greater maturity would have understood that such a prospect was bleak, from the other injuries sustained quite apart from the back injury.
As to the Facebook posts, I appreciate Dr Ruttenberg's scepticism but I prefer Mr Doig's evidence that, even accepting that the plaintiff had been more active than the impression he had given him, "that does not necessarily mean that he does not have an ongoing back problem or that he doesn't have a permanent back problem." My own assessment of those posts is that those that were in the present when they were added, depict relatively isolated returns to the sort of activity to which the plaintiff had previously been accustomed to undertaking on a regular basis. To the extent that they may be characterised as attempted returns, they do not affect his credit any more than his persistent attempts to find suitable employment.
I do not accept that the plaintiff has been exaggerating his symptoms. In my opinion such a conclusion would be entirely at odds with his continued determined efforts to find and maintain employment. It is also inconsistent with his mother's unchallenged evidence that the plaintiff is always excited when he has obtained a new job and is keen to work, but that within a two to three week period he is in a lot of pain and comes home from work and lies flat on his back in pain, and that at such times he spends weekends in the same state.
It is true that the plaintiff had a history of relatively minor and occasional lumbar back pain associated with falls from a bicycle, but his own evidence, and that of his mother and grandmother, establishes to my satisfaction that prior to the 12 February motorcycle accident, the plaintiff was not disabled by lumbar back symptoms and was able to undertake without significant restriction, a full range of social, domestic, recreational and employment activities. Since that accident, he has been so disabled and has been unable to so carry out such activities.
Senior counsel for the defendant made the following submission in her written closing address:
"Whilst the Plaintiff gave evidence to the Court that the symptoms did not preclude him from doing the activities he wanted and did not cause disability, that is contrary to the repeated history in the GP records and North West Regional Hospital records, which record that on various occasions prior to the accident when being treated for medical complaints, the Plaintiff gave a history of intermittent symptoms of back pain consequent to falls from bikes. The GP records also establish that for the symptoms he complained of he was prescribed Mobic, an anti-inflammatory, which the Plaintiff could not recall taking, but likely did. This evidence must seriously question the evidence of the Plaintiff that the pre-existing symptoms 'did not stop him'".
To my mind that submission does not withstand scrutiny. The fact is that the plaintiff was still racing motorcycles at the time of the accident, and as has been seen, was pestering nurses at the hospital as to whether he would be fit to race in an upcoming competition. Moreover, he had been working at a service station at Turner's Beach doing manual work as well as cooking takeaways and was helping his mother carry out strenuous manual work on her bush block.
I am unable to accept the submission made on behalf of the defendant that the plaintiff may have exacerbated pre-existing symptoms in his back at the time of the accident, but it is likely that he fully recovered from that short episode of back pain, and that back pain and any self-imposed limits due to pain after May 2014, are more likely the result of the previous injury to his back in 2012, and symptoms experienced thereafter and since the incident of further exacerbation of back symptoms from the 21 June 2014 car accident.
I do not accept therefore that the defendant has discharged his evidentiary onus of establishing that the plaintiff's pre-existing conditions not only existed but that the natural progression of them was likely to cause disability regardless of the accident caused injury of 12 February 2014.

I conclude that the plaintiff, as a result of the motor vehicle collision on 12 February 2014, suffered a permanent and significantly disabling aggravation of previously intermittent low back pain, caused by pre-existing soft tissue damage in his lower back, sustained as a result of falls from pushbikes, particularly in 2012 and 2013. The disability is described by Mr Doig as an "aggravation of pre-existing symptomatic low back strain". I find that the rollover accident in June 2014 resulted, at its highest, in no more than a temporary or transient increase in the plaintiff's symptomology.
I accept the submission made by senior counsel for the plaintiff, Mr Read SC, that the product of the harm caused to the plaintiff is pain in his thoracolumbar spine which has become chronic, that the pain is likely to be permanent, that the pain restricts his earning capacity and his enjoyment of life and that there is in effect no treatment which will now alleviate the pain.

The plaintiff's case as to lost earning capacity

Mr Doig's evidence was also relied upon by the plaintiff as to his ability to carry out employment. He expressed the following opinions in his proof of evidence:
"38      In relation to the likely issues for Mr Keller when he undertakes employment of a manual nature and in particular with jolting, jarring, lifting, bending, prolonged sitting or standing, or generally using his back to any great degree, I consider that he will have troubles with jolting and jarring, and each of the jobs that he has left he has said it has been primarily because he has jolted and jarred quite considerably which is not surprising using earthmoving equipment and driving a heavy truck in a building site or an excavation site.
39        He will have some troubles doing lifting, bending, and generally using his back to any great degree. He may have some difficulties with prolonged sitting or standing, but I consider that they would be less than the other troubles that he has.
40        In my report of 1 May 2018 I felt that he could drive an excavator for 2 to 3 days a week and I still consider that this is possible. He said the major reason he was having trouble is because he had difficulty with the jolting and the jarring of the back and I consider that is consistent.
41        He has made no real improvement in the time that I have seen him. I previously felt that a pain management programme was the appropriate thing for him to do. As a consequence I consider the condition is likely to be permanent. Pain management, I feel, may be of some benefit to him, but it is certainly possible that it will not be.
42        Once again I consider there is no point in giving him injections or surgery. I still consider for the reasons set out above that a pain management course may be of some benefit to him and a self-managed exercise programme may be of some benefit to him, but I do not really think there is anything else significant that can or should be done.
43        Again I consider the prognosis is somewhat guarded. It is likely he is going to continue to have some ongoing low back pain no matter what else is done. From his employment history it would appear that he has made a significant effort to try and remain in employment, but unfortunately it is more the jolting and the jarring of his back that is preventing him from continuing to do that."
Mr Doig was cross-examined about his views as to the plaintiff's capacity to carry out employment. He agreed it would be beneficial to have the results of a functional capacity evaluation to assess work capacity in order to be able to work out what sort of positions the plaintiff could take without jeopardising his back further. He agreed that in each history that he took about the employment that the plaintiff had undertaken he had accepted that the reason for leaving was that which the plaintiff gave, namely, that he had worsened pain.
It was put to Mr Doig that while the plaintiff has a back which might cause him pain now and then, he has a capacity to exercise his earning capacity in light manual work, including driving occupations. Mr Doig agreed that the plaintiff had always had the capacity for light manual work.
Mr Doig was asked whether if the plaintiff was assisted with a trolley he could do some manual handling, in conjunction with truck driving. He responded that it depended very much on how much manual handling was involved and how much the plaintiff had to lift, because people who drive delivery vans have to do a lot of lifting and carrying themselves and that may be may be fine, depending on what they are delivering. It may involve light packages but if it involved 15 or 20 kilogram packages, then that may be different. He added that driving a large truck may not require quite as much heavy manual handling, but even with a trolley it was still necessary to be able to put things on the trolley.
He agreed, that the plaintiff could do some manual handling, in conjunction with truck driving as long as the manual handling was light enough for him to cope with it and as long as it did not aggravate his back.
And he agreed that whether work aggravated his back or not is dependent on his perception. He said that was the same for everyone and that it always depends on a person's perception. He said that some people will cope better than other people as some people are more stoic than other people. And he agreed that it may be true as well that the issue could also be dependent on the person's desire for particular kinds of work over others.
The plaintiff gave evidence that since leaving Don College in about March 2014 he has either applied for or obtained some 19 separate jobs but was unable to continue in about 17 of them, primarily because of his back pain. His application was not progressed by the prospective employer in one case because he had a back injury.
The following is a summary of his evidence concerning these jobs.
Within a few weeks of leaving college the plaintiff started a job as a painter for Matt Croackham. However it was only a matter of a few weeks before back pain prevented him from that work.
Later in 2014 he started working on the Spirit of Tasmania. This was unskilled labouring work as part of the refurbishment of the Spirit of Tasmania. The first few days were alright but then work requiring use of equipment such as jackhammers aggravated his back pain. He only worked three weeks of a planned six weeks
The plaintiff then worked for a brief stint at a bike shop in Spreyton hoping to obtain an apprenticeship as a motorcycle mechanic. He said the work "was good again for a certain period of time" until he again started experiencing back pain.
Towards the end of 2015 he began work with Tas Pumps and Pipes fitting irrigation systems and pumps and laying long distances of pipe. He said that he lasted "probably a month roughly" before back pain prevented him from continuing.
He then secured work with Loda Cabling in Ulverstone working on the NBN rollout. He expected that the work would be easier than the work with Tas Pumps but said "it was still the same deal of bending and labouring work and lifting which was of no favour to me."
The next job was with Matthews Contracting operating machinery and labouring. He said "the labouring was hard on my back so I was more trying to lead into machines. The machine is sitting down – was better again but obviously the jolts and the roughness is still – come into too much pain as well".
Towards the end of 2015 he applied for work through Skilled Alliance at a cement works, however the employment company would not progress his application once it learned of the accident and the injury from which he was suffering.
In August 2016 the plaintiff travelled to Queensland and took a job in a motorcycle shop, once again trying to secure an apprenticeship as a motorcycle mechanic. He said that things started off well but then he said that "as more time went on, my back started to increase in pain again". He left the job in November 2016 and returned to Tasmania because of the back pain.
Sometime after November 2016 he obtained employment with Treloar Transport Roadworks. The job involved operating heavy machinery but included heavy manual lifting. He finished in February 2017.
After February 2017 the plaintiff got a job with RBA Trucks operated by a man named Bruce Allwright. He said "Bruce took me on as doing a bit in the yard, learning about trucks, forklift … I did work on and off with Bruce for a year's plus period, a couple of years on and off different things." The plaintiff's evidence as I apprehend it, is that he seems to have been working for Mr Allwright on an intermittent basis since that time.
Sometime in 2017 he started work with, or through, Keller Excavation and Hire. He purchased his own truck and excavator but he asserted that he did not "gross" in excess of $10,000. He said that "being on the machine jolting and then getting off and bending and lifting to do things wasn't that successful at all". He sold the truck and excavator around the end of 2017.
Towards the end of 2017 the plaintiff obtained work with Ryan Contracting. This involved general driving, picking up onions and working on a farm truck. He said it was "rough on my back going in and out of the paddocks and what not."
He then "picked up" a job with RBA Trucks which was only a few hours a day for a short period of time on the odd occasion that a fishing boat would come in. He said the hardest part was climbing in and out of the truck.
In March 2018 the plaintiff started a job with Kiely Plumbing in Ulverstone. He was employed as an operator/labourer, working on excavators and in trucks. He said that he had to "purchase" a Heavy Combination Open Licence which cost $2500. His evidence was that "the driving itself was – it's pretty well fine, it's just the – if there's any labouring with that work, that's what I can't seem to do, and the long hours come into play as well".
In May 2018 he obtained a "fly-in fly-out" job in Kalgoorlie operating heavy machinery. The salary was $100,000 per annum plus superannuation and costs. His evidence about this job was as follows:
"My first two weeks I got through, but it was starting to acute pain and in the third week of my final week, it was meant to be a four week but I called it a three, because in the end I was taking pain medication just to – so I could go to sleep and try and get – escape that pain to then start again the next day."
He then obtained work with Monson Logistics. He said that the work "was fine for a few weeks at the start … I said I was sick but I was in pain so I took time off".
In August 2018 the plaintiff obtained a job with Wynyard Transport. He said that this was a full time driving position for two to three months. His evidence was that "the driving was fine but the labour intensive of bending and lifting and unloading, didn't do me any favours".
At the end of 2018 he obtained work with SRT Logistics as a truck driver involving 10 to 12 hour days. His evidence about this job was:
"That was better again because there was actually not – it was a lot less physical work, the only physical work I really had to do there, was unhooking and re-hooking of trailers and – but there was a scenario of having to lift the bars in and out which did hurt my back."
In early 2019 he obtained work with Streeflands as a truck driver, delivering Coke and Juicy Isle products. He said there had been too many hours for him to cope with at SRT and the Streeflands job was offering less hours. His evidence was:
"I thought if I could handle – if I do less hours it might be to balance out a lot better but the way I thought of the job, it would be a pallet, like, pallet jack the pallets on and off but there was actually a lot more physical work than what there was at SRT so in the end again there, I wasn't any better off."
In March 2019 the plaintiff obtained employment with Baker Group. This was an earth moving job and he said that he experienced the same problems as all of the other machine operating jobs.
His next job was with Wacks Crushing as a machine operator. He said that he started experiencing aggravated pain after four days.
He then worked for Boral driving a loader, dump truck and operating the crushing plant from an office. He said that there was too much labouring work involved in that role.
The plaintiff's next job was for one day only. He was given a start by his mother's partner who is the general manager of Tasmanian Pickled Onions. The plaintiff's evidence as to this job was as follows:
"I had to stand beside a conveyor belt all day and put jars into boxes and the repetitive time of standing on my legs made my back feel like it was really like compressed and I had a real sharp aggravating yeah pain. And so I didn't continue on with that."
At the date on which he gave evidence at trial he was employed with Toll Transport. He was asked about that work in evidence-in-chief and it is useful to set out the following passage from the transcript:
"… I obtained work with Toll Transport which is where I'm currently at and that's a truck driving role. There is not a really great deal at all of physical work. The majority of their trucks are pretty good apart from a couple of the Kalmars which are quite rough and jolty which that caused some pain in my back but it's still the excess of the hours that are just – I'm in too much pain like getting enough rest.
MR READ SC: So how many hours are you working a day?.....Uh it can vary from a minimum of – minimum of eight, you've got to do the eight, to probably maybe a 13 to 14 max.
Right. And is that all driving or is there some other work – loading or other work than driving?.....Pretty well all driving.
So the work itself, as I'm understanding you, is okay it's the amount of hours that cause – ?.....Yep.
– difficulty. And what does that difficulty result in?.....It results into aggravated pain in the area that I directed out earlier and then really I'm just spending my weekends laying in bed, trying to get enough break which is still not enough to get ready to go back and do it all again the next week."
On the issue of the question of the plaintiff's ability to work as a truck and delivery driver and his motivation to work in that employment, the plaintiff called Brendan Gleeson who works as a driver for Streeflands Logistics and worked with the plaintiff when he worked there early this year.
Mr Gleeson has worked for Streeflands for about 18 months. He works 38 hours per week plus overtime and normally earns $900 to $1,000 a week before tax.
The job that he and the plaintiff were doing involved delivering Coke and Juicy Isle products, in the early hours of the morning, from Latrobe to Strahan, Zeehan and Queenstown. On an average day they would have six to seven hundred cases of drinks on their truck. When they got to the west coast, over poorly maintained roads, they would have to get up via a ladder into the back of the truck, pick the product that the customer wanted, unload them off the truck, put them on a trolley and wheel them into the customer. The average weight of a case of drinks was about 15 kilograms. There could be 30 to 40 customers a day. Mr Gleeson described the nature of the work as quite heavy, physically, (leaving aside the driving), involving lifting and carrying cases off the truck.
Mr Gleeson was asked in evidence-in-chief what he had noticed about the plaintiff from the time that he started working with Streeflands. He responded that:
"Workwise you could get, you know, we'd go a couple of hours and then you'd sort of get to the heavier stuff. When we were doing the heavier stuff, like you could see he was in pain quite easily, well not pain, but I suppose it is pain, yeah, it's hard to describe. He sort of see it like his facial expression, yeah like he'd feel, you know how you're in pain, you sort of squint or sort of like that."
Mr Gleeson said that he "tried to give him lighter stuff because I know what it's like to have a bit of back pain and stuff" and the longer the day went, his condition "[w]ent backwards". He said that was something that he noticed each day that the plaintiff worked with him. He said that the plaintiff's "work ethic was fine", that "there was absolutely nothing wrong with that, it was just, like the discomfort and pain that … affected that, and he just couldn't do it anymore".
Mr Gleeson's evidence was essentially unchallenged in cross-examination and it was certainly not shaken in any respect.

The defendant's case as to lost earning capacity

The plaintiff was cross-examined about his work with Flexible Contracting Services on the Spirit of Tasmania. It was suggested to him that the reason he left that work was not because he was only given six weeks but because the employer found him to be unreliable. The plaintiff responded, "[w]ell that's what happens when you've got a bad back, isn't it?" It was put to him that he was not reliable, not because of his back, but because he would not turn up for work. He responded, "[y]eah, because I had a bad back."
He was cross-examined about the work he did with Tas Pumps and Pipes. The following exchange is relevant:
"And the work that you did for them apart from when you didn't turn up, you were able to do it?…..Well, I could still do it but I was in aggravating pain to do it. I'm not, not paralysed, not in a wheelchair, I can still do things but it's pain and suffering that comes with those things.
So you were able to do the duties that they wanted you to do?…..But I struggled.
Do you agree that you could do the job?…..Yes.
And they would say that, that you could do the job?…..I'd imagine so.
And I think you told Mr Read that you left because of your back pain?…..Yes.
So you – you resigned?…..Yes.
All right. So if the Jones' said, 'Well, no, we just asked him not to come back', what would you say?…..I'd say that's incorrect."
He was asked about the work he did with Monson and the reason he left. The following exchange is relevant:
"Mr Keller, the reason you left Monson was because there was a significant incident wasn't there, involving you operating forklifts while smoking?.....It wasn't – it didn't have anything to do with smoking, but I did drop a crate of gas bottles on a forklift.
Yeah, but you'd been warned about driving forklifts while smoking, hadn't you?.....No, no, I was warned about smoking in the yard, not on a forklift, but it was – I had warnings about smoking in the yard, while I was working.
And so you disagree, that there was any incident with you smoking while operating the forklift?.....I just know – like I just said, I've been spoken to about smoking.
In the yard?.....Yes.
When you're meant to be working?.....Yes.
And you had an incident involving a forklift and a gas bottle, where you dropped it?.....Yep.
An acetylene gas bottle?.....Yep.
And that caused quite a degree of trouble in the yard, didn't it?.....Yes.
And Workplace Standards had to be called in?.....Yes.
And that was after you'd been warned about smoking in the yard?.....Yes.
And that's the reason you're no longer at Monson because there'd been issues with your attitude in complying with the rules?.....It's not the – not the reason at all. Like you mention, [indistinct word(s)] transport in there, I was leaving Monsons to go there anyway. They were – when I was–…
MS TAGLIERI SC: So when you say, you were leaving Monson's to go to Wynyard Transport, you'd actually applied at Wynyard Transport?.....Yes.
While you were at Monson's?.....Yes."
The plaintiff was challenged as to his pre-employment medical procedures with Monson and with Wynyard Transport. The following exchange is relevant:
"When you – when you applied at Wynyard and when you applied for work at Monson, you had time to go to pre-employment medicals?.....Yes.
And in those pre-employment medicals, you also had a physical assessment?.....Yes.
And you went through Workplace Health assessors?.....Yep.
For both of those company assessments before being taken on?.....Yes.
And you completed questionnaires about your health and you said it was good?.....Yeah.
And you said that you had no back problem?.....Yep.
And you also passed the physical assessment with flying colours, didn't you?.....They're not complicated.
Were you were asked to do various manoeuvres and bending, lifting?.....Yes.
Yep. And you were passed as fit for those two jobs, that's true isn't it?.....Yeah.
And when you answered questionnaires about any prior spine or back issues, you said no because you didn't have any?.....That's not true, I said no to them because who is going to employ someone with a bad back or a back injury as such."

Importantly, the sort of combination of driving and manual labour that the plaintiff was engaged in with Mr Gleeson appears to be common to many truck driving jobs, other than work driving tankers such as that described by Ms Hutton.
These considerations cause me to accept that the plaintiff, as a result of the February 2014 motor vehicle accident, has suffered a permanent reduction in his capacity to earn in work that he would be otherwise be skilled to perform. The evidence establishes that the plaintiff has done all he reasonably can to mitigate his loss and that the position he now finds himself in is permanent.
Given however, that, in my view, he remains capable of undertaking paid employment, including satisfactorily performing some driving jobs, absent undue, associated physical exertion or manual handling, and perhaps other jobs involving a level of physical effort, but for short periods at a time, or for a lesser number of hours, the question of the extent of the reduction of his earning capacity is the more difficult question.

Past lost earning capacity

The plaintiff claims a pre-injury capacity to earn an average of $35,000 net per annum between the date of the accident and the date of trial, or $177,000 to 22 July 2019.
That sum is based on a contention that the plaintiff could have expected to earn a moderate income as a 17-18 year old, whilst he was "learning his trade" and then by age 20-22 he could have expected to earn at least $1,000 per week gross to do largely unskilled work. I accept that latter contention on the evidence, in particular on the basis of Mr Gleeson's evidence.
It is also contended, and I accept, that the plaintiff could have earned around $2,000 gross per week on average working in fly-in fly-out employment at Kalgoorlie. Accordingly, the plaintiff claims a pre-injury capacity to earn an average of $35,000 net per annum between the date of the accident and the date of trial, or $177,000 to 22 July 2019.
The plaintiff's net earnings since the accident have been $88,866. That sum, it is submitted, accurately reflects his retained earning capacity for the years since the accident.
If that figure of $88,886 is deducted from the figure of $177,000, the result is a total claim of $88,134 gross for past lost earning capacity.
I accept the submission of senior counsel for the plaintiff that on the evidence, the job at Toll held by the plaintiff when he gave evidence at trial was not likely to be long lasting because of the problems the long hours were causing him. As to that, the plaintiff's unchallenged evidence was:
"It results into aggravated pain in the area that I directed out earlier and then really I'm just spending my weekends laying in bed, trying to get enough break which is still not enough to get ready to go back and do it all again the next week"
The plaintiff thus claims $88,134 gross for past lost earning capacity.
Senior counsel for the defendant, Ms Taglieri SC, submits that the plaintiff's employment followed the typical pathway of a school leaver without qualifications or experience, ultimately working his way into trucking employment by 1 July 2018. There is some strength in that contention but it does ignore the plaintiff's inability to perform manual labouring work as a result of his back injury. Had he been able to fully exercise that capacity for work, I am satisfied, on balance that he would have earned more than he did between a point in time after he commenced his entry into the work force and the time he could have undertaken driving jobs with no manual labouring, such as tanker driving. Ms Taglieri submits that because of vagaries in the evidence the period of 1 July 2015 to 30 June 2018 ought to be selected and that the amount of the loss should be calculated on the basis of the earnings available in positions the plaintiff would otherwise have been expected to be suited to. She instances an hourly rate of $17.76 net per hour.
I accept that submission. Those dates appear to me to be reasonable, particularly taking into account such things as the plaintiff's age, his lack of qualifications and the type of work he was able to do but voluntarily left at the ill-fated Sharkies. On the evidence, the wage rate posited accords with available minimum wage figures and is consistent with the evidence of wage rates paid by Skilled Engineering and Flexible Contracting.
The resulting calculation, for the period 1 July 2015 to 30 June 2018, or 156 weeks, is as follows. $17.76 net per hour per week equates to $675 net per week for a 38 hour week. $675 x 156 = $105,300 net. From that sum the plaintiff's actual earnings in the three years, including from self-employment, need to be deducted, making the assessment as follows – $105,300 less $52,450 = $52,850 net.
The defendant submits that a discount ought to be applied to any mathematical calculation made for past loss of earnings, for the contingency that the plaintiff would not have secured work, or work paying $35,000 per annum each year on average, particularly on the north west coast of Tasmania. A discount in the order of 20% was suggested as appropriate. I have concluded however, that the plaintiff's own evidence has established that well paid work was plentiful on the coast for those who enthusiastically and innovatively sought it. Moreover, I have already made an allowance for the plaintiff's gradual entry into the workforce as a largely unskilled 17 year old boy, by not commencing any calculation of past loss at the relevant rate until 1 July 2015.
Accordingly I award $52,850 for past lost earning capacity. I make an additional award of $5,000 for lost superannuation because a not insignificant amount of what would have been the relevant gross loss was from self-employment.

Future lost earning capacity

The plaintiff claims that it is reasonable to assess his uninjured earning capacity for the future as at least $1,000 gross per week or $52,000 gross per annum, to a retiring age of 67 years, and that the plaintiff's net earnings since the accident have been $88,866 which sum accurately reflects his retained earning capacity for the years since the accident to date.
The plaintiff submits, and I accept, that he is not likely to sustain his 2019 earnings which were a gross income of $44,895, and a net income of $39,231. The plaintiff's average income since the accident (ignoring the remainder of the 2014 year), was about $18,000 net.
The plaintiff submits that he is unlikely to be able to continue obtaining work which is anything but light and/or short term and that he is likely to have extended periods of unemployment between jobs and those periods, which due to already using up opportunities, are likely to become longer and longer.
The plaintiff submits that his future is likely to be uncertain, short term employment, with minimal or starting wages, coupled with increasingly long periods of unemployment.
Thus, the plaintiff submits, it would be "overly optimistic" to expect the plaintiff to earn more than $20,000 net per annum or to sustain that level of earning to the now usual retirement age of 67.
The plaintiff's claim is for $430,283 calculated on the basis of $1,000 per week gross ($837.55 per week net), deducting from that sum the retained capacity of $20,000 per annum gross ($384.61per week net), giving a result of $452.93. $452.93 x 950 (the 5% multiplier for 45 years) = $430,283
In addition the plaintiff in accordance with Najdovski v Crnojlovic [2008] NSWCA 175, 72 NSWLR 728 at [53], claims 11% of that sum to compensate for future loss of superannuation. That method of calculation is agreed.
The defendant contends that if I am minded to award damages for a potential future loss of earning capacity as a result of an accident related back injury, that a figure in the vicinity of $80,000 ought to be the maximum allowed.
By way of comparison, the defendant submits, using a "mathematical approach", $80,000 is the equivalent of $100 net loss a week for the future loss of earning capacity period claimed by the plaintiff, less a 15% discount for contingencies. (Calculation $100 x 950.4 (5% multiplier for 45 years) = $95,050 less 15% for contingencies = $80,784.)
The defendant further submits that a discount for contingencies of at least 20% is more appropriate because it may not be reasonable to consider the plaintiff's loss to age 67 years given the vulnerabilities of his pre-existing symptomatic back condition and the childhood existence of Schmorl's nodes which are markers for degenerative progression. Also it is submitted, given that he has demonstrated a capacity to earn between $900 and more than $1,000 gross per week in machinery and truck driving work since 1 July 2018 when he commenced work with Monson Logistics, and given that with suitable manual handling arrangements in place and/or properly maintained trucks and other vehicles, or by confining himself solely to driving trucks, he may be capable of full-time employment.
The defendant submits that in circumstances where the plaintiff presently demonstrates a capacity to earn between $900 and $1,000 a week, the claim made by him of $457.94 to age 67, undiscounted for contingencies is not supported by the evidence and is excessive. The defendant contends that the evidence called from several of the plaintiff's past employers demonstrates a far higher capacity to earn than that which is admitted by the plaintiff.
While I agree that a somewhat greater than usual discount for contingencies should be applied, these submissions to an extent conflate the question of the plaintiff's retained earning capacity and the question of any discount on his assessed loss of that capacity.
I do not agree that the plaintiff has not lost a significant percentage of his capacity to earn. Few injuries are more disqualifying in the workplace than a back injury and the plaintiff has no trade or other qualifications which would render him suitable to employment which did not involve manual handling and physical exertion. It is true that the plaintiff may have been disposed to back injury in employment by virtue of his pre-existing conditions. Mr Doig said that the plaintiff's adolescent Scheuermann's disease and Schmorl's nodes "makes the back a little more vulnerable". It is also true that the plaintiff might retrain or that he might obtain solely driving employment, with no manual handling, and with hours that he could cope with. All of that in my view is fairly brought into account however, by first assessing the reduction in the plaintiff's earning capacity, and by then appropriately discounting his loss for contingencies.
In Husher v Husher [1999] HCA 47, 197 CLR 138 at [6]-[8] Gleeson CJ, Gummow, Kirby and Hayne JJ said:
"It is necessary to identify both what capacity has been lost and what economic consequences will probably flow from that loss. Only then will it be possible to assess what sum will put the plaintiff in the same position as he or she would have been in if the injury had not been sustained."
And, as was submitted by counsel for the plaintiff, Mr Read SC and Mr Gaggin, not all contingencies are adverse. In Bresatz v Przibilla (1962) 108 CLR 541 at [3], Windeyer J said:
"This 'scaling down' is a mere process of arithmetic applicable to all cases; and there are tables from which the result is readily ascertainable. But the second consideration is altogether different. It is a mistake to suppose that it necessarily involves a 'scaling down'. What it involves depends, not on arithmetic, but on considering what the future might have held for the particular individual concerned. He might have fallen sick from time to time, been away from work and unpaid. He might have become unemployed and unable to get work. He might have been injured in circumstances in which he would receive no compensation from any source. He might have met an untimely death. Allowance must be made for these 'contingencies', or the 'vicissitudes of life' as they are glibly called. But this ought not to be done by ignoring the individual case and making some arbitrary subtraction. We were told that in South Australia it is a common practice to subtract twenty-five per cent 'for contingencies'. Indeed counsel for the appellant, in the calculations he made in support of his claim for higher damages, conceded that this should be done. But he did not explain why. I know of no reason for assuming that everyone who is injured and rendered for a period unable to work would probably in any event have been for a quarter of that period out of work, or away from work and unpaid. No statistics were presented to justify this assumption. Moreover, the generalization, that there must be a 'scaling down' for contingencies, seems mistaken. All 'contingencies' are not adverse: all 'vicissitudes' are not harmful".
Indeed, the plaintiff had lucrative fly-in fly-out shift work employment with Breakaway out of Kalgoorlie, equating to $100,000 per annum. Had he been able to perform that work pain free, it could have continued. The plaintiff may have been far less troubled than he appears to have been, by the temporary isolation and absence of the internet, and might have used that employment to "set himself up". Equally, had he been able to do all tasks associated with his self-employment he might have prospered in that business.
Recognising that the task is imprecise and indeterminate and must be carried out within very broad parameters (State of New South Wales v Moss [2000] NSWCA 133, 54 NSWLR 536 at [66]-[72]), in my view on a consideration of the totality of the evidence, the plaintiff has suffered a loss of 40% of his earning capacity, and his damages for future lost earnings and superannuation should be discounted by 20% for contingencies.
The calculation I make is based on a net weekly income of $837.55 as posited by the plaintiff, with a deduction of $502.53 per week from that sum to allow for a 60% retained earning capacity. The resultant figure is $335.02 per week net. Using the agreed multiplier of 950, the plaintiff's future loss of earning capacity amounts to $318,269, to which must be added $35,009.59 being 11% of that sum assessed as future lost superannuation. The resultant sum is $353,278.59 which, when reduced by 20% for contingencies, results in a final figure of $282,622.87.
Accordingly I allow $282,622.87 future lost earning capacity and future lost superannuation.

General damages

In their written closing submissions, counsel for the plaintiff submitted:
"8.1     The key factors in this assessment are the age of the plaintiff the pervasive effect of his pain and its chronic state with guarded prognosis.
8.2       The plaintiff was involved in a serious and frightening accident, which had the potential to cause very significant injury.
8.3       In addition to the chronic pain the plaintiff has become depressed and worried about his future.
8.4       The pervasive effect of his condition is seen from his attempts to gain employment and also in recreation. He has had to give up his great love of motorcross and has substituted it with 4 wheel driving. But he cannot fully participate in his new recreation because of pain. At T160 Mr Wilson gave this evidence
We went down to the Mount Cumberland track which was about from the time we left to the time we got back was about 12 hours and probably for a good half of the 20 day probably longer he was actually out of the four wheel drive. Every time we got to a rough section he – he'd actually get out of the four wheel drive.
8.5       Leah Keller's evidence at T188-190 is of a dramatic change in her son. When asked about her son's moods she described them as 'shitful'. His social life was described this way
That's ceased as well, like, his whole life revolved around motorbike racing, going out with mates, that sort of thing, yeah, that's all ceased, and a lot of times, like, he's in bed early, because he does fell fatigued and his back's aching, so he doesn't go out socialising like he used to. He's not involved in outings and that sort of thing that he used to be involved in.
8.6       Leah Keller concluded by saying so that just reflects on everything. It reflects on his mood, it reflects on his happiness, it just reflects on his everyday life.
8.7       At T66 the plaintiff explained his position
definitely a lot worse off now than what I used to be, I – as – so – much of things that I've missed out on and I can't do or things that I worry about in my future and stuff, that, you know, even like going through these jobs all the time, that's not good either, like I'm worried about my future and what that's gonna relate to and what I'm – what I'm really capable to do, like I'm really not set to be driving truck and machines and I keep doing it, but I don't have any options as such there, so I continually push me to do these things which doesn't make me happy and I'm stressed and upset and like, I get a lot more snappier quicker
8.8       There are no readily comparable awards of general damages as this man was injured at such a young age and his pain is chronic with a guarded prognosis. It is respectfully suggested that an award of $130,000 is appropriate."
In her written closing submissions, senior counsel for the defendant, assisted, I assume by her junior, Mr Pedder, submitted:
"115 The award to be made for general damages ought to have regard to section 28 of the Civil Liability Act 2002 and the often cited passage in Planet Fisheries Pty Ltd v La Rosa at [125]. For example in Raper v Bowden , your Honour referred to Hendrex v Keating and the Chief Justice's interpretation and application of the principles in Planet Fisheries Pty Ltd v La Rosa.
116 If the Court concludes that there was only a temporary aggravation of thoracolumbar spine symptoms caused by the collision, as the hand fracture fully recovered, it is submitted that the award for general damages should be $35,000 to $40,000. Alternatively, if the aggravation of the thoracolumbar spine was not temporary and instead caused intermittent back pain to various degrees which has been exaggerated by the Plaintiff's witnesses, it is submitted the award ought to be in the region of $50,000. Finally, if the Court concludes that there was no exaggeration, which in the Defendant's submission would be contrary to the preponderance of objective evidence, it is submitted that the award ought to be no more than $60,000.
117 The above submissions are supported by the fact that notwithstanding the level of symptoms, the Plaintiff lives a quite fulsome and active life. There is no evidence to the contrary and he has been able to work for significant periods, earn income in the vicinity of what would otherwise be expected, has partnered and is engaging quite fully in a range of social and recreational activities."
As can be seen, I have reached the view that the aggravation of the plaintiff's thoracolumbar spine was not temporary and has caused recurring back pain to various degrees which has not been exaggerated by the plaintiff or his witnesses.
The plaintiff's condition is permanent and there is no treatment which will alleviate it. Pain management medical advice may assist. Pharmaceuticals may assist, although they may come with their own unwanted effects. For a man so young to look forward to a life time of back pain on undertaking any significant or prolonged or unusual physical exertion, is a very daunting thing to contemplate. He may not be able to engage with any children he may have, in the manner he would wish to, not to mention grandchildren. While he is presently debarred from his preferred leisure activities in life, he may also find that in the future he is prevented from taking up others in which he might become interested. Even if he finds employment suitable to him, and again I use the example of driving a modern tanker truck, he may find that the hours he needs to be seated while driving, on less than perfect roads, exacerbate his pain, causing limitation on physical activities intruding into his leisure time.

In my view, having regard to the work of the Court in recent years an award of $90,000 for general damages, pain and suffering and loss of amenities of life.

Special damages

I am told that it is agreed between the parties that the amounts paid by the Motor Accidents Insurance Board totalling $12,481.80 are reasonable and incurred as a consequence of the injuries sustained by the plaintiff in the motor vehicle accident, so the need to be concerned with those medical expenses is obviated given that I have made no finding of contributory negligence against the plaintiff.
The plaintiff does claim the sum of $10,875 for the purchase of sundry items such as a bed, mattress and massage chair, and for various therapies such as massage and "dry needling".
Although it appears that the Motor Accidents Insurance Board authorised three sessions of dry needling, the defendant submits that there is no medical evidence establishing that the items claimed for were reasonably required for the plaintiff's condition and that those claims should not be allowed for that reason.
The defendant argues that, to the extent that the plaintiff's mother gave evidence as to the need for these items, it cannot be elevated to meeting the required standard of proof. It is said that it is significant that Mr Doig, who could easily have given the required evidence, did not do so.
I agree and make no allowance.

Disposition

There will be judgment for the plaintiff against the defendant for damages in the sum of $430,472.87.
I will hear counsel as to the appropriate order for costs.