Kelly v Guidera - [2013] WADC 197

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: KELLY -v- GUIDERA [2013] WADC 197

CORAM: EATON DCJ

HEARD: 19 - 28 AUGUST 2013 & 6 DECEMBER 2013

DELIVERED : 20 DECEMBER 2013

FILE NO/S: CIV 1619 of 2011

BETWEEN: PETER DAVID KELLY
Plaintiff
AND
ROYCE PATRICK GUIDERA
Defendant

Catchwords:

Personal injury - Assessment of damages - Impact of pre-existing conditions

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943
Workers' Compensation and Injury Management Act 1981

Result:

Judgment for the plaintiff in the sum of $268,790.68

Representation:

Counsel:

Plaintiff: Mr B L Nugawela
Defendant: Mr T Russell

Solicitors:

Plaintiff: United Voice Legal
Defendant: State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Bowen v Tutte (1990) Aust Torts Rep 81‑043
Clarke v BHP Billiton Direct Reduced Iron Pty Ltd [2009] WASCA 134
Griffiths v Kerkemeyer (1977) 139 CLR 161
Insurance Commission of Western Australia v Weatherall [2007] WASCA 264
Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638
Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1
Minchin v Public Curator of Queensland [1965] ALR 91
Pene v Murphy [2004] WASCA 103
Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164
Setton v Eves [2006] WASCA 3
State of New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536
Thomas v O'Shea (1989) Aust Torts Rep 80-251
Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402
Van Gervan v Fenton (1992) 175 CLR 327
Watts v Rake [1960] HCA 58; (1960) 108 CLR 158

EATON DCJ: The plaintiff, Peter Kelly was, in 2009, an employee of Bethanie Group Inc. (Bethanie Group), an aged care provider. He had entered into a written contract of employment and commenced duties as an activities assistant on 24 May 2008. His work included bus driving. On 4 August 2009 he was, at about 2.35 pm, driving his employer's 25‑seat bus in the course of his employment. He had a number of passengers on board, being his employer's clients.
In Wellington Street, Mosman Park, a Western suburb of Perth, Western Australia, he approached a junction with Stirling Highway. His intention was to turn right into the highway. Traffic at the junction was controlled by traffic lights. The plaintiff, with a green light, proceeded from Wellington Street, right into Stirling Highway. As he did so, his bus was struck by a Mitsubishi Canter truck being driven by the defendant. The truck was about the same size as the bus. It passed, on Stirling Highway, from the plaintiff's right, through a red traffic light at an excessive speed in circumstances where the driver of the truck was clearly negligent.
The bus being driven by the plaintiff was struck at the front right hand corner, such that its aluminium bull bar and a front panel were bent. Although damaged, the bus was driveable. The plaintiff, after inspecting the damage to his bus and stopping to speak with and exchange information with the driver of the truck, continued his homeward bound route, dropping off passengers at various points. He returned, having done so, to his employer's office at Mt Claremont. There he reported the accident. He was sore and stiff from the collision. His supervisor suggested that he see a doctor. At about 5.00 pm that day he attended upon Dr Danny Sadir at the Morley Medical Practice. He certified the plaintiff as having a whiplash injury and as being unfit for work for two days, 5 and 6 August 2009. He saw him again on 6 August 2009, noting that the plaintiff's symptoms were neck stiffness and diagnosing a soft tissue injury to the neck, resultant upon the motor vehicle accident. He certified the plaintiff as being fit for work on restricted duties, being that he not be required to lift anything heavier than 5 kg and that he avoid driving.
Shortly after the accident the plaintiff made a workers' compensation claim. On 13 August 2009 Zurich Australian Insurance Ltd informed the Bethanie Group that liability under the provisions of the Workers' Compensation and Injury Management Act 1981 for the plaintiff's claim was accepted. It authorised the payment of compensation for all periods for which the employer held a medical certificate from the plaintiff stating him to be unfit for work with effect from 26 August 2009. The nature of the plaintiff's incapacity was said to be 'soft tissue injury neck, shoulder and lower back'.
Also on 13 August 2009 the plaintiff was seen at the same medical practice by Dr Ray Cibulskis who noted that the plaintiff complained of neck pain, left shoulder pain and low lumbar back pain. He certified the plaintiff fit to return to work with the same restrictions as had been recommended by Dr Sadir.
On 20 August 2009 the plaintiff was seen at the same medical practice by Dr Todd Silbert who noted that the plaintiff had suffered a soft tissue injury of the cervical/lumbar spine. He certified the plaintiff fit to return to work with similar restrictions as had been recommended by Dr Sadir and Dr Cibulskis adding that the plaintiff should avoid overhead lifting of things heavier than 5 kg.
On about 26 August 2009 the plaintiff received a letter from his employer advising of an allegation made against him as to the performance of his duties while at work, seeking his response and advising that he was suspended on full pay pending further investigation. The allegation and the motor vehicle accident were unconnected. The plaintiff responded in writing to the allegation by the letter of 30 August 2009. He was subsequently directed to return to work on 2 September 2009 and work to his roster. It seems that he was also directed to not discuss the subject matter of the allegation with any other staff member. His employment was terminated on 4 September 2009 following the revelation that he had discussed the allegation with another staff member while at work.
Dr Silbert continued to certify the plaintiff to be fit for work with similar restrictions. At the time of the plaintiff's employment being terminated he was still restricted to light duties.
The plaintiff was aggrieved by his dismissal, feeling that he had been 'set up' and took action against his employer claiming unfair dismissal. That claim was made with the assistance of the plaintiff's union and was resolved some months later by way of a deed of settlement.
On 16 May 2011 the plaintiff filed a writ of summons in this court with an endorsement claiming damages for personal injury against the defendant. The latter entered an appearance to the writ on 5 August 2011. On 28 November 2011 the plaintiff filed a statement of claim and on 13 December 2011 the defendant filed a defence to that claim, admitting the negligence of the defendant but not the plaintiff's claim for damages.
In October 2011 an application was made to WorkCover to cease the plaintiff's weekly workers' compensation payments on the ground that he was fit to work as an administrative assistant or perform office work. That application was resolved in November 2011 by the plaintiff settling his workers' compensation claim overall. He received a lump sum payment in the vicinity of $67,000, including legal fees. He received, after repayment to Medicare, about $60,000. At that point his workers' compensation weekly payments stopped. It is the case that the plaintiff had received workers' compensation payments during the period 5 August 2009 to 15 December 2011 totalling, in gross amount, $86,067.38.

The plaintiff's circumstances prior to 4 August 2009

The plaintiff was born on 16 September 1956. He is, therefore, presently 57 years old and was aged 52 years at the time of the motor vehicle accident on 4 August 2009.
The evidence suggests that the plaintiff attended Albany Senior High School, leaving after completion of year 10. He worked for several years for Coventry's in the area of automotive spare parts as a storeman and in sales. That was followed by employment as a truck driver and storeman at Port Hedland with Mt Newman Mining Co Pty Ltd in the late seventies. He returned to the metropolitan area and worked in a variety of jobs. Having regard to his résumé, his longest period with a single employer in more recent times would appear to be his employment with Daniel Corporation from 1996 to 2000, in the field of medical waste disposal, his position there being that of service manager.
In summary, since leaving secondary school the plaintiff has been predominantly in full-time work in a variety of occupations including courier driver, handyman, sales assistant, storeman, administration and clerical work. In more recent times the defendant has worked predominantly in the field of care for the frail and aged. He has had no formal training in office administration or computer use.
As an employee of the Bethanie Group he was required to work according to a roster to a maximum of 38 hours a week. In fact he worked, on average, a 36‑hour or 37‑hour week.
The plaintiff was married to Wendy Marlene Kelly in 2001. There are no children of the marriage. She works part-time as a clerk at the Emergency Department of Royal Perth Hospital and has done for several years. The plaintiff was previously married and divorced. I gather that there were no children of that marriage although there may have been step-children.
As a younger man the plaintiff played sport, including badminton and squash. In about 1977 he injured his right knee while playing the former. That led to several arthroscopies over the years in an attempt to mend the damage. The last was in 1997. He is left with symptoms in cold weather which do not require medication, with limitations when crouching or kneeling and when using stairs or ladders and when standing or traversing irregular ground. It is necessary that he favour the right knee in terms of activity.
Dr Silbert had been the plaintiff's general practitioner since about 2007. His last involvement with the plaintiff was in late 2011, he having changed practices. From the beginning of his professional relationship with the plaintiff he had treated him for type 2 diabetes. Dr Silbert explained that the plaintiff's diabetes had been mature onset, requiring that he monitor his blood sugar levels and use insulin. He was first diagnosed in 1998. It has led to other concerns such as a bilateral peripheral neuropathy. He was referred for podiatry assessment at Royal Perth Hospital in July 2010. A neurovascular diabetic foot assessment was performed indicating that the plaintiff had signs of severe peripheral neuropathy. A complication of diabetes is the loss of sensation in the peripheries. With the loss of feeling there is a tendency towards ulceration. The plaintiff was treated for ulceration of the left foot in that context. The treating podiatrist observed that the plaintiff had a chronic condition and required ongoing assistance with his podiatric care.
Another consequence of diabetes is the problem of blood sugar level control. The plaintiff has twice presented at Royal Perth Hospital, first in September 2010 and again on 18 January 2011 following hypoglycaemic attacks.
The plaintiff underwent an angiogram and angioplasty in 2007 following a diagnosed myocardial infarction. A stent was inserted in the coronary artery. Since then he has been required to take blood thinning medication.

Injury resultant upon the motor vehicle accident

As mentioned, the plaintiff immediately sought the assistance of doctors at the Morley Medical Practice, his treating general practitioner predominantly being Dr Silbert.
Following his workers' compensation claim the plaintiff was referred to Dr LG Blake, a registered WorkCover specialist who saw him on 12 October 2009. Dr Blake referred him to SKG Radiology for an x‑ray and ultrasound examination of his left shoulder on 13 October 2009. The former revealed no evidence of recent osseous injury. The latter revealed the presence of a full thickness tear of the mid-insertional fibres of the supraspinatus muscle. It measured 14 mm x 10 mm. There was also mild to moderate bursal thickening and evidence of mild glenohumeral and AC joint degeneration.
The plaintiff, complaining of low back ache, was also referred to SKG Radiology for an x‑ray of the lumbosacral spine on 19 October 2009. Examination revealed mild degenerative changes in the lumbar spine. There was no significant degenerative change of the facet joints and paravertebral soft tissue appeared normal.
Dr Blake, in turn, referred the plaintiff to Dr David Colvin, an orthopaedic surgeon, who indicated a need for surgical repair of the supraspinatus muscle tear. That took place on 15 December 2009 at St John of God hospital, Subiaco. Dr Colvin performed a left shoulder arthroscopic acromioplasty and rotator cuff repair. The plaintiff was discharged with his left arm in a sling with the intention that he would commence appropriate physiotherapy. He was monitored by Dr Silbert through November and December 2009 with ongoing prescription of analgesic medication. He used the sling for six weeks following the surgery.
On 8 February 2010 a physiotherapist, Mr Tony Pullella of the Morley Physiotherapy Centre, reported to Dr Colvin that the plaintiff had attended for passive mobilisation of his left shoulder and that he had made steady improvement in terms of his range of movement. He further reported on 20 April 2010 that the plaintiff had been attending on a weekly basis undertaking strength and endurance training. The plaintiff, he said, had coped well with active exercises but had complained of neck pain and sleep disturbance, the symptoms being worse after shoulder exercise. The plaintiff's attendances were later reduced to fortnightly.
On 25 June 2010 Dr Silbert examined the plaintiff and noted ongoing left shoulder pain. He referred him to Dr Bill Breidahl for an ultrasound guided bursal injection in the hope of improvement. On 1 July 2010 Dr Breidahl decided to inject the left glenohumeral joint. While doing so he noted the presence of sutures consistent with the earlier supraspinatus muscle repair. He suspected that the plaintiff had a 'component of frozen shoulder syndrome'. The plaintiff reported to Dr Silbert that the benefit from the injection, in terms of pain relief, lasted for one day.
The plaintiff had further injections of the left glenohumeral joint and the left subacromial bursa on 4 August 2010. Dr Silbert noted a subsequent significant improvement in the plaintiff's left shoulder pain.
At the beginning of March 2010 Dr Silbert referred the plaintiff to Zone Injury Management, a business conducted by Ms Zoe Holdaway, an occupational therapist and workplace rehabilitation consultant. She devised a plan. She conducted her first visit to the plaintiff's home on 12 March 2010 and presented her final report on 9 January 2012. On 12 July 2010 she prepared a Service Delivery Plan for the plaintiff, the programme to commence on 1 June 2010 and conclude on 30 December 2010, the goal being to return the plaintiff to full time work with a new employer working a 38‑hour week.
On 21 September 2010 Ms Holdaway reported that the plaintiff had commenced a work trial with Bunnings at its Morley store on 23 August 2010. He was to commence working 3 hours per day, 5 days per week with the aim of achieving full time employment within 7 weeks. She conducted a review at work on 8 September 2010 during which the plaintiff complained that he was suffering pain in both shoulders, neck and lower back and consequential sleep disturbance and that he had experienced an increase in shoulder pain since commencing the trial. He had, in consequence, reduced his involvement with heavier tasks and was restricting himself at work to moving lighter stock and serving customers. His programme was modified accordingly. As at the date of her subsequent report the plaintiff was working 5 hours per day, 5 days per week. His work attendance had been consistent and punctual.
On 8 November 2010 Ms Holdaway reported the plaintiff's programme at Bunnings, modified to concentrate on customer service rather than stock, had not gone well. The plaintiff failed to attend for work or left early complaining about his shoulder symptoms. He was continuing to attend physiotherapy. On 8 November 2010 Dr Silbert certified the plaintiff unfit for work by reason of worsening left shoulder pain in the course of the preceding week. Ms Holdaway noted that the plaintiff had experienced increasing pain in both shoulders, neck and lower back since commencing the work trial.
The Bunnings work trial recommenced, following Dr Silbert certifying him fit to return to work on restricted duties, in mid-November 2010. The doctor noted on 15 November 2010 'significantly improved left shoulder movement'. On 24 November 2010 he reported that the plaintiff had suffered an exacerbation of his left shoulder pain. He referred him to Dr Colvin for review. The recommenced work trial proved unsuccessful with Dr Colvin certifying him unfit for work in late November.
On 23 November 2010 the plaintiff underwent an MRI scan of his left shoulder. That confirmed a successful repair of the left supraspinatus and revealed advanced atrophy of the posterior half of the teres minor muscle indicating denervation change.
On 10 December 2010 Dr Silbert elected to defer the plaintiff's physiotherapy in favour of self-directed exercise for the time being.
Also on 10 December 2010 and again on 11 February 2011 the plaintiff had ultrasound guided injections of the left subacromial bursa.
In her report of 20 December 2010 Ms Holdaway reported that the plaintiff was motivated to return to work in an office environment and was proactive in assisting the search for a potential further work trial placement. That search proved fruitful as the plaintiff commenced a further trial as an administration assistant with Link Health in Subiaco on 13 January 2011. That work involved general administration with computer based tasks and answering telephone enquiries from customers. He was to avoid lifting above chest height, avoid lifting more than 5 kg between the floor and his chest, to take breaks from a seated posture for 5 to 10 minutes every hour and to request assistance if required. He was to commence working 5 hours per day.
On 17 February 2011 Ms Holdaway reported that the plaintiff had complained of neck discomfort as the result of dealing with files lying flat on his desk. He was provided with an angle board to alleviate that problem. He continued to report left shoulder pain as well as pain in the right shoulder, neck and lower back. He indicated to Ms Holdaway an interest in pursuing alternative vocational options such as nursing. She advised him that such a course would be, in terms of physical and study demands, inadvisable. The plaintiff increased his work hours to a 38‑hour week as of 28 February 2011. He continued to work full‑time until 25 March 2011.
In evidence the plaintiff complained that at Link Health his work was difficult because employees were required to work quietly. He said that he and fellow employees were required to use telephones, dealing with people ringing up for appointments and information. He said that: 'even when you talked in a whisper it was frowned upon'. In cross‑examination he said, regarding his time at Link Health, that he was not keen on clerical or administrative work and that he had had no formal training in that regard.
On 22 March 2011 Link Health advised Ms Holdaway that there was insufficient administrative work for the plaintiff, suggesting that he might transfer his work trial to Melanoma WA. On 30 March 2011 he commenced work with that employer as an administrative assistant. His duties there were much the same as they had been at Link Health.
On about 13 April 2011 the plaintiff contacted Ms Holdaway advising her that he was experiencing an increase in symptoms due to 'a lack of variation in the duties'. He also complained of being isolated, often having to work on his own. He requested that the work trial cease so that he might concentrate his efforts on his gym exercise programme and his job search.

On 8 August 2011 Ms Holdaway reported that the Melanoma WA work trial had ceased due to the employer being 'unable to provide suitable postural variations in the administrative duties undertaken to minimise Mr Kelly's symptom exacerbation'. In a further report of 15 November 2011 Ms Holdaway noted that no further work trials were planned. Potential suitable job options had been suggested to him. They included pathology courier, car park attendant and sales assistant in a small retail trade environment such as reticulation parts. She reported that the plaintiff's reaction to those suggestions was to the effect that they did not match his skills and his passion to work in the caring industry. He was becoming stressed by Ms Holdaway's requests that he provide her with job search information. She agreed to reduce those demands.
At about this time the plaintiff was nearing the finalisation of his workers' compensation claim. Ms Holdaway reported that he was finding the process of settling the claim a very stressful experience affecting his daily life and personal relationships. She reported that he continued to experience shoulder and neck pain and that his search for work was hampered by his narrow focus of seeking work only in the caring industry.
On 9 January 2012 Ms Holdaway issued a final report noting that he had settled his workers compensation claim. On 9 November 2011 Dr Silbert had certified that there had been little change in the plaintiff's situation in the preceding two months, his pain having reduced to the point where he might take analgesics as needed. He certified him fit to return to work with restrictions that he not lift anything heavier than 10 kg, that he avoid repetitive bending and lifting, that he not undertake left hand manual tasks for longer than 10 minutes without a break, that he avoid keyboarding for longer than 60 minutes without a break and that he avoid overhead tasks apart from occasional 2 kg lifts.
In evidence the plaintiff said that, following the cessation of his work trial at Melanoma WA, he realised that the caring industry encompassed a wide range of caring. It was not confined to working with people in a nursing home. It also encompassed helping people stay at home, people that are very independent and need minimal assistance. He felt that with his skills and limitations he would be able to undertake such work. It would be, he said, within his restrictions.
During the first half of 2011 the plaintiff, among various applications made by him, sought employment with Uniting Church Homes. Though his application for paid work was unsuccessful he was offered the opportunity of undertaking voluntary work. On 14 July 2011 Dr Silbert signed a volunteer medical clearance to the effect that the plaintiff was fit to undertake the role of volunteer, having perused the requirements for the position being offered. Armed with the clearance the plaintiff carried out voluntary work at two Uniting Church centres, one in Bayswater and the other in Mount Lawley. In August and September 2011 he worked at a Uniting Church retail outlet. The plaintiff's evidence was that he worked two days a week for 2 hours in the morning, returning home for lunch and then resuming for 2 hours in the afternoon. He worked Wednesdays and Thursdays. His work involved helping clients of the Uniting Church Centres with their social activities and assisting a therapist to fill out some documentation.
The volunteer work ceased in about September 2011 because of problems arising from his need to attend medical appointments and to focus on the settlement of his workers' compensation claim which was then pending.
He was asked by his counsel whether he liked administration or office work. He replied that he did not. When asked why, he replied: 'I'm a people person'. He said that he felt that office work was 'depersonalising'.
Notwithstanding the foregoing, leading up to and following the termination of his relationship with Ms Holdaway the plaintiff applied for a number of jobs. For example, by letter of 21 November 2011 the plaintiff applied to Alzheimer's WA for a permanent full‑time or part‑time job as an administration assistant. He advised that he had a basic knowledge of computers, had experience in the care of the aged and the disabled and enclosed a copy of his résumé. He advised that he was in rehabilitation, that he had some restrictive movement in his shoulders and back and that he had been advised to refrain from overhead tasks and repetitive heavy lifting. That application was unsuccessful.
In February 2012 the plaintiff applied to the Brightwater Group, indicating that he was seeking a part‑time position in care to compliment his study for a Certificate IV in Aged Care. He had obtained a Certificate III in Community Services (Aged Care Work) from Central College of TAFE in July 2002. That is a basic entry qualification. There is reliable evidence before me to the effect that study for the certificate IV would take at least 12 months full‑time and that to achieve diploma level would involve a further 2 years full‑time study. The latter would be the preferable qualification for work as a coordinator in community care. The plaintiff, in his application to Brightwater, indicated an ambition to be a coordinator, assessing client's care needs, devising care plans and monitoring any changes required.
By letter of 23 April 2012 the plaintiff applied to the City of Belmont for the position of social support officer, either part-time or full-time. He expressed the belief that he had the necessary skills and abilities to undertake any projects and other related duties in those positions. He was interviewed for a position but was unsuccessful.
The plaintiff continued to apply for various jobs. Over the months the content of his applications made less and less reference to his injuries and restrictions. He explained in evidence that he stopped mentioning his motor vehicle accident and his worker's compensation claim because he thought that mention of them might scare potential employers off. He wanted to get 'a foot in the door'. His application to the City of Swan for the position of activities assistant/bus driver of 1 July 2013 did make mention of 'MVA 2009 during course of work. Whiplash to shoulders and neck. Settled workers comp in Dec 2011. No current treatment, managed'. When asked about what he meant by the word 'managed' he replied that it meant managed by alternative treatments and a minimal amount of painkillers. He mentioned, by way of explanation, massage and the use of Voltaren Gel. He uses the latter, he said, everyday on his neck and shoulders.
In an application for the position of community support worker with the City of Bayswater on 28 August 2012 the plaintiff said that he had minor restriction in the left shoulder following a reconstruction. When asked about the use of the word 'minor' he explained that he was trying to 'sell' himself and that if there was a problem later he would elaborate. In that same application he advised the prospective employer that 'the 3rd party claim is of a monetary issue for pain and suffering over last 3 years'. In evidence he explained that he did not think that it was necessary to mention his claim for economic loss.
The plaintiff says that he currently weighs about 102 kg, adding that he had put on weight since the motor vehicle accident. His wife, Wendy Marlene Kelly, said that, at the time of the accident, he weighed about 99 kg and that he weighed less than that when they first met some 12 years before.
The plaintiff, as at the date of the hearing, was employed at the City of Bayswater as a casual home and community care services support worker. He was offered that employment with effect from 7 November 2012. He underwent a medical assessment which indicated that attention should be given to shoulder strength and that his chronic conditions should be managed. Beverley Bridgeland, manager of community services for the City of Bayswater, gave evidence that she was not aware of the motor vehicle accident in 2009 but was aware that the plaintiff had ongoing health concerns. She said that those concerns were being monitored. She said that the City would require that a person seeking to be a manager in the home and care programme would require an appropriate TAFE diploma. She pointed out that there is a vast difference between the work presently being undertaken by the plaintiff and the work required in a management role in that field.

The plaintiff's claim

The plaintiff claims that, by reason of the accident, he was injured and has required and will require treatment, has sustained and will continue to suffer residual disabilities and has suffered and will continue to suffer pain and loss of enjoyment of life. The plaintiff particularises his injuries as follows:
(a)soft tissue injury to the lumbar spine;
(b)soft tissue injury to the cervical spine;
(c)soft tissue injury to both shoulders;
(d)full thickness tear of the left supraspinatus tendon;
(e)development of left shoulder post-operative capsulitis; and
(f)psychological reaction to the accident and the injuries sustained.
The plaintiff particularises his residual disabilities as follows:
(a)ongoing pain and stiffness in the left shoulder girdle and upper arm;
(b)post‑surgery and ongoing numbness on the palm of his left hand;
(c)ongoing reduction in left shoulder abduction;
(d)subacromial subdeltoid bursal thickening;
(e)ongoing neck pain;
(f)restricted movement of the neck; and
(g)ongoing tightness in the lower back.
The plaintiff further claims that he is unable to engage in social recreational and sporting activities to the same extent as he did prior to the accident. He claims that he has and will require in future the provision of gratuitous services, that he has lost both earnings and earning capacity, having sustained a permanent reduction in employability and that he has incurred expenses in terms of treatment, pharmaceuticals, travelling and rehabilitation.
The plaintiff relies upon amended particulars of his claim for damages filed 17 December 2012. Since that pleading the plaintiff has filed further amended particulars of damage.

The defence

On 15 March 2013 the defendant filed an amended defence in which there was an averment that the plaintiff's residual disabilities are complicated by significant pre-existing medical conditions, including type 2 diabetes diagnosed in 1998, ischemic heart disease and osteo‑arthritis of the right knee. The defendant further averred that the plaintiff is able to carry out the activities of daily living around his home including, but not limited to, housework and that he now has the capacity to return to full‑time work, carrying out the duties that he carried out up to 4 August 2009, and that if he does currently have a restricted capacity, such restrictions are the consequence of his underlying degenerative condition in the cervical and lumber spine as well as his pre-existing medical conditions.

The law

The plaintiff carries the legal onus of proving his loss of earning capacity and the extent to which that loss has produced, produces, or might produce, financial loss: Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402, 412; Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1, 3. If it is determined that there has been a loss of earning capacity it is then necessary, having regard to the established facts of the past and the probabilities of the future, to determine the damage that will flow from the loss of that capacity: Medlin v State Government Insurance Commission (19).
If I take into account future or hypothetical events in assessing damages, I can only do so in terms of the degree of probability of those events occurring. Unless the chance is so low as to be speculative or so high as to be practically certain, I will take that chance into account in assessing damages: Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638, 643.
The process of estimation of probabilities is an imprecise and indeterminate one to be carried out within very broad parameters: State of New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536, 553. Accordingly, damages for financial loss likely to result from personal injury can only be an estimate, often a very rough estimate, of the present value of the prospective loss: Todorovic (413).
Whilst it is desirable for a plaintiff to call precise evidence of what he or she would have been likely to earn but for the injury, where earning capacity has unquestionably been reduced the failure to call such evidence, particularly in relation to future loss, does not mean that the plaintiff is not entitled to damages or is entitled only to nominal damages: State of New South Wales v Moss (552, 554). But where evidence ought to have been available, it is hard for a plaintiff who fails to call evidence, or calls incomplete evidence, to complain of a low award: State of New South Wales v Moss (552); Minchin v Public Curator of Queensland [1965] ALR 91, 93.
Where an injured plaintiff has suffered a loss of earning capacity, such as a total loss of capacity to earn in an occupation in which he has previously been employed, the court should do its best to place a value on that loss, even in the absence of evidence, or where there is uncertainty in the evidence, as to the availability of employment within the plaintiff's residual capacity or the amount which could be earned in such employment. For example, in Bowen v Tutte (1990) Aust Torts Rep 81‑043, it was held that in the absence of any evidence of the availability of suitable employment for an injured plaintiff, or of earnings which could be derived from such employment, a trial judge may, in an appropriate case, assess the plaintiff's residual earning capacity at a percentage of his or her pre-accident earning capacity. In Pene v Murphy [2004] WASCA 103, it was held that the appellant's loss of earnings should be assessed as a percentage of his pre-accident earning capacity as there were considerable uncertainties associated with his prospects of obtaining work within his residual capacity. But as the court made clear in that case, such an approach is not appropriate in every case; in the end the question is one of fairness.
Once the plaintiff has proved that he has lost his pre-accident earning capacity and has been unable to find alternative employment, or that his condition has prevented him from finding alternative employment, an evidentiary burden is cast on the defendant to show what alternative employment opportunities were open, including the state of the labour market and the likely earnings: Thomas v O'Shea (1989) Aust Torts Rep 80-251, 68,701 - 68,702; Setton v Eves [2006] WASCA 3 [27].
In the matter before me the plaintiff’s submission, at the beginning of the trial, was that the defendant would not be able to discharge its onus of disentanglement so far as the alleged pre-existing conditions are concerned. The plaintiff relies heavily upon the authority of Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 and Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164. The defendant, in closing, accepted that where a defendant alleges that a plaintiff has suffered from a pre‑existing condition, the evidential onus, as explained in those cases, remains on the defendant and must be discharged by him.
In Purkess v Crittenden the negligence of the defendant caused the plaintiff to suffer injuries resulting in constant severe and disabling pain in the cervical region. The plaintiff had pre-existing degenerative changes in the spine which were most marked in the cervical region. The only evidence of the likely consequences of the pre-existing condition was that the plaintiff 'would be in some trouble' when she reached an age within a range of between 50 to 60 years and that she was 'of such an age when she would be likely to expect trouble from her degenerative spine'. There was no evidence before the trial judge that explained in any detail what impact the pre-existing injury would have had on the plaintiff's cervical spine. The word 'trouble' was, to say the least, vague.
In the High Court Barwick CJ, Kitto and Taylor JJ pointed out that the evidence did not define what 'trouble' might have been expected and 'not unreasonably' the trial judge assessed damages on the basis that her then present condition and resulting permanent disability were the result of the accident. Windeyer J (171) observed that there was no evidence to sustain the proposition that part of the chronic pain and restricted movement from which the plaintiff suffered could be attributed to other factors.

Findings as to the plaintiff's pre‑existing conditions

I must determine whether the defendant has discharged the 'disentangling' evidentiary burden that he carries of showing that part of the plaintiff's condition was traceable to causes other than the accident and that, had there been no accident, the plaintiff would have suffered disability from his pre-existing condition.
The pre-existing medical conditions relied upon by the defendant are an underlying degenerative condition of the plaintiff's cervical and lumbar spine, type 2 diabetes diagnosed in 1998, ischemic heart disease and osteo-arthritis of the right knee. Implicit in the defendant's amended defence is the proposition that the plaintiff does have residual disabilities. The defendant pleads that such disabilities are 'complicated' by his pre‑existing medical conditions.
I find that the plaintiff did have both pre-existing medical conditions and injury and disability resulting from the motor vehicle accident. As to the former, I find that he had the following pre-existing conditions:
1.type 2 diabetes requiring personal blood sugar level monitoring and giving rise to occasional bilateral peripheral neuropathy;
2.degeneration in the cervical and lumbar spine that was asymptomatic;
3.an historic injury to the right knee that is occasionally symptomatic and which results in occasional functional adjustment when attempting a weight-bearing activity requiring bending of the knees; and
4.an angiogram and angioplasty in 2007 following a diagnosed myocardial infarction and the insertion of a stent in the coronary artery, with subsequent reliance on oral medications for hypertension and blood thinning medication.

Consideration as to the plaintiff's current medical conditions

As to the remainder of the plaintiff's current medical conditions or circumstances, I propose to review the more current or recent medical opinion in evidence before me.

Dr Philip Hardcastle

Dr Hardcastle is an orthopaedic surgeon called by the defendant. He gave evidence. His report of 16 October 2011 appears at page 95 of exhibit 10, being the defendant's book of medical reports. He reviewed the plaintiff on 11 October 2011. He weighed 100 kg at the time.
Dr Hardcastle reported that the plaintiff had received appropriate treatment and operative repair for his neck and shoulder problems. He concluded that the plaintiff had a structurally sound shoulder which would not prevent him from working as a carer. He would need to avoid activity above shoulder height. He did not recommend any further treatment and diagnosed the plaintiff as having 'mechanical neck pain with underlying degenerative disease'. He said that the plaintiff's complaints about his cervical spine and shoulders would be related to the motor vehicle accident. He concluded that the plaintiff had mechanical low back pain more than likely related to his underlying degenerative condition. Dr Hardcastle concluded that the plaintiff had a capacity to continue with appropriate work and to improve over 6 to 9 months. He had no need of further surgical treatment.

In cross-examination Dr Hardcastle was asked to explain what he meant by the phrase 'mechanical pain'. He replied that it was pain not associated with any neural compression, a tumour or infection. It usually arises from soft tissue with movement although it can arise if you leave soft tissue static for too long. Generally, he said, mechanical pain is intermittent pain aggravated by activity. It can arise from a number of different soft tissue structures within the body, not being bone or nerve.
Dr Hardcastle was also asked in cross-examination to explain 'underlying degenerative disease'. He replied that, with ageing, cervical discs wear and become degenerate, beginning to narrow with the formation of entophytes. Normal cartilage at a joint allows for good smooth movement of the joint. With ageing cartilage wears leading to increasing stiffness. As it wears joints and associated discs become more rigid or degenerate. Such developments are part of ageing. He suggested that, for those over the age of 50 years, degeneration in the neck in some form is virtually universal.
In cross-examination Dr Hardcastle agreed that he had taken no history of lumbar symptoms extant prior to the motor vehicle accident. He accepted that the accident might have left the plaintiff with some soft tissue injury to the lumbar spine but said that, if it did, it would be minor.

Dr Martyn Edwin Flahive

Dr Flahive is a consultant occupational physician called by the defendant. He gave evidence and presented a report dated 16 September 2011 which appears at page 77 of exhibit 10, being the defendant's book of medical reports. He saw the plaintiff (who weighed 99 kg) on 12 September 2011. By way of past medical history he noted that the plaintiff has suffered from Bell's palsy since birth. He noted also the diagnosis of diabetes in about 1998 and the fact of him being subject to hypoglycaemic attacks a couple of times a month. Reference was made to a myocardial infarction and a reference to a cardiologist resulting in angiography and angioplasty with the insertion of a stent.
Having examined the plaintiff Dr Flahive made his assessment and in doing so listed the plaintiff's pre-existing medical conditions, being essentially those pleaded in the defendant's amended defence.
Dr Flahive concluded that the plaintiff had, at the time of his review, residual symptoms of neck, shoulder and lower back pain resultant upon the motor vehicle accident. He expressed the opinion that the plaintiff had retained a full-time work capacity. He did say: 'He has made a reasonable recovery, although he does have significant pre-existing medical conditions that at present are not well controlled and render him medically unfit to undertake a component of his previous job'. That is a reference to the plaintiff's diabetes and is based upon Dr Flahive's misunderstanding at the time he wrote his report that the plaintiff did not then have an 'F' class motor driver's licence. Such a licence, he said, would be an advantage in returning to his pre-accident employment however it was his view that the plaintiff would not be able to obtain one, being medically unfit to hold such a licence by reason of his diabetes. Counsel for the defendant informed Dr Flahive, during his evidence-in-chief, that the plaintiff does currently have an 'F' class licence. Dr Flahive accepted that to be so but expressed his concern that that was so, adding that a person subject to hypoglycaemic episodes is at about two to four times the risk of having a crash while driving. He also expressed concern that the plaintiff's cardiovascular health had not been adequately medically assessed, especially so, given the presence of diabetes. He noted that the plaintiff suffers from high blood pressure and high cholesterol, both of which are controlled, hopefully, by medication. He expressed the view that the plaintiff’s risk of having a heart attack in the next five years was probably about 20%, well above the accepted risk for people driving a passenger bus. That risk, he said, could be ameliorated easily by consulting a cardiologist about blood pressure control.

Dr Christopher Hammersley

Dr Hammersley is a consultant occupational physician called by the plaintiff. He gave evidence. His report of 13 February 2013 appears at page 160 of exhibit 1. He reviewed the plaintiff on 13 February 2013, the day of his report. By then the plaintiff had been employed by the City of Bayswater in a casual capacity doing community services support work and driving a 22‑seat automatic transmission Toyota Coaster bus. Dr Hammersley noted that the plaintiff appeared highly motivated to take up more work with the City of Bayswater.
Having conducted an examination of the plaintiff Dr Hammersley concluded that he suffered cervical strain in the context of pre‑existing spondylosis, a tear of the left rotator cuff which had been repaired and low lumbar strain which had clinically resolved. He concluded that the motor vehicle accident caused the symptoms in the neck, shoulders and low back, giving rise to a need for treatment. As regards cervical spondylosis, he noted that the plaintiff did not have neck symptoms prior to the motor vehicle accident and that it was, therefore, rendered symptomatic by it. His opinion was that the plaintiff was fit to carry out his then current occupation which was similar to what he was doing at the time of the motor vehicle accident but lighter. He noted that the bus had an automatic transmission, that there were no wheelchair clients to manoeuvre or strap in and that he had an assistant to accompany him on the bus. Dr Hammersley was dubious as to whether the plaintiff might cope with all the duties of his pre‑motor vehicle accident occupation but suggested that he might become fit for it 'in time'. He noted:
He can lift loads to 10 kg or even 15 kg on an occasional basis at chest height with his arms close to his body. He should avoid lifting loads above 4 kg if reaching to near full reach.
Dr Hammersley spoke of the need for the plaintiff to improve his weight, posture and muscle toning. There was no indication for further surgery. In conclusion, Dr Hammersley thought that the plaintiff's then current problems were capable of resolution, recommending a specialist musculo‑skeletal physiotherapist. That type of coaching, he said, for a motivated person, could take 10 sessions at a total cost of $1,100 over a three‑month period. The aim would be towards self‑care and management.
In cross‑examination Dr Hammersley agreed that the plaintiff, while observing the restrictions placed upon him, was able to do the job that he was then currently doing. He did not rule out the plaintiff being able to, in time, resume the duties of his former pre‑accident employment.

Dr Desmond Williams

Dr Williams is an orthopaedic surgeon called by the plaintiff. He gave evidence. His report of 20 May 2013 appears at page 128 of exhibit 1. He reviewed the plaintiff on 3 and 11 April 2013 when he was working for the City of Bayswater. He concluded that the injuries suffered by the plaintiff in the motor vehicle accident were soft tissue injuries to the cervical and thoracolumbar spinal areas and soft tissue injuries about the shoulder girdle area. He diagnosed the plaintiff as having, at the time of his review, those injuries along with the tear of the supraspinatus muscle which had been repaired leaving him with 'an excellent result in terms of motion range'. Dr Williams concluded that both shoulders 'currently show excellent motion ranges overall'. He said that the plaintiff did have a soft tissue injury to the cervical spine. He noted mild degenerative change in the lumbar spine and said that there was an element of exacerbation of symptoms associated with the soft tissue thoracolumbar injury. There was, he said, no suggestion of progressive lumbar pathology related to the accident.
Dr Williams thought that the plaintiff suffered psychological consequences of the accident including elements of anxiety and depression and suggests that he have clinical psychological or psychiatric assessment.
As to current problems he noted that the plaintiff lacked full strength in his left arm, that he had reduced pain in both shoulders and the cervical spinal areas for which he was taking one to two Panadol per week. He recommended that the plaintiff take part in active, self-managed swimming and water-based exercise and a light gymnasium Pilates programme to build up core muscle strength about his spine. He saw no role for further physiotherapy. He would need that for about 6 to 12 months 'to restore his functional capacities'. At work the plaintiff would need to avoid upper limb stresses of heavy lifting, repetitive above shoulder activities, repetitive bending and awkward and prolonged spinal postures.
Dr Williams said: 'He therefore has the capacity to return to his previous work area using his skills and experience and training in caring and community support work activities. More complete work capacities will emerge over the coming 6 to 12 months with active rehabilitation support'. Dr Williams expressed the view that, on the evidence before him, without the intervention of the motor vehicle accident, he would have maintained his work activities and capacities.
In re-examination Dr Williams said: 'We X-ray him and there's some degenerative arthritic change, so we accept that that can be aggravated or exacerbated for a period, but there's been no progression. So the injury hasn't created more arthritic change'. He remarked that the plaintiff had 'quite mild arthritic change. It's not a big issue'.

Findings as to accident‑caused injury

As to accident-caused injury, there can be no doubt that the plaintiff suffered, in the motor vehicle accident, a full thickness tear of the left supraspinatus muscle which has been satisfactorily repaired in surgery. The plaintiff is left‑hand dominant.
Dr Hardcastle said that his complaints about cervical spine and shoulder pain would be related to the motor vehicle accident. He concluded that the plaintiff had mechanical low back pain more than likely related to his underlying degenerative condition. Dr Flahive concluded that the plaintiff had, at the time of his review, residual symptoms of neck, shoulder and lower back pain resultant upon the motor vehicle accident. Dr Williams concluded that the plaintiff did have a soft tissue injury to the cervical spine. He also noted mild degenerative change in the lumbar spine and said that there was an element of exacerbation of symptoms associated with the plaintiff’s soft tissue thoracolumbar injury. He concluded that there was no progressive lumbar pathology related to the accident.
I find that he suffered soft tissue injury of a moderate degree across the shoulder girdle and in the cervical and lumbar spine. I conclude that the discomfort now experienced by the plaintiff in both shoulders and in his neck and lower back, albeit much improved since the accident, is accident-related. I conclude that the defendant has not discharged the 'disentangling' evidentiary burden that he carries. He has failed to show that part of the plaintiff's condition is now traceable to causes other than the accident and that, had there been no accident, the plaintiff would have suffered disability from his pre-existing conditions. At the time of the accident the plaintiff was able to work full-time in his job with Bethanie Group. There is no evidence before me which supports the proposition that the pre-existing conditions relied upon by the defendant would have, in the absence of the motor vehicle accident, left him in the circumstances in which he currently finds himself. His major limitation is clearly restriction in his ability to do overhead tasks and tasks that require load‑bearing use of the arms at or above shoulder height. Such limitations are clearly traceable to the motor vehicle accident. Limitations related to repetitive lifting and bending might well be affected to some limited degree by degeneration in the lumbar and cervical spine and to the historic injury to the right knee but it is, in my view, impossible to conclude that those limitations are now only related to pre-existing problems and not at all related to the motor vehicle accident.
It is the case that, for a period of almost two years, the plaintiff's circumstances have largely remained static, albeit with some gradual improvement. As mentioned, in November 2011 Dr Silbert certified that there had been little change in the plaintiff's situation in the preceding two months, his pain having reduced to the point where he might take analgesics as needed.
In evidence before me the plaintiff said that he uses only Panadol, by way of an analgesic. He would prefer not to take them. He does not use them everyday but rather as needed, consuming a pack of 24 per week on average. Dr Williams, who saw the plaintiff in April 2013, and who reported to the plaintiff's solicitors in May 2013, recorded that the plaintiff required 'intermittent Panadol for pain‑relief at a low level of 1 to 2 per week.' I am satisfied that Dr Williams faithfully recorded what the plaintiff told him at that time. Neither counsel put to him that that was not so. The plaintiff's suggestion, in evidence, of a pack of 24 per week involves the use of, on average, in excess of three Panadol per day. I am inclined to the conclusion that the plaintiff has exaggerated his use of Panadol and that his average use is closer to that recorded by Dr Williams rather than that suggested by the plaintiff in evidence.
There is no general challenge to the plaintiff's credibility. In closing submissions to me counsel for the defendant said:
We don't suggest that he is an untruthful witness, but we do suggest that he has understandably at times sought to place his own evidence in a most favourable light and we say on occasion at the expense of candour and we set out a number of examples.
I accept that submission. I did note, in the course of the plaintiff's evidence, a tendency to answer questions indirectly or, sometimes, not at all, a tendency which seemed to me to arise out of a consciousness or awareness of what might be in his best interests or not, as the case may be. I did not find the plaintiff to be an untruthful witness but did find that he was at pains to put his own position in its best light.
Returning to the use of Panadol, Dr Williams described it as a low level analgesic, safe for intermittent use with the support of a general practitioner.
The restrictions outlined by Dr Silbert in November 2011 are still, in practical terms, present although somewhat eased. Dr Williams, in his report of 20 May 2013, said that the plaintiff would be fit for a range of light sedentary work activities at desk or bench level with flexibility in the workstation. The plaintiff's restrictions would need to be assessed against a background of continuing active swimming and exercise schedules as part of physical rehabilitation. He regarded the plaintiff's then current work as a carer as being appropriate provided that he had flexibility at his workstation and an ability to avoid those stresses on the spine and shoulder girdle already outlined. He said:
He therefore has the capacity to return to his previous work area using his skills and experience and training in caring and community support work activities. More complete work capacities will emerge over the coming 6 ‑ 8 months with active rehabilitation support.
One of the injuries particularised by the plaintiff as being resultant upon the motor vehicle accident was 'psychological reaction to the accident and the injuries sustained'. In evidence‑in‑chief the plaintiff said that he did undergo psychological counselling paid for by his workers' compensation insurer. When asked why he said:
I was extremely depressed from the injury because it was my - I'm left hand dominant and it was my - it's things - my - my normal life was - had completely changed and I was - apart from being out of work and not - and finding it difficult to get work, it was a bit frustrating to be put into situations of looking for work, which I had no experience and that - and that added to the - the stress as well. And not being able to sell myself with experience. I just found it very depressing and yes.
It is the case that in mid‑2010 the plaintiff was referred for counselling to a Ms Linda Davidson of Primexl of Osborne Park. She spoke with the plaintiff at her office on 24 May 2010 reporting to the workers' compensation insurer, Dr Silbert and Ms Holdaway that he was experiencing symptoms of depression such as 'flattened affect, lack of motivation to do things he once found pleasurable, significant weight gain and difficulty sleeping'. She conducted a test which indicated a significant level of depression. She identified two events giving rise to unresolved emotions, including anger, they being, firstly, the motor vehicle accident and subsequent medical intervention and, secondly, the termination of his employment with Bethanie Group in consequence of an unrelated allegation. She proposed cognitive behavioural therapy as a primary treatment plan.
Following six sessions with the plaintiff she again reported, indicating that his level of depression had reduced although he continued to experience symptoms. Again they related to each of the two events just mentioned. She recommended ongoing psychological support. The evidence suggests that the plaintiff continued to attend for counselling regularly during 2011.
Of the medical practitioners who gave evidence as to the plaintiff's recent or current circumstances only Dr Williams made reference to possible psychological consequences of the motor vehicle accident. In his report of 20 May 2013 he referred to his impression that there were such consequences which included elements of anxiety and depression suggesting that the plaintiff needed specific clinical psychological or psychiatric assessment and management. He suggested that, by way of a recommendation for future treatment, review by a clinical psychologist or psychiatrist might be appropriate. Dr Williams is the only medical practitioner or psychologist to make mention of a psychiatric aspect to the plaintiff's circumstances. Certainly, there is no evidence before me, apart from Dr Williams' comment, that he suffers from a psychiatric illness or disorder. No such reference is made by Dr Hammersley, Dr Hardcastle or Dr Flahive.
As to Dr Williams' comments about psychological or psychiatric intervention, counsel for the defendant, in cross‑examination, put to him that he was neither a psychologist nor a psychiatrist. He replied that he had a degree in psychology from the University of Western Australia. I enquired of him as to when he completed that qualification. He said that he did so at the end of his medical training while doing a residency at Royal Perth Hospital. He could not recall precisely when that was but suggested that it was in the 1960s. I enquired as to whether he had ever practised in the field of psychology. He replied: 'I do everyday when I see a patient'.
Dr Williams did not appear to be aware of the psychological interventions of 2010 and 2011 or the reports of Ms Davidson in that regard. He noted in his report of 20 May 2013 that his impression was that the plaintiff's psychological symptoms had been managed by his general practitioner in the main.
My finding is that there is no evidence before me of a current diagnosis of depression. I find that there is no requirement for ongoing treatment in that regard. It is the case that the plaintiff, in 2010 and 2011, was regarded as suffering from depression and received considerable counselling. The twin causes of that depression were the motor vehicle accident and its sequelae and the unrelated termination of his employment with Bethanie Group. The eventual settlement of his claim for unfair dismissal against Bethanie Group, of his workers' compensation claim and of these proceedings have removed and will remove significant stressors in the plaintiff's life. My finding is that the plaintiff did suffer depression partly caused by the motor vehicle accident and its consequences and that he did engage in considerable treatment to the point where such matters are now largely resolved.

The plaintiff's present domestic and social circumstances

I found the plaintiff's wife, Wendy Marlene Kelly, to be a forthright witness. She confirmed the plaintiff's passion for cooking and an ambition, since abandoned, of becoming a chef. He pursued an apprenticeship in that regard unsuccessfully at the age of about 45 years. A friend suggested that he pursue the occupation of carer and, in consequence, he studied at TAFE to obtain the certificate that he now holds.
Mrs Kelly described the plaintiff as being an active man who enjoyed cooking, helping around the house and doing home maintenance. For example, she said, he built some gates around the house, no doubt, necessary for enclosing their two Dobermann dogs to which they were devoted. She said that he built 'a little bit of fencing and that he used to help with gardening and mowing lawns'. She described him as a practical man who, although without qualifications, was able to turn his hand to various tasks.
The plaintiff, she said, had had to overcome, as a child and younger man, the responses of others to the slight distortion of his cheek and mouth resultant upon Bell's palsy. Historically, there had been a tendency among some to jump to the conclusion that he was, by reason of his appearance, intellectually disabled. Of course, that was not the case but it was a matter that the plaintiff has had to struggle with and deal with.
The plaintiff and Mrs Kelly met at their church. They formed a relationship and eventually married. There was never an intention of having children. They enjoyed, in the early years of the marriage, a relatively normal sex life. Initially, they lived in her small unit. It soon became clear that the two Dobermanns needed space so they purchased an old house on a large block. The plaintiff embarked upon a renovation of the kitchen, assembling flat‑packs purchased from IKEA.
When they married Mrs Kelly was working full‑time as a clerk at the Emergency Department at Royal Perth Hospital. Since the plaintiff's motor vehicle accident she has worked part‑time on a roster to a maximum of 75 hours or 76 hours per fortnight. In the period following the motor vehicle accident she was averaging about 52 hours per fortnight. Mrs Kelly was asked about the time when the plaintiff had his arm in a sling following surgery. She replied:
Well, I wouldn't say that I completely took over, because he was capable of helping in a lot of those, mowing, gardening, doing whipper‑snippering. All those sort of things.
He was, for example, still able to manage cooking, taking breaks and sitting down to prepare food. He was unable to drive so the burden of driving fell on Mrs Kelly, driving him to medical appointments and physiotherapy appointments on her days off. She said that, during that period, he often complained of pain and was taking analgesics prescribed by his doctors.
It is clear that the plaintiff and Mrs Kelly have a large backyard. The two Dobermanns are no longer with them, having passed away. They do have presently a small, more manageable dog. The garden is her domain. She tends, in particular, to roses. She enjoys mowing the lawn but not using a whipper‑snipper which she describes as a 'mean beast'.
Prior to the accident he would walk the dogs once or twice a week but not after. The reason for that was clear. Dobermanns are big dogs. It is necessary that they be walked on a leash. They tend to pull and strain. I accept that such activity would, for the plaintiff after the motor vehicle accident, have been outside his abilities.
Mrs Kelly said that she and the plaintiff presently have no sex life. Prior to the accident they did, but it was spasmodic, depending very much on the plaintiff's erectile dysfunction and his abilities in that regard. Notwithstanding that problem he did, occasionally, initiate sexual contact prior to the accident but not after.
As to the plaintiff's mental state, Mrs Kelly said that he could be a moody person, remarking that he had, during his life, suffered disappointments and 'hard knocks'. In cross‑examination she said that he was devastated by the loss of his job with the Bethanie Group which she described as being unjustified and unfair. He was very upset by that and took some time to recover.

Past Loss of Earnings

The plaintiff seeks to recover lost earnings for the period 5 August 2009 to the present.
At the time of the motor vehicle accident he was employed by Bethanie Group pursuant to a contract of employment dated 10 June 2008 (exhibit 3.1). His commencement date was expressed to be 24 May 2008. His classification was 'activities assistant' with a stipulated rate of pay of $17.2475 gross per hour. Although the contract also stipulated a minimum of 38 rostered hours per week, the evidence establishes that the plaintiff worked, on average, a 36 or 37 hour week. That meant that he would have earned between $621 and $638 per week gross. In fact, he earned overtime by working weekends which involved penalty rates.
In cross‑examination the plaintiff was asked how many hours per week he worked prior to the motor vehicle accident. He replied:
That was 38 hours.
He then conceded that he did not always work a 38 hour week. He was referred to a document which seems to be part of the pay roll records of Bethanie Group (exhibit 3.2) that appeared to detail the plaintiff's hours of work from July 2008 to January 2009, inclusive, covering a period of 30 weeks. That document suggests that the plaintiff worked, during that period, an average of 37 hours per week or 74 hours per fortnight. The plaintiff agreed, in cross‑examination, with that suggestion.
At about the time of the accident, the plaintiff's base rate of pay was $18.63 per hour. He worked on Saturdays, usually for 6.5 hours at a 50% penalty which resulted in an extra $9.31 per hour. After the accident, there was a further increase in his base hourly rate to $19.54 per hour. His evidence was to the effect that, at about the time of the accident, he was in receipt of net pay of $1,444.98 per fortnight. That amount equates, at the relevant time, to a taxable income of $45,100 per annum.
The plaintiff's further amended particulars of damages dated 30 August 2013 submit that, at the time of the accident, the plaintiff was earning $754.70 per week gross or about $39,244 per annum. That is based on a summary of his worker's compensation payments commencing on 5 August 2009, the day after the motor vehicle accident (exhibit 1.304).
In the year ended 30 June 2009, the plaintiff was fully employed, full‑time, by Bethanie Group. In that year his tax return discloses gross income of $19,503 with tax withheld of $1,694. It also disclosed a total reportable fringe benefits amount in the sum of $16,897. When asked about that component, he explained that it was the result of a salary sacrifice arrangement with Bethanie Group. A portion of his annual salary was paid fortnightly on that basis. Those figures would suggest a gross annual income, combined, for the year ended 30 June 2009 of $36,400.
The motor vehicle accident occurred five weeks into the financial year ended 30 June 2010. As mentioned, his evidence was to the effect that, at about the time of the accident, he was in receipt of net pay of about $1,444.98 per fortnight. That amount equates, at the relevant time, to a taxable income of $45,100 per annum.
In the year ended 30 June 2012, the plaintiff's tax return discloses gross income of $12,224 with tax withheld of $1,078. That would suggest that, on average, in that financial year, his net weekly income was $214 or $428 per fortnight. The drop in income reflects the cessation of worker's compensation payments as at 15 December 2011.
The plaintiff received workers' compensation payments for the period commencing on the day following the motor vehicle accident until 15 December 2011. Both plaintiff and defendant agree that there were periods during which payments were not made. For example, there were no payments between 10 August 2009 and 4 November 2009, following termination of the plaintiff's employment with the Bethanie Group. The total amount received during that period was $86,067.38. That was a gross amount.
In addition to the amount just referred to, the plaintiff received, as part of his worker's compensation settlement, a component for redemption of future weekly payments from 15 December 2011 in the sum of $33,967.90, making the total sum paid to the plaintiff for past and future lost wages $120,035.28 by way of settlement of his worker's compensation claim.
So far as his past loss of earning capacity is concerned, the defendant takes no issue with the plaintiff's calculation of his loss as from 4 August 2009 to 15 December 2011 as set out in his further amended particulars of damages at 1.1 – 1.3 inclusive. Those calculations are based upon the proposition that the plaintiff was, at the time of the accident, working 76 hours per fortnight and earning $1,509.40 per fortnight, gross. Taking into account increases in hourly rates, as calculated by the plaintiff, the defendant accepts that the plaintiff's gross pay for the period 4 August 2009 to 15 December 2011 was $93,462.
The defendant submits, in closing, that the plaintiff has rarely, since the motor vehicle accident, been declared totally unfit for work. He points to two occasions, one being immediately after the surgery and the other during the Bunnings' work trial when his left shoulder became symptomatic and injections were administered. The defendant contends that the plaintiff has otherwise retained a residual work capacity 'with some limitations on the tasks that he could perform'. It is true that on 6 August 2009 the plaintiff was certified as being fit for work on restricted duties, being that he not be required to lift anything heavier than 5 kg and that he avoid driving. He was, as we know, at that time, acutely injured. It was not until 13 October 2009 that the full thickness tear of the mid‑insertional fibres of the supraspinatus was discovered. That was successfully surgically repaired.
In the time between settlement of the workers' compensation claim and the trial, the plaintiff made a number of job applications. That to the Brightwater Group in February 2012 was for a part‑time position 'to compliment my studies'. He advised that due to the nature of his injury he could no longer 'provide personal care or do overhead tasks'. That application seems to be for an organisational/administrative position rather than for a role in working with people.
In March 2012 he applied to Rocky Bay, a disability support organisation, for the position of manual arts disability support worker. His application in April 2012 to the City of Belmont was for the position of social support officer. He was interviewed by the prospective employer but was not successful.
In June 2012 the plaintiff exchanged correspondence with Repco Australia about attending a careers day in the field of trade and retail, an area of work which seems to be outside the plaintiff's preferences and his physical limitations.
In July 2012 the plaintiff applied for the part‑time position of assistant coordinator at Perth Home Care Services and for a part‑time position as a traffic control officer. He said, with regard to the latter 'I am currently looking for part-time work but would be available for extra duties as required.' He accepted that he had no relevant experience.
Also in July 2012 the plaintiff applied for work with IKEA in the fields of customer service and in the store restaurant. It is not clear what the positions entailed but the plaintiff told IKEA that he had been off work with an injury that had 'now healed' and that he had only been left with 'some minor restrictions'. He suggested that he might be occupied in cooking in the restaurant. When asked about that application by his counsel, the plaintiff confirmed that his experience relied upon in making the application was having, in the past, purchased and assembled a few IKEA flat‑packs. Perhaps, not surprisingly, he was not offered an interview.
In August 2012 the plaintiff answered an advertisement by the City of Stirling for an activities officer to work at its Mens Shed, being a temporary/part‑time position involving 15 hours per week until 30 June 2014. He was interviewed and advised, subsequently, that he was not the successful candidate. The person who got the job demonstrated greater knowledge of the technical aspects of it.
Also in August 2012 the plaintiff applied to the City of Bayswater in the field of community care. The plaintiff advised that he was seeking part‑time work but that he had flexibility for working extra hours as required. Subsequently the plaintiff completed a response to key selection criteria stating that he would be available to work between 8.00 am and 4.00 pm, Monday to Friday. That resulted in the job offer on 6 November 2012, the plaintiff having attended a medical examination. He was found to be fit for work subject to attention being given to 'shoulder strength' and 'continued medical management of chronic conditions'. The job was described as being 'HACC Support Worker – Casual'. His starting salary would be $31.95 per hour (inclusive of a 25% casual loading) paid fortnightly.
As at the time of the hearing the plaintiff was still in the employ of the City of Bayswater. His hours, he said, were fairly constant. In cross‑examination he said that he had one regular client. He said that he was ready to work more hours if they became available. He agreed that, while in that job, he had made three further job applications to the City of Stirling, to the Town of Bassendean and to the City of Swan, all made in 2013 and all for the same type of work, either as an activities officer or a support officer within the caring industry in casual or part‑time positions.
As Professor Luntz said in his work 'Assessment of Damages for Personal Injury and Death', 4^th ed at [5.1.5]: 'Earning capacity, that is the ability to earn money or monies worth, is dependent both on factors relating to the individual's body and mind and on external factors such as the availability of work'.
There is ample evidence before me as to the state of the plaintiff's body. There is also evidence before me as to the labour market in Perth in the field of community care work. Professor Mulvey's opinion was that the occupation of community support worker was 'a rapidly growing occupation' with, as at 5 August 2013, a 'buoyant number of advertised vacancies in Perth'. He concluded that a suitably qualified person ought to be able to find work in that field within a reasonable time. The plaintiff is a suitably qualified person. Given the professor's evidence I must consider the plaintiff's attempts to exercise his earning capacity since the settlement of his workers' compensation claim. I do so cognisant of the fact that there is one further proceeding to be finalised, that being the subject matter of this judgment.
As mentioned earlier, the application to the Brightwater Group in February 2012 was for a part‑time position 'to compliment my studies'. That refers to further study towards qualifications in community care, higher than his basic entry‑level qualification. In cross‑examination he was asked whether he had suggested to Ms Zoe Holdaway that he might be interested in pursuing nursing as an alternative vocation. He replied 'my training would have been a stepping stone to that … like a Certificate IV in Aged Care. That could have been a stepping stone to nursing'.
I discern in the plaintiff a tendency to be less than practical about what he might reasonably achieve at his age in terms of vocation. The suggestion that he might pursue a career in nursing or that his much‑mentioned passion for cooking might lead him to work in food preparation in a kitchen at an Ikea restaurant are, in my opinion, fanciful. It is the case that the plaintiff, in late 1998, did some part‑time study in catering, comprising four units at Bentley TAFE in the last semester of that year. He passed those units and continued full‑time study in cooking in 1999. He did not complete the course but attempted, unsuccessfully, to get work in that field. In 2000 he kept looking for work, his plan being to complete his studies while working. The course included a component of 1,500 hours of practical workplace experience to be signed off by a certified chef. He said in evidence‑in‑chief, that he found it very difficult to get employment. He did not complete any of the practical workplace component.
I do not regard the applications to Repco Australia and for the position of traffic control manager as being practical given the plaintiff's circumstances. Several of the other jobs applied for were part‑time and/or casual positions in circumstances where the plaintiff advised the prospective employer that he was capable of doing extra work 'as required'.
There is, in my view, to some degree, an attempt on the part of the plaintiff to give the appearance of being enthusiastic in his quest to return to full‑time work in the community care field without there being much substance to his efforts in that regard. The plaintiff does have the capacity to return to full‑time employment and has had that capacity for a couple of years, if not longer. I conclude that he has not fully exercised that capacity but has, rather, attempted to give the appearance of doing so. The capacity that he does have is, of course, limited in that he does not have the capacity of a fully able employee but, rather, his limitations in terms of manual tasks and lifting, along with the naturally risk‑averse attitude of prospective employers, are such as to limit the scope of jobs in the community care field that he might otherwise undertake.
Having regard to the concession made by the defendant I assess the plaintiff's past loss as from the date of the motor vehicle to 15 December 2011 to be $93,462.42 gross. The plaintiff's workers' compensation insurer is entitled to be repaid the gross amount of payments made to the plaintiff, an amount of $86,067.38. The difference between the two figures should be reduced to an after‑tax amount. There does not appear to be any challenge to the plaintiff's calculation of the net amount in par 1.3 of his further amended particulars of damages. I allow the sum of $5,878.25 in that regard.
The defendant's contention is that, beyond 15 December 2011, the plaintiff retained a 'full‑time working capacity'. It is true that the plaintiff has the capacity to work full‑time. As explained, that capacity is limited.
A mathematical approach to the assessment of past loss of earnings is not appropriate. I will allow for the period of 16 December 2011 to 16 December 2013 a loss of 25% of the plaintiff's earning capacity being, in combination, a reflection of his own physical limitations, his attitudes and his attempts to return to the workforce in a full‑time capacity and the state of the labour market in the field of community care work. I will use the plaintiff's gross weekly income of $773.56 as at 15 December 2011 as a base. The period referred to spans 104 weeks. The gross amount that might have been earned in that period is $80,450.24. For the first 80 weeks of that period the personal tax rate remained the same for the plaintiff. I calculate his net earnings for that period to be $53,241.53.
From 1 July 2013 to 16 December 2013 is a period of 24 weeks. His gross earnings for that period would have been $18,565 and his net, after tax under a different personal rate, would have been $16,433. His net income for the entire period would therefore have been $69,674.53.
In the year ended 30 June 2013, in his employment with the City of Bayswater, the plaintiff earned a gross income of $6,955. That amount is not a taxable income. He should be entitled to a full refund of any tax deducted by his employer. As at 6 August 2013 the plaintiff had earned, in the current financial year, $271.75 net or, for a period of five weeks, an amount of $54.31 per week. For the 24 weeks of this financial year to 16 December 2013, based on his earnings in the first five weeks of the financial year, I calculate that the plaintiff has earned $1,303.44 net. I take into account, therefore, his entire net earnings with the City of Bayswater from the commencement of his employment to 16 December 2013 in the sum of $8,268.44.

The reasonableness of the award is, of course, dependent upon the particular circumstances of each case. Such items as the renovation of the kitchen, the decking and the tiling of the bathroom do not, in my view, fall into the category of nursing and domestic services resulting from the defendant's wrong. They do not relate to the loss of a capacity to look after oneself or to earn an income in a principal occupation. There is no evidence that the plaintiff, in consequence of his injuries, requires or has required any nursing assistance or assistance with matters of personal care such as showering, toileting, or dressing himself. I am inclined to the defendant's submission to the effect that matters of home improvement and home maintenance are not losses but rather matters of capital maintenance or improvement, ultimately for the benefit of the home occupiers and owners, in this case, the plaintiff and his wife. It goes without saying that such matters, involving the use of skilled tradesmen to undertake such tasks for a reward, do not fall into the category of gratuitous services performed by others, being services required to satisfy the plaintiff's need resulting from the defendant's wrong.
There is, in the plaintiff's table, a claim for typing and updating the plaintiff's résumé, approximately two hours work done by a friend. Having regard to the plaintiff's demonstrated written expression skills as evidenced by his general correspondence and his many job applications, I am of the view that there was no need for this service. It does not fall into the category of a service performed by a friend, being a service required to satisfy a need of the plaintiff resulting from the defendant's wrong.
Mrs Kelly said, in evidence‑in‑chief, that following his surgery the plaintiff was very incapacitated for six to eight weeks and could not do much at all. He had his arm in a sling during that period. She helped him by doing all the mowing, gardening and housework. The latter entailed vacuuming the house and cleaning the bathroom, the kitchen and the bedrooms. She was working part‑time as a clerk at the Emergency Department at Royal Perth Hospital averaging around 52 hours a fortnight. She explained:
Well, I wouldn't say that I completely took over, because he was capable of helping in a lot of those, mowing, gardening, doing whipper snipping. All those sort of things.
The plaintiff was able to cook during that period. He could not drive, so Mrs Kelly drove him to medical appointments and physiotherapy appointments on her days off.
The defendant contends that the services provided by Mrs Kelly in the 6 to 8 week period referred to were done for the benefit of the household and would have been undertaken in any event. Such services as shopping, cooking and laundry were done, says the defendant, for the benefit of both the plaintiff and his wife. That may be so but it does seem to me that the plaintiff's incapacity, during that period, was at its most severe and that the burden carried by Mrs Kelly during that period was commensurately greater than would normally have been the case. By contrast, during that period, the plaintiff was unable to offer services in return.
When the plaintiff ceased wearing the sling, he continued to do cooking and was able to assist with the washing. Mrs Kelly said that she would attend to vacuuming and that her husband tried to assist in that regard. As to gardening, Mrs Kelly was asked by counsel for the plaintiff to describe her husband's contribution prior to the accident. She replied:
Not a lot. He'd help when I would ask him to help me with difficult - like cutting of the - some of the trees and bushes, but we don't have much of a huge garden, its mostly the lawn ... I don't have big garden beds to weed … its mostly shrubs and a couple of trees down the back and we didn't go to town in the backyard because of the two big dogs … they just wanted to dig up everything that you planted.
As to lawn mowing, Mrs Kelly said that the plaintiff occasionally undertook that task prior to the accident. He would do it if she asked him to. She added that she enjoyed doing it herself. She did not like using the whipper snipper which, as I have already mentioned, she described as 'a mean beast'. The plaintiff, she said, used it from time to time.
In cross-examination Mrs Kelly said that she was a keen gardener and that she got a lot of pleasure out of her garden. She said that she was particularly fond of their rose bushes. As to household chores such as cooking and domestic tasks around the house, she agreed that such things were done for the benefit of the whole household, in other words, for both of them.
I conclude, having accepted Mrs Kelly as a very frank witness, that the plaintiff's table of past gratuitous service is a very ambitious document including items which clearly do not fall within the scope of what might normally be included in a claim for gratuitous services. Other items of kindness or service, including being driven to church or to a Christmas party by friends, do not fall into the category of gratuitous services for which a plaintiff may be awarded damages.
By far the largest component of the plaintiff's claim for past gratuitous services is a claim of $13,520 in respect of domestic services provided by his wife for the period of March 2010 to the time of trial. The services mentioned are said to be domestic activities including housework, looking after dogs and transport. The amount claimed is based on her services in those areas at 5 hours per week costed at $26 per hour. The defendant takes no issue with the rate per hour but does with the substance of the claim.
For the period 15 December 2009 to 31 January 2010 the plaintiff claims that his wife devoted 43 hours per week or 6.14 hours per day, on average, providing services to him. Those services are particularised to include shopping, gardening, housework, laundry and cooking and also walking, feeding, bathing and grooming two dogs as well as cleaning their kennels and picking up their faeces. It is the case that the plaintiff was asked whether, in that 6‑week period, his wife took time off work. He said that she did. She said that she did not. I accept her evidence in that regard. For the period referred to I am prepared to allow 3 hours per day in respect of domestic services provided by Mrs Kelly. The period is 42 days. It follows that I should allow 126 hours at $26 per hour resulting in an amount of $3,276.
I regard much of the remainder of the plaintiff's claim, as particularised, as being unreasonable or exaggerated, or both. I would allow a global amount for the provision of past gratuitous services, in addition to that already allowed, in the sum of $5,000. The total amount under this head of damage is, therefore, $8,276.

Future gratuitous services

The plaintiff claims an allowance of $54,498.60 for future gratuitous services rendered at an average of three hours per week, at the rate of $26 per hour for his life expectancy of 26 years. The parties agree as to the rate but as to little else. The defendant makes the point that no particulars of the sum claimed are provided. That is true.
The plaintiff called Kerry Reginald Jones, an occupational therapist, to give evidence about, inter alia, the plaintiff's need for gratuitous services. He reviewed the plaintiff at his home over a four hour period on one occasion and produced two reports.
In cross-examination he was asked what he understood gratuitous services to be. He replied:
Services offered to the claimant … in regards to being able to maintain day to day independence. So normally services offered up by family members … friends, associates.
In his report of 16 January 2013, Mr Jones concluded, inter alia:
Specific limitations around the household are incurred in maintenance, household cleaning such as vacuuming, construction work and gardening such as lawn mowing, the residential gardening able to be reasonably accommodated by Mr Kelly's wife.
Mr Jones agreed in his evidence that he had identified household tasks such as gardening and maintenance which were communal household chores.
The defendant contests the proposition that such communal chores as household gardening and maintenance fall within the category of needs resulting from the defendant's wrong.
In Clarke v BHP Billiton Direct Reduced Iron Pty Ltd [2009] WASCA 134 (6 August 2009) Buss JA ([196]) referred with approval to the words of Gaudron J in Van Gervan v Fenton:
The real loss for which damages are awarded is the loss which gives rise to the need for care or services.
That loss is to be calculated by reference to the objective value of the services concerned. It is to be distinguished from the loss of enjoyment that a claimant may suffer from being unable to provide household services to his or her family. That is, said Buss JA, to be allowed for in an award of general damages for loss of amenities. He continued:
Further, damages recoverable for loss due to incapacity to look after oneself is not to be assessed by reference to any services the claimant would otherwise have provided for other members of the family. Those services are irrelevant to the loss suffered by the claimant: see Maiward v Doyle. The need for extra services is not diminished by the existence of family or friends who are prepared to render services gratuitously. The argument that those close to the claimant should carry a greater burden than would have been the case had the claimant not been injured strikes at the policy underlying the recognition of a claim of this kind where services are provided gratuitously: see Griffiths v Kerkemeyer.. The claimant, who has relatives regarded by society as morally obliged to provide extra help free of charge, should not receive less than a claimant without family.
I accept the foregoing. It is the case, however, that the 'limitations around the household' referred to by Mr Jones do not, in my view, fall into the category of loss due to incapacity to look after one's self. In my view such tasks as construction work, gardening and lawn mowing do not fall into the category of services or care to be provided to the plaintiff in consequence of the defendant's wrong. To the extent that the claim is for domestic services, they are services that, in my view, would have been provided to the plaintiff even if he had not suffered bodily injury. That is because the plaintiff and his wife, together, attend to various household tasks that must be undertaken on a day‑to‑day basis. To the extent that the plaintiff may have some limitations in terms of lifting or carrying things above a certain weight, they have largely organised themselves and their household to appropriately divide those tasks that must be done between them. In the plaintiff's case, the amount claimed represents services provided to him for 3 hours per week for the rest of his life, by an unspecified person, but presumably, his wife. As mentioned, the services referred to are not particularised. Given that the claim is for damages recoverable for loss due to his incapacity to look after himself, I am prepared to award a global amount being $7,500.

Past and future travel and expenses

In his further amended particulars of damage the plaintiff claims $764.12 for past travelling expenses and $1,500 for future travelling expenses. The defendant does not cavil with the former but opposes the latter, noting that the amount claimed is not particularised.
I award $764.12 for past travelling expenses.
Counsel for the defendant, in closing, submitted that the plaintiff is able to drive, has his own motor vehicle and has, in all probability, little or no need for further treatment. He submitted that if there were further travelling expenses, they would be very modest. I agree. I am prepared to allow an amount of $500 in that regard.

Non‑pecuniary loss

Section 3C(2) of the Motor Vehicle (Third Party Insurance) Act 1943 provides that the amount of damages to be awarded for non‑pecuniary loss is to be a proportion, determined according to the severity of the non‑pecuniary loss, of the maximum amount that may be awarded. The maximum amount of damages that may be awarded for non‑pecuniary loss in this matter is $379,000, but the legislation provides that the maximum amount may be awarded only in a most extreme case. It also provides that if the amount of non‑pecuniary loss is assessed to be more than $19,000 but not more than $75,800, the amount of damages to be awarded for non‑pecuniary loss is the excess of the amount so assessed over $19,000.
The expression 'non‑pecuniary loss' is defined in s 3C(1) of the Act to mean pain and suffering, loss of amenities of life, loss of enjoyment of life, curtailment of expectation of life, and bodily or mental harm.
In Insurance Commission of Western Australia v Weatherall [2007] WASCA 264 Buss JA set out the following principles [261]:
1.The expression 'a most extreme case' in s 3C(3) refers to a class of cases rather than to a case 'at the apex of the gradation of injuries'; and
2.A Judge's assessment of whether a case is 'a most extreme case' within s 3C involves questions of fact and degree, and matters of opinion, impression, speculation and estimation, calling for the exercise of common sense and judgement.
The plaintiff details his pain and suffering in his further amended particulars of damages to include 'subacromial sub‑deltoids bursal thickening consistent with the operation'. In my view, that phrase describes a physical state which may or may not be productive of pain and suffering. It is inappropriate to include it as a particular of pain and suffering.
I accept that the plaintiff does suffer ongoing pain and stiffness in the left upper arm, shoulder and neck and that he resorts from time to time to analgesia to manage that pain.
The plaintiff particularises his pain and suffering to include ongoing numbness of the left palm experienced 'post‑surgery'. Dr Silbert was asked about Dr Hardcastle's conclusion that numbness of the left palm was likely to be a consequence of the plaintiff's diabetes. He replied that he agreed with that assessment. I do not accept that it is either a significant problem for the plaintiff or that it is causally related to the motor vehicle accident.
I can find no medical evidence to support the contention of 'tightness in the lower back' being the description given by the plaintiff to Dr Flahive. It is the case that there were some symptoms in the lower back following the motor vehicle accident. Dr Hammersley, a consultant occupational physician engaged by the plaintiff's solicitors, reviewed the plaintiff on 13 February 2013. His report bears the same date. He reported:
He said he also said he had lumbar discomfort from early on, and I gather that this has become mild at most. There was no prominent pattern of irritability in the lumbar spine …
He diagnosed that the plaintiff had suffered a lower lumbar strain which had clinically resolved with no need for further treatment.
Dr Flahive, also a consultant occupational physician, engaged by the defendant's solicitors, examined the plaintiff and prepared a report dated 16 September 2011. In evidence he said that, in essence, the plaintiff was complaining about mild dull back ache with a reasonable range of movement. He said that there were no signs of nerve irritation or significant underlying injury. His view was that the lower back discomfort was non‑specific back ache resultant upon poor posture and carrying too much weight. He emphasised the need for the plaintiff to exercise and thereby maintain the musculature of the lumbar spine. To the extent that there is lower back discomfort and some pain, I am inclined to the view that symptoms in that area, to the extent that they might once have been causally related to the motor vehicle accident, are not now so, being presently more associated with aging, posture and weight.
In his further amended particulars of damages, the plaintiff asserts that prior to the motor vehicle accident he 'enjoyed and undertook' playing squash, bicycle riding, horse riding and woodwork. There is no evidence as to horse riding. There was scant evidence as to the use of a mountain bike at some time, unspecified, prior to the accident and of an attempt to use it subsequent to the accident. There was reference in the evidence to woodwork but it was in the context of the plaintiff's job at Bethanie Group, woodwork being one of the activities that the group's clients might take part in along with craft, painting, gardening, cooking and the occasional outing to the movies or a barbeque. The plaintiff's role was to oversee those various activities. In her evidence, Mrs Kelly said that, prior to the accident, the plaintiff liked cooking, helping around the house and doing home maintenance. As to the latter, she said that he built some gates and 'a little bit of fencing' at the new house, no doubt, to contain their two Doberman dogs. She added that the plaintiff used to help with gardening and mowing. She said that the plaintiff liked squash and would play a couple of times now and then with a mate. It is the case that the plaintiff, as a younger man, was more active than he is now. He once enjoyed squash and badminton and perhaps other sports. Given his age, his tendency towards carrying too much weight for his own good health and his evidence generally, I do not regard the motor vehicle accident and its sequelae in terms of physical injury, as being causally related to the fact that he, subsequent to the accident, does not engage in squash, bicycle riding, horse riding and woodwork. The plaintiff is not inhibited in his ability to pursue his passion for cooking. I am not satisfied that a lack of libido, diminished intimacy with his wife and a loss of sexual function are causally related to the motor vehicle accident.
While the plaintiff's physical capabilities are diminished by reason of the accident, as reflected in the functional limitations he experiences at work, that diminution, I find, does not translate into any significant loss of enjoyment in the daily lives of the plaintiff and his wife. They are clearly still happily married and have arrived at a division of labour within their household such that all domestic tasks are undertaken by either one or the other, or both, according to their respective inclinations and limitations.
Having regard to all that is before me and the established law relating to non‑pecuniary loss, I find that the plaintiff's circumstances should be regarded as being 15% of the most extreme case. The maximum amount for non‑pecuniary loss in this matter is $379,000. Fifteen per cent of that amount is $56,850. The relevant legislation provides that if the amount of non‑pecuniary loss is assessed to be more than $19,000 but not more than $75,800, the amount of damages to be awarded for non‑pecuniary loss is the excess of the amount so assessed over $19,000. I therefore award the plaintiff $37,850 by way of non‑pecuniary loss.

Retraining

In his further amended particulars of damage, the plaintiff claims $10,000 under this head of damage. The amount is not particularised.
Counsel for the plaintiff submitted in closing that the amount sought is not unreasonable in the event that the plaintiff pursues a certificate IV in community services and a subsequent diploma in that field. If he did not, counsel conceded, there should be no allowance for retraining.
Counsel for the defendant submitted in closing that there is no demonstrated need for retraining. He suggested that, if there were, it would be in the field of administrative work. He noted the plaintiff's lack of interest in that type of work. I have already expressed the view that, having regard to the plaintiff's age and background, it would be inappropriate for him to pursue higher academic qualifications in the hope of being employed in management or administrative positions in the field of community care. It is the case that he gave no evidence of an intention to undertake a further course of study.

The defendant submits that there is little evidence that the plaintiff has the academic aptitude to complete further studies. I do not accept that to be so, but I do take the view, as did Ms Holdaway and, to some degree, Professor Mulvey, that there may not be any utility in terms of the positions that might be available to him upon the completion of further study. In my view it would not be reasonable for the plaintiff to pursue the further certificate and diploma in community care. Nor, in my view, would it be reasonable for the plaintiff to pursue further qualifications in the administrative/clerical field with a view to returning to work in that field. He clearly has no appetite for work in that field. In all of the circumstances, I make no allowance for retraining.
Having regard to the foregoing, I propose that there be judgment for the plaintiff in the sum of $268,790.68, comprising the following:
Non‑pecuniary loss  $37,850.00
Past loss of earnings  $107,297.16
Interest on past loss of earnings to 16 December 2011            $961.68
Interest on past loss of earnings from and including
16 December 2011  $690.82
Future loss of earnings  $59,018.00
Future loss of superannuation  $6,290.45
Past medical expenses  $38,142.45
Future medical expenses  $1,500.00
Past gratuitous services  $8,276.00
Future gratuitous services  $7,500.00
Past travelling expenses  $764.12
Future travelling expenses  $500.00