Kent v Payne

[2014] TASSC 11

[2014] TASSC 11

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Kent v Payne [2014] TASSC 11

PARTIES:  KENT, Jesse Luke
  v

PAYNE, Grace Ellen

FILE NO/S:  327/2010
DELIVERED ON:  7 March 2014
DELIVERED AT:  Hobart
HEARING DATE:  14 October 2013
JUDGMENT OF:  Pearce J

CATCHWORDS:

Damages – Particular awards of general damages – Tasmania – Post-traumatic stress disorder – General damages $70,000.

Aust Dig Damages [61]

REPRESENTATION:

Counsel:
             Plaintiff:  K E Read SC and A Gaggin
             Defendant:  C J Bartlett and J Pedder
Solicitors:
             Plaintiff:  Murdoch Clarke
             Defendant:  Pedder Schuh Lawyers

Judgment Number:  [2014] TASSC 11
Number of paragraphs:  102

Serial No 11/2014
File No 327/2010

JESSE LUKE KENT v GRACE ELLEN PAYNE

REASONS FOR JUDGMENT  PEARCE J
  7 March 2014

Preliminary

1. On 14 March 2009 the plaintiff, Jesse Kent, was injured in a motor vehicle accident on the West Tamar Highway near Brady's Lookout.  A car travelling in the opposite direction, being driven by the defendant, crossed onto the wrong side of the roadway and collided with the car Mr Kent was driving.  It is admitted that the collision was caused by the negligent driving of the defendant, and judgment has been entered for damages to be assessed.  This is an assessment of Mr Kent's damages. 

1. Although Mr Kent suffered some physical injury, his claim is based principally on his assertion that the collision caused mental harm, namely post-traumatic stress disorder ("PTSD"), which renders him effectively an invalid.  The primary issue of controversy in the assessment is the extent to which Mr Kent's contentions about the past and future effect of the collision on him should be accepted.  The defendant contends that Mr Kent overstates the nature and effect of his condition and the extent of his disability. 

Mr Kent's personal and employment background

1. Mr Kent was born on 11 September 1986.  At the date of the collision he was aged 22.  He is now 27.  He was born in Melbourne and spent his early years in various places in Victoria.  His family situation was not stable.  He lived with his mother but has had no contact with his father from about the age of 5.  He is the eldest of six children.  He has two younger sisters and three younger brothers.  The children are the product of relationships between his mother and three men including his father, none of whom Mr Kent formed a strong parental bond with.  When he was 13 the family moved to Bega in New South Wales and not long after that to Tasmania where they lived in Deloraine.  After moving to Tasmania, and because he was not getting on with his mother's partner at the time, he moved out of home to live with the family of a friend.  He stayed there for a while and then moved in with another family, a Mr and Mrs Tomas.  He said that they were a lovely family and they took care of him.  He became friends with their daughter, Belinda, and she eventually became his girlfriend. 

1. He attended Deloraine High School where he completed Grade 10 with satisfactory results including English, mathematics and science.  While living at Deloraine he had a group of friends, one of whom was Jarron Skerritt.  In 2003 Mr Kent completed Grade 11 at Launceston College although his results were less satisfactory.  After Grade 11 he left school.  In early 2004 he joined the Army Reserve.  He did so partly because he was interested in the Army, and partly because he thought his girlfriend's mother did not think he would amount to much and he wanted to prove otherwise to his girlfriend.  He attended part-time, every Tuesday, and one weekend a month at Young Town in Launceston.  He also completed basic training courses in New South Wales for which he was paid a daily allowance when he was away.  He stayed in the Army Reserve for some months but left because his relationship had "gone sour" and he thought that it "wasn't the right time" for him to be in the Army.

1. After leaving school Mr Kent was unemployed for a time but then he started labouring with Ben Mottam.  Mr Mottam had a commercial and domestic floor covering business.  Mr Mottam offered Mr Kent a four year apprenticeship which he commenced early in 2006, when he was 19.  When Mr Kent started work there were no other employees but gradually the business expanded and three other men were employed.  Mr Kent said that he got on well with all of them.  In the same year that he commenced his apprenticeship he moved to a rental property in Elizabeth Street, Launceston in which he still lives.  His landlady is Iris Snoxall. 

1. In the course of Mr Kent's apprenticeship Mr Mottam's business ran into difficulty.  Mr Kent's employment was transferred to another floor covering contractor, Linton Kidd.  The apprenticeship was completed on 17 June 2009 at which time he was issued a Certificate III in Floor Covering and Finishing.  That was so, notwithstanding the intervention of the accident on 14 March 2009, because, by that time, he had completed all of the theory components of his training and he became entitled to his qualification after effluxion of the required time, even though he had not returned to work.

1. Mr Kent's sisters, Jemma and Jamieka, are now 23 and 11 respectively.  His brothers Jayden, Jai and Jak are now aged 18, 15 and 14 respectively.  Mr Kent's mother now lives at Gravelly Beach with the four youngest children.

The collision and its aftermath

1. On 14 March 2009, Mr Kent was at home at his flat in Elizabeth Street, Launceston, with his girlfriend at the time, Charmaine Percy.  The night before, his brothers Jayden, Jai and Jak, then aged about 14, 11 and 10, had stayed with him.  His friend, Tai, was also there.  Mr Kent was to drive his brothers back to his mother's house at Gravelly Beach in his own Holden Vectra hatchback.  Gravelly Beach is a small town on the Tamar River about 25 kilometres north of Launceston.  To get there Mr Kent drove along the West Tamar Highway past a place called Brady's Lookout.  Miss Percy sat in the front passenger seat.  His brothers sat in the back seat, Jai behind the driver, Jak in the middle seat and Jayden in the left hand seat.  His friend, Tai, was in the rear of the car under the hatchback.  It was raining.  At Brady's Lookout a car travelling in the opposite direction came around the corner too quickly, lost control and collided head-on with Mr Kent's car.  Mr Kent gave evidence that, as the car was coming towards him, he thought that "we were all going to die".  The car collided with the front driver's side corner of his car.  He said he remembers seeing the bonnet of his car start to fold towards him.  The other car then rotated so that the passenger side of the oncoming vehicle struck the driver's side of his own car.  His car went off the road into an embankment.  He thought he was "knocked out".  Then he "just woke up".  He remembers taking his first breath as if he had "just been born".  Then he heard Jayden say, "Jai's dead, Jai's dead", twice, probably more.  He looked around and saw Jayden and Jak but could not see Jai.  He said that Jak seemed semi-conscious, his eyes rolling around in his head.  He said he knew he had to get out of the car because he thought the car was going to catch fire and "he had to get his brothers out".  He could not open his driver's door, so he climbed out the window which had been smashed.  He tried to open the rear driver's side door but could not do so.  He ran around the other side and opened the door.  He removed Jayden first and sat him on the bank at the side of the road.  He went back to the car for Jak who had been knocked out.  He took him out of the car and put him on the ground next to Jayden.  He then went back for Jai.  He described Jai as being "a mess".  He was laid over his door, not moving, with blood coming from a cut on his head and from his mouth.  He took him from the car and placed him on the ground near the others and just "prayed, prayed for him and he opened his eyes.  I just prayed to God that he can't die, he opened his eyes so …". 

1. When officers of the Tasmanian Ambulance Service arrived they observed Mr Kent to have dried blood on his head and neck from a superficial head laceration and to have been anxious about his brothers.  He denied any loss of consciousness.  He travelled to the Launceston General Hospital in an ambulance with his brother Jai. The Emergency Department notes record Mr Kent to have complained of neck and calf pain, a headache and that at one stage he was "very upset".  Radiological investigations did not disclose any serious physical injury.  Mr Kent did not want to stay at the hospital and, contrary to the advice of the surgical registrar, he went home.  He explained in his evidence that he thought hospitals were "for sick people, dying people".

1. Mr Kent presented at the hospital again the following morning with pain behind his right eye.  He was diagnosed with a corneal abrasion and was referred to an ophthalmologist for review but, after further investigations, later cleared.  His brothers, Jai and Jak, were in hospital for at least two days and he visited them.  During the time that his brother Jai was in hospital Mr Kent said, "I thought he was brain damaged because – I don't know.  I thought – I thought I lost him". 

1. It is relevant to mention at this stage one particular matter affecting Mr Kent's immediate and subsequent reaction to the collision.  He gave evidence that when he was about 13 or 14, when he lived in Bega, his family was involved in another car accident.  His mother's then partner fell asleep at the wheel and the car left the road.  His mother was also a passenger.  Mr Kent gave evidence that he remembered a feeling of having to get out of the car "as quick as possible".  He also removed his brothers Jai and Jak from the car.  After everyone left the car it "caught on fire and blew up".  He said the accident scared him.  For a couple of years afterwards he was nervous about driving in cars and  would not travel on the left side of a car because that was where he was sitting at the time of the accident.

Mr Kent's claim

1. Mr Kent claims damages for post-traumatic stress disorder and for a soft tissue injury to the right buttock.   The evidence suggests some incapacity resulting from the buttock injury but it is the claimed deterioration in and impairment of Mr Kent's mental condition that is the overwhelming factor in the assessment of damages.  There is no dispute that PTSD is a recognised psychiatric illness.  It is an anxiety disorder that develops in some people after they have been exposed to a traumatic event involving actual or threatened death or serious injury.  The diagnostic features are described in the Diagnostic and Statistical Manual of the American Psychiatric Association, 4^th ed, Text Revision (which I will refer to as "DSM-IV") as being "exposure to an extreme traumatic stressor involving direct personal experience of an event involving actual or threatened death of himself or another and a response involving intense fear, helplessness or horror".  The characteristic symptoms include persistent re-experiencing of the traumatic event, persistent avoidance of the stimuli associated with the trauma, numbing of general responsiveness and persistent symptoms of general arousal.  In the circumstances of this case the Civil Liability Act 2002, s32, does not preclude recovery of damages for pure mental harm.

1. On Mr Kent's case his life has been, and continues to be, dramatically affected.  He says that the PTSD from which he suffers is chronic and has rendered him effectively an invalid.  He has become socially isolated, avoiding other people.  He spends almost all of his time either at his own home or his mother's home.  He feels detached and estranged from others.  He suffers from insomnia and nightmares leading to an irregular sleep pattern.  He is anxious and avoids driving and travelling in cars, especially in circumstances that resemble the accident.  He is irritable and has difficulty concentrating.  He has a low mood and depression.  He has intrusive memories of the accident which cause anxiety and an emotional reaction.  Since the accident he has not been back to his pre-accident employment or any other employment, and claims that because of his condition his prospects of future employment are bleak. 

1. The defendant contends that Mr Kent's evidence is unreliable and inaccurate and that he is exaggerating the extent of his disability and the restrictions on his domestic, social and recreational activities and capacity for employment.  The plaintiff's credibility is in issue.  The defendant submits that the plaintiff's claims are inconsistent with his conduct since the accident and that not all of his current complaints are due to the accident. A diagnosis of PTSD and assessment of its severity is heavily dependent on veracity of the history given by the sufferer, in this case, the plaintiff. The defendant contends that the expert medical opinion relied on by Mr Kent is based on a history given by him which is selective and inaccurate.

The evidence for the plaintiff 

1. The substance of Mr Kent's evidence follows.  When listening to his evidence it was difficult, at times, to determine whether his answers describing his condition referred to the past or the present.  For the most part, although he agrees that there has been some recent improvement, I took him to be asserting that the effects he described commenced after the accident and persist.  He was asked to describe any changes in himself that he noticed after the accident.  He said, "I lost a sense of myself", and "I wasn't me anymore".  He said that he lost confidence and was not able to do his job or socialise.  There have been "massive" changes in his sleep.  His pre-work sleep routine has gone.  He finds it very hard to get to sleep.  He dreams every night – he says he "can't stop dreaming".  His dreams are "like nightmares" and "when I wake up it feels like I haven't slept".  At first the dreams were about the car accident, then later about friends' accidents, and now about "war and a lot of very negative things".  He never feels rested.  Because of his difficulty sleeping he tends to go to bed late, but lie awake until the early morning and then sleep until late.  

1. He lost his appetite.  He now does not have regular eating habits and only eats when he is hungry.  Nevertheless he has put on weight – about 20 kilos.  He has flashbacks to the accident caused by him hearing or seeing something that reminds him of it, which in turn leads to anxiety attacks.  After the accident he started drinking to excess and smoking marijuana.  He has been emotional and cries a lot.  He said he tended to become angry and resolved problems with "violence".  He stays home spending his days daydreaming or trying to learn the guitar and has become isolated from his friends.  He did not go back to work with Mr Kidd because he "felt horrible all the time" and was "just trying to heal".  He did not feel able to obtain employment or perform any work because he "had a lot of mental issues and emotional issues that I needed to deal with".

1. He was referred to a psychologist, Tony Olech.  Mr Kent maintained that the counselling did not go well.  He said he "didn't get much out of talking about my accident" and did not feel "free from it".  However he agreed that by late 2009 and early 2010 he was feeling much better.  He undertook some security work courses as to which he was being assisted by a rehabilitation consultant engaged by the Motor Accidents Insurance Board, Deb Collier.  He thought there may be jobs available but he did not feel ready for employment.  When asked why he did not start working he answered that although he was "trying his hardest to get back, to get back to work" he "had a lot of mental issues and emotional issues that I needed to deal with and talking to Tony [Olech] didn't seem to fix any of those problems". 

1. He had treatment from a psychiatrist, Dr Hyde, in 2012, but said he did not obtain any benefit from it and stopped seeing him. When asked why he stopped seeing Dr Hyde he referred to Dr Hyde's advice to try to get back to work and go for small walks and be in public more and then went on:

"I feel very emotional still.  I wasn't – it was hard to talk to him about stuff because I was still not ready to talk about stuff properly.  I was still crying a lot and that frustrates me that I cry so much because that doesn't fit my previous personality profile, I guess of my own opinion of myself.  I'm still getting to know who I am, who the person is and, and Dr Hyde didn't – I remember asking Dr Hyde for medication because I just wanted to feel like I could breathe again, feel fine, just feel good.  I just wanted to feel good and there's no quick fix to that."

1. The relationship with his girlfriend broke down.  Since the breakup he has had one new relationship with a girl he met on Facebook but it did not work out. 

1. Mr Kent says his mental condition is slowly improving.  He has been prescribed various medications.  He presently takes Seroquel to make him feel "more docile at night" and Cymbalta to help "with my heart palpitations".  He says he has stopped drinking alcohol and goes out for coffees and has "a bit of a laugh sometimes, I guess".  He usually goes shopping with others.  He has sometimes gone on his own but finds it hard.  His friend, Jarron Skerratt, encourages him to go out.  He feels more comfortable when visiting his mother's house with his mother there to help him and tends to sleep better there.

1. Mr Kent sees the biggest part of his improvement as his ability to drive.  He said that after the accident he did not, at first, travel in cars at all because he was "petrified".  After a while he started to travel as a passenger.  He has now returned to driving but says he finds it difficult and he is still anxious and scared.  He especially feels anxious when driving to his mother's house past Brady's Lookout, where the accident happened.  When he did this the first time he felt like he was "going to die" but each time he has done it "it gets a bit easier".  In the course of his evidence he disclosed that a "couple of months" earlier he had driven his mother's car to the east coast of Tasmania and back.  He took his three younger brothers on a two night camping trip.  He drove from Launceston through Scottsdale to Binalong Bay, a distance of more than 150 kilometres.  While away he drove from Binalong Bay to Coles Bay and back on a day trip.  He then drove back home. 

1. His evidence is that now not much brings him pleasure.  He feels he has missed out on a lot as a result of his isolation and he has few friends which makes him feel sad.  When he feels anxious he wants to be left alone.  When asked how he presently feels he answered he "feels like a king that has lost his people".

1. According to his mother, Deborah Kent, before the accident in 2009 Jesse was "fine", he was working which he seemed to enjoy and was just "a normal young man".  He was well-groomed and he "always smelt nice".  He got up every morning at the usual time and went to work.  When asked how her son is now she described him as "sad and chronically depressed" and "he cries a lot".  She said he "sleeps all the time and has put on a lot of weight".  He visits her at her home at Gravelly Beach where he sleeps in the lounge room.  She notices that he stays up late and sleeps all day.  Even when he is asleep his sleep seems to be disturbed.  He is lethargic and does not seem to do anything.  His eating habits are irregular.  She has to tell him to have a shave and to wash his clothes.

1. One of Mr Kent's school friends, Jarron Skerratt, gave evidence on Mr Kent's behalf.  He said they remained friends up until about 2003 when they lost contact because they lived and worked in different areas.  However during 2011, about a year and a half after the accident, he heard that Mr Kent was not doing well and he went out of his way to contact him.  He found that Mr Kent did not have a car and "didn't want to do anything".  Mr Kent, he said, did not want to leave his house at all, did not want to meet him anywhere and "tended to make excuses".  He noticed that Mr Kent seemed scared of being around other people so, initially, he visited Mr Kent at his house.  Mr Skerratt thought of reasons to persuade Mr Kent to go out.  He took him on outings.  He took him to Jackeys Marsh, an area near Deloraine, where they went "a few times".  While there they would walk, perhaps four or five kilometres, and explore.  On other occasions, he thought twice in the six months before the trial, they went to a property owned by the mother of a friend to load the back of his ute with cut firewood.  On one of those occasions Mr Kent drove because, at the time, Mr Skerritt did not have a licence.  On another occasion they went to a beach together at Badger Head where they explored and went for a swim.  According to Mr Skerratt, Mr Kent's condition has altered for the better from when he first started seeing him.  He notices that it is now easier to persuade Mr Kent to go out.  They meet in the Launceston CBD where they "catch up four or five times a week for coffee".  They sit at a particular shop, Gloria Jeans in Brisbane Street, a street busy with pedestrian traffic.  They speak to friends as they go past.  In addition they "get out of town and go for a drive" when they can.  They have also been to hotels together where they play pool.  Mr Skerratt described this by saying "he [Jesse Kent] enjoys it, especially like at the pubs there's not heaps of people".  He finds Mr Kent no longer as emotional and now more inclined to smile and laugh.  Mr Kent now initiates some contact.  Mr Skerratt described Mr Kent as prepared to travel with him while he is driving, although appearing to be quite anxious driving in the car with people he does not know. 

1. Mr Kent's landlady, Mrs Snoxall, first rented 27 Elizabeth Street to Mr Kent about seven years ago.  She lived just up the road and, although aged 91, collected the rent personally each week and continues to do so.  She described to the Court that before the accident in 2009 Mr Kent appeared to be a nice young man.  She knew he was apprenticed to a tiler.  She observed that since the accident "his head doesn't seem to be the way it used to be" and he is "not as bright".  He does not want to talk about things and he hangs his head and gets upset, and that he is "not the same boy". 

1. The Launceston General Hospital notes record that the doctor who saw Mr Kent when he returned to the hospital on 15 March 2009, the day after the accident, referred him to a social worker.  The referral form records as the reason for referral that Mr Kent was "very traumatised" from incidents where he "extricated three brothers from car, thought youngest was dead.  This is second time patient extricated brothers from a MVA scene."  The social worker phoned Mr Kent on 17 March 2009.  The record of the call notes that Mr Kent was "[s]till experiencing difficulty sleeping as a result of the accident.  He is a little more relieved now with the discharge of his brother from hospital."  Mr Kent consulted Headspace, a free medical service which provides general and mental health advice to young persons up to 25 years old.  He saw Dr Beth Mulligan, a general practitioner, on 17 March 2009.  He saw Dr Mulligan on 15 separate occasions between that day and 23 April 2010.  When Dr Mulligan saw Mr Kent on 17 March 2009 there was no express mention of psychological injury, but she noted that Mr Kent "needs Road Trauma Support".  However, when she saw him on 25 March 2009, 10 days after the accident, she recorded that Mr Kent was "Still feeling anxious and nauseated when thinking about the potential for accidents.  Still traumatised with flashbacks and generalisation. Discussion about the accident, anger, displacement, using CBT principles."  Dr Mulligan supervised Mr Kent's treatment for a little over a year.  During that time she referred him to a psychologist and monitored his condition and made careful notes.  For example, she recorded on 8 July 2009 Mr Kent's breakup with his girlfriend and, as to driving: "Still has massive issues with going in the car, but has done a trip to his mother's place with a friend driving.  Still very anxious especially in the rain.  Still has flashbacks to the accident.  Discussed systematic desensitisation to traumatic stimuli."  The record of the attendance on 13 January 2010 reads, in part, "Not driving yet.  Has spoken to Tony about that … Travels as a passenger but doesn't like it much.  Only goes in them if he has to.  Has sig (sic) anxiety in the car."  The final entry of Dr Mulligan on 23 April 2010 records, "Going well with Security Guard training … Will get work no problems but still a bit restricted by lack of transport.  Intends to get back driving ASAP."

1. For some reason not fully explained on the evidence, Mr Kent did not return to Headspace after 23 April 2010 until 5 April 2011, when he returned and saw Dr Elizabeth Reeckman.  He saw Dr Reeckman on a further 13 occasions between 5 April 2011 and 3 January 2012 and another practitioner on 8 February 2012.  The note of the first consultation with Dr Reeckman refers to the 2009 accident and to PTSD and depression, and continues, "Improved a lot initially but felt he never got right.  3 months ago witnessed a MVA and now having increased flash backs, continual anxiety, increased depression.  Has isolated himself.  Rarely goes out …  Frequent dreams often nightmares re car accidents.  Not suicidal.  Panic attacks at times."  By October 2011, it was recorded that Mr Kent's condition was getting worse, that he "always feels anxious and generally has a panic attack daily especially if goes out.  Dreams every night but never wakes refreshed.  Can't go to sleep until about 4 – 5 and wakes 11.30am.  Gripped by fear if has to travel in a car …".  On that day he was observed to be anxious and crying at times.  By the end of 2011 and the beginning of 2012 the notes record a marginal improvement.  A change in his medication appeared to be having some beneficial effect and the note on 3 January 2012 reads: "Some improvement on the medication.  Is able to get to sleep more quickly but still goes to bed at 2am.  Was able to come here without having a panic attack or vomiting."

1. Three expert medical witnesses were called by Mr Kent. Tony Olech is a clinical psychologist.  Dr Eric Ratcliff is a consultant psychiatrist.  Dr David Gorman is a physician and pain management specialist.  Dr Ratcliff was not Mr Kent's treating psychiatrist.  Dr Hyde, the psychiatrist who was consulted by Mr Kent in 2012, was not called, nor were any reports from him tendered.  Mr Kent also relies on a report from James Drury, a clinical neuropsychologist.  Because Mr Kent's credit is in issue, the evidence and reports of each expert are important, not only for the opinions offered by each expert but also for their narration of the history given to them by Mr Kent.

1. Mr Kent was referred to Tony Olech by Dr Mulligan.  Mr Olech first saw him on 27 May 2009, only two months following the accident.  He last saw him on 8 January 2010.  He reported that Mr Kent presented with symptoms that led Mr Olech to diagnose PTSD.  The symptoms included:

·     flashbacks of the accident and nightmares, including memories of the accident which occurred when he was 13;

·     avoidance of driving and acute anxiety when riding in a car as a passenger;

·     ongoing feelings of emptiness, low mood and detachment;

·     persistent increased arousal including difficulties falling asleep, reduced appetite, irritability and concentration difficulties for which he used alcohol and cannabis to "numb" those effects.

1. Mr Olech considered that it was Mr Kent's avoidance of driving in particular that impacted on his ability to work as a carpet layer.  He recommended cognitive behavioural therapy in weekly sessions involving gradual behavioural exposure to avoided situations, and the teaching of skills and strategies to deal with the effects of the condition. Between July 2009 and the beginning of September 2009 Mr Kent undertook a number of such therapy sessions.  Mr Olech reported to Dr Mulligan on 26 August 2009 that Mr Kent had been practising and using arousal management skills and had managed to "successfully achieve being able to return in a car as a passenger on long trips and sit in the driver's seat in a stationary car with much reduced arousal".  Mr Olech also reported that Mr Kent had all but given up alcohol use.  The report includes the following passage:

"Whilst Jesse is keen to drive again he has stated that he does not wish to return to his previous job as a carpet layer as he often has to ride in the back of a van without seatbelts and now refuses to do this.  He is in the process of thinking about future job options including possibly doing some further study to enter aged care."

1. Mr Olech's therapy sessions ceased for two months from September 2009 while he was on leave.  Following his return he saw Mr Kent on only two further occasions, on 27 November 2009 and 8 January 2010.  In his final report dated 24 January 2010, Mr Olech reported that Mr Kent had "demonstrated significant improvement of his PTSD symptoms since his initial consultation".  The intrusive memories of the accident had decreased and he was no longer "overwhelmed by emotions". He had improved interactions with family and friends and felt less distracted and estranged.  Mr Olech reported that Mr Kent was able to travel in a car, albeit with "hyper-arousal and in an anxious state" but was "yet to resume driving a car again". In Mr Olech's opinion, at that time, Mr Kent was motivated to "get his life back on track" and that his prognosis for recovery from PTSD "appears to be very good".  Mr Olech continued that "empowering his sleep patterns and returning to driving a car will further enhance his already positive outcomes".

1. Dr Eric Ratcliff, a consultant psychiatrist, saw Mr Kent on three occasions for the purposes of this case.  Dr Ratcliff first examined Mr Kent on 23 June 2010.  He examined him again on 1 December 2011 and again on 25 September 2013.  Mr Olech's optimism, expressed at the beginning of 2010, for Mr Kent's continued recovery is not borne out by Dr Ratcliff's reports.  Three reports from Dr Ratcliff dated 9 July 2010, 2 December 2011 and 27 September 2013 are in evidence.  Dr Ratcliff also gave evidence.  The reports are comprehensive.  I will refer to some material from each report.  Mr Kent reported to Dr Ratcliff in June 2010, about six months after he had last seen Mr Olech, that he suffered from insomnia and nightmares and that he avoided driving and avoided travelling in cars when possible.  He told Dr Ratcliff he had not driven in a car for a year.  Dr Ratcliff reported that Mr Kent was "pessimistic about everything".  Mr Kent informed Dr Ratcliff that he had completed retraining in security work but felt that he needed a "more relaxed job", and although he enjoyed his apprenticeship work he "has the problem he would have to travel in the course of his work".  He told Dr Ratcliff that "up until two months ago" he had been drinking daily "up to a carton of beer and a couple of bottles of cheap wine a day" but had reduced his drinking.  Dr Ratcliff diagnosed PTSD by reference to DSM-IV.  According to Dr Ratcliff, PTSD is "not a diagnosis I apply lightly" but that Mr Kent has "an unusually clear cut case of this with more than a sufficiency of typical symptoms".  Dr Ratcliff expressed an opinion that Mr Kent's incapacity for work arose from his "avoidance of vehicular travel and considerable social withdrawal".  He recommended treatment by a skilled clinical psychologist to apply a program of systematic desensitisation to avoided situations.

1. Dr Ratcliff reviewed Mr Kent on 1 December 2011. Mr Kent told him that he was still spending much of his time at his flat but also with his mother at Gravelly Beach.  He had, he said, driven twice to his mother's house at her encouragement, but became extremely anxious when doing so.  He also reported that he "cannot walk in Launceston because it is too fast, too crowded and too much traffic". Following that consultation, Dr Ratcliff confirmed his diagnosis of PTSD with "diagnostic criteria related to avoidance predominating".  Dr Ratcliff also referred to Mr Kent as having developed features of major depressive disorder.  The avoidances extended beyond those specific to his PTSD, noting a "marked social withdrawal and reclusiveness and an avoidance of people and public places".  According to Dr Ratcliff, in December 2011, Mr Kent's condition was "chronic and unlikely to go into remission without further intervention". He referred also to Mr Kent's anxiety extending to medications and other means of treatment.  Dr Ratcliff expressed the opinion that it "remains possible for Mr Kent to return to normal paid employment in the future but his condition was well established" and there was a "high risk that his avoidance will prevent effective treatment". 

1. Dr Ratcliff's final review was on 25 September 2013.  By that time Dr Ratcliff also had a proof of evidence prepared by Dr Ian Sale, a consultant psychiatrist engaged by the defendant to interview and report about Mr Kent.  Mr Kent described himself to Dr Ratcliff as "chronically sick", that he felt constantly nauseated and occasionally vomited, that he felt like he was "going to have a heart attack all the time".  He expressed little hope of any change in his life.  He obtained limited benefit from medications but felt worse when not taking them.  He was able to drive between Launceston and Gravelly Beach and to take his brothers from Gravelly Beach to school in Exeter.  However, he drove only through necessity, was generally reluctant to do so, and felt "intense anxiety" while driving.  He described himself as "not doing much" and not capable of any extended work.  Mr Kent expressed cynicism to Dr Ratcliff about the medical and psychological professions.  He was not seeing a psychologist or a psychiatrist for treatment.  He said he had "seen a number of them and they all seem to say the same things, go out and get back into it", which he felt unable to do.  He expressed that "to really get help you have to help yourself …".  In Dr Ratcliff's opinion Mr Kent was likely to avoid any situation, including treatment or rehabilitation attempts, which involved increased anxiety.  Mr Kent reported being reluctant to go to sleep and usually went to bed between 2 and 6am, rising by 11am or midday.  He no longer used alcohol but occasionally used cannabis if someone offered it to him.  In his report of 27 September 2013, following that review, Dr Ratcliff offers the following opinion:

"It remains my opinion that Mr Kent suffers from chronic Post Traumatic Stress Disorder.  His reaction of reclusiveness, social avoidance except of close family and a limited number of friends, and his cynicism about the world is a not uncommon part of the spectrum of response to this condition.  As Dr Sale noted his survival of a previous accident might have sensitised him to developing this condition.  Dr Sale comments that the risk of developing Post Traumatic Stress Disorder is higher 'in persons who have a history of psychiatric history'.  Insofar as this issue has been systemically investigated, a United States study of war veterans found that the only condition that could be considered to create a predisposition was Personality Disorder.

Dr Sale outlines the considerations that might lead to the conclusion that your client's goal is 'secondary gain'.  Having examined your client on a number of occasions I do not consider that that is a major factor in the severity and maintenance of his condition.  His life is severely restricted and he is troubled with constant symptoms.  He has been able to extend his activity according to necessity but without obtaining freedom of restrictions related to his anxiety and general lack of well-being.  He has settled for a limited life over almost four and a half years, and it is unlikely that he will make a miraculous recovery following settlement.

It is not possible to estimate how systematic or intensive attempts at treatment have been.  It may be that his changes of psychologists and his general attitude to his psychological management results from his level of anxiety and consequent avoidance.  In Post Traumatic Stress Disorder, as in the case of Panic Disorder, there is a wide spectrum in the degree of avoidance that can develop.  Some sufferers are able to engage in relatively normal life and activity, others feel continuing anxiety in a varied range of situations, some develop dense avoidance of particular situations, and in some the avoidance generalises to produce agoraphobia with life maintained within a very restricted 'comfort zone'.  Mr Kent's response appears to be at this end of the spectrum.  The factors that determine whether an Anxiety Disorder leads to dense avoidance in some and not in others are not known." 

1. In the report Dr Ratcliff went on to express the view that with the failure of psychological management, whether due to its "inadequate application, avoidance of anxiety, and failure to engage or persist with treatment, and with the limited effect of anti-depressant and anxiolytic medication, I consider that his condition is likely to remain much as it is now".  In Dr Ratcliff's opinion it is now unlikely that Mr Kent will return to regular paid employment.  The restrictions in doing so are related to social avoidance, avoidance of driving, avoidance of conflict and probable difficulty with authority. 

1. James Drury is a clinical neuropsychologist.  His report dated 6 September 2012 was tendered by Mr Kent.  The report was tendered by consent and Mr Drury was not required for cross-examination.  Mr Drury conducted a neuropsychological assessment of Mr Kent on 27 August 2012.  Mr Drury took a history from Mr Kent, in the course of which he was informed of the circumstances of the accident and its immediate aftermath, his consultations with Dr Mulligan, and the sessions with Mr Olech.  He also informed Mr Drury of sessions with Holly, a counsellor from Headspace, and his treatment by Dr Hyde.  He told Mr Drury that he did not feel he gained any real benefit from the sessions and treatment.  He told Mr Drury that before the accident he "drank alcohol on a social basis on weekends", but afterwards he was having alcohol binges lasting up to two weeks, but .  He said he had not had any alcohol "for the last two months".  He told Mr Drury that he had not been able to work because of his condition because he was not "mentally or psychologically reliable".  He described his memory as "terrible" and had reduced ability to concentrate and was slower in his thinking.  He was at times frustrated and was stressed around people, feeling depressed every day, "waiting for the old me to come back".  He self-reported constant fatigue and feelings of irritability, anxiety and depression.

1. Mr Drury described Mr Kent as co-operative although with a "flat manner" and appearing to perform all tasks to the best of his ability. Mr Drury's assessment did not indicate any significant residual organic brain damage and demonstrated a pattern of intellectual functioning consistent with Mr Kent's pre-accident broadly average intellectual capacity.  There were some mild to moderate cognitive deficits relating to his level of attention and speed of processing, which Mr Drury concluded resulted from his constant fatigue and psychological symptoms, rather than his intellectual capacity.  Mr Drury also indicated that if those factors improved he would expect the cognitive efficiency to also improve.  Mr Drury, although aware of Mr Kent's hip injury, attributed his lack of employment primarily to Mr Kent's psychological state, and thought that he was unlikely to make significant progress in his recovery until "he develops a desire to motivate himself".

1. Finally, a point on which Mr Kent strongly relies, Mr Drury reported that Mr Kent "performed satisfactorily on a measure designed specifically to evaluate motivation and effort (Test of Memory Malingering) … supporting the likelihood that he was responding to tasks to the best of his ability, with no obvious evidence of deliberate feigning of results".

1. Mr Kent also gave evidence about his buttock injury about which evidence was also given by Dr David Gorman, a consultant physician and pain management specialist, engaged by Mr Kent to report on the injury.  Mr Kent saw Dr Gorman on 4 May 2010, and was re-assessed on 24 September 2013.  He told Dr Gorman that when he was aged about 12 he was impaled on the cut edge of a tree after falling when climbing over a fence at school.  He had stitches in his right buttock at the time.  Until the accident the injury caused him no ongoing problem.  Mr Kent described, in his evidence, that after the collision his hip felt "like I'd been kicked – kicked or corkied in my hip" and that the feeling continued.  Mr Kent said that the injury now "has its moments".  He described how it may give him trouble if he sleeps on it the wrong way, or after going for a long walk.  He complained to Dr Gorman about the sensation of "tearing".  In 2013 Mr Kent also reported to Dr Ratcliff occasional discomfort in his hip if he steps wrongly or walks too far. 

1. Dr Gorman described the injury as a "soft tissue injury" which caused pain at the site of the previous scar in the muscle.  After Mr Gorman's first examination of Mr Kent he considered the prognosis for the right buttock injury was good.  He thought that Mr Kent should be able to return to his previous activity, that the episodes of "tearing" would decrease in frequency, and although carpet laying was quite a physical job involving carrying heavy rolls of carpet and vinyl that may exacerbate his hip pain, the exacerbation would not continue indefinitely.  He predicted problems for two or three years after the accident.  In his later report dated 10 October 2013, Dr Gorman's opinion about the hip pain was more pessimistic.  He noted that whilst Mr Kent's dominant presentation is of a psychiatric disorder, he had continuing discomfort in his right buttock.  Dr Gorman expressed the opinion that, given the lapse of time since the collision, Mr Kent is likely to have increased sensitivity and discomfort in the scar permanently, which would restrict his ability to return to work as a carpet layer.  The injury resulted in restriction in heavy lifting and any continuing work involving vigorous hip flexion, although no ongoing treatment was warranted.  In cross-examination Dr Gorman agreed that Mr Kent's ability to return to work as a carpet layer would vary according to the extent of the pain that he perceived.  In answer to a question from me, Dr Gorman expressed an opinion that the pain sensation may remain as a result of not only inactivity and muscle de-conditioning, but where major psychiatric problems occur or develop, the condition leads to the focus of pain in an area which has a relatively minor injury.  He said that anxiety and depression lead to the perpetuation of the perception of pain.

1. During Mr Kent's consultation with Dr Gorman on 4 May 2010, he told him that by September 2009 he was able to walk down the street without being scared and was "able to drive his car", although he had not driven a car since the accident.  He told him also that he did not wish to return to carpet laying work, partly because he mentally did not want to do it, and also because he "does not want to drive regularly again at present".

The defence contentions as to Mr Kent and his credit

1. There are a number of aspects of Mr Kent's claim that are the subject of dispute.

1. The defence suggests that prior to the accident Mr Kent was already prone to abuse of alcohol and cannabis and to outbursts of anger.  He was cross-examined about each of these things.  He disputed that he was a heavy user of alcohol before the accident, pointing out that he was working full-time.  He agreed that he drank before the accident but said he mostly confined his drinking to a Friday and Saturday night.  He agreed also that on occasions he would drink "half a slab" (by which I would take him to be referring to 12 375ml cans or stubbies), but said that after the accident he drank a lot more than that and was drinking "just about every single day".  He agreed that before the accident he sometimes used cannabis which he smoked in joints a "few times a week … probably six joints a week".  His mother agreed that Mr Kent had been a regular user of cannabis since he was 15.  She said that, when he was at her house before the accident, usually at weekends, they would share about three or four joints a day.  She said that sometimes he would also drink alcohol and a couple of times "he had too much".

1. Mr Kent's former girlfriend, Charmaine Percy, gave evidence for the defendant.  At the time of giving evidence she was 22.  She commenced a relationship with Mr Kent about 12 months before the accident, when she was 16.  Although they did not live together she stayed at his house in Elizabeth Street from time to time.  Their relationship continued for about three months after the accident.  She was first asked about their relationship before the accident.  She said that Mr Kent was physically and emotionally abusive towards her.  He smoked cannabis.  He also drank alcohol three, four or five times a week to the point where he was drunk.  He often had friends visit.  He was protective and jealous of her and suspicious that she was "cheating on him" while at work.  He was, she said, also violent towards her including strangling her so as to bruise her neck, kicking her and spitting on her. Miss Percy was then asked about whether the situation had changed after the accident.  She said that he continued to drink and smoke cannabis.  She said he had his friends over more and he would sleep until midday most days.  She said the "final straw" that led to their breakup about three months later, was when he grabbed her by the throat and dragged her out of the room in front of his three younger brothers.  It was suggested to Miss Percy in cross-examination that Mr Kent's violent behaviour and drinking became worse after the accident.  She was initially reluctant to concede that was so and described it as having "continued".  She was pressed about this on each occasion and eventually agreed that it had "got worse". She also agreed that their relationship generally deteriorated after the accident.

1. When cross-examined, Mr Kent agreed that he had attempted to "strangle Charmaine" in a fit of anger and at the time he was affected by alcohol and cannabis.  It is clear from the context of the evidence that the incident he referred to was after the accident.  He said it was the only such incident he could remember and denied that it happened "a number of times".  He maintained that he was "not  a violent person".  He was also asked about an incident referred to in the Launceston General Hospital records on 27 May 2006 when, aged 19, he presented at the Emergency Department for treatment of a lacerated knuckle of the right middle finger caused when he punched the windscreen of a car while arguing with his girlfriend.  He was referred to a social worker and the referral form records that "it was either that or punch the girlfriend".  He agreed that the incident had occurred and that he had said those words.

1. The defence also contends that Mr Kent's conduct since the accident is inconsistent with his claims about the extent of his incapacity. Three periods of covert surveillance of Mr Kent were undertaken.  Mr Kent was filmed and a written log was kept of the observations made by the persons undertaking the surveillance.  None of that evidence was challenged.  The first period of surveillance took place on 11, 12 and 13 April 2011.  The report discloses that at about 5.15pm on 12 April 2011 Mr Kent walked from his home in company with two other men to Hotel Tasmania in Charles Street, Launceston.  While at the hotel he spent about two hours in the gaming area and playing 8-ball.  The film shows him in a public area at the hotel although it does not appear that there were many other people around.  He is shown holding a beer and talking to his friends, sometimes laughing.

1. Surveillance was undertaken on seven separate days between 24 March 2012 and 14 April 2012.  There is film of Mr Kent taken on 29 March 2012.  On that day he drove his mother's car, a green station wagon, from his home in Launceston to the Legana shopping complex.  His mother was a front seat passenger.  He parked at the complex.  He walked to a post box to post some mail and then went into the supermarket with his mother.  They purchased groceries, went through the check out and returned to the car.  He then drove, with his mother as passenger, out of the car park at Legana and north along the West Tamar Highway to the hotel at Exeter.  There Mr Kent went into the hotel bottle shop before returning to the car.  He then drove to the pharmacy where his mother went inside.  He then drove the car, with his mother as passenger, to her home at Gravelly Beach.  In all, the journey from his home in Launceston to Gravelly Beach took a little over an hour.

1. Further surveillance was undertaken on 15 March 2013, on seven consecutive days between 28 March 2013 and 3 April 2013, on six consecutive days between 30 April 2013 and 5 May 2013 and on five consecutive days between 11 June 2013 and 15 June 2013.  On 30 March 2013 Mr Kent walked from his home to the Coles supermarket about 500 metres away and returned carrying bags of groceries.  On 2 April 2013 he was picked up from his home in a white utility at about 12.30pm.  The evidence establishes that the white utility is Mr Skerratt's car and was being driven by him.  Mr Kent travelled as a front seat passenger.  It was observed that he was smoking a cigarette, he laughed and engaged in conversation and the car windows were lowered.  The car drove around the CBD for 10 minutes or so and was parked before he walked with Mr Skerratt to the coffee shop, Gloria Jeans, where they sat at a table on the footpath area outside the shop.  His mother arrived shortly afterwards.  They stayed for about an hour during which time, according to the surveillance log, Mr Kent smiled and engaged in conversation and appeared happy and relaxed.  He then walked some blocks to an office supplies shop on the edge of the CBD where he went inside.  He then travelled as a passenger in the white utility to Mr Skerratt's home at 7 Brewer Place, Invermay.  On the following day, 3 April 2013, the same car went to Mr Kent's home.  Again he left in the car as a front seat passenger.  The car was parked in the CBD and the two men walked to Gloria Jeans where they sat outside drinking coffee.  Mr Kent was smoking and again was observed to display a "relaxed and happy demeanour".  They stayed at the coffee shop for only a few minutes before walking to a retail clothing shop at the opposite end of the CBD where Mr Kent appeared to browse for a short time and speak to a shop assistant before purchasing something.  They then walked back to the car.  The car was then driven by Mr Skerratt, with Mr Kent as passenger, to a hardware shop on the outskirts of Launceston, some kilometres away.  After tying some timber onto the back of the ute they returned to Mr Skerratt's house at Invermay from where Mr Kent was driven home at about 4.30pm. 

1. On 1 May 2013 Mr Kent drove his mother's car, with his mother as passenger for at least some of the time, to a shop not far from his home and returned.  On 2 May 2013 Mr Kent drove his mother's car, with his mother and a female child as passengers, from Launceston to Exeter on the West Tamar Highway, travelling at about the speed limit.  They went to the supermarket and then to the bottle shop.  Mr Kent then drove to Gravelly Beach.  On 4 May 2013 Mr Kent travelled as a front seat passenger in a Commodore vehicle being driven by another male from Gravelly Beach to Exeter and back.  While at Exeter he went to the supermarket, the hotel bottle shop and the takeaway food shop.  He was then driven, as a passenger from Gravelly Beach back to his home in Launceston.  On 5 May 2013 Mr Kent travelled as a front seat passenger in the same Commodore which picked him up from Elizabeth Street and went to a shopping complex in Launceston a couple of kilometres away.  He went to an automatic teller machine before, with his companion, browsing for clothes in the Kmart.  He made some purchases and used the self-checkout before returning to the vehicle.  The surveillance log records him as "appearing jovial".

1. On 12 June 2013 Mr Kent drove his mother's car, with his mother and one other female as passengers, in central Launceston.  Over the course of about an hour he drove into the CBD, to a service station where he used an automatic teller machine, to a supermarket and to another retail shop.  Later the same day he drove his mother from Launceston to Gravelly Beach, stopping at the supermarket at Legana on the way.  Later he twice drove his mother's car from Gravelly Beach into Exeter and return, on both occasions with children as passengers.  Late in the afternoon on 13 June 2013 he drove his mother's car from Gravelly Beach into Exeter and back with a young person as passenger.

1. Dr Ian Sale, a consultant psychiatrist, was engaged by the defendant to interview and report on Mr Kent.  He saw Mr Kent only once, on 10 August 2012, and wrote a report dated 13 August 2012.  However Dr Sale provided a number of further reports dated 22 January 2013, 3 May 2013, 26 August 2013 and 8 October 2013, together with a number of published articles about PTSD which were tendered as accompanying his most recent report.  The following general principles emerge from that material:

·     PTSD is characterised by a range of symptoms, including vivid re-experiencing of the trauma (for example by intrusive memories, nightmares and flashbacks), avoidance of trauma related stimuli (for example effortful attempts to avoid places, people or recollections of the trauma), emotional numbing (for example difficulty in experiencing close emotional connections to other people) and hyper-arousal (for example hyper-vigilance, irritability and insomnia):  Posttraumatic Stress Disorder: Current Concepts and Controversies, Steven Taylor and Gordon J G Asmundson Psychological Injury and Law (2008) 1:59 74.

·     PTSD can arise from serious road traffic collisions: Taylor and Asmundson at 60;

·     Only a small percentage of people exposed to a traumatic event develop PTSD: Posttraumatic Stress Disorder: A Model of the Longitudinal Course and the Role of Risk Factors, Alexander C McFarlane, J Clin Psychiatry 2000;61 [suppl 5].  The risk of developing PTSD following a motor vehicle accident is higher in those who suffer more serious injury, in women and in persons with a history of psychiatric illness: Dr Sale's report 22 January 2013.

·     Prior trauma is a factor which may increase vulnerability to onset of the condition: McFarlane at 20.

·     The severity of the trauma is another factor that may increase the risk of onset: Taylor and Asmundson at 61.

·     PTSD is sometimes chronic, fluctuating over time, Taylor and Asmundson at 70, and is usually accompanied by another disorder such as major depression, an anxiety disorder or substance abuse: McFarlane at 17.

·     Subsequent stressors may amplify or exacerbate symptoms: Taylor and Asmundson at 60.

1. On 10 August 2012 Dr Sale took a history from Mr Kent. Dr Sale reviewed Dr Ratcliff's report of 2 December 2011 and Mr Olech's report of 5 July 2009. He found Mr Kent during the interview to be abrasive, suspicious and hostile, being frequently impatient with his questions.  Nevertheless, Dr Sale concluded that Mr Kent appeared to suffer from a severe chronic PTSD characterised primarily by avoidance behaviours, persistent mood disturbance, emotional numbness and problems with concentration and irritability.  He thought that Mr Kent may also suffer from major depression but that this was not easy to ascertain.  Dr Sale indicated that, on the basis there had been little improvement for three years, the condition had stabilised and he did not expect Mr Kent to make much progress, even with the assistance of Dr Hyde. He considered that Mr Kent had a considerable impairment and did not believe him to be "capable of work in any form".

1. Dr Sale's subsequent reports were written in response to further information supplied by the defendant's solicitors.   Included in that further material was the surveillance film, witness statements from Mr Kidd, Mr Bramich and Miss Percy, information about Mr Kent's security training, Mr Drury's report and the medical records from Headspace.  That information led Dr Sale to question his original diagnosis and prognosis, and to suggest that there was a risk that Mr Kent's clinical presentation is influenced by the expectation of compensation.  He pointed out that a diagnosis of PTSD is reliant on the history provided by the patient or his or her family.  According to Dr Sale, PTSD can be fabricated or exaggerated because it is subjective, and the clinician is reliant on the history provided, and, unless the individual has some particularly severe difficulties, the mental state findings are generally non-specific.  Although there are some psychological tests that can be helpful in suggesting exaggeration, there is no specific test or examination procedure that can establish diagnosis.  The diagnosis ultimately depends on the self-report and truthfulness of the patient.  In no particular order the matters that concerned Dr Sale about Mr Kent's diagnosis were:

·     Persons with PTSD often have profound difficulties coping with being a front seat passenger because, in that position, they are not in control of their circumstances.  In Dr Sale's view the surveillance showed Mr Kent travelling as a front seat passenger without apparent anxiety.

·     PTSD is generally accompanied by prominent avoidance symptoms.  PTSD arising from a motor vehicle accident leads to avoidance of driving, particularly past the site of the subject accident.  Dr Sale reported that "individuals with PTSD often have considerable difficulty traversing the accident site, and will often go miles out of their way to avoid this".  The surveillance revealed that Mr Kent drove without apparent anxiety including, on frequent occasions, past the accident site when an alternative route was available.

·     Persons suffering from PTSD arising from a motor vehicle accident are almost invariably extremely conscious of matters pertaining to road safety. Mr Kent, by allowing his arm to protrude from the window of a moving car, exhibited behaviour inconsistent with that proposition.

·     Mr Kent described himself as chronically sick, has a feeling as if he is going to have a heart attack all the time and is constantly nauseated.  These descriptions are "not particularly consistent" with some of the observations made of Mr Kent of shopping in the city, taking coffee with friends and generally appearing in good spirits.

1. In cross-examination, Dr Ratcliff was asked about a number of matters that had emerged in the course of the evidence.  He was asked:

"If I suggested to you that he'd been to Coles Bay and to Binalong Bay and driven there and back for a two night camping trip and had taken passengers; his brothers in the car, would that surprise you?.....Somewhat."

And then:

"Would you expect a person who claimed to manifest his anxiety and symptoms, to go via Rosevears to avoid Brady's?.....You might expect that, yes."

And:

"If this court, doctor, was to find that he, for example, had been to Coles Bay and to Binalong Bay on the same journey, was able to go and collect firewood and was able to go to Jackeys Marsh, chose to use Brady's as the route rather than Rosevears, was going into town on a weekly, if not bi-weekly basis to Gloria Jeans, mixing with people in Launceston, would that indicate to you a significant improvement in his condition from that which he told you?.....Certainly.

And if that improvement continued all hope is not lost for him?.....Yes."

1. Dr Ratcliff agreed that there was nothing in Mr Kent's presentation that would prevent him from doing certain types of security work, provided he was not outside his geographical comfort zone and involved with significant crowds and the possibility of confrontation.  Nevertheless, Dr Ratcliff maintained that Mr Kent's activities disclosed by the evidence are not inconsistent with his opinion about Mr Kent's condition because they were within limitations imposed by familiarity, support or necessity.  Nevertheless, he agreed that he had been given by Mr Kent, a "history of a more restricted life than that".

Consideration of and findings about Mr Kent's claims

1. I am satisfied that, as a result of the accident, the plaintiff developed PTSD.  With some qualifications that I will return to later in these reasons, I am also satisfied that until mid-2012 Mr Kent's life was substantially affected by the PTSD.  The symptoms were debilitating.  His life was characterised by social isolation, anxiety, low mood, intrusive memories and nightmares and sleep disturbance.  During that period he was incapable of returning to his pre-accident employment or any other form of employment.

1. I have reached those conclusions for the following reasons.  The circumstances of the collision and the trauma to which Mr Kent was exposed are not in doubt.  Mr Kent's exposure to trauma and symptoms, if accepted, are consistent with the diagnostic criteria and characteristic symptoms in terms of DSM-IV.  Both Dr Ratcliff and Dr Sale agree that the childhood car accident may have sensitised him to further trauma and thus made it more likely he may develop PTSD.  Mr Kent's complaints of symptoms characteristic of the condition commenced very soon after the accident.  It is most unlikely that at that stage he would have had the ability to persuasively mimic the condition.  Those complaints continued through the time he was treated by Dr Mulligan, Mr Olech and Dr Reeckman. His history and presentation led Dr Mulligan, Mr Olech, Dr Reeckman, Dr Ratcliff, Dr Drury and, at least initially, Dr Sale, to accept the genuineness of his complaints and to diagnose PTSD.  I regard it as unlikely that Mr Kent would have had the wherewithal, the foresight or the persistence to make and continue, from the time of the accident until at least mid-2012, a deliberate fabrication or exaggeration of his symptoms, particularly those so consistent with the formal diagnostic criteria for PTSD.  He described his symptoms in a relatively consistent manner to the medical practitioners to whom I have referred.  To the limited extent that the evidence explains the utility of such tests, he satisfactorily completed the Test of Memory Malingering undertaken by Mr Drury in August 2012.

1. The plaintiff's complaints are corroborated by the evidence of others.  In particular I found Mr Skerratt to be an impressive and truthful witness.  He is not in good health himself.  He is friends with Mr Kent but had no reason to lie or overstate his evidence.  I accept that it was he who initiated the resumption of contact with Mr Kent about half way through 2011, and he gave a persuasive description of Mr Kent's isolation, reluctance to leave his home and associate with others at that time.

1. I also largely accept the evidence of Mr Kent's mother of her observations of him.  Again, she has her own problems including a history of psychiatric illness.  However, she presented to me as a truthful person who gave an honest account.  She corroborated the plaintiff's evidence about his sleeping and eating habits.  No doubt she was anxious to support her son in his claim but her evidence was clear and responsive and consistent with the evidence of others. 

1. I am mindful of Mr Olech's expression of the plaintiff's improved condition and optimism for continued improvement at the beginning of 2010.  However I am satisfied that Mr Kent's symptoms continued after that date substantially as described by him. Those continuing complaints are corroborated by Mr Skerratt whose evidence I accept.  Mr Kent suggested that there were other issues that affected his rehabilitation, including having friends involved in car accidents which "scared the shit out of me".  He felt that he "couldn't do anything", and that "death was chasing me".  Another incident occurred which is relevant to his recovery.  He was at home and saw a collision between two cars on the road outside.  He saw liquid on the road and children in both cars.  He ran outside.  He removed a child from one car after breaking a window and then removed another child from the other car.  He said the incident "brought back a lot of memories".  It made him angry because he thought most people were just standing around, no-one was helping and "people will watch you burn". When this took place is unclear on the evidence.  The question he was asked by his counsel suggested that the incident was towards the end of 2011. He told Dr Ratcliff on 1 December 2011 that it occurred "in recent weeks".  However Dr Reeckman's notes, made on 5 April 2011, record that he told her he had witnessed another accident "three months ago", and he told James Drury, on 27 August 2012, that this other accident happened "about 18 months ago".  Whichever is true, the plaintiff's claim to have witnessed such an accident was not challenged and it is likely to have contributed to his failure to improve as Mr Olech hoped. 

1. As to the period since mid-2012, I have reached a somewhat different conclusion.  Despite Dr Sale's reservations about Mr Kent, and some reservations of my own, I am satisfied that Mr Kent continues to suffer from PTSD.  However I consider that his current disability and incapacity is not as great as Mr Kent contends.  One of the difficulties in the assessment of the plaintiff's evidence is to determine whether aspects of his presentation which may ordinarily seem incongruous, not credible or unreliable are, instead, a manifestation of his condition.  However, even taking into account the effect of his condition, I am satisfied that some of his evidence was overstated and overly dramatic. An example is his description of what happened when he "woke up" after the accident, that when "taking my first breath.  It felt like I had just been born or something".  He later described that, when waiting for the ambulance, he felt a trickle going down his head but did not want to touch it "because I thought it might have been my brain – I thought my skull or something …".  That is not an account he had given to anyone before giving evidence.  It is not contended that he suffered a brain injury but the description discloses a current tendency to the dramatic.  I have a similar view about his description that he feels like "a king that's lost his crown.  Felt like a king that's lost his people [sic]".  Counsel for the plaintiff submitted that I should take into account my observations of the plaintiff while giving evidence.  The plaintiff gave unchallenged evidence that he did not want to come to Court.  In the course of his evidence-in-chief he was explaining his apprenticeship qualification and complained of feeling nervous and unsettled, "very sick" and "like I have a … heart attack … my heart has constant palpitations".  A few minutes later he appeared agitated when recounting the accident, and in response to a question from his counsel about whether he wanted a break, said, "No, it doesn't get any easier".  Later he again complained of feeling sick and that his heart was having "palpitations".  When asked if he may be sick in the witness box, he said he had an "empty stomach" and "won't do it in the courtroom".  Dr Ratcliff, when asked about the plaintiff's conduct in the witness box, indicated that "it shows that it's [the condition] very persistent – we're quite a number of years after the accident and he's still reacting emotionally to it, even a memory of it, or a question about it".  I treat this aspect of the plaintiff's evidence with circumspection.  Although it was not expressly put to him that he was not in fact feeling as he described, I do not attach much weight to what he said and how he acted.  For much of his evidence, including while being pressed in cross-examination, the plaintiff appeared to me to have little difficulty, even when describing matters that may be expected to lead to anxiety, and was well able to defend his evidence.

1. I also think that there is some merit in the defendant's contention that Mr Kent led others, including Dr Ratcliff, to believe that he was, before his apprenticeship, in the regular Army, rather than the Army Reserve.

1. The evidence persuades me that there has been a gradual improvement in Mr Kent's condition, particularly over the year or so prior to the trial.  Dr Ratcliff's conclusion, expressed in his most recent report, that Mr Kent's condition is likely to remain as it is now, and that it is now unlikely that Mr Kent will return to regular paid employment, is undermined somewhat by the evidence that Mr Kent's life and capacity is not as restricted as Dr Ratcliff had assumed.  I am satisfied that Mr Kent is still troubled by social avoidance and avoidance of driving.  However I find the evidence of his driving, both as driver and passenger, which he described during the trial, as was shown on the surveillance film and as described by Mr Kent and Mr Skerratt, is inconsistent with the level of avoidant behaviour he described to Dr Ratcliff and as indicative of a considerable improvement.  I have the same view about the plaintiff's increased social interaction.  I think that there has not only been improvement in his condition, but his conduct indicates the prospect of further improvement.  There remains of course the prospect of relapse, if for example, Mr Skerratt was no longer able to provide encouragement and support, but I am quite unable to reconcile his evidence about the extent of his current problems with other evidence.  I would refer in particular to the following aspects of the evidence:

(a)I accept the evidence of Dr Sale that persons who suffer severe PTSD arising from a motor vehicle accident will exhibit avoidant behaviour in relation to travel in motor vehicles.  They are often reluctant to travel in motor vehicles and tend to be more comfortable if driving rather than as the passenger.  They would be, almost invariably, extremely conscious about matters pertaining to road safety.  The evidence does not support the level of avoidance complained of by Mr Kent.  It establishes that he commonly drives between his home and Gravelly Beach.  To do so he drives past the scene of the accident at Brady's Lookout.  He was asked whether he might avoid the anxiety that he feels when doing so by taking an alternative route.  He agreed that an alternative route was available.  I found his explanation as to why he did not take the alternative as unconvincing and evasive.  The surveillance video showing him travelling in cars, both as driver and passenger, is inconsistent with the level of anxiety he says that he experiences.  Some of the film is taken from quite close range.  He exhibits an open and relaxed posture.  He smokes cigarettes while driving and engages in conversation.  He travels as a passenger with his elbow out of the open car window.

(b)The driving involved in the camping trip with his brothers to Binalong Bay and Coles Bay demonstrates, to me, an ability to drive beyond that which he explained to others, particularly the medical practitioners. 

(c)Whilst I accept that he continues to suffer some social avoidance, and that his ability to socialise is assisted by the encouragement and support of his friends, mostly Mr Skerratt, the surveillance of his recent social activities discloses a person sitting in a very public place, in proximity of many other people, laughing, talking, and gesturing demonstratively, with an open and relaxed posture.  I accept that it is difficult, with certainty, to form conclusions about the plaintiff's state of mind from such observations, but they seem to me to be inconsistent with the level of anxiety he claims.

(d)The plaintiff asserted during the trial, and on earlier occasions, that one of the reasons that he did not return to work with Mr Kidd, was a requirement that he travel in the back of the work van with the tools, without a seatbelt.  I do not accept his evidence about that.  It is contrary to the evidence of Mr Kidd whose evidence I accept as honest and reliable.  However I do not place much reliance on this aspect of the plaintiff's evidence.  He made such assertions from an early stage and I would infer that he was motivated to excuse his general reluctance to return to work.

1. Counsel for the plaintiff submitted that it was incumbent upon counsel for the defendant to specifically put to Mr Kent that his evidence about the nature and extent of his PTSD was not accepted, and that he was exaggerating or fabricating his evidence.  I accept that on some occasions specific challenge was not made, but the rule that in cross-examination it is necessary to put to an opponent's witness the case to be relied upon in contradiction to his or her evidence, is essentially a rule of fairness.  It will not be necessary in the normal course to put to a party matters that are clearly in issue in the proceedings; Stern v National Australia Bank Ltd (2000) 171 ALR 192. The honesty and reliability of the plaintiff's evidence was, from the outset, clearly in issue in these proceedings. My findings involve no unfairness to the plaintiff.

1. I do not accept all of Dr Sale's criticisms of the plaintiff's contentions.  Dr Sale relied, in his expression of reservation about Mr Kent, on some matters which are not supported by the evidence.  For example, Dr Sale referred to Mr Kent complaining that he had received a broken arm in the accident.  There was no evidence that Mr Kent made such a claim.  Similarly, Dr Sale relied upon having been shown a photograph of Mr Kent posing in front of a damaged car as an indication that Mr Kent did not suffer from the level of avoidance that he complained of.  I do not share Dr Sale's reservations about this.  The evidence discloses that the photograph shown to Dr Sale was taken at a very early stage at a time where other evidence supports Mr Kent's complaints of symptoms consistent with PTSD.  Dr Sale also asserted that he had been informed that Mr Kidd had told an investigator that Mr Kent "didn't want to work".  If that statement was made, it misrepresents Mr Kidd's evidence.  I have set out Mr Kidd's evidence earlier in these reasons. 

1. It is necessary that I should also make findings about the conflict between the evidence of Miss Percy and Mr Kent.  To the extent there is any conflict between their evidence, I prefer the evidence of Miss Percy. I found her to be an impressive witness.  Her evidence was clear and persuasive, in contrast to that of Mr Kent which was, on the same subjects, vague and at times evasive or unresponsive. I am satisfied that prior to the accident Mr Kent acted in a physically and emotionally abusive manner towards Miss Percy as she described.  He was jealous and suspicious and sometimes violent.  He drank and used cannabis more than he claimed in his evidence.  That he used cannabis more than he said he did tends to be confirmed by the evidence of his mother.  However not much assistance to the defence arises from this.  It is, to some extent, adverse to his credit.  I am not satisfied that the tendency to anger he claims is attributable to the accident.  However that is not one of his main complaints and I am satisfied on the balance of probabilities that Mr Kent's behaviour and abuse of alcohol and drugs deteriorated following the accident, despite Miss Percy's initial reluctance to admit that was so. Their relationship ceased only three months later and thus she is unable to provide any assistance about his condition after then.  

Damages for pain and suffering and loss of amenities

1. For Mr Kent, the psychiatric consequences of the accident are far greater than its physical consequences.  I have detailed my findings about the mental harm the defendant's negligence has caused and will continue to cause.  Before the accident Mr Kent was a well presented young man who got on well with his family and friends.  He was not perfect.  He was violent towards his girlfriend at the time.  He abused alcohol and drugs to some extent.  But he was in relatively secure employment and was well regarded by his employer and others he worked with.  In the five or so years since, he has been troubled by a number of psychological symptoms.  He has not been back to work.  He has led an isolated existence, spending almost all of his time either at home or at his mother's home, with very limited relationships with others.  He experiences intrusive memories of the accident and his sleep is disturbed.  He has avoided driving although I have found this to be improving.

1. I have explained my findings about Mr Kent's improvement.  I think there is prospect of future improvement.  With the passage of time and hopefully further treatment, if he agrees to undertake it, the improvement will continue.  Nevertheless, it is likely that he will suffer symptoms, albeit not as debilitating as he claims, indefinitely.

1. I am not satisfied that Mr Kent's buttock injury causes anything beyond a mild ongoing inconvenience.  To the extent that his perception of pain in his buttock is influenced by his psychiatric condition, I conclude that it is likely to improve in a corresponding manner as his mental health improves.  I would allow $70,000 for damages to compensate him for his pain and suffering and his loss of amenities.

Past medical expenses

1. All of the plaintiff's past medical expenses have been met by the Motor Accidents Insurance Board and no claim is made.

Future medical expenses

1. It is unfortunate that the plaintiff has not, since ceasing treatment with Dr Hyde, undertaken treatment for his condition other than by occasional consultations with a general practitioner.  He believes that psychiatric or psychological treatment has not and will not help him, and that he is better able to help himself. I accept Dr Ratcliff's opinion that the plaintiff's avoidance of treatment is a consequence of his condition.  He continues to avoid any situation which may cause anxiety.  Talking to practitioners about his condition and the factors that stimulate his anxiety, including therapy involving progressive desensitising exposure to those stimuli are examples of situations he wishes to avoid.  Nevertheless, Dr Ratcliff and Dr Sale both consider treatment advisable.  I consider that, with the passage of time and further natural improvement, the plaintiff's attitude to future treatment may change.  Some allowance for it should be made.

1. The plaintiff presently has the following medication: Cymbalta 2 x 60 mg per day and Seroquel 2 x 200 mg per day.  The present cost of the Seroquel is $37.05 per week, and the Cymbalta is $18.06 per week.  The plaintiff's life expectancy is 58 years.  The discounted present value (by application of the 5% discount rate prescribed by the Civil Liability Act, s28A, with allowance for mortality) of the loss of $55.11 per week for 58 years is $55,462.70.

1. The plaintiff makes claim for the cost of periodic review by his general practitioner.  The plaintiff claims that six visits per year at a cost of $60 for each visit will be necessary for the plaintiff's life.  The discounted present value of that loss is $6,924.28.

1. The particulars also include a claim for the cost of desensitisation at $10,000.  The particulars also claim psychiatric or psychological treatment at the annual cost of $800 for four visits per year for the plaintiff's life, the discounted present value of which is $15,478.43.  Thus, a total claim of $25,478.43.

1. I do not allow these claims as particularised.  Other than to renew prescriptions, the evidence does not justify a finding that so many visits to a general practitioner are necessary, even at present.  Because of my findings about the plaintiff's likely continued improvement, I think it unlikely that visits to a general practitioner will continue to be required for his life, at least at the frequency claimed.  Nevertheless some allowance is reasonable.  I would allow $3,000.  As to the claim for cost of future medication it is likely he will continue to require medication, even allowing for future improvement, as it may be necessary to sustain the improvement.  I would, doing the best I can to assess what the future may hold, discount the claim to allow for the prospect that medication will not be required, at least at the present level, for his entire life.  I would allow $30,000, just over half the sum claimed.  The plaintiff is currently avoiding psychiatric or psychological treatment.  Unless his view about treatment changes then the cost of it will not be incurred.  Nevertheless I think I should allow for the prospect that the plaintiff will at some point accept that treatment is in his interests, and undertake it in some form.  Taking into account the chance that this will occur, I allow $12,000, about half the sum claimed.

1. In summary I allow the sum of $45,000 for future medical expenses made up as:

·     general practitioner	$3,000
·     medication	$30,000
·     psychiatric or psychological treatment	$12,000
$45,000

Impairment of earning capacity

1. Prior to the accident there was no physical or other health impediment to Mr Kent fully utilising his capacity to work.  He completed a basic secondary education and demonstrated his ability to complete an apprenticeship.  His use of alcohol and cannabis had not impacted on his employment.  Because I have found that Mr Kent's pre-accident use of alcohol and cannabis was greater than he contended, there is, in my assessment, some prospect that it may have impacted on his employment, but that the prospect was small.  In his evidence Mr Kent said that he intended, when his apprenticeship was completed, to either continue as an employee floor coverer if the wages were good enough, or work as a subcontractor.  His employer at the time of the accident, Linton Kidd, was called by the defendant.  Mr Kidd's evidence was that Mr Kent was "a good kid … he done his job" and that he liked him.  He said that Mr Kent had had good people skills and related to the customers well.  He also said however that Mr Kent was, "typical of young kids these days, they're a little bit mixed up".  He wanted to "get rich quick" although he did not like working overtime or weekends.  Mr Kent was cross-examined about that.  When it was suggested to him that he did not work weekends, he said he worked "lots of weekends" for Mr Mottam, but he agreed that he had probably not done so for Mr Kidd. He continued, "… yeah, I worked hard enough on the week days, not getting paid overtime".  Mr Kidd said that Mr Kent told him a couple of times that he wanted to "get out of the trade and he wanted to go and do security work".  His mother said he liked his apprenticeship work.  Dr Ratcliff concluded that Mr Kent did not appear to be highly committed to the floor covering work and had told him that he "liked dealing with the people but not the work particularly".

1. In the years ended 30 June 2007, 30 June 2008 and 30 June 2009 Mr Kent's taxable income was $22,996, $28,288 and $27,574 respectively.  During those years he had not completed his apprenticeship.  At the time of the accident Mr Kent was earning $479 per week net as a fourth year apprentice.  He received his trade qualification in June 2009.  Mr Kidd's evidence is that fully qualified employees currently earn about $880 per week gross "or something like that" plus overtime or weekend work if it is available which may take the gross earnings over $1,000 per week.  He explained also that subcontractors are paid at a rate per metre, and that how much they earn depends on how good they are at the job.  He said that "good subbies" may earn about $1,500 per week but are then required to pay overhead expenses such as wages for other employees.

1. Rodney Stinson is a labour market analyst and was called by Mr Kent.  His report dated 6 June 2013 was tendered as part of his evidence-in-chief.  Mr Stinson reported that demand for floor covering tradesmen in Tasmania in general, and in the Launceston area in particular, was unstable in that it varied quickly in response to changing industry and economic conditions. He reported unevenness in employment in the trade leading to a relatively high rate of part-time employment.  Mr Stinson's report sets out what, according to his research and opinion, has been the market rate earnings for floor finishers in Tasmania for the year ended 30 June 2010 to the present.  His figures take into account allowances and overtime but not superannuation.  The figures are divided into categories according to area and age.  The particulars of claim use the figures for "Total Tasmania" and the relevant age categories are age 20 to 24 and age 25 to 29.  Adjustment is made to the average figures in the younger of those age groups to take account that some participants will still be apprentices. Mr Stinson's report indicates increased earnings for tradesmen in the age groups 30 to 44 and 45 and above.  Mr Stinson's evidence, applying the agreed tax rates, taking into account that Mr Kent turned 25 on 11 September 2011, is that Mr Kent, if employed full-time as a qualified floor finisher, could have expected to earn, on a weekly basis:

·     for the year ended 30 June 2010, $791 gross or $677.50 net;

·     for the year ended 30 June 2011, $801 gross or $692.61 net;

·     for the year ended 30 June 2012, $884 gross or $746.14 net;

·     for the year ended 30 June 2013, $971 gross or $808.08 net;

·     for the year ended 30 June 2014, $971 gross or $808.08 net.

1. Mr Kidd's evidence is that from the time of the accident until about the beginning of 2013 his work had been busy. That evidence was not challenged.  He said also that the for seven or eight months before the trial, work had been very quiet.  He had considered putting off his employees but had not done so and work had started to pick up again.

1. The defendant called evidence from Kevin Bramich.  Mr Bramich is a principal of the business Echelon Security.  He provided the training to Mr Kent which resulted in him completing the requirements for Certificates II and III in Security Operations in 2009 and 2010.  Mr Bramich explained that security work involved a broad range of activities including concierge work, patrol work and security monitoring.  Such work required a "genial sort of person" – someone who "can interact with people".  His firm provided security workers to hospitals, companies and airports.  He explained that some types of security work is relatively sedentary involving mostly the monitoring of banks of security screens.  Other security work, such as crowd control at night clubs, hotels and other licensed establishments, is more confrontational. He described security work, other than crowd control work, as generally not onerous, although he also agreed that those engaged in the work had to "expect the unexpected".  He recalled Mr Kent as a friendly person suited to working with people.  Mr Bramich said that work was available and that about $25 per hour was a medium average pay rate, while those who worked weekends earned $35 to $42 per hour.

1. In assessing damages for impairment of earning capacity social security benefits, past and future, are not to be taken into account: Delphin v Martin [2012] TASSC 13 and Partridge v Hobart City Council [2012] TASFC 3.

Past impairment of earning capacity

1. There is no reason for me to conclude that, assuming Mr Kent wished to continue as a floor coverer and finisher, Mr Kidd would not have continued to employ him. The defendant pointed to Mr Stinson's evidence about the high rate of part time work in the industry, but Mr Kent was employed full-time, was well regarded and the employment remained available.  It is possible that Mr Kent may have decided to work as a subcontractor.  The evidence suggests that efficient and motivated contractors may have earned a higher income.  However the evidence of Mr Kent's lack of strong commitment to the trade and his disinclination for weekend work, combined with the lack of evidence about the expenses he would have incurred, do not satisfy me that there was a real chance that he would have earned a higher net income in that capacity.  I think it much more likely that he would have continued as an employee in any event.  There was some prospect that Mr Kent would have pursued employment in security work, but I do not regard that prospect as great in the short-term at least.  Even if he had done so, the earnings were likely to be comparable.  There is a chance that, despite his reluctance, Mr Kent would have performed some paid overtime with Mr Kidd.  There is also a chance that he may have decided to move out of the floor covering trade to do something else, and perhaps even experienced periods of unemployment.  I consider that I should also allow for a small chance that his mental health may have deteriorated for some reason other than the defendant's negligence.

1. No claim is made by the plaintiff for superannuation. That is because of the plaintiff's evidence that he may become a self-employed contractor, in which case employer contributions to superannuation would not have been made.  For the reasons I have explained I regard that as the less likely eventuality. The submission of counsel for the plaintiff is that the entitlement to superannuation should be provided for as a positive contingency in the assessment of lost earning capacity.  Ordinarily a claim for loss of superannuation benefits should be particularised.  In this case there is no evidence about loss of superannuation benefits.  Often claims are made on the basis that loss of superannuation benefits will be proportionate to lost earnings.  Had he continued as an employee the plaintiff would have been entitled to compulsory employer contributions at the rate of 9% until 30 June 2013, and since then at the rate of 9.25%: Superannuation Guarantee (Administration) Act 1992 (Cth). Notwithstanding that the claim has not been particularised, I think I should take it into account but only as a factor relevant to contingencies as the plaintiff has submitted.

1. Mr Stinson's figures allow for overtime. Taking that into account, they are generally consistent with what Mr Kidd said that Mr Kent would earn had he continued in employment with him.

1. I have decided that the proper way to assess the claim for past economic loss is to use Mr Stinson's figures.  I would have applied a discount of 5% to the claim for past loss to allow for the chance that the plaintiff would not have worked overtime consistently or at all, changed to lower paid employment, or even experienced periods of unemployment.  But that discount is balanced out by the loss of the superannuation benefits he would have received had he remained in employment and the chance that he may even have earned more than average.  So calculated the claim is as follows:

14 March 2009 – 30 June 2009	15 weeks @ $479.00 net	$7,185.00
1 July 2009 – 30 June 2010	52 weeks @ $677.50 net	$35,230.00
1 July 2010 – 30 June 2011	52 weeks @ $692.61 net	$36,015.72
1 July 2011 – 30 June 2012	52 weeks @ $746.14 net	$38,799.28
1 July 2012 – 30 June 2013	52 weeks @ $808.08 net	$42,020.16
1 July 2013 – 7 March 2014	35.7 weeks @ $808.00 net	$28,845.60
$188,095.76

1. I have considered whether, in light of the findings I have made concerning his improvement, the plaintiff has, to date, failed to exploit a retained earning capacity.  The defendant did not submit I should make such a finding.  I do not regard his improvement to date as sufficient to demonstrate such a retained capacity.  As to the future, I have a different view.

1. From the sum I have calculated is to be deducted the net benefit he received from the Motor Accidents Insurance Board for disability allowance of $24,687.11.  Thus I allow $163,408.65 for past impairment of earning capacity.  

Impairment of future earning capacity

1. In assessing the damages for impairment of future earning capacity I will adopt a mathematical approach rather than attempting to arrive at a result by a process of intuition; McLennan v Luttrell [2006] TASSC 44 at [32].

1. I will start by assessing the amount the plaintiff would have been earning at the date of the trial had it not been for the defendant's negligence.  I think the most likely scenario is , but for the accident, he would have remained a floor finisher in the employment of Mr Kidd.  I have already referred to the factors that lead me to doubt his aptitude for self-employment, at least in the short term.  According to Mr Kidd, he paid qualified floor finishers about $880 gross per week.  Overtime may have taken that over $1,000 per week gross.  Mr Stinson assessed the average weekly gross full-time earnings for floor finishers for the whole of Tasmania in the age group 25 – 29 as $971 per week gross.  For those reasons I have concluded that I should use as a starting point that at the time of the trial Mr Kent would have been earning $808 net.  

1. The Commonwealth legislation presently in force provides that, subject to his means, the plaintiff will become entitled to an age pension at age 67: Social Security Act 1991 (Cth), s23(5D). The plaintiff is 27. The amount required to compensate the plaintiff for loss of $808 per week to age 67 adopting the 5% discount rate prescribed by the Civil Liability Act, s28A, is:

$808 x 917.6  =  $741,420.80.

The multiplier of 917.6 is the value of the loss of $1 per week for 40 years with no allowance for mortality and comes from a table from consultant actuaries Cumpston Sarjeant, which the parties agreed I should use, and which was provided by them.  No discount tables allowing for mortality were made available.

1. It is necessary to allow for adverse contingencies.  It is common in Tasmania to discount damages for future economic loss by 15% to allow for mortality, illness, injury, unemployment, underemployment, early retirement, voluntary absence from the workforce and strikes: McLennan v Luttrell (above) at [33]; Partridge v Hobart City Council (above).  Both of the cases to which I have referred considered the appropriateness of that discount rate.  In Partridge, the Full Court seemed to accept that a 15% discount is generous to a defendant in an ordinary case.

1. This case requires consideration of a working life of a 27-year-old man to a pension age of 67.  It is to the plaintiff's credit that he obtained and completed an apprenticeship, but his career in the trade was at a very early stage.  He had already expressed an inclination to look for work in other areas, and was reluctant to perform overtime and weekend work.  He might have been able to find employment in security, but I have little evidence about the availability or long-term security of such work.  Had he chosen to leave his trade he had no other educational or trade qualification, apart from his training in security work (in which he had no experience), that would have made it easy for him to secure employment in other areas.  It is also relevant that had he stayed as a floor finisher throughout his working life, the physical demands of that trade may have impacted on his ability to work to age 67.  I do not think it very likely that he would have continued working in the trade to that age.  His employer, Mr Kidd, was aged 44 and, he said, "still on the tools".  His plan was to "do the job as long as I can", but he said he would love to retire were he in the financial position to do so.  The combination of these factors leads me to conclude that there would have been a greater than average prospect, over the plaintiff's entire working life, of periods of unemployment or underemployment. 

1. I think that I should also make allowance for the possibility that some other incident, apart from the defendant's negligence, may have caused a decline in the plaintiff's mental health.  Both Dr Sale and Dr Ratcliff are of the opinion that the motor vehicle accident that he experienced in his childhood is likely to have predisposed him to development of this condition.

1. Not all contingencies are adverse.  Had he remained in employment he would have received employer contributions to superannuation to which I have already referred, but for which no separate claim is made.  Allowance should be made for likely future increases in income.  I am not persuaded he could have earned any more had the plaintiff chosen to undertake security work.  The evidence suggests the prospect of equivalent earnings but not a great prospect of higher earnings.  Mr Stinson indicated that average gross earnings for floor finishers increased to $1,295 for the age group 30 – 44, and $1,458 for age 45 plus, with an average for all ages of $1,089.  Other avenues of opportunity may have opened up to him but his pre-accident education and aptitude do not lead me to conclude that he would have easily earned higher, or even equivalent, income in other trades or occupations.  It seems to me likely that his capacity to earn was best exploited by continuing in the trade in which he had qualified.  It may be that he would not always have been employed.  It may be that with maturity and experience he could have successfully worked as a subcontractor.

1. Balancing all of these factors, both adverse and favourable, I would apply a discount of 15%.

1. I next consider the plaintiff's retained earning capacity.  I accept that Mr Kent's response to his condition, for example his current reluctance to undertake treatment and unwillingness to accept readiness for work, arises from the condition itself and is thus caused by the defendant's negligence; Medlin v State Government Insurance Commission (1995) 182 CLR 1. Nevertheless, although the circumstances of this case are not identical to those in Donjerkovic v Adelaide Steamship Industries Pty Ltd (1980) 24 SASR 347, I would assess the plaintiff's damages on the basis that he can, allowing for his condition, be expected to display an intermediate standard of fortitude and not passively submit to its effects; refer Porter J in Partridge v Hobart City Council [2010] TASSC 62 at [262], [263] who also made reference to Falzari v Brown [1998] TASSC 57 at [27].

1. Assessment of this aspect of the claim depends substantially on my assessment of the true extent of the plaintiff's current incapacity and the likelihood of improvement.  I canvassed those issues in detail earlier in these reasons.  I regard it as unlikely that Mr Kent will be wholly incapacitated for effectively the remainder of his working life.  He is still relatively young.  Dr Ratcliff's pessimism was based on a history given by Mr Kent of a more restricted life than I have found to be the case.  Dr Sale did not offer a prognosis.  He expressed concerns about the genuineness of Mr Kent's condition.  I must, doing the best I can, make findings about what the future holds based on all the evidence.  I regard it as probable that, with the passage of time, Mr Kent's condition will continue to naturally improve even without treatment.  I regard the prospect of improvement as even greater if he agrees to undergo the treatment that I regard as obviously desirable.  The academic literature in evidence suggests that only a very small percentage of sufferers present disabling symptoms over a period equivalent to Mr Kent's working life.  In general it tends to support Dr Sale's evidence that a reduction in symptoms can generally be expected over time, and that the condition is not inevitably chronic, but can "wax and wane".

1. I am mindful that it is now about five years since the accident. Mr Kent continues to experience symptoms that, until now, have disabled him from employment. They still do so.  Nevertheless, I regard it as likely that he will be able to resume remunerative work in some capacity.  It is principally his avoidance of driving and social isolation which have prevented him from resuming work as a floor finisher.  He has demonstrated a much improved ability to cope with car travel.  I find his social aversion, though continuing, is reduced and likely to continue to improve.  As I earlier expressed, I do not regard his buttock injury as causing anything beyond a mild ongoing inconvenience, and that his perception of pain in his buttock is likely to improve in a corresponding manner as his mental health improves.  Taking all those factors into account, I find him to have a retained earning capacity of 40%.

1. So assessed I would calculate his claim for future economic loss as follows:

Amount required to compensate for loss of $808 per week to age 67	$741,420.80
Less allowance for contingencies (15%)	$111,213.00
$630,207.80
Less retained earning capacity (40%)	$252,083.12
$378,124.68

which I would round to $378,000.00.

Conclusion

1. I would assess the plaintiff's damages as follows:

Pain and suffering and loss of amenities	$70,000.00
Future expenses	$45,000.00
Past expenses	NIL
Past economic loss	$163,408.65
Future economic loss	$378,000.00
TOTAL	$656,408.65

1. I order that judgment be entered for the plaintiff against the defendant for $656,408.65.