Kingston v Insurance Commission of Western Australia - [2007] WADC 216

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: KINGSTON -v- INSURANCE COMMISSION OF WESTERN AUSTRALIA [2007] WADC 216

CORAM: YEATS DCJ

HEARD: 6-9 AUGUST 2007

DELIVERED : 17 DECEMBER 2007

FILE NO/S: CIV 384 of 2003

BETWEEN: TREVOR WAYNE KINGSTON
Plaintiff
AND
INSURANCE COMMISSION OF WESTERN AUSTRALIA
Defendant

Catchwords:

Damages - Motor vehicle accident - Liability admitted - Loss of earning capacity - Mitigation of loss - Retained earning capacity

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943 s 3C(1)

Result:

Total award - $780,764

Representation:

Counsel:

Plaintiff: Mr J G Staude
Defendant: Mr D R Sands

Solicitors:

Plaintiff: S C Nigam & Co
Defendant: Talbot & Olivier

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

Bowen v Tutte (1990) Aust Torts Reports 81-043
Dell v Dalton (1991) 23 NSWLR 528
Fazlic v Milingimbi Community Inc (1982) 150 CLR 345
Fontaine v Quality Platers (1994) 12 WAR 71
Golden Eagle International Trading Pty Ltd v Zhang [2007] HCA 15
Graham v Baker (1961) 106 CLR 340
Husher v Husher (1999) 197 CLR 138
Insurance Commission of Western Australia v Weatherall [2007] WASCA 264
Kalavrouziotis v Howel & Kalavrouziotis; unreported; FCt SCt of WA, Library No 98021
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Pene v Murphy [2004] WASCA 103
Plenty v Argus [1975] WAR 155
Thomas v Bass [2006] WASCA 59
Thomas v O'Shea (1989) Aust Torts Reports 80-251

YEATS DCJ: The plaintiff claims damages for injuries he suffered as a result of a motor vehicle accident on 2 March 1997. The plaintiff was a passenger in a taxi which was involved in a head‑on collision with another vehicle. The driver of the other vehicle is deceased and the plaintiff's action is against the Insurance Commission of Western Australia.
The defendant admits liability and the case involves an assessment of damages. The principle issue is the plaintiff's retained earning capacity, if any. The defendant submits that the plaintiff retains a considerable earning capacity and has pleaded that the plaintiff has failed to mitigate his loss by failing to use reasonable endeavours to obtain alternative employment. The plaintiff is 40 years of age. He was 29 years of age at the time of the motor vehicle accident.

Background

The plaintiff was born in Cottesloe, Western Australia, on 6 September 1967. He attended Rockingham High School where he was involved in an alternative trades course. He left school after Year 11 and did a pre‑apprenticeship as a motor mechanic at Fremantle TAFE, but his interest was always in truck driving. He gave evidence that his parents were both truck drivers. After his apprenticeship finished in 1988 he worked for Ford for six months but then began driving as a courier with Red Hot Taxi and Superior Couriers in light delivery work. He had a short employment as a tyre fitter/wheel aligner but in August of 1989 he commenced employment with Brambles WA as a truck driver carting cement mostly in the metropolitan region but with some country work. He retained that employment until he was made redundant in 1998. He was employed by Brambles WA at the time of the motor vehicle accident in 1997.
The plaintiff was married in 1992 and has three children - a boy 14 years old and two girls, 12 and 9. He and his wife Jennifer met at ballroom dancing classes in 1983 and married in 1992. At the time of the motor vehicle accident Jennifer was working part-time some three days a week, but she was unable to continue in her work because she was required to care for her husband after the accident. In the motor vehicle accident the plaintiff suffered a severe injury to his left leg and was taken by ambulance to the Fremantle Hospital where x‑rays and surgery took place under the care of Mr Robert Genat, orthopaedic surgeon. He suffered a compound fracture of his left leg, a laceration to his left temple and bruising and spent seven or eight days in hospital. During surgery a nail had been put into his left tibia, but he had great difficulty because the fracture would not join. The wound was so large that they were initially unable to put it in a cast. Eventually his left leg was put in a fibreglass cast on 26 March 1997. The cast was removed and a new fibreglass cast applied in April of 1997. He was some six months in a cast. The plaintiff had physiotherapy during 1997, but his fracture did not join properly so he became a private patient of Mr Genat at his rooms in Fremantle. He had further surgery in August of 1997 when Mr Genat removed the nail and a screw and plate were fixed. This involved a bone graft harvested from his hip. After that a plaster cast was applied which remained until September 1997.
The plaintiff underwent physiotherapy treatment through the remainder of 1997 and was certified fit to return to his pre‑accident employment on 5 January 1998. On 8 January 1998 he returned to work with Brambles on a trial basis and two days later was involved in another motor vehicle accident where he received an open wound to his left knee which was closed with sutures. I am told that that new wound healed quickly and had no impact upon his lengthy recovery from the first motor vehicle accident.
On 2 February 1998 he was again certified fit to return to work as a truck driver. After leaving his employment with Brambles the plaintiff was employed by Hardings Transport as a truck driver and from May 1998 to October 2000 worked for Armstrong Transport as a road train operator. During 2000 he worked for John Brewer Transport as a truck driver and with DSR Scrap as a truck driver. In 2001 he was employed by Jayde Transport and later by Global Transport as a truck driver. He returned to work with Jayde Transport in 2002 and was also employed by another road transport company as a truck driver.
Between 2003 and July of 2005 the plaintiff was employed with Integrated Container Logistics (ICL) as a road train driver. That employment ended on 15 July 2005. On that day the plaintiff was admitted to St John of God Hospital Murdoch where he underwent a high tibial osteotomy on his left knee which was fixed with a plate and four screws. He remained in hospital for four days but had problems afterwards with profuse bleeding from the wound requiring a number of hospital attendances. In August 2005 he experienced increased pain and swelling in his left knee and was diagnosed with deep vein thrombosis (DVT). He was then medicated and underwent blood tests and regular injections. After the initial injections the plaintiff's wife was taught to administer the injections on a daily basis.
During 2005 the plaintiff continued physiotherapy and blood tests for the DVT until on 20 December Mr Genat removed one of the screws and the plaintiff attended his own general practitioner, Dr Brambley, for blood tests. He had further day surgery in January of 2006 to remove another screw and washer and continued physiotherapy and blood tests through January and February of 2006 until on 22 May 2006 he was informed that the blood clot causing the DVT had dissolved. Since that time, between 22 May 2006 and the time of trial, the plaintiff has not returned to work but has been involved in a number of medical reviews.

Plaintiff's present condition

The plaintiff is currently on leave without pay from ICL at his request. He believes he cannot return to work until Mr Genat certifies him fit. The plaintiff gave evidence that he still suffers hip and lower back symptoms as well as having difficulty walking. He describes a persistent pain in his left knee like a knife inserted into it. He limps when he walks. But he can walk for 15 to 20 minutes before needing to sit down. His hip problems are a pinched nerve which settles with rest and his lower back problems can be relieved by rest and stretching.
The plaintiff's recreational activities have been severely limited by his left leg injury. He and his wife were both involved in ballroom dancing but can no longer do that. They were also involved in outdoor water sports. The plaintiff used to sail Surf Cats and involved himself in windsurfing. He played basketball and football socially and also rode a motorbike. Because of his left leg injury he is unable to do any of those things any more. He described his current recreation as a bit of fishing if someone gives him a lift because he cannot walk on to the beach. He has to be careful to walk on even ground. He also spends a good deal of time at the Rockingham football club. He has arranged as a volunteer to answer the alarm at night, to help organise game days, to manage the seniors property and to help out where he can. In his evidence‑in‑chief he mentioned doing that for about 10 hours per week. Under cross‑examination, however, he indicated that he helps behind the bar if he is needed and that the bar is open at the footy club from 7 pm to 11 pm on Tuesday, 5 pm to 11 pm on Wednesday, 5 pm to 9 pm on Friday and after the seniors' game on weekends - sometimes until 11 pm.
The plaintiff's evidence was supported by that of his wife who said on a bad day he spends the day with his leg elevated at home, but if he has a good day he pops down to the football club and helps out. She estimated he spends eight to 12 hours each week at the football club; but the details given by his wife included Tuesday night darts at the club where he might help out from 7.00 to 11 pm as well as helping with the seniors' games on Sunday, whether they are at home or away, helping with equipment, the jumpers and the balls. If he is not watching his daughter play netball, he may go down to watch his son play football on Saturday, but he takes a chair out to sit on or else remains in the clubhouse. On the day before the trial commenced he had been at the football club from about 10.30 am until about 10 pm that evening watching the football but not necessarily doing anything.
The plaintiff gave evidence that he presently takes four or five Panadol per week and a Digesic three or four times per week as needed. The Digesic is provided on prescription. There was also some evidence of him using a Voltaren topical cream on his leg.

Use of substances

There was a considerable amount of evidence about the plaintiff's intake of various substances. He admitted in evidence that he smokes 30 to 40 cigarettes per day, that he drinks 12 cans of full‑strength beer per week or four pre‑mixed Bundy and Coke. But besides all that he admitted that since he was about 15 years old he smokes marijuana every second day, late at night, at home.
Mr Genat noted in his evidence that smoking does not help a fracture to unite or soft tissue injury to heal. And under cross‑examination Mr Genat admitted that smoking increases the risk of DVT. In his evidence Dr Andrew Marsden, the occupational physician, indicated that the plaintiff's chances of employment in the mining industry were virtually nil if he did not stop using marijuana. According to Dr Marsden there was a zero tolerance for substances such as marijuana in mine employees. Urine tests are frequent and regular. Another problem highlighted by Dr Marsden was that the use of marijuana can induce a sort of indifference on the part of a user as well as unlocking psychoses. There was no evidence of any psychosis in this case, but Dr Marsden's evidence was that the regular use of marijuana can suppress motivation.
Dr Frederick Ng, a psychiatrist, agreed under cross‑examination that the regular use of marijuana does contribute to a lack of motivation, but the small amount that the plaintiff was smoking would in Dr Ng's opinion not severely affect motivation. The psychiatric evidence came in very late in this case. Dr Ng's report was dated 18 July 2007 and the consultant psychiatrist called by the defendant, Dr Jonathon Spear, did not receive Dr Ng's report until the day he was interviewing the plaintiff. Dr Spear diagnosed the plaintiff initially as suffering from dysthymic disorder but later, after he had read Dr Ng's report, he changed his diagnosis to include cannabis abuse. According to Dr Spear, when he interviewed the plaintiff the plaintiff said he used cannabis occasionally and it was only when he read Dr Ng's report that he realised that the plaintiff uses cannabis every second day. The reasons Dr Spear noted for his diagnosis of cannabis abuse was the regular usage and the adverse impact on the plaintiff's life and employment, including his irritability and the effects on his motivation. Dr Ng disagreed with that. Dr Ng did not believe the use of cannabis contributes to the plaintiff's anxiety because the plaintiff was not pervasively anxious in the sense of being anxious or fidgety or walking around. Dr Ng said that in his opinion a diagnosis of "cannabis abuse" meant an inability to stop, a person with cravings and withdrawal symptoms. Dr Ng's evidence was that he did not ask the plaintiff those questions and he doubted whether Dr Spear had done so.
In comparing the two psychiatrists I formed quite a negative view about Dr Ng's evidence. His evidence about the plaintiff’s use of cannabis seemed to be based on what other patients had told Dr Ng. He failed to answer a question in cross-examination suggesting he did not know how much cannabis the plaintiff was smoking (T 180). It was only under cross‑examination that Dr Ng agreed that smoking cannabis regularly as the plaintiff did was associated with anxiety and depressive symptoms but Dr Ng denied the plaintiff’s regular use was likely to have caused or contributed to his present psychiatric symptoms (T 181). Dr Ng’s reasons for that opinion were not properly reasoned or persuasive. I was concerned he may be tailoring his opinion to suit the party who called him. Under cross-examination some of his answers simply did not make sense (T 184). On the other hand, I found Dr Spear’s evidence to be consistent and well reasoned. I accept Dr Spear's opinion regarding the cannabis use - that it is likely to have contributed to the plaintiff's present psychiatric state because regular marijuana use is associated with anxiety and depressive symptoms, that it may be contributing to his lack of motivation to seek alternative employment and I accept that part of his mental state diagnosis includes cannabis abuse. Under cross-examination Dr Spear gave evidence that research shows an association between mood disorders and cannabis use. In this case Dr Spear diagnosed the plaintiff suffering from dysthymic disorder and cannabis abuse. I accept Dr Spear’s diagnosis. He explained that a dysthymic disorder is a type of depressive episode which lasts for two years or more (T 240). According to Dr Spear the plaintiff’s dysthymic disorder commenced after the 1997 motor vehicle accident and was caused by the plaintiff’s extended recovery period and pain and the eventual loss of the occupation he loved – truck driving.

Earning capacity

The primary issue in this case is whether the plaintiff retains an earning capacity and how that affects both his award for past loss of earning capacity and future loss of earning capacity. It is clear from the evidence that until 15 July 2005 the plaintiff continued to work as a truck driver involved in container work with ICL. From the time of his motor vehicle accident on 2 March 1997 the plaintiff was unfit for work until 2 February 1998 and was again unfit from 14 August to 8 October 2000. Otherwise he continued working as a truck driver until 15 July 2005 and since that date has not worked at all.
The defendant called Dr Andrew Marsden, an occupational physician, to give evidence of the plaintiff's retained earning capacity. Dr Marsden is a private consultant and regularly attends worksites so that he is able to assist people with return to work programs. He operates machinery and has a truck licence. On a recent visit to BHP he drove an ore truck for four hours, has driven diggers and is quite aware of the problems of getting in and out of vehicles and the physical aspects of a job as a truck driver. Dr Marsden prepared two reports and reviewed the plaintiff on 11 August 2006 and again on 9 July 2007. In Dr Marsden's opinion the plaintiff is probably permanently unfit to work as a truck operator due to the difficulties of using his left leg in a clutch operation. According to Dr Marsden, however, the plaintiff is fit and has been since August of 2006 to operate large commercial machinery with automatic clutchless mechanisms such as a garbage truck, a road‑sweeper truck or a bus. Dr Marsden also said that the plaintiff had the capacity to work in diesel electric operated trucks such as mining vehicles, but he may have problems getting on and off such vehicles. Dr Marsden noted, however, that some mines have installed access landings where drivers can simply step over into the driver cabin on the same level. In Dr Marsden's opinion the plaintiff is and has been capable since at least August of 2006 of working in that sort of employment full-time.
Dr Marsden also believed that the plaintiff could work full‑time as a transport clerk or a fleet services clerk with an appropriately compliant employer, but conceded that these jobs could be difficult to secure with his presentation because of the plaintiff's negative approach to office work. According to Dr Marsden, he is in need of on‑the‑job training and would have to learn computer systems which could be a problem, but he considered the plaintiff to be an intelligent man.
The other type of vehicle that he considered the plaintiff could drive would be a modern garbage truck or a modern road sweeper truck, both of which are operated with automatic transmission. In such jobs, according to Dr Marsden, the plaintiff would not be required to get in and out of the vehicle repeatedly.
Dr Marsden was firmly of the view that the plaintiff should get on with his total knee replacement because if he had his knee replaced now, he would have a different prospect. Once the knee had been replaced he could see if he could operate a clutch, in which case he could go back to truck driving. In any event after the knee replacement he should have no trouble getting up and down from large mining trucks. And in a domestic sense, once his knee was replaced he could again mow his own lawn. Dr Marsden conceded that he was not an orthopaedic surgeon and it was not his call as to when a person has a knee replacement, but Dr Marsden believes that the approach of the orthopaedic surgeons is changing and some are starting earlier. In his opinion getting people back to work is very important and in this case a total knee replacement would solve many of the plaintiff's problems.
Under cross-examination Dr Marsden conceded that the plaintiff may not have the temperament to be a bus operator. The plaintiff recognises and Dr Marsden recognises that such an occupation requires a level of tolerance towards the behaviour of young people that may not be part of the plaintiff's makeup. Dr Marsden said that he needs a sedentary job but one that allows him to get up and move about because of the DVT problem. The work in the mines, according to Dr Marsden, would involve long hours but he pointed to the number of breaks that are given and during those breaks the plaintiff could get up and move about and he believes he could handle such work. Driving a garbage truck may require him to sit for a couple of hours, but in Dr Marsden's opinion the plaintiff could do that.
Mr Dibyendu Gope, a consultant orthopaedic surgeon called by the defendant, gave evidence that in his opinion the plaintiff would be capable of undertaking the job of fleet controller or a transports/despatch/freight clerk, or a weighbridge operator or a bus driver initially on a part-time basis but later on a full‑time basis. However, according to Mr Gope, the plaintiff expressed little interest in any retraining or in seeking such employment in the future.

Mr Gope has extensive previous experience doing knee replacements. In fact he has had both his own knees replaced. Mr Gope said that a knee replacement could be expected to improve the pain level, but the plaintiff would be left with some limit on mobility. The most it could achieve is about a 120 degree flexion, leaving him unable to squat. As to the timing of such an operation Mr Gope's evidence was that that is determined by the degree of pain. When the pain is no longer tolerable to the patient, then, in consultation with the orthopaedic surgeon, generally a knee replacement can be carried out. Mr Gope said that knee replacements had only been used in about the last 20 years and there is limited experience to rely on. The prostheses on the other hand are improving in design. At the moment prostheses have to be replaced after 10 or 15 years because the plastic insert between the two metal bits wears out. These are, however, improving and they may well be able to last longer than 10 or 15 years.
Mr Gope agreed that the plaintiff has a motivation problem and in order to gain employment he will need the will to go back and to retrain. He said most people do have motivation problems after an injury and a long time off work. Without a knee replacement Mr Gope believes that after a four to six week gradual re‑entry, the plaintiff would be able to do the jobs outlined by Debra Browne and Lesley McGregor in their reports. He expected the plaintiff could work a full day, eight or 10 hours or whatever it took to do the job. He was particularly confident of the plaintiff's ability to drive recent model buses which are virtually completely hand controlled. On the other hand, Mr Gope conceded that the plaintiff's symptoms vary from time to time and while he had his pain symptoms he may need time off now and then.
According to Ms Lesley McGregor, a consulting psychologist called by the defendant, the plaintiff had expressed little interest in any retraining or even seeking employment in the future and reported that he was quite happy to stay at home and be a Mr Mum. Under cross‑examination the plaintiff claimed that was a little joke. He disagreed with Mr Gope's assessment of his attitude. He said in evidence that he will seek employment or retraining in the future but not until the Court case has finished. He did admit that he told Ms McGregor he did not have any job aspirations. Dr Steven Overmeire, a consultant occupational physician called by the defendant, gave evidence that the plaintiff did not appear interested in pursuing further employment or retraining but the plaintiff, under cross‑examination, denied saying anything of that nature to Dr Overmeire. He did admit he did not have anything in mind about future employment.
During March of 2007 the defendant arranged for the plaintiff to undergo a physical work performance evaluation by Debra Browne, an occupational therapist and senior injury management consultant. The result of Ms Browne's evaluation was that the plaintiff would be able to tolerate light level work for an eight hour day, a 40 hour week, and that was his minimal rather than his maximal ability. She noted what she called "significant self-limiting behaviour" which she said influenced the test results, but on analysis she was simply describing when the plaintiff stopped a task before a maximum effort was reached and one of the self‑limiting behaviours was simply pain. In this case when the plaintiff has the amount of pain in his left knee that the plaintiff is experiencing I do not find it surprising that there was this sort of self‑limiting behaviour. It confirms the level of pain being experienced.
Debra Browne's report was provided to Ms Lesley McGregor, a consulting psychologist, who conducted a vocational assessment. She found as a result of testing that the plaintiff's result indicated he has an abstract reasoning ability in the above average range so that he would have the aptitude to undertake tertiary and vocational retraining and could well manage any training on the job. She considered him able to do routine clerical work and that he may find it easy to learn principles of operation and repair of complex devices. Ms McGregor then conducted tests of the plaintiff's likes and dislikes in the way of employment and his interests, but those results did not correlate and may be relatively useless. The Rothwell Miller Interest Blank Test (Exhibit 9) required the plaintiff to list in order of preference different groups of occupations. It is not clear to me that the plaintiff had the chance to say "None of the above". I found those results of little value.
Ms McGregor, however, as part of her assessment received a written resume from the plaintiff (Exhibit 7) which gave some indication of his existing skills. She then correlated his existing skills and capabilities with his interests and developed her opinion of vocationally appropriate options including fleet controller, transport/despatch/freight clerk, weighbridge operator and bus driver. She then looked at job availability and noticed that fleet controllers were considerably in demand in the Perth area and there were positions for some transport/despatch/freight clerks and one opening for a weighbridge operator. Her evidence has to be considered along with that of Professor Charles Mulvey from LabourNet Australia who relied on information from official sources as well as his own experience and knowledge to consider the pay range and availability of employment and training requirements for fleet controller, transport/despatch clerk, weighbridge operator and bus driver. He also reported there is a good level of demand for fleet controllers and that the average weekly earning for a male would be in the order of $1,017 gross. On the other hand, transport and despatch clerks earn somewhat less, an average of $916 gross per week and there are only a small number of vacancies. Weighbridge operators earn an average of $954 per week gross, but there are only a very small number of positions and they come up infrequently. Male bus drivers are estimated to earn on average $895 per week and there is a regular stream of advertised vacancies in that field. Finally, Professor Mulvey noted that dump truck drivers in the WA mining industry earn $70,000 to $100,000 per annum gross and there are constantly large numbers of advertised vacancies.
Debra Browne took the results of the physical work performance evaluation and the vocational assessment done by Lesley McGregor and prepared Exhibit 5 which outlines the particulars of the jobs that the plaintiff would be capable of doing.
There was a general view of all who interviewed the plaintiff about alternative employment that he had a motivation problem and was simply not interested in retraining. On the other hand, there was a general consensus that going back to work would have a positive impact on the plaintiff's mental state.
Under cross-examination the plaintiff said that he is not interested in working on a mine site. He does not believe he has the temperament for bus driving, although he agreed he could drive a bus. The plaintiff maintained that as far as he knew he was not allowed to go back to work until he had been medically cleared by Mr Genat. He said that he does not know what he would like to do, except that he would like to get back to ICL driving trucks but is not sure he will ever be able to do that. He would prefer not to do any office work and agrees that he could drive if he did not have to climb in and out regularly or climb high vehicles. He has no interest at all in working in the mines. He admitted he had never gone to Centrelink for vocational rehabilitation or to TAFE for any vocational rehabilitation or made any inquiries about learning new skills.
His wife Jennifer Kingston supported his evidence, and admitted she had not encouraged him to look at job opportunities and that he has not sought work because he is not medically cleared. She believed that with any job he would have to be there at a certain time and he still has bad days when he just could not work. She anticipated that after the Court case is over they will look at what he can do. She does not believe there is any possibility of getting back to truck driving. She does not believe he could pass a physical to get on to a mine site. Mrs Kingston conceded that it would be to his benefit mentally to be involved in working, but conceded that she had made no inquiries.

Gratuitous Services

The plaintiff gave evidence that after the motor vehicle accident he spent seven to eight days in hospital and was discharged with a gaping 3 inch by 3 inch wound and was unable to look after himself. He could not carry anything. Fortunately his father-in-law put handrails in the toilet and a plastic chair was placed in the shower. He was laid up for a couple of weeks entirely dependent on the care provided to him by his wife Jennifer. Jennifer confirmed his evidence and indicated that when he returned from hospital he could hardly do anything. She assisted him with using the toilet, shower, and getting out of chairs. She therefore resigned her part-time job and has not worked since. She was on‑call 24 hours a day and estimated four to five hours a day of solid assistance to him during that period of his recovery. Jennifer has taken him to all of his medical appointments throughout the very long period of his recovery. Prior to the accident the arrangement in their household had always been that Jennifer took care of everything inside the house while the plaintiff took care of everything outside the house. However, since his injury he has been unable to mow the lawn and his brother helped him do that for a while. He also is no longer able to climb ladders in order to clean the gutters or wash the windows. He is unable to do that because of his sore, painful, unsteady left leg.
After 15 July 2005 the plaintiff again was reliant on his wife and, according to Jennifer, the plaintiff relied on her for just about everything for three months. Once the DVT was diagnosed the treatment involved regular injections and a cocktail of drugs which Jennifer looked after for him. She gave evidence that she looked after all his physical needs and was on‑call 24 hours a day for six weeks, performing about eight hours of duties daily to assist him. Eventually he began to improve but she still assisted him with dressing and took care of his medications until May of 2006. That involved about two hours a day during that recovery period. Since May of 2006 Jennifer reports that he has very bad days when she has to wait on him hand and foot. Every four to six weeks the plaintiff had what she described as a little patch of really bad days. She has arranged for her youngest brother-in-law to mow the lawn every six weeks which she said was a three to four hour job and had a family friend assist with heavy lifting, moving some furniture.
Mr Cary Jones, an occupational therapist, gave evidence on behalf of the plaintiff. Mr Jones recommended that from a mobility perspective the plaintiff should be provided with a sit/stand recliner rocker which includes an electric assist mechanism which would assist him to stand up from the chair and would have the capacity for elevating the foot, beneficial in reducing swelling in the foot. Such a chair could be purchased for $1,920 and would last for some 10 years. Mr Jones noted that with the anticipated knee replacement surgery the chair will be needed during his recovery period from that surgery as well. In addition, Mr Jones recommended that the plaintiff receive compensation for automatic transmission upgrade in his vehicle. This was at a cost of $2,500 to $3,000 and again would last for 10 years. Finally, Mr Jones noted that the plaintiff with his motor mechanic skills had always serviced his own vehicles, both his and his wife's. He now needed to arrange for that to be done at a cost of approximately $1,000 a year for the two vehicles to be maintained. Mr Jones also recommended that the plaintiff be provided two hours per fortnight for home maintenance. In his opinion within that two hours the lawns could be mowed, the gutters cleaned and any window washing that needed doing could be done. He made that assessment having visited the plaintiff's home and having seen the size of the lot and what was required. He believed in that two hours per fortnight the weeding of the garden beds could also be taken care of.

Assessment of damages

Past loss of earning capacity

In Australia a plaintiff is compensated for loss of earning capacity, not loss of earnings. An injured plaintiff recovers not merely because his earning capacity has been diminished but because the diminution of his earning capacity is or may be productive of financial loss (Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 16: Graham v Baker (1961) 106 CLR 340 at 347). Earning capacity is an intangible asset. Its value depends on what it is capable of producing. Earnings are evidence of the value of earning capacity but they are not synonymous with its value (Medlin's case at 16). It is necessary to identify both what capacity has been lost and what economic consequences will probably flow from that loss. Only then will it be possible to assess what sum will put the plaintiff in the same position as he would have been in if injury had not been sustained (Husher v Husher (1999) 197 CLR 138 at 143).
The defendant does not challenge the plaintiff's claim for past loss of earning capacity for three periods:
1.From 2 March 1997, the date of the accident, until 2 February 1998 at $623.85 net pw equals $30,034.
2.For the eight weeks from 14 August to 8 October 2000 at $667 net pw equals $5,336.
3.From 15 July 2005 when the plaintiff underwent the high tibial osteotomy until 30 June 2006 at $868 net pw equals $43,400.
After that date and at least from August 2006 the defendant submits that the plaintiff had a retained earning capacity. The defendant further submits that the plaintiff has failed to mitigate his loss because he has not sought employment or retraining.
I accept the evidence of the expert witnesses that the plaintiff is unable to return to his pre-accident employment as a truck driver. It is not entirely clear whether that is a permanent condition or not. I accept Dr Marsden's evidence that the plaintiff is "probably" permanently unfit to work as a truck operator due to the difficulties of using his left leg in a clutch operation, but Dr Marsden recommended that the plaintiff get on with his knee replacement now rather than delaying because once the knee had been replaced he may again be able to use his left leg in the clutch operation.
I also accept the evidence of Mr Harry David Kingston, the plaintiff's cousin, who at the age of 50 has been a truck driver all his working life and works at ICL doing the same work the plaintiff would be doing if his left leg had not been injured. Mr Harry Kingston described in his evidence the number of times a truck driver must get up and down from the truck – doing up the locks on the containers, dropping the back trailer, climbing up on top of the trailer, opening the doors before backing in, closing the doors once loaded, hooking up the back trailer, driving to the wharf and there undoing the twist locks so the containers can be taken off. Then that procedure is repeated depending on the number of runs the driver does during the day. Given the very physical nature of a truck driver's job quite apart from the operation of the clutch, I am satisfied that it is unlikely that the plaintiff, given the severity of his left leg injury, would recover to the point that he could undertake this work.
Mr Gope, who had extensive experience with knee replacements and has had both of his own knees replaced, mentioned that even after knee replacement the plaintiff would be left with some limit on mobility, degree of flexion and would not be able to squat. I am satisfied that the work of a truck driver, quite apart from operating the clutch mechanism, is only suitable for a person able to squat and who has sufficient flexion in his/her knees. Following his total knee replacement surgery I am not satisfied the plaintiff will have those capacities. Therefore I assess damages on the basis that the plaintiff has lost his pre-accident earning capacity.
In Thomas v O'Shea (1989) Aust Torts Reports 80-251 at 68,701 Malcolm CJ and Wallace J identified the evidential burdens when a court considers a plaintiff's residual earning capacity:
"The legal onus of proof of loss of earning capacity rests, of course, on the plaintiff, but once the plaintiff has proved that he has lost his pre-accident earning capacity and has been unable to find alternative employment, or that his condition has prevented him finding alternative employment, an evidentiary burden is cast on the defendant to show what alternative employment opportunities were open, including the state of the labour market and the likely earnings."
In this case the plaintiff has not proved that he has been unable to find alternative employment. He has not yet tried to do that. In any case the defendant has met its evidential burden by calling evidence showing alternative employment opportunities that are open, the state of the labour market and likely earnings.
This is not a case where the defendant has set out merely to prove that the plaintiff can do "light work". The defendant has shown by evidence that the plaintiff is quite capable of a number of jobs so long as he undergoes retraining. The defendant has led evidence that work is available and what the earnings from it would be.
I accept Dr Marsden's opinion that the plaintiff has a retained earning capacity at least from August 2006. Both Dr Marsden and Mr Gope believe the plaintiff could work full-time. I accept their evidence about that. And I accept that there are a range of jobs suitable for the plaintiff including driving vehicles with a clutchless mechanism or retraining as a fleet controller, transport/despatch clerk, weighbridge operator or bus driver. I accept Professor Mulvey's evidence concerning the availability of such jobs and their pay scales.
I am satisfied based on the evidence I have heard from a variety of witnesses that the plaintiff does lack motivation to retrain for other employment. What he would really like to do is return to his work as a truck driver. And he does not want to work in an office or on a mine site. He does not think he has the temperament to drive a bus. I accept the evidence of the many occupational medical witnesses called by both the plaintiff and defendant that the plaintiff has a motivational problem and is not interested in retraining. On the one hand I accept that motivation problems are common in people in the plaintiff’s position after such a long time off work (Mr Gope’s evidence). And I accept that the motivational problem is associated with the dysthymic disorder Dr Spear diagnosed caused by his prolonged recovery period and the loss of his loved occupation as a truck driver for ICL. On the other hand I am also satisfied that in this case some of his motivational problem relates to his cannabis abuse. I am not satisfied that cannabis abuse is the dominant cause because the plaintiff had no motivational problem returning to work as a truck driver after the accident despite his use of cannabis at that time. But cannabis use accounts for a portion of the plaintiff’s lack of motivation. And the defendant is not liable to compensate the plaintiff for any loss of earning capacity arising from motivation problems so far as they are associated with cannabis use.
One factor that should not be overlooked is that the plaintiff still has "bad days" when, as his wife said, he simply would not be able to go to work. I accept his wife's evidence that every six weeks or so he has a series of bad days when she has to do everything for him and when he would not be able to go to work. I also accept that the plaintiff's life was very disrupted in the lead-up to the trial of his case. He had to make himself available for a substantial number of medical appointments related to the case in the lead‑up to the trial.

When considering a claim of failure to mitigate I must determine whether the plaintiff's refusal to apply for jobs or seek retraining from August 2006 when Dr Marsden considered him fit until trial in August 2007 was reasonable. It is an objective test "but depends upon personal characteristics, including the worker's state of knowledge at the time" (Kalavrouziotis v Howel & Kalavrouziotis; unreported; FCt SCt of WA, Library No 98021, delivered 1 May 1998 per Wheeler J at p 8: Fazlic v Milingimbi Community Inc (1982) 150 CLR 345: Fontaine v Quality Platers (1994) 12 WAR 71). The burden of proving failure to mitigate lies upon the defendant (Plenty v Argus [1975] WAR 155 per Burt J at 157).
I found the plaintiff to be a very credible witness. He did not exaggerate. He gave his evidence in a matter of fact, almost understated way. He has always been a keen truck driver. It is all he has ever wanted to do. The long hours truck drivers regularly put in was a surprise to me. But the plaintiff clearly loved that work and did not mind the long hours. In the 10½ years since the motor vehicle accident he has undergone severe pain and yet he went back to work in 1998 when he was declared fit. It is only now when he has been told that he cannot return to truck driving, when he has been advised that he will need a knee replacement and when he is uncertain of what the future will bring that he appears to lack motivation and has decided to wait until the court case finishes to decide what he wants to do. On several occasions in the course of his evidence the plaintiff said that he was unable to go back to work because he had not yet been declared fit by Mr Genat (T 46). Mr Genat, however, gave evidence that the plaintiff was unfit for returning to his truck driving job but did not say that he was unfit for any other employment or for retraining. In this matter the plaintiff seems to have misunderstood Mr Genat. I am unclear whether he honestly believes that he cannot go back to any sort of work without Mr Genat giving him the all clear. If that is his belief, it is not consistent with the medical reports and it is not a reasonable belief.
When I consider the plaintiff's position from August 2006 until August 2007 it is important to remember that he was only cleared by the doctors in relation to his deep vein thrombosis in May 2006. That is a very short period of time because the deep vein thrombosis was not only painful but debilitating and required daily medication.
Taking account of his recent recovery from the DVT, his continuing pain, his patches of bad days when he is unable to work in any event, the plaintiff’s motivational problems so far as they are accident caused and not caused by his cannabis abuse, and taking account of the extra stresses for a plaintiff prior to trial in submitting to medical and other reviews, the defendant has failed to satisfy me that the plaintiff has acted unreasonably since August 2006 by failing to exercise his retained earning capacity by seeking employment or retraining.
The defendant has noticed an error in the plaintiff's calculation of the income for a 60 hour week. The evidence was that the truck driver's first eight hours of overtime is paid at the base rate. Therefore I adopt the defendant's calculation of $1,003.52 net pw on average prior to June 2007.
Therefore from 30 June 2006 until 30 June 2007 the plaintiff's loss of earning capacity was $1,003.75 net pw x 52 = $52,195. From 1 July to 10 August 2007 (six weeks) $1,039 net pw = $6,234. Total past loss of earning capacity is therefore $137,199.
That figure needs to be reduced by $75,427 the money paid to the plaintiff (and Centrelink) by the defendant by way of advances against past economic loss. Therefore total past loss of earning capacity is $61,772.
I accept the plaintiff's calculation of interest at the statutory 6 per cent rate = $22,000. That figure is accepted by the defendant.

Future loss of earning capacity

The plaintiff is 40 years old and seeks compensation for 25 years future loss of earning capacity. He has lost his pre-accident earning capacity and will not be able to return to truck driving. I am satisfied that even when he has knee replacement surgery he will not be able to return to his work as a truck driver with ICL because of the very physical nature of that work quite apart from operating a clutch with his left leg. I am satisfied, however, that he retains a capacity for full-time employment as a fleet controller, transport clerk, or weighbridge operator. While he may well have the capacity to work as a driver of a clutchless vehicle on a mine site, I do not consider it reasonable to require him to work on a mine site when he does not want to do such work and there is other work available to him in Perth. I also recognise that as a cannabis abuser he would not be accepted for employment on a mine site but no compensation can be awarded for that. I am satisfied there is work readily available as a fleet controller or transport clerk so long as the plaintiff undertakes training. I accept Ms McGregor's assessment that the plaintiff has an abstract reasoning ability in the above average range and has the aptitude to undertake training.
In assessing the plaintiff's future loss of earning capacity there are a number of variables that need to be considered:
1The plaintiff is not yet fully recovered from his injury. He still has clusters of bad days every six weeks or so when he will not be able to work or participate in any training.
2The plaintiff still has pain that will interfere with his ability to do a job or undertake training. This was apparent in Ms Debra Browne's assessment where she found one of the plaintiff's self‑limiting behaviours was simply pain.
3The plaintiff will need to have a total knee replacement at some time. No‑one is able to predict when that will be. On the one hand Dr Marsden suggests it would be in his best interests to have it sooner rather than later. Mr Genat recommends that he wait another 10 years or so because this surgery does not improve when it has to be repeated. The sooner he has the knee replacement the sooner he will need a second knee replacement in 10 or 15 years when the first prosthesis wears out. That surgery on each occasion, even without complications, will remove him from the labour force for three to six months (T 144).
4The possible complications for the plaintiff when he undergoes knee replacement surgery could impact on his earning capacity. Mr Genat discussed those possible complications including a stroke or heart attack under anaesthetic, a fat embolism, an infection, deep vein thrombosis, or inadvertent fracture of the tibia or femur during surgery. In a worst case scenario some of these complications could require the revision or redoing of the total knee replacement and lead to a much longer period of convalescence. Mr Genat conceded that these risks are small in number and in percentage terms, but when they happen they can be catastrophic (T 138).
5A knee replacement is only expected to last 10 to 15 years. In this case the plaintiff could well need two knee replacements during his 25 year working life.
6The plaintiff's training and entry into the workforce will not be easy. I accept Dr Spear's evidence that the plaintiff suffers a dysthymic disorder with depressive features. I am satisfied that the disorder was caused by the injury he suffered in the motor vehicle accident combined with his very slow recovery and then the onset of deep vein thrombosis associated with his 2005 tibial osteotomy. Mr Genat noticed that eventually the culmination of 10 years of pain and complications led to a change of attitude and a loss of motivation on the plaintiff's part when he finally faced the fact that he could not return to truck driving.
7Another factor is the plaintiff's cannabis use. He is a man who has used cannabis since his teenage years but now his usage is considered to amount to abuse by Dr Spear. Use of cannabis is associated with depressive symptoms and lack of motivation. The defendant is not liable in damages for any depressive symptoms or lack of motivation caused by the plaintiff's cannabis use. It is not easy to separate these factors which seem to merge. But based on my assessment of the plaintiff as an honest witness who was always highly motivated as a truck driver prior to his injury and, accepting Mr Genat's evidence of his change in attitude after the complications from the 2005 tibial osteotomy ended his truck driving career, I am satisfied that a major portion of the plaintiff's dysthymic disorder and lack of motivation was caused by his leg injury - not by his cannabis use.
Because of all of these factors the plaintiff is not a very promising candidate for employment. He will need to find an employer who will accommodate part‑time work and allow time off on occasion. He will not be competitive in the workplace. Completing training will not be easy. Finding appropriate employment will not be easy. Retaining his job if there were a slowing in the economy could become problematic.
On the other hand the plaintiff cannot expect to be compensated by the defendant for his cannabis abuse. That is the plaintiff's long-standing problem now more serious than it had been. The plaintiff's lack of motivation insofar as it is attributable to his cannabis use is not the fault of the defendant.
I accept that at this time Western Australia is experiencing historically low unemployment levels and, with training, the plaintiff is certainly capable of working full‑time or more in jobs that do not pay a great deal less than he would be earning as a truck driver for ICL.
The plaintiff submits that a proper assessment can be made by assessing the loss of his entire earning capacity at the rate of $1,091 net per week for 26 years and then reducing that by no more than 20 per cent to take account of all the positive and negative factors. The plaintiff suggests a figure of $610,000 for future economic loss. Using that method of calculation the defendant submits the figure should be reduced by 60 per cent to reflect the plaintiff's retained earning capacity and that would allow an award of $304,913.
The defendant submits that based on Dr Mulvey's evidence I am able to assess the value of the plaintiff's retained earning capacity subject of course to all the uncertainties arising from the factors I have discussed. I accept the defendant's calculation of $283 net loss per week. The 6 per cent multiplier for 25 years is 686.9 x $283 = $194,392.70. But the plaintiff will need substantial further damages awarded for the time he will spend being trained, the clusters of bad days every six weeks or so when he will not be able to work and the time off work for knee replacement surgery and recovery. Those factors and the difficulty he faces obtaining and keeping employment would require a substantial further award to properly compensate him for his future loss of earning capacity.
In Pene v Murphy[2004] WASCA 103 the Court of Appeal discussed the basis for assessment of a plaintiff’s retained earning capacity in a case where the plaintiff has lost his pre‑accident earning capacity and the factors in Bowen v Tutte(1990) Aust Torts Reports 81‑043 require consideration. In Bowen v Tutteapproval was given to assessing retained earning capacity by finding the value of the total loss of the plaintiff’s earning capacity and reducing that total amount by an appropriate percentage for his retained capacity and contingencies. But it is clear that such a method is not appropriate in every case (Peneper Miller J at [5]). In this case, as in Pene, I am satisfied there are too many uncertainties associated with the prospect of the plaintiff’s return to work to enable a precise arithmetical calculation to be made. As was the case in Bowen v Tutte, this is a case where the plaintiff’s suggested method of assessment is appropriate.
Because of those many factors creating uncertainty I am prepared to accept the plaintiff's method of calculation but I will reduce that amount by 40% taking account of the plaintiff’s retained earning capacity and contingencies. Therefore I award damages for future loss of earning capacity at $l,039 net per week x 686.9 (6% multiplier for 25 years) = $713,689 less 40% = $428,213.

Past superannuation loss

The defendant accepts the plaintiff's calculation of past superannuation loss and I award $7,850 for total past loss plus $1,000 interest.

Future superannuation loss

The defendant submits that the plaintiff is not entitled to any damages for future loss of superannuation because the plaintiff may well be entitled to a higher amount of superannuation in employment as a fleet controller or transport clerk. That is so because, unlike his truck driving, the income earned in those jobs does not include overtime. I do not accept that submission. My assessment of future loss of earning capacity only allows for some 60% of his former earning capacity. Although there was evidence that the plaintiff could work more than full‑time hours, that is subject to all the periods when he will not be able to work at all due to pain or knee surgery. I am satisfied he should be compensated for future superannuation loss commensurate with my award for future loss of earning capacity. 9% of $760 (40 hours x $19 per hour) = $68.40 for 25 years (686.9) = $46,984 less 15 per cent = $39,936. That figure needs to be discounted by 40 per cent for retained earning capacity and contingencies = $23,962 for future superannuation loss.

Special damages

Travel expenses have been agreed at $1,500.

Future medical expenses

At age 40 the plaintiff has about a 45 year life expectancy according to "Median Life Expectancies Australia, 2006" based on the Australian Bureau of Statistics' "Population Projections Australia 2002-2010". In Golden Eagle International Trading Pty Ltd v Zhang [2007] HCA 15 the High Court approved the use of these life expectancy tables which are based on prospective rather than historical data. In their joint judgment Gummow, Callinan and Crennan JJ said at [4]:
"Despite criticism of it, the 'best evidence rule' has not fallen completely into desuetude. Subject to the exigencies of litigation, the circumstances of the parties, and other settled and statutory rules of evidence, it has vitality. An aspect of the rule is that courts should act upon the least speculative and most current admissible evidence available. To prefer the prospective rather than the historical life expectancy tables is to do no more than that."
Despite the 45 year life expectancy based on those prospective tables, the parties have agreed a 40 year life expectancy should be used as the basis for the assessment of damages in this case taking account of the plaintiff's heavy cigarette smoking habit.
The plaintiff relies on Mr Genat's evidence that the plaintiff is likely to need a total knee replacement in 10 to 15 years which will last at least 20 years. The plaintiff has calculated the present cost of such surgery at $27,000. On the 6 per cent tables the present value of $27,000 deferred for 10 years (0.558) is $15,066. The present value of a second total knee replacement in 30 years (multiplier 0.174) is $4,968. The defendant does not make any submissions disputing the claim of $30,000 for future surgery costs and I make that award.
The plaintiff claims $3,358 for quarterly consultations with his general practitioner and $2,206 for twice yearly consultations with his orthopaedic specialist. I accept that once the plaintiff has his total knee replacement he will not require regular attendances. I allow $3,500 for both general practitioner and orthopaedic specialist attendances.
The plaintiff gave evidence of his current medications – four or five Panadol per week and a Digesic three or four times per week as well as use of a topical Voltaren cream on his leg. It can be expected that his total knee replacement will reduce or eliminate his need for these medications. I accept the defendant's calculations based upon $4 per week for Digesic, $1.25 per week for Panadol and I also allow $1 per week for Voltaren cream. $6.25 per week x 808.4 (the 6 per cent multiplier for 40 years) = $5,053 for future medications.
I accept Dr Spears' evidence that psychotherapy could be effective in dealing with the plaintiff's dysthymic disorder (T 240), particularly as the plaintiff prefers not to use antidepressant medication. At $265 per session eight sessions total $2,120.
These four items – total knee replacement, medical consultations, medications and psychotherapy - total $40,673 for future medical expenses. There are both negative and positive contingencies to consider. I accept Mr Genat's prediction of increased treatment and medication needs when osteo‑arthritic changes inevitably progress. And I accept there should be no reduction for contingencies based on the risk of premature death because that has already been taken into account in the plaintiff's agreed reduced life expectancy. I note that this plaintiff has had a very poor history of surgical intervention. His original attempt to fix the fracture of his left leg had to be redone months later. And the complications that came about following his tibial osteotomy created many problems for him. In all the circumstances I will not reduce the award of $40,673 for future medical costs.

Past gratuitous services

I accept the evidence of the plaintiff and of his wife Jennifer about the plaintiff's need for assistance in the aftermath of the accident. The plaintiff's claim for 28 hours per week of care and assistance at $15 per hour during the first six month period after the accident is reasonable and I allow for a loss of $10,500. The defendant does not dispute that loss but submits the plaintiff only required an hour per day of care and assistance – not the two hours per day sought by the plaintiff – during the second six month period after the accident. During that period from 2 September 1997 to 2 February 1998 the plaintiff's plaster cast had been removed following his August 1997 surgery when Mr Genat removed the nail and screw and fixed a plate to his leg. He was certified fit in early January 1998. Given the very physical nature of that work, I accept the defendant's suggestion that an hour per day of personal care was reasonable for the end of that period. But I accept that two hours a day was needed in the beginning. Therefore I award $4,095 for gratuitous services during that six month period.
Between 3 February 1998 and 14 July 2005 the plaintiff seeks compensation for care and assistance of one hour per week for 387 weeks = $5,805. The defendant denies he required any gratuitous services during that period but I do not accept that. Although the plaintiff went back to work he still had pain and his knee became progressively more unstable during that period. I consider one hour of assistance per week is reasonable and I allow $5,805 for that period.
From 15 July 2005 until 30 April 2006 the plaintiff underwent extensive recovery following the tibial osteotomy and the DVT and the plaintiff's claim for care and assistance for two hours per day (14 hours per week) for those 34 weeks at $18 per hour I consider to be reasonable. This is not disputed by the defendant and I award $8,568.
For the 66 weeks from 1 May 2006 until 6 August 2007 I accept that the only evidence is that the plaintiff required assistance with lawnmowing and outside jobs. The occupational therapist Cary Jones attended at the plaintiff's property and assessed the land area and the external maintenance requirements of the house and gardens. Mr Jones estimated the plaintiff's needs as about one hour per week for what he considered was quite a low maintenance house. That hour per week included lawn mowing and weeding. At $18 per hour for those 66 weeks I award $1,188.

Damages for past gratuitous services are awarded in the amount of $30,156. I also award interest for 10.5 years = $9,500.

Future gratuitous services

I rely on Cary Jones' evidence and accept that the plaintiff requires one hour of assistance per week for lawnmowing and home maintenance. That is $20 per week for 40 years. The multiplier on the 6 per cent table is 808.4. $20 x 808.4 = $16,168. The defendant suggests some reduction is necessary to take account of his increased mobility following total knee replacement surgery. I accept there will be some increased mobility and that the plaintiff may well be able to do his own lawns and some home maintenance. But he will be immobilised immediately following the total knee replacement for up to six months on each occasion. Taking account of both positive and negative contingencies, there should be no reduction in this award of $16,168.

Occupational therapy requirements

I accept the assessment of Cary Jones and rely on it in awarding damages.
1.I consider it reasonable that the plaintiff have a vehicle with an automatic transmission for the first 10 years at a cost of $2,750. But I do not accept that he will need that every 10 years. Within 10 years I consider it likely the plaintiff will have a total knee replacement and will no longer need an automatic transmission. But within another 20 years after that he will be likely to need another total knee replacement and in the period leading up to that surgery and during his recovery he will again need an automatic transmission. The present value of automatic transmission in 30 years is $2,750 x 0.174 = $478.50. I award a total of $3,229 for automatic transmission vehicles.
2.I consider it reasonable that the plaintiff be provided with a recliner lift chair now at a cost of $1,920. But, again, given the likelihood of his total knee replacement within 10 years, it is likely he will not need a recliner lift chair again for another 20 years after that. The present value of a recliner lift chair in 30 years is $1,920 x 0.174 = $334. I award a total of $2,254 for a recliner lift chair.
3.The plaintiff trained as a mechanic before he became a truck driver. I accept his evidence and that of his wife that he had always done the maintenance on both his own and his wife's vehicles. The plaintiff claims $1,000 yearly for this. I consider that a reasonable sum and that it would be reasonable to compensate him for the rest of his life for his inability to undertake vehicle maintenance. Even after a total knee replacement he will have difficulty squatting which would be necessary to do such maintenance work. $1,000 = $19.23 per week x 808.4 = $15,546.
This figure should be reduced by 20 per cent to allow for contingencies. The plaintiff may well be able to maintain his own vehicles once he undergoes a total knee replacement. He and his wife may not always have two vehicles as they age. An award of $12,437 is reasonable compensation for vehicle maintenance.
The total award for these occupational therapy requirements is $17,920.

Vocational rehabilitation

The plaintiff needs vocational counselling and rehabilitation to enable him to change his occupation and use his retained earning capacity. The defendant does not dispute the plaintiff's claim for $3,250.

Non-pecuniary loss

The expression "non-pecuniary loss" is defined in s 3C(1) of the Motor Vehicle (Third Party Insurance) Act 1943 to mean pain and suffering, loss of amenities of life, loss of enjoyment of life, curtailment of expectation of life, and bodily or mental harm. The prescribed amount for a most extreme case (Amount A) is currently $292,000:
"A judge’s assessment of whether a case is 'a most extreme case' involves questions of fact and degree, and matters of opinion, impression, speculation, and estimation, calling for the exercise of common sense and judgment." (Insurance Commission of Western Australia v Weatherall [2007] WASCA 264 per Buss JA at [261]: Dell v Dalton (1991) 23 NSWLR 528, 533-534: and see Thomas v Bass [2006] WASCA 59 at [30]-[31]).
The plaintiff has endured pain and suffering for a very lengthy and protracted period. Initially Mr Genat attempted to rejoin the fracture with a nail but, despite two casts being applied in March and April 1997, the fracture failed to unite over five months and the plaintiff required further surgery in August 1997 to remove the nail and to put in a screw and plate using a bone graft harvested from his hip. For more than six months after the accident the plaintiff was struggling on crutches with a plaster on his leg.
Even when the plaintiff was certified fit to return to truck driving in early 1998 the knee continued to cause discomfort and instability and he wore a brace. Only in March 1999, some two years after the motor vehicle accident, did the plaintiff achieve a fairly normal function of his knee but he still suffered intermittent pain and that pain continued right through until his symptoms worsened to the extent that he underwent a high tibial osteotomy in July 2005 with a very poor recovery and serious side effects, including profuse bleeding and deep vein thrombosis. He had further surgery in December 2005 and January 2006 to remove screws. The deep vein thrombosis did not fully dissolve until 22 May 2006, some 10 months after surgery. After these years of sometimes severe pain and prolonged discomfort the plaintiff still experiences persistent pain and cannot walk without a limp. The mental effect of all of this on him has, not surprisingly, led to Dr Spears' diagnosis of a chronic adjustment disorder.
The plaintiff's recreational activities are extremely limited – no ballroom dancing and no outdoor water sports: no social basketball or football, no motorbike riding. Because of his left leg injury he is unable to participate in any of the recreational activities he previously enjoyed.
His greatest loss is that he can no longer hope to return to the occupation he loved – truck driving for ICL. Of all the pain, suffering and loss of amenity I consider this as the worst for this plaintiff. Truck driving is what he had always done and had always wanted to do. But that is gone now. Taking account of all of these factors I award 40 per cent of a most extreme case, $116,800 for the plaintiff for non‑pecuniary loss.

Summary of award

Non-pecuniary loss $116,800

Past loss of earning capacity $61,772

Interest $22,000

Future loss of earning capacity $428,213

Past superannuation loss $7,850

Interest $1,000

Future superannuation loss $23,962

Special damages $1,500

Future medical expenses $40,673

Past gratuitous services $30,156

Interest $9,500

Future gratuitous services $16,168

Occupational therapy requirements $17,920

Vocational rehabilitation $3,250

Total award $780,764