Licciardo v Hudson (No 2)

[2013] NSWDC 161

District Court

New South Wales

Medium Neutral Citation:

Licciardo v Hudson & Anor (No 2) [2013] NSWDC 161

Hearing dates:

31 July 2013

Decision date:

30 August 2013

Jurisdiction:

Civil

Before:

Levy SC DCJ

Decision:

1.Verdict and judgment for the plaintiff in the sum of $1,069,461;

2.The defendants are to pay the plaintiff's costs on the ordinary basis unless otherwise ordered;

3.The exhibits may be returned;

4.Liberty to apply on 7 days notice if further orders are required.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

TORTS - negligence - motor vehicle accident; DAMAGES - assessment of claimed heads of damage - appropriate method for assessing economic loss - mitigation - relevance of insurer's refusal to pay for plaintiff's treatment - whether plaintiff's pre-injury vulnerability to alcohol abuse was exacerbated by the effects of the accident - effect on capacity to mitigate

Legislation Cited:

Evidence Act 1995, s 60, s 63
Motor Accidents Act 1988, s 39
Motor Accidents Compensation Act 1999, s 60, s 62(1), s 126, s 131, s 136, s 141B
UCPR Sch 7, cl 5(c)

Cases Cited:

Arnott v Choy [2010] NSWCA 259
Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25
Dasreef Pty Ltd v Hawchar [2011] HCA 21
Fazlic v Milingimbi Community Inc [1982] HCA, at [12]; (1982) 150 CLR 345
Graham v Baker [1961] HCA 48; (1961) 106 CLR 340
Hudson v Licciardo [2010] NSWCA 346
Jovanovski v Billbergia Pty Ltd [2011] NSWCA 135
Licciardo v Hudson (No 1) [2009] NSWDC 289
Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352
Mahony v Watson [2003] NSWCA 259
Malec v JC Hutton Pty Limited [1990] HCA 20; (1990) 169 CLR 638
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705;
Mason v Demasi [2009] NSWCA 227
Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1
Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383
Munce v Vinidex Tubemakers Pty Ltd [1974] 2 NSWLR 235
Pham v Shui [2006] NSWCA 373
Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164
Rosniak v GIO [1997] 41 NSWLR 608
State of NSW v Gee (aka Michaels) [2002] NSWCA 326
Strinic v Singh [2009] NSWCA 15
Watts v Rake [1960] HCA 58; (1960) 108 CLR 158

Category:

Principal judgment

Parties:

Shane Licciardo (Plaintiff)
Tamara Hudson (First defendant)
Stephen Hudson (Second defendant)

Representation:

Mr A Lidden SC with Mr M Daley (Plaintiff)
Mr S Torrington (Defendants)
Brydens (Plaintiff)
Curwoods (Defendants)

File Number(s):

2007/292236

Publication restriction:

None

Judgment

Table of Contents

Introduction	[1] - [4]
Accident leading to plaintiff's claim	[5] - [6]
Issues	[7] - [13]
Procedural history and course of the hearing	[14] - [28]
MAS assessments	[29] - [37]
Array of evidence	[38] - [41]
Credibility and reliability of testimony	[42] - [53]
Facts	[54] - [307]
Plaintiff's background and pre-accident circumstances	[55] - [68]
Plaintiff's pre-injury health	[69] - [74]
Pre-injury medical evidence of plaintiff's health status	[75] - [95]
Accident-related injuries described by plaintiff	[96] - [97]
Initial treatment following accident	[98] - [105]
Subsequent post-injury medical and allied assessments	[106] - [174]
Analysis of relevant medical and allied opinions	[175] - [208]
Findings on injuries	[209] - [214]
Findings on disabilities	[215] - [230]
Findings on mitigation	[231] - [307]
Assessment of damages	[308] - [421]
Probable life span of plaintiff	[309] - [314]
Non-economic loss	[315] - [320]
Past economic loss	[321] - [371]
Future loss of earning capacity	[372] - [379]
Loss of superannuation	[380] - [383]
Future treatment expenses	[384] - [396]
Past care and domestic assistance	[397] - [411]
Future care and domestic assistance	[412] - [421]
Past out-of-pocket expenses	[422]
Summary of damages assessment	[423]
Disposition	[424]
Costs	[425]
Orders	[426]

Introduction

1. The plaintiff Shane Licciardo claims damages from the defendants, Tamara and Stephen Hudson, for personal injury due to negligence relating to a motor vehicle accident that occurred on 9 June 2003. The defendants admitted liability on the pleadings. The proceedings are governed by the provisions of the Motor Accidents Compensation Act 1999 ["MAC Act"].

1. At the second reading stage in the enactment process of that legislation, in the NSW Legislative Assembly, several important aspects of the legislative intention were identified as follows:

" ... This legislation is designed to benefit ... motorists and injured people by, first, reducing green slip premiums for motorists, second, by improving processes by which injured people obtain their compensation, and, third, by insuring that people receive treatment for their injuries sooner and in a more timely manner."

[Hansard, New South Wales, Parliamentary Debates, Legislative Council, 3 June 1999, 901 (JJ Della Bosca, Special Minister of State, and Assistant Treasurer]

[Emphasis added]

1. It is apparent from the evidence and from the administrative and procedural timeline of the history of these proceedings, where the hearing commenced in 2009, and then remained in abeyance for nearly 4 years before concluding in 2013, that the second and third of those cited objectives were not well met in this case.

1. After briefly defining the underlying events, it is relevant to set out something of the procedural course taken by the proceedings as this relates to the issue of whether the plaintiff has unreasonably failed to mitigate his loss, as was submitted on behalf of the defendants, in the context where, from 2004, the defendants' CTP insurer declined to pay for treatment investigations that had been recommended by the plaintiff's treating specialists.

Accident leading to plaintiff's claim

1. In the early evening of Monday 9 June 2003, the plaintiff was driving his vehicle at an unstated speed along Waminda Avenue, Campbelltown, NSW. At that time, a vehicle owned by the first defendant and driven by the second defendant, approached the plaintiff's vehicle from the opposite direction at a speed of between approximately 50 to 60kph when the defendants' vehicle turned to the right and crossed over onto the incorrect side of the roadway, across the plaintiff's path, and into collision with the front of the plaintiff's vehicle. The impact was heavy and the airbags were deployed in the plaintiff's vehicle. Both vehicles were severely damaged and written off.

1. These events caused the plaintiff to suffer bodily injury. The claimed injuries were to the face and teeth, the neck, upper back, left hand, arm and shoulder, and to the lower back. These injuries caused the plaintiff to suffer physical and psychological disabilities. The defendants admitted liability on the pleadings. Therefore, the issues calling for decision in the proceedings concerned the nature and extent of the plaintiff's injuries, and matters associated with the assessment of the plaintiff's entitlement to damages.

Issues

1. Apart from factual matters, and matters concerning the credibility and reliability of testimony, the principal issues that emerged for determination concerned the evaluation of the evidence concerning the proof and assessment of the plaintiff's entitlement to damages.

1. In their respective ambit claims, the parties were at odds as to the plaintiff's entitlement to damages. The defendants contended the plaintiff's damages should be of the order of $80,000. In contrast, on behalf of the plaintiff it was submitted that the award of damages should be of the order of $2.5M. Those positions were based upon disparate and contested assumptions.

1. At issue was whether the defendants had discharged the burden of proving the assertion that the plaintiff had unreasonably failed to mitigate his damages by undertaking appropriate and timely treatment, including for the amelioration of his level of alcohol intake. This was ultimately put as failure on the part of the plaintiff to desist from his significant alcohol consumption: s 136(2) of the MAC Act. The defendants submitted that the plaintiff had "wholly failed to comply with his obligations" arising under that section.

1. In submissions made on behalf of the plaintiff, the complaint was made that the alleged failure to mitigate had not been pleaded or particularised. Having regard to the way in which the case proceeded, no significant prejudice was occasioned to the plaintiff as a result of the absence of such particulars.

1. Sometime after the accident the plaintiff, had begun consuming significant and increasing quantities of alcohol, which he claimed had afforded him pain relief. This was against the background of his vulnerable personality and his prior history of resort to the use of alcohol as a means of coping at times of personal setback.

1. The effect of the accident on the plaintiff's alcohol intake therefore requires an evaluation of the plaintiff's pre-accident health and circumstances, and an evaluation of his history of responding to personal adversities by turning to the use of alcohol, as had occurred before the accident.

1. In view of the identified mitigation issue, it is relevant and necessary to say something about the procedural history of the matter as this had a significant impact on the progress of the matter, and upon the plaintiff's circumstances, including his history of alcohol use, and upon his ability to effectively seek mitigation of his loss.

Procedural history and course of the hearing

1. Following a partial hearing over 3 days, which ended in an adjournment of the proceedings in 2009, the proceedings remained in abeyance whilst MAC Act procedural processes took their course. This was for a remarkably unusual hiatus of nearly 4 years before resumption and completion of the hearing in 2013. That hiatus must be viewed in the context of the plaintiff's circumstances and the procedural history of the matter, as influenced by the requirements of the MAC Act.

1. The plaintiff's statement of claim was filed on 5 June 2007. After some initial delay, on 23 July 2009, whilst the proceedings were still in the case management phase, the parties consented to the matter being placed in the court's inactive list pending a Claims Assessment and Resolution Service ["CARS"] assessment.

1. As a result of the required MAC Act processes, it was initially determined that the plaintiff was not entitled to pursue a claim for damages for non-economic loss as his whole person impairment under MAC Act guidelines was assessed to be less than the 10 per cent required for such a claim to be available to him.

1. On 6 January 2009, 19 months after the plaintiff's statement of claim was filed, the defendants filed a defence admitting liability. The details involved in the respective delays incurred in filing the statement of claim and the defence, and the subsequent delay in seeking the initial hearing date, were not directly canvassed in the evidence.

1. The initial phase of the hearing, which was estimated to occupy two days, took place on 4 and 5 August, and 30 October 2009. At that time, the plaintiff was not procedurally entitled to make a claim for damages for non-economic loss. This was because, beforehand, on the available evidence, he had been unable to secure a Medical Assessment Service [" MAS"] finding of greater than 10 per cent whole person impairment under the MAC Act guidelines: s 131 of the MAC Act.

1. The evidence adduced at that initial phase of the hearing raised an arguable basis for a claim for damages for non-economic loss. Consequently, the plaintiff applied for and obtained an adjournment of the proceedings in order to pursue the MAC Act procedures that provided a mechanism for seeking the right to claim such damages even at that late stage: s 60(1) and s 62(1)(b) of the MAC Act.

1. After considering those matters and making related interim findings, on 6 November 2009, pursuant to those provisions, I acceded to the plaintiff's application and referred the matter for a further MAS assessment under the applicable statutory scheme. At that time I recorded my interim findings: Licciardo v Hudson [2009] NSWDC 289, at [5]. Those findings were:

(a)   the plaintiff had a pre-injury vulnerability to develop chronic alcoholism;

(b)   the injuries the plaintiff received in the collision on 9 June 2003 caused him to consume alcohol to excess in an endeavour to achieve relief from the pain caused by his injuries;

(c)   these events have caused the plaintiff to further consume alcohol chronically and to excess, such that he has more probably than not acquired permanent brain damage due to alcohol abuse.

1. Those interim findings will be revisited in the course of outlining my findings of fact concerning the plaintiff's injuries and disabilities.

1. A little over one year later, on 9 December 2010, whilst the matter was proceeding along the administrative pathway of the MAS process, the defendants unsuccessfully sought leave to challenge the interim findings: Hudson v Licciardo [2010] NSWCA 346.

1. The considerable time taken for the resolution of that challenge was not explored in detail in the evidence adduced at the resumed hearing. However, it is clear that challenge, and the subsequent MAC Act procedures that were undertaken, inevitably caused further MAS assessments to be delayed.

1. In the course of those events, the plaintiff attended a number of further medical assessments. As a consequence, some operable pathology was identified to be present in his cervical spine. On 25 January 2011, he underwent surgery for what has turned out to be an undisputed accident-related need for a cervical discectomy, nerve root decompression and an anterior cervical fusion, which involved a screwed cage insertion procedure in his cervical spine at the level C6/7.

1. As a consequence of those events, the plaintiff also obtained a further MAS certificate which entitled him to claim damages for non-economic loss in these proceedings. In the course of those events, the plaintiff was issued with a combined whole person impairment certificate of 27 per cent according to MAS guidelines.

1. Over the ensuing 3 years and 3 months between the date of the interim findings recorded on 6 November 2009, and a directions hearing that took place in the proceedings on 22 February 2013 (at which time the resumed and final hearing date was fixed to commence on 31 July 2013) there were no less than 13 supervisory directions hearings of the matter, at which times concerns were expressed by the court at the burgeoning delay in concluding the proceedings. Those directions hearings were appointed for the purpose of ascertaining why the proceedings were not ready to be allocated a resumed hearing date.

1. On each of those occasions, the court was informed that there were delays occasioned by the procedural intricacies of the MAS and CARS processes, and the related pursuit of review procedures within those processes.

1. Eventually, some 3 years and 9 months after the proceedings had been adjourned in 2009, the fourth and final day of the hearing took place on 31 July 2013. On that occasion, further oral and documentary evidence was received, and the parties made their final submissions, following which, judgment was then reserved.

MAS Assessments

1. The plaintiff's injuries have been the subject of a number of MAS assessments undertaken both before and after the first phase of the hearing. It appears that not all of the available MAS assessments were tendered in evidence. Nothing would appear to follow from the absence of those other MAS assessments.

1. A summary of the essence of the available assessments that were tendered appears in the paragraphs that follow. The significance of those assessments must be considered in light of the fact that the impairment guides employed for those assessments are statistical instruments that are not intended to be direct measures of disability. Those assessments must also be considered in the light of the decision in Pham v Shui [2006] NSWCA 373.

1. On 18 July 2006, Assessor Nichols, a dentist, was satisfied that the plaintiff's dental injuries could have been caused by the subject accident. He listed the plaintiff's teeth numbered 16, 26, 31 and 41 as being chipped or fractured. He stated that those teeth had a guarded prognosis without treatment: Exhibit "1". The plaintiff has not yet had that dental treatment in the intervening 7 years, due to his impecuniosity and because the CTP insurer has declined to pay for that treatment.

1. On 31 August 2006, Assessor Moore, a psychiatrist, assessed the plaintiff's psychiatric condition, which was specified as anxiety, depression, and alcoholism. Assessor Moore noted that alcohol abuse or dependency is often associated with mood disturbance. She concluded that post-accident, the plaintiff had experienced a recurrence of an alcohol dependence as a mal-adaptive means of coping with various stressors including relationship and financial difficulties, rather than being directly accident-related: Exhibit "1". The appropriateness of those conclusions must be evaluated against the evidence as a whole.

1. On 14 June 2010, Assessor Fitzsimons, a neurologist, stated at page 17 of her report, that the large amounts of alcohol described as having been taken by the plaintiff would be likely to cause damage to brain cells, although quantification of that damage remains uncertain: Exhibit "9". She concluded there was a diagnosis [of] alcoholism with consequent vulnerability to organ damage, including brain damage: Exhibit "9", page 20. Dr Fitzsimons drew attention to practical difficulties in assessing the degree of such damage, and according to the MAC Act guidelines for medical assessment, at that time she assessed the plaintiff's whole person impairment on that issue as being 0 per cent.

1. On 22 June 2010, Assessor Kirkby noted that the plaintiff had probable brain damage caused by alcohol, fractured teeth, chronic pain syndrome in the cervical, thoracic and lumbar spines and probable post-traumatic degenerative arthritis of the second metacarpo-phalangeal joint: Exhibit "8".

1. On 30 November 2010, consistent with Dr Moore's earlier stated view, Assessor McClure, a psychiatrist, concluded that the plaintiff's pre-existing alcohol dependence was exacerbated by the motor vehicle accident: Exhibit "10", page 15. Assessor McClure determined that of the assessed whole person impairment of 7 per cent due to alcohol dependence, 1 per cent was pre-existing, and 6 per cent was due to the motor vehicle accident: Exhibit "10", page 19.

1. On 21 February 2012, Assessor Kirkby certified that the plaintiff had a combined assessment of 27 per cent whole person impairment under the MAC Act guidelines: Part of Exhibit "L", page 64. That certification was based upon the MAS assessments of Assessor Nichols (18 July 2010), Assessor Fitzsimons (2 June 2010) and Assessor Bye, an orthopaedic surgeon (25 January 2012). That certification was in the following terms that I have edited to delete duplications:

· Teeth - fractured

· Soft tissue injury to the cervical spine

· Aggravatated (sic) soft tissue injury of the lumbsacral (sic) spine

· Soft tissue injury of the right shoulder

· Soft tissue injury of the left shoulder and arm

· Post-traumatic contusion of left wrist and hand

· Post-traumatic contusion of left 2nd MCP joint

· Post-traumatic contusion of left anterior chest wall and sternocostal joint

· Traumatic contusion of the right knee

· Scarring of the left thigh

· Brain damage - caused by alcohol

1. The significance of the latter certificate is that when it was issued the plaintiff had fulfilled the requirements of the threshold provided by s 131 of the MAC Act and became entitled to claim an award of damages for non-economic loss as he had satisfied the gateway provisions for such an award under the MAC Act scheme. Beyond that, the content of the MAS reports must be analysed in the same way as any other medical opinions to be assessed for the purposes of deciding whether or not they should be relied upon as a proper basis for making findings in the proceedings: Pham v Shui, at [90] and [98].

Array of evidence

1. At the first stage of the hearing in 2009, evidence was given by the plaintiff, by his daughter Ms Holly Shandler-Carter, by his son Mr Nathan Licciardo, by Mr Vatu Butow who is a longstanding friend of the plaintiff, by Mr Steve Wilson, a water-carting contractor who gave evidence on the economic loss issue concerning the working environment in that industry, and by Dr Julian Parmegiani, a consultant psychiatrist.

1. The parties also tendered bundles of medical reports and other documentary evidence. Dr Parmegiani was the only medical expert who gave oral evidence.

1. Significant amongst the documentary evidence tendered was Exhibit "F", which consisted of a statement dated 15 May 2007 from Mr Israel Faletau, a friend of the plaintiff. That statement was served pursuant to s 63 of the Evidence Act 1995, and was not the subject of cross-examination. The statement by Mr Faletau, who had known the plaintiff for over 20 years, was corroborative of the plaintiff's case on damages. Mr Faletau was located in Tonga at the time of the first phase of the hearing. No steps were taken for him to give oral evidence at either hearing, or to be cross-examined, whether in person, or by video-link, or by telephone.

1. At the second stage of the hearing, in 2013, further evidence was called from both the plaintiff and from Mr Wilson. Some further medical reports and documents were also tendered. On that occasion, no further oral evidence was called from any medical or allied health practitioner.

Credibility and reliability of testimony

1. Some of the experts who provided reports assessed the plaintiff as being fixed in the past, having a tendency to rue his circumstances and to blame others for misfortunes occurring in his life. Some examiners commented upon what they called the abnormal illness behaviour of the plaintiff relating to the effects of the subject accident. Those comments required evaluation in the context of the assessment of the genuineness of the plaintiff's complaints of pain, and the extent of the adverse emotional sequelae of the accident upon the plaintiff's life and circumstances.

1. It was plain from the psychological perspective, that the plaintiff was to a significant degree adversely affected by past circumstances in his life, notably the breakdown of his marriage in 1993, and the subject accident in 2003. It was also plain from the evidence that both before and after the subject accident, and to differing extents, the plaintiff had resorted to taking significant quantities of alcohol. The plaintiff said of this that the taking of alcohol enabled him to cope with his pain. Those are matters that require evaluation and findings.

1. At the first stage of the hearing, some of the plaintiff's answers to questions were rambling in nature. At the second stage of the hearing his answers were more lucid, but at times he still demonstrated a state of upset, frustration and hopeless resignation about his circumstances. Some of the medical examiners had identified the plaintiff's expressions of anger and resignation concerning his situation. He was affected by consumption of alcohol at some of those examinations. In the context of a psychological illness involving alcohol dependence and the ability to make decisions on such matters, that does not necessarily raise a credit issue, as is plain from the evidence of Dr Parmegiani. These are also matters that require a more detailed exposition in the findings on the residual effects of the accident on the plaintiff, and also on the mitigation issue.

1. At this point, and for reasons identified in the course of my evaluation of the evidence, it is sufficient to record my assessment that the plaintiff was an honest and truthful witness who did his best to recount his evidence accurately, notwithstanding his frustration and upset over the subject matter of that evidence, which he bitterly referred to as amounting to a waste of 10 years of his life and the lives of his children.

1. In reaching that conclusion on the plaintiff's credibility as a witness I have not accepted the suggestion made by the defendant's orthopaedic specialist, Dr John Cummine, that the plaintiff had attempted to "maximise or embellish his apparent disability". That comment was made by Dr Cummine before it was identified that the plaintiff's cervical spine needed to be and was subsequently, surgically fused. Furthermore, that comment did not appear to take into account the psychological factors impacting upon the plaintiff.

1. Although there were some points of difference in detail which appeared in parts of the plaintiff's oral evidence compared to the content of the documentary evidence, I did not consider those matters to have materially detracted from the overall credibility, or from the reliability of his testimony.

1. An example of one such matter was the plaintiff's evidence that in the accident he had sustained damage to a number of his teeth, a matter accepted by the MAS dental Assessor. When the plaintiff was asked if he could explain why the hospital notes only referred to a single chipped lower incisor tooth he explained, not incredibly, that his teeth had not been fully examined at the hospital. Given the focus on his other injuries at the hospital, I did not consider that explanation to be lacking in credibility. This is an example of why summarised medical histories in medical reports should be treated with caution when assessing the credibility of oral testimony: Mason v Demasi [2009] NSWCA 227.

1. The defendants tendered reports from Dr Cummine following his examinations of the plaintiff in 2004 and in 2012. Each of Dr Cummine's two reports referred to his observations that the skin on the plaintiff's hands was callused, with dirt ingrained into the callused skin and under the fingernails of each hand. Dr Cummine concluded there was evidence of the plaintiff carrying out physical work on a regular basis and that the plaintiff was capable of carrying out all forms of work without restriction. That conclusion was contrary to the case sought to be made by the plaintiff.

1. The evidence summarised in the preceding paragraph gave rise to a potential credit issue involving the plaintiff's account of his activities and the claim of incapacity for work. There was no evidence within Dr Cummine's reports to suggest that he had raised with the plaintiff the question or significance of the observed calluses and ingrained dirt on his hands to afford the plaintiff a fair opportunity to comment upon or explain those observations, which may have been due to a number of factors.

1. At neither of the two stages of the hearing, either in 2009 or in 2013, when the defendants had unfettered opportunities to cross-examine the plaintiff on any relevant issue, were there any questions directed at the plaintiff concerning those observations by Dr Cummine. Furthermore, the defendants directed no submissions to those matters.

1. Accordingly, without the plaintiff having been given the procedurally fair opportunity to comment upon and explain Dr Cummine's observations that are the subject of present analysis, I do not consider those observations made by Dr Cummine properly raise credit issues, and I have therefore not considered them in that vein.

1. There was no reason to doubt the credibility or the reliability of the factual evidence given by any of the other witnesses. The reliability of the content of the expert medical opinions tendered in the proceedings must be assessed according to the content and reasoning within that evidence: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705; Dasreef Pty Ltd v Hawchar [2011] HCA 21; UCPR Sch 7, cl 5(c).

Facts

1. In setting out my findings of fact in the ensuing paragraphs, unless otherwise stated or qualified, I have accepted and drawn upon the oral testimony, the undisputed events recorded in the plaintiff's chronology as conceded on behalf of the defendant, and upon matters of history summarised in the medical reports tendered: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25; s 60 of the Evidence Act 1995.

Plaintiff's background and pre-accident circumstances

1. At the time of the accident, the plaintiff was aged almost 44 years. At the time of the first phase of the hearing in 2009 he was aged 50 years. He is now aged almost 54 years. He attended primary school in Madang in Papua New Guinea. After the declaration of that country's independence, he moved to Australia and received his secondary education to School Certificate level in Queensland, following which he moved to Sydney at age 16 years in order to find work. He has lived in Sydney since that time. The plaintiff had been married and has 3 children of that marriage who are now adults. He was divorced in 1993. Since the divorce his children spent a good deal of their time living with him in circumstances where he had assumed the responsibilities of parenting.

1. The oral evidence of the plaintiff's pre-accident work history was adduced in vague and non-specific terms. This was augmented by a chronology which was not disputed, and which evolved between the hearing in 2009 and the resumed hearing in 2013: MFI "1" and MFI "9".

1. In 1976, the plaintiff initially worked as a shop assistant in a supermarket at French's Forest. Between 1976 and 1979 he then worked in the automotive repair industry, first as an apprentice motor mechanic and then as an unqualified brake mechanic. His employers at those times had not given him the opportunity of completing an apprenticeship. Between 1980 and 1987 he worked for a freight company, initially as a dockhand, and then as a driver.

1. In the course of that employment, in about 1984, the plaintiff sustained a back injury whilst lifting a heavy weight of approximately 150kgs. He had about 6 weeks off work following that injury. He then continued in that same work until about 1986, when he collapsed at work due to totally debilitating back pain which required hospitalisation for an unspecified period. Thereafter, he remained off work for an initial period that was unspecified in the evidence. After resuming work, he then had about 10 months off work in 1988. He later pursued a workers compensation claim in respect of that injury, which had left him with a chronic back condition involving damaged lumbar discs. The plaintiff still maintains some feelings of anger about that injury and the former employer's management of that injury.

1. Between 1988 and 1989, the plaintiff worked for Amos Plant Hire as a water tank driver carrying out commercial deliveries of water to various domestic locations, farms and industrial sites. This principally involved him in the filling of a mobile water tanker from water hydrants and then attending at domestic premises or earthmoving sites and either filling tanks on the premises or spraying water on earthworks at those sites. He found that work to have been within his physical capacity.

1. Thereafter, between 1990 and 1992, the plaintiff worked as a truck driver for various companies driving coal trucks on a casual basis. In 1992 and 1993 he was driving crane trucks and container trucks.

1. In that period the plaintiff had experienced marital difficulties which led to a breakdown of his marriage, and to a subsequent divorce in 1993. The plaintiff still maintained some anger towards his ex-wife regarding those events. This had affected his outlook and his work capacity before the subject accident. The plaintiff's last paid pre-accident employment was with Aeroflex Transport, apparently as a truck driver at a container terminal, for about 5 months in about 1996. Apart from that, the plaintiff was out of the workforce for about 8 or 9 years due to parenting responsibilities and because of the psychological reaction he had to the divorce. In that period, during which his medical records show he was regularly affected by lower back problems. In that time, the plaintiff became depressed and was drinking alcohol to excess at times of stress.

1. Between 2000 and 2003 the plaintiff had carried out some unpaid casual work for a firm called John Harold Engineering. This had been arranged for him by the kind actions of a friend, with the intention of keeping him occupied, and getting his mind off his problems, and in his own words, to get him "back on track", which I take to mean motivating the plaintiff to return to active paid employment in a more positive frame of mind.

1. By 2003, in the course of those events, and in preparation for his plan of self-employment, the plaintiff had adopted a more positive outlook, and had ceased drinking alcohol except for social drinking on weekends. This is corroborated by the unchallenged evidence of Mr Faletau: Exhibit "F", at paragraphs [8] to [11] and [19].

1. At the time of the subject accident the plaintiff was taking active steps to pursue self-employment in a water carting business which, based on his earlier experience of work in that industry, he felt he was capable of pursuing, notwithstanding his pre-existing lower back problems.

1. Beforehand, in 2002, and with the above aim in mind, at the age of 43 years, the plaintiff had enrolled in the NEIS programme, which was a 12-month government mentoring programme aimed at securing employment. This provided small business training to persons on social security benefits. He had completed the initial 6 months programme and was into the 5th month of the complementary mentoring programme when the accident occurred. As a result of the accident, the plaintiff was unable to complete the programme. In those circumstances, the plaintiff viewed the accident and its consequences for him as a major setback in his life.

1. Whilst undergoing the NEIS programme, on 17 January 2003, the plaintiff had purchased an 8 tonne truck and a 12 tonne water tank with the aim of working as a water carter: Exhibits "A" and "B". He had planned to do the same sort of work he had been carrying out when he had been employed by Amos Plant Hire years earlier. The plaintiff had realised he would have to purchase a larger vehicle to carry the water tank he had purchased and was in the process of purchasing such a vehicle. He had paid the vendor some $25,000 for the equipment and the vendor gave him what I infer were books of account which included contact details of the vendor's past customers who had used his water carting services.

1. The plaintiff had also purchased some other items of equipment for the purpose of his proposed water carting business. The plaintiff had contacts in the earthmoving industry and in the weekend domestic water carting industry. It was for these reasons that he had purchased a domestic water carting tank. He was intending to pursue this and other related lines of work were it not for the subject accident. In support of his claim for economic loss, the plaintiff called some financial evidence from Mr Wilson relating to the availability and profitability of work in the water carting industry. That evidence, and the feasibility of the plaintiff's planned enterprise will be analysed in the context of the assessment of that claim.

1. Before making findings as to the nature and extent of the plaintiff's accident related injuries, disabilities, the mitigation issue and any assessment of the plaintiff's claim for damages, it is necessary to identify the plaintiff's pre-injury health history and to review the chronology of medical assessments in addition to the already identified and reviewed MAS assessments.

Plaintiff's pre-injury health

1. The plaintiff's pre-injury health status was not problem-free. He had a pre-existing lower back condition as a legacy of his 1984 industrial accident. From the psychological perspective, he also had a pre-accident history of taking alcohol in excess as a coping mechanism. He had done so at a time of personal crisis, namely his marital breakdown and subsequent divorce.

1. The plaintiff was asked some questions about the state of his back condition in the years before the subject accident. His evidence in chief on those matters on Day 1, at T5.26 to T6.1, was as follows:

"Q. In respect to that back injury you've suffered years ago with Comet, you brought a workers compensation claim did you not?

A. Yes.

Q. How was your back in the years before this accident in 2003?

A. I'd gained control.

Q. What's that mean?

A. Prior to that I was eating pain killer tablets, ten to 15 tablets per day just to do a day.

Q. Then when you say you "gained control"?

A. Well it was after I was having cortisone injections on a monthly basis that I realised where I was becoming addicted.

Q. Mr Liccardo (sic) you told me that you gained control of this problem, remember saying that?

A. Yes.

Q. What were you like at that stage?

A. When I gained control?

Q. Yes?

A. It was just average, normal - nothing out of the ordinary, I just worked, I could do normal work again."

1. It is plain from the above extract from the evidence and the medical evidence that will shortly be reviewed, that before the subject accident, irrespective of the plaintiff's view that he could do normal work again, he needed to take care in respect of his physical activities in order not to aggravate his underlying lower back condition, the legacy of his 1984 injury. It is also plain from the plaintiff's evidence, and from the notes kept by his treating general practitioner, that at times before the subject accident, he also needed to continue taking prescribed painkilling medications for that lower back condition.

1. The plaintiff conceded a history of psychological reaction to life's adversities. It appears from the history within the report of Professor Mattick (at 2.6) that the plaintiff married in 1984. He and his wife were divorced in 1993, this led to the plaintiff experiencing psychological difficulties in his life, and becoming depressed and using alcohol to excess. The evidence given by his daughter confirmed that this was so. Following the ensuing divorce he assumed significant childcare responsibilities. This necessarily limited his opportunities to pursue work, and as a result, this and his reaction to his circumstances kept him out of the workforce for almost a decade. The plaintiff felt these circumstances also had the effect of thwarting his plans for the education of his children.

1. It is against those background circumstances before the subject accident that the plaintiff started taking alcohol to excess so as to become dependent on alcohol. This was described in his evidence in chief on the first day of the hearing, at T6.15 to T6.50, as follows:

"Q. What happened to you from an emotional point of view?

A. I just went downhill, everything I'd worked for was gone.

Q. Did you take to drinking?

A. Not immediately, I did yes.

Q. Not in - after a while did you, drinking heavily?

A. Only on weekends and then it just progressed as things became worse.

Q. Initially your three children who were then from nine down, nine, seven and five years of age went to live with their mother but then came to live with you?

A. Yes.

Q. Were you able to look after them and work as well in the years from the time they came to live with you?

A. Yes.

Q. In respect to - you told me everything you worked for had gone, when you were married you and your wife had a house?

A. Yes.

Q. What happened to that when the marriage broke up?

A. That was sold and - it was going to be repossessed by the bank but we sold it for just enough to pay the bank.

Q. And as the children got a bit older and were at school and so on, I realise you did this container truck driving for a while in 1996, but were you able to do any other work and look after them as well when they were young?

A. No as a sole parent I couldn't do work - as a male sole parent you couldn't find work, I just did casual jobs for people here and there.

Q. In 1997 your father died?

A. Yes.

Q. You received an inheritance?

A. Not immediately but yes."

1. It appears that in addition to receiving some benefits in that time, the plaintiff had also been using his share of an inheritance from the estate of his late father to live on in the years he was not working and whilst he was engaged in family responsibilities.

Pre-injury medical evidence of plaintiff's health status

1. In order to assess the reliability of the plaintiff's account of his pre-accident circumstances and his history of alcohol use, the preceding historical accounts provided by the plaintiff required evaluation having regard to the objective pre-accident medical records of his attendances for various medical treatments and assessments, as well as having regard to the factual evidence given by the plaintiff's son and daughter, and by Mr Faletau.

1. This is particularly necessary in order to evaluate the defendant's submissions on the question of mitigation related to the plaintiff's pre-accident level of alcohol consumption, and also because of a causation issue in connection with the plaintiff's pre-existing back injury.

1. The defendants tendered some 21 pages of photocopied handwritten notes kept by the plaintiff's treating general practitioner, Dr Kerecz, covering the period of the plaintiff's consultations with that doctor from 21 December 1988 to 16 June 2003: Exhibit "2".

1. Relevantly, in that period Dr Kerecz's notes make numerous pre-accident references to the plaintiff having chronic lumbar backache and occasional references to referred pains to the lower limbs. Those notes also record the numerous prescriptions issued to the plaintiff by Dr Kerecz for painkilling medications during that period. The notes also record that in 1995, Dr Kerecz referred the plaintiff to Dr Robert Smith, an orthopaedic surgeon, for consideration of lumbar spinal fusion surgery, and that the plaintiff had been on Dr Smith's waiting list for such surgery for a long time, and that the surgery had not taken place before Dr Smith retired. The notes also record that after Dr Smith had retired in 1997, in 1998 the plaintiff had been referred to Dr Warwick Stening, a consultant neurosurgeon for consideration of his L2/3 disc protrusion and related instability.

1. Dr Kerecz's notes also made reference the plaintiff having been assaulted on 2 February 2002. It was recorded that this had involved him being punched in the left shoulder, face and neck. The notes also record that the plaintiff was treated with an injection into the sub-deltoid bursa of the left shoulder, and a later diagnosis was made on 7 November 2002 of left supraspinatus tendonitis in the left shoulder after the earlier shoulder symptoms had been settled for some 4 months beforehand. Those matters were not the subject of specific medical evidence or challenge, and in the context of the available medical evidence, they seem to me to be of little if any relevance to the issues raised in these proceedings, particularly because this did not seem to have interfered with the plaintiff's progress through the NEIS programme in 2002/2003. There were no recorded neck complaints between that assault and the time of the subject accident.

1. In 1998, in his report to the plaintiff's general practitioner, Dr Stening considered the plaintiff's complaints of ongoing lower back pain which the plaintiff related to work incidents in which he had injured his lower back in 1984 and 1987 (sic for 1986). Dr Stening recorded a history of radiation of back pain to the legs, constant headaches, and inability to sleep. At that time Dr Stening reviewed the 1986 x-rays, a 1987 CT scan, and a 1995 MRI scan in the context of his findings concerning the plaintiff's complaints of limitation of lumbar movements in all directions to approximately three quarters of the range of normal movements.

1. At that time, Dr Stening noted the presence of degenerative changes at L2/3 in the 1986 x-rays and a loss of disc height and dehydration of the L2/3 intervertebral disc space. Dr Stening thought the plaintiff had many features of lumbar instability syndrome. He raised the possibility of a pedicle screw fusion procedure at the L2/3 level. He also thought there should be a trial of immobilising the plaintiff in a plaster cast to determine whether the plaintiff was a good candidate for surgery. There was also a mention in the evidence of the plaintiff having consulted a neurosurgeon, Dr Richard Hudson, for his back problems. In his oral evidence, the plaintiff also mentioned that he had seen Dr Bleasel in connection with those problems. There was no evidence to indicate there had been any follow-up of any of those matters: Exhibit "3".

1. On 14 October 2000, the plaintiff was referred to a Dr Thomas Dean by Dr Kerecz. Dr Dean noted a history that the plaintiff had been experiencing stress and anxiety associated with back pain, which he helped ease by taking alcohol: Exhibit "4". There was no objective record of the plaintiff's level of alcohol intake at that time.

1. It is clear from the above summary, that the plaintiff had a significant back disability that pre-dated the subject accident. It is also clear from those summarised matters that at the time of the subject accident, the plaintiff's back was vulnerable to further injury at the site of the previous injury and was also causing him intermittent problems.

1. The notes of Dr Kerecz recorded that shortly before the subject accident, on 10 January 2003, the plaintiff had been engaged with the Commonwealth Rehabilitation Service in attempts at networking aimed at securing work. Those notes also recorded that on 12 May 2003, about one month before the subject accident, the plaintiff had experienced increased back pain in the previous 3 weeks, following a recent residential move.

1. In addition to making his handwritten clinical notes available, Dr Kerecz prepared a detailed letter of report to the plaintiff's solicitor in which he reviewed the plaintiff's circumstances.

1. The report of Dr Kerecz which was dated 30 July 2009, formed part of Exhibit "C", made no mention of the plaintiff's pre-accident medical history. However, Dr Kerecz's handwritten clinical notes for the period between 21 December 1988 and 16 June 2003, as summarised above, contained numerous references to pre-accident consultations with the plaintiff for back pain, and for the prescription of painkilling medication for such pain. Significantly, those notes contained no references to the plaintiff's history of pre-accident alcohol use: Exhibit "2". There was no evidence that Dr Kerecz had been asked to include a discussion on those matters in his report.

1. Accordingly, the plaintiff's evidence as to his pre-accident alcohol use must be assessed in light of the evidence of others who gave evidence and who knew and had observed him in that period.

1. Around the time just before the occurrence of the accident, the plaintiff was optimistic of pursuing work as a water carter in his own business. He had purchased and was arranging his equipment for that work. He was equipping himself with the knowledge of how to operate a small business. He had a companion with whom he saw a future relationship, he had good reasons to feel optimistic about his own future, and he was not engaged in excessive drinking.

1. To a large measure, the account of the plaintiff's situation as summarised in the preceding paragraph was borne out by the evidence of his son Nathan, who was aged 25 when he gave his evidence in 2009. He was almost 19 years at the time of the accident. Whilst stating that before the subject accident his father had not "really been an upbeat person", he considered that his father nevertheless continually tried to keep "moving forward". He said that before the accident he only saw his father drunk on the "weekends off" when the (younger) children were not around: Day 1, T79.15. He said that after the accident he had observed his father's morale plummet and that his alcohol intake had "skyrocketed". He described his father's physical state after the accident as "knackered". He described his father's emotional state after the accident as being depressed and feeling useless, and that his plans for a business had come to nought.

1. The evidence of Nathan Licciardo as summarised above was not challenged. It did not seem to me to be inherently improbable.

1. The above account was also largely corroborated by the plaintiff's daughter Ms Holly Shandler-Carter. She was aged almost 23 years when she gave her evidence in 2009. She was in her 16th year at the time of the accident. Her observation of her father was that before the subject accident he was healthy, physically strong and active. She said that notwithstanding his previous back injury, a matter of which she was aware, he was able to lift her and his girlfriend's son in each arm, the respective weights being approximately 80kgs and 90kgs. She described the plaintiff's home before the accident as being tidy and the children well nourished and looked after.

1. Ms Shandler-Carter described her father's pre-accident emotional status as being one where "things would pent up" for him and he would then "become angry for a while, usually not for long, and it'd just burn off and it'd be fine". In contrast to those pre-accident observations, she described his post-accident emotional state as very depressed, and of him being in a lot of pain. In my view, observations of that type were within the capacity of a family member who knew the plaintiff well. She became distressed whilst giving evidence when she described the plaintiff as having turned to alcohol "to help him get through it".

1. Ms Shandler-Carter described her father as having had "just too many things [go] wrong" so that it became too much for him after the accident and he just seemed to care less, complain a lot about pain, drink alcohol and take painkillers. She described him as having become depressed and withdrawn. In comparison, before the accident she had observed that her father "didn't really drink around the house when we were at home". That evidence given by Ms Shandler-Carter was explored in cross-examination but it was not shown to be unreliable.

1. I found Ms Shandler-Carter and Nathan Licciardo to be impressive witnesses and I accept their evidence concerning their observations of the plaintiff both before and after the subject accident as being truthful and factually correct, along with the evidence of Mr Faletau, as already cited.

1. Before coming to those views I had considered the possibility that those witnesses may have been inclined to tailor their evidence to assist the plaintiff's case. However, I discounted that possibility as it was not my impression of their evidence, and no challenges along those lines were put in cross-examination.

Accident-related injuries described by the plaintiff

1. In the events of the accident the plaintiff said he leaned forward and extended his left hand and arm across the neck and chest of his front seat passenger in an attempt to prevent her from striking the windscreen. He said he sustained injury to his face due to the deployment of the air bag in the vehicle, and as a result suffered some smashed or at least chipped teeth. He said his jaw and head were pushed backward and sideways. He said that in these events he had hurt his left hand and his left shoulder. He said he had also injured himself across his neck and he had injured what he referred to as the small of his back, which he described as being in the exact same spot where he had previously sustained injury in about 1984. He described the back injury he sustained in the subject motor vehicle accident as being an aggravation of that earlier back injury.

1. The reliability of the plaintiff's account of his injuries must be assessed in light of the pre and post-injury medical evidence tendered in the proceedings.

Initial treatment following accident

1. Shortly after the accident, an ambulance attended the accident scene and transported the plaintiff to Liverpool Hospital. The ambulance transport report noted the plaintiff had been wearing a seatbelt at the time of the accident. The ambulance report noted that at the scene, the plaintiff was complaining of neck pain with absence of motor and sensory function. It was also noted that he was complaining of lumbar back pain against a history of prolapsed lumbar discs, and sternal chest pain. At the scene the plaintiff was given intravenous doses of morphine at 19:15hrs and again at 19:26hrs.

1. The triage notes of Liverpool Hospital at 19:54hrs noted that the plaintiff's sternal pain had resolved and the ongoing complaints were of pain, then described as being at the site of an old lower lumbar injury, and of neck pain.

1. The plaintiff described the initial treatment he received at hospital as comprising a CAT scan and the injection of morphine. He said that he had remained on a gurney at the hospital until about 8.00am the next day and a friend came and took him home to recuperate. He then sought treatment from his general practitioner of almost 20 years, Dr Kerecz.

1. The Liverpool Hospital clinical notes provided some more detail of those events. In addition to noting the plaintiff's complaints of neck and back pain, they recorded a chipped lower incisor tooth due to being struck on the face by an airbag, but not any other injury. Those notes recorded the plaintiff had been placed in a hard collar. The notes described the plaintiff as being in a bed in the acute area. The tendered copy of the hospital medication chart had been incompletely copied. The partially copied text suggests that the plaintiff had been given some medication whilst at the hospital.

1. The x-ray imaging of the plaintiff taken at the hospital reported no abnormality or obvious traumatic pathology in the cervical spine but suggested further imaging be undertaken if further neurological signs were present. The x-ray imaging of the lumbar spine also noted no obvious traumatic pathology but noted the presence of chronic degenerative changes in the L2/3 disc level.

1. A subsequent CT scan of the plaintiff's cervical spine that was prescribed because of complaints of tenderness at the level C7 and C6/7 junction revealed normal alignment and no bony injury.

1. At that time, the plaintiff's left shoulder was also very sore. His neck was very tense and tight, his low back was experiencing spasms, and his left hand and wrist area were extremely tender.

1. I now turn to an examination of the plaintiff's post-accident medical history by reference to the array of non-MAS medical assessments that followed his discharge from hospital.

Subsequent post-injury medical and allied assessments

1. The first post-hospital discharge record of any post-injury medical attendance by the plaintiff was on 16 June 2003, which was some 7 days post-accident when the plaintiff attended upon his longstanding treating general practitioner, Dr Kerecz. The details of those subsequent consultations appear within the report of Dr Kerecz dated 30 July 2009.

1. Dr Kerecz's report dated 30 July 2009 was tendered without objection at the first phase of the hearing in 2009. The defendants had not required Dr Kerecz for cross-examination on his report at any stage of the proceedings. Dr Kerecz's report details the effects of the accident upon the plaintiff as noted by him over the course of some 10 consultations at sporadic intervals in the period between 16 June 2003 and 22 January 2009. As the report of Dr Kerecz was largely historical, I do not consider the absence of an acknowledgment by him of the Expert Witness Code to be of any significance in this case.

1. Between 10 November 2005 and 23 May 2008, there was a gap in the plaintiff's consultations with Dr Kerecz. In that period, in February 2008, the plaintiff had been diagnosed at Royal North Shore Hospital with multiple pulmonary emboli and deep venous thromboses apparently due to a condition of "lupus anticoagulant", an abnormal antibody formed through a defect in the immune system which causes increased and inappropriate blood clotting, and thereafter requiring lifelong anticoagulant therapy. This condition was stated by Dr Kerecz to have been unrelated to the motor vehicle accident.

1. Some of the medical histories contain references to the occurrence of a similar thrombotic event in 2004, but the details of this were not well documented in the evidence.

1. There was no evidence tendered that described the plaintiff's treatment at Royal North Shore Hospital for his haematological and thrombo-embolic problems.

1. In compiling his historical report for these proceedings, Dr Kerecz noted that it was not until the consultation with the plaintiff in May 2008, some 5 years after the accident, that he became aware of the plaintiff's practice of drinking to excess to attempt to cope with his pain.

1. That history was only revealed to Dr Kerecz when he had queried the plaintiff's treatment by way of anticoagulant injections rather than through oral Warfarin medication, which otherwise seemed more appropriate to Dr Kerecz. It transpired that the plaintiff's use of intravenous anticoagulants had been mandated because of his excessive alcohol intake, which contra-indicated the taking of the oral anticoagulants that were then available.

1. In the body of his report dated 30 July 2009, written for the purpose of these proceedings, Dr Kerecz reviewed the plaintiff's past history and summed up the position as follows:

"As I have been compiling this report amid extensive research of the case file, it becomes more apparent how confusing and frustrating it has been to attempt to treat him. He has consistently failed to follow through with referral and consequently, his attendances to me have been punctuated by long periods, even years.

Shane volunteers that he has been "all over the place" and he feels that this is a major part of his disability. His attempts at self-treatment with excessive alcohol consumption - he admits to drinking 2 to 4 litres of wine daily - have no doubt impacted upon this.

As to how this all fits together: there is certainly a very significant past history of degenerative disease of the spine and he has suffered from this since 1984. He was being considered for lumbar spinal fusion 14 years ago. However, Shane feels that his lumbar spine has been severe exacerbated by the accident. He also has neck and thoracic spine pain and some of these areas will be complicating others because of guarding and compensatory muscle spasm which places excessive demands on areas which may still be mobile. The left hand problem and right knee still disable him and render him unsteady. There is probably a degenerative component to the knee pain also.

The issue of Shane's capacity to return to his pre-injury employment is also difficult as he was considerably disabled before the accident. I don't know how to quantify the further negative impact, however, when someone is already struggling, further adversity may be far more disabling than for someone who had been fit. The mental effects have probably been as significant as the physical ones.

I believe Shane's diagnosis as to conditions caused by or exacerbated by the motor vehicle in question is as follows -

- exacerbation of degenerative disc disease and instability of lumbar spine

- exacerbation of cervical spondylosis

- thoracic spine pain

- traumatic arthritis to 2nd and 3rd metacarpo-phalangeal joints left hand

- osteochondral damage to 3rd metacarpal head left hand

- 4th left sternocostal joint arthrosis

- arthrosis right knee

- exacerbation of alcohol dependence / abuse"

1. Unfortunately, due to his own intervening illness, Dr Kerecz became unable to continue seeing the plaintiff professionally. At the time of the resumed hearing, the plaintiff was in the course of waiting for an appointment with another general practitioner who also happens to be the same doctor whom Dr Kerecz himself consults.

1. At the first phase of the hearing in 2009, the medical documentation of the plaintiff's case was somewhat sparse. Whilst the second phase of the hearing in 2013 provided a little more information on the plaintiff's medical case, there were still obvious gaps in the chain of information left unfilled and unexplained. Having considered those unexplained gaps in the chronology of medical consultations, I do not consider them to be materially significant in light of the issues upon which the parties focussed their attention.

1. I do not accept the opinion of Dr Cummine to the effect that the plaintiff does not require domestic assistance and instead prefer the reasoned views expressed by Dr Conrad concerning the plaintiff's need for such domestic assistance.

1. There is discord between the plaintiff's submission arguing for past care in the sum of $43,680 and the evidence in support of such a claim.

1. Although the medical evidence that I have accepted supports the claim made, the calculation submitted on behalf of the plaintiff does not reflect the evidence of the plaintiff as to the amount of domestic assistance he has actually received since he was discharged from hospital on 31 January 2011.

1. The evidence disclosed that up until the time of the plaintiff's surgery in January 2011, his son Nathan and he would each do some of the domestic work: Day 4, T8.8. No claim is made in respect of that assistance.

1. After the plaintiff's cervical fusion surgery, he required more extensive care and assistance: Day 4, T9.15. The additional assistance was of the order of 2 to 3 hours per day, or between 14 and 21 hours per week for at least 6 months: Day 4, T9.15 to T9.26. The evidence of the period over which that level of care was provided to the plaintiff up to about a year after the surgery, was left in a vague state: Day 4, T9.

1. After that period of a year, the plaintiff's son ceased living with him, following which the plaintiff tended to his housework "every now and then" when he got around to it: Day 4, T10.4. It appears that the plaintiff just exists by continuously drinking alcohol during the day: Day 4, T21.46. This suggests that the suggested domestic assistance, the domestic work involved, is simply left unperformed.

1. In those circumstances, the amount to be awarded for domestic assistance must necessarily be limited to a sum for less than that which was submitted on the plaintiff's behalf. It appears from the plaintiff's evidence at Day 4, T9, that the period of assessment should be limited to 12 months between 31 January 2011 and 31 January 2012. I infer from that evidence that the plaintiff received the claimed 10 hours of care per week in that period.

1. Appendix 1 to these reasons identifies the value of 10 hours per week of domestic assistance in that period at the rate prescribed by s 141B of the MAC Act to be $13,186. I therefore award the plaintiff damages for past care and domestic assistance in the amount of $13,186.

Future care and domestic assistance

1. On behalf of the plaintiff, it was submitted that damages for future care and domestic assistance should be awarded in the amount of $337,500, being for 10 hours per week projected over the plaintiff's probable life span at $40 per hour.

1. In contrast, on behalf of the defendants, it was submitted that there should be no award of damages for future care and domestic assistance.

1. At present the plaintiff lives a relatively substandard existence on a remote rented property for reasons of financial economy, given his limited means. The house has "been totally wiped out by white ants" and "is due to be demolished because of its instability": Day 4, T10.9. That property is larger than his needs require and therefore it probably has greater maintenance requirements than would otherwise be the case. At present he does not receive the domestic assistance he needs. That position will change when he has funds to pay for such assistance: Day 4, T10.20; T53.47.

1. In my view, the plaintiff's future domestic assistance needs will probably diminish once this litigation is concluded and when the plaintiff finds smaller premises more suitable to his needs and requiring a lesser degree of domestic assistance with regard to indoor cleaning, outdoor maintenance and other assistance. It would be wrong in principle to make an assessment along the lines that as the plaintiff is not actually receiving that which he actually needs, he should not receive an allowance to pay for what he needs in the way of domestic assistance.

1. I therefore propose to award the plaintiff damages for future domestic assistance for a lesser amount than the claimed 10 hours per week. Although the evidence does not provide much guidance on the extent to which a reduction in hours should be made, recognising that compensation is not intended to be perfect, I consider that an allowance of an average of 7 hours per week for future domestic assistance would be a reasonable approach to this aspect of the assessment.

1. A provision for 7 hours per week should be an adequate allowance to provide the plaintiff with paid assistance for the indoor activities of cleaning and moving furniture about, outdoor maintenance for gardening, lawnmowing and the like, as well as carrying heavy shopping and other incidental tasks. It would be unreasonable to deny the plaintiff such compensation in the face of a demonstrated need, especially where the non-provision of such an allowance would result in him living in squalor.

1. The projection of the value of 7 hours per week of commercially provided domestic assistance at $40 per hour ($280 per week) at 5 per cent over the plaintiff's discounted probable life span of 25 years (x 753.6) yields an amount of $211,008.

1. I consider that this sum requires some discounting on account of possible adverse vicissitudes for a number of reasons which could independently operate to increase the plaintiff's domestic assistance needs irrespective of the effects of the subject accident.

1. Without attempting an exhaustive list, those reasons include matters such as the plaintiff's unrelated thrombo-embolic problems, a further exacerbation of his underlying back condition, the occurrence of other psychological stressors unrelated to the subject accident, the effect of which might spiral the plaintiff into reinstated dependence on the heavy use of alcohol, on the assumption that long term detoxification treatment made available through the proceeds of litigation, was otherwise successful.

1. I consider that a further discount of 10 per cent should be applied in addition to the conventional 15 per cent discount for potentially adverse vicissitudes, making a total discount of 25 per cent. Applying that discount to the sum of $211,008, this yields the amount of $158,256. I therefore award the plaintiff damages for future care and domestic assistance in the amount of $158,256.

Past out-of-pocket expenses

1. On the final day of the hearing the parties announced their agreement on the amount the plaintiff was entitled to recover by way of out-of-pocket expenses, namely the amount of $5364. This did not include the cost of the cervical fusion surgery, which was presumed to have been covered as a public hospital provided service. I therefore award the plaintiff damages for past out-of-pocket expenses in the amount of $5364.

Summary of damages assessment

1. My assessment of the plaintiff's damages is summarised as follows:

(a) Non economic loss	$250,000
(b) Past economic loss	$343,750
(c) Future economic loss	$223,905
(d) Loss of superannuation	$Nil
(e) Future out-of-pocket expenses	$75,000
(f) Past care and domestic assistance	$13,186
(g) Future care and domestic assistance	$158,256
(h) Past out-of-pocket expenses	$5,364
Total	$1,069,461

Disposition

1. The plaintiff is entitled to a verdict and judgment in his favour in the assessed amount of $1,069,461 without any discount on account of alleged failures on his part to mitigate his damages.

Costs

1. As the proceedings have been determined in the plaintiff's favour, he is entitled to an order that his costs of the proceedings be paid by the defendants on the ordinary basis unless a party is able to demonstrate an entitlement to a different order for costs, in which case there will be liberty to apply for a different costs order.

Orders

1. I make the following orders:

(1)   Verdict and judgment for the plaintiff in the sum of $1,069,461;

(2)   The defendants are to pay the plaintiff's costs on the ordinary basis unless otherwise ordered;

(3)   The exhibits may be returned;

(4)   Liberty to apply on 7 days notice if further orders are required.

APPENDIX 1

CALCULATION OF VALUE OF PAST GRATUITOUS DOMESTIC ASSISTANCE / CARE ACCORDING TO THE

MOTOR ACCIDENTS COMPENSATION ACT 1999, s 141B

(10 hours per week between 31 January 2011 and 31 January 2012)

PERIOD	WEEKS	WEEKLY s.141B RATE	HOURLY s.141B RATE	AMOUNT FOR 10 HOURS PER WEEK
1.	31.01.2011 to 18.02.2011	02.57	$996.40	$24.91	$640.18
2.	19.02.2011 to 20.05.2011	12.85	$1025.90	$25.64	$3294.74
3.	21.05.2011 to 19.08.2012	12.85	$1026.00	$25.65	$3296.02
4.	20.08.2012 to 18.11.2011	12.85	$1027.10	$25.67	$3298.59
5.	19.11.2011 to 31.01.2012	10.42	$1016.30	$25.40	$2646.68
TOTAL	$13,186.21

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Decision last updated: 30 August 2013