Love v TAC (No 2)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT LATROBE VALLEY
COMMON LAW DIVISION

S CI 2014 05193

DARREN LOVE	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	Zammit J
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	14–24 August 2017
DATE OF JUDGMENT:	28 September 2017
CASE MAY BE CITED AS:	Love v TAC (No 2)
MEDIUM NEUTRAL CITATION:	[2017] VSC 584

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ACCIDENT COMPENSATION – Plaintiff suffered injury as a consequence of a motor vehicle accident with an unidentified vehicle and driver – Plaintiff seeking damages against the Transport Accident Commission pursuant to s 96 of the Transport Accident Act1986 – Whether unidentified driver was negligent – Physical injury – Neuropathic pain – Psychiatric injury – Plaintiff suffering from post-traumatic stress disorder and severe chronic adjustment disorder with depression – Pre-existing physical and psychiatric conditions – Plaintiff awarded damages – s 96 of the Transport Accident Act1986.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P. O’Dwyer QC with Mr A. Hill	Slater & Gordon
For the Defendant	Ms R. Annesley QC with Mr A. Saunders	Transport Accident Commission

HER HONOUR:

Introduction

The plaintiff alleges that on 15 August 2011 he was travelling along Cheltenham Road, Dandenong on a motor scooter in the far right lane, when a motor vehicle travelling in the middle lane moved into the plaintiff’s lane, causing a collision to occur and causing him to take evasive action, which resulted in him putting his left foot on the ground to avoid the motor scooter skidding from under him and hitting the ground (‘the incident’).[1] The plaintiff alleges that as a result of the incident he has sustained serious injury to his left leg, ongoing neuropathic pain and post-traumatic stress disorder (‘PTSD’) with depression.
[1]Amended statement of claim dated 14 August 2017. The amended statement of claim at [2] pleads the incident occurred on 16 August 2011. This is a careless error, which was made on the original statement of claim dated 23 September 2014 and then not corrected in the amended statement of claim filed in court on day one of the trial.

The plaintiff makes a claim for general damages only.

This trial commenced on 14 August 2017. On the seventh day of the trial following the defendant’s closing submissions to the jury, the plaintiff made an application to discharge the jury. The application was heard on the eighth day of the trial, following which I ruled that the jury was to be discharged with no verdict. I continued to hear the trial as a cause.[2]
[2]See Darren Love v Transport Accident Commission [2017] VSC 491 (Zammit J).

The law

In Victoria, where a plaintiff suffers an injury as a consequence of an accident with an unidentified vehicle, the plaintiff may, pursuant to s 96 of the Transport Accident Act 1986 (‘the Act’), recover damages from the Transport Accident Commission (‘TAC’) in place of the unidentified driver.

The plaintiff must prove on the balance of probabilities that he was involved in a transport accident on 15 August 2011 with an unidentified vehicle. The plaintiff must satisfy the Court that on the balance of probabilities he cannot establish the identity of the vehicle at the date of the accident and at least until the commencement of the proceeding.[3]
[3]Transport Accident Act1986 s 96(8).

The parties do not dispute that at the time of the commencement of this proceeding the identity of the vehicle cannot be established. However, in dispute is whether the identity of the vehicle cannot be established at the date of the accident.

In order to be entitled to damages, the plaintiff must prove on the balance of probabilities that there was negligence on the part of the unidentified driver arising out of the incident. Further, the plaintiff must establish that the negligence was a cause of his injuries.

The defendant does not admit the incident occurred,[4] or that the motor vehicle caused the plaintiff’s injuries.[5]
[4]Further amended defence dated 17 August 2017 [2].
[5]Ibid [6].

As road users, we all owe a duty to other road users to take reasonable care and not expose them to unnecessary or unreasonable risk of injury. There is no dispute between the parties that the driver of the unidentified vehicle was under a duty to take reasonable care in the driving and management of the vehicle on that day so that he or she would not injure the plaintiff.

The onus of proof is on the plaintiff to establish on the balance of probabilities that the unidentified driver was in breach of that duty. A standard of perfection was not required of the unidentified driver. He or she was not required to prevent all accidents or injuries which might befall road users. Rather, the unidentified driver was required to exercise the care which you would expect of a reasonably prudent person in his or her position to avoid unnecessary risk of injury to persons using the roads, including the plaintiff. The test is an objective one. If the plaintiff satisfies the Court that the incident occurred with an unidentified vehicle, it follows that the unidentified driver and therefore the defendant, the TAC, owed the plaintiff a duty of care and that the defendant breached the duty of care in that the unidentified driver failed to take reasonable care.

In this case, the defendant accepts that an incident occurred on 15 August 2011 involving an unidentified driver and the plaintiff. However, the defendant submitted that there was no breach on the part of the unidentified driver and that the conduct of the unidentified driver was not a cause of the plaintiff’s injury.

The evidence

Critical to this case is the plaintiff’s evidence of the incident. He is the only witness available to give evidence about the incident. As such, the plaintiff’s reliability and credit are in issue.

I consider the plaintiff gave his evidence in a straightforward fashion. To my observation, he attempted to give an honest and accurate account of events as he recollected them. His evidence was not without inconsistencies and at times he simply could not recall the details of, or had no memory of, a particular event. There were some aspects of the plaintiff’s evidence I do not accept but ultimately they do not affect his evidence in relation to the incident.[6]
[6]The plaintiff’s evidence about what he was doing at the pizza shop as a volunteer and that the owner loaned him a motor scooter so that he could help with deliveries and not be paid is difficult to accept. Further, the fact that he says there were five or six people helping out at the pizza shop, and he could not recall one name, I consider to be unbelievable.

It was apparent during the plaintiff’s evidence, that in order to give detailed evidence about an incident that occurred six years ago, he was required to an extent to reconstruct and recollect the incident as best as he was able. I do not consider that the plaintiff had a memory of the incident that was superior to what might have been expected. Nevertheless, in circumstances where the plaintiff did not have any file notes, diary entries, emails or the like of the incident, this had the result of making his evidence appear, from time to time, to be a reconstruction. I do not mean to be critical about this. It was the inevitable consequence of the fact that this proceeding required the plaintiff to give evidence of an incident that occurred six years ago in a matter of minutes and in circumstances where shortly after the incident he was hospitalised.

The plaintiff’s reliability as a witness was attacked by the defendant on a number of bases, relevantly:

(a) the plaintiff’s credit;[7]

(b) the plaintiff’s prior inconsistent statements;[8] and

(c) the plaintiff’s evidence in cross-examination being a reconstruction of the events without the firsthand knowledge that he claimed to have of the incident.[9]

[7]Transcript of proceedings, Love v TAC (Supreme Court of Victoria, Zammit J, 14-24 August 2017) (‘T’)596, LL26-31.

[8]T601, LL1-6.

[9]T604, LL14-17.

In this case, the plaintiff has given a number of statements or histories as to how the incident occurred. He recounted the incident to an ambulance officer[10] and to a number of medical practitioners thereafter. The plaintiff did not accept all the histories and the medical reports. He completed a TAC form dated 24 October 2011,[11] parts of which he rejected. The plaintiff was extensively cross-examined by the defendant’s senior counsel about the incident and how it occurred, and the various descriptions of the incident he provided. He was questioned as to his evidence including, but not limited, to:
[10]Exhibit P4.
[11]Exhibit P1.

(a) what evasive action he took on the motor scooter, and whether he swerved right, left and then right again or in some other way;

(b) whether his body as well as his motor scooter was hit by the unidentified motor vehicle;

(c) how many times he was hit by the unidentified motor vehicle;

(d) the colour and any other description of the unidentified vehicle; and

(e) whether he had one foot or both feet down at the time he said that the jarring occurred.

The plaintiff’s evidence in relation to the incident

Before dealing with the prior histories and statements given by the plaintiff and what, if any, inferences can be drawn from the inconsistencies, I will set out the plaintiff’s evidence in relation to the incident.

On 15 August 2011 the plaintiff was living in Birdwood Avenue, Dandenong. At the time he was helping out at a pizza shop in Hemming Street not far from where he lived, but not getting paid. He was using a motor scooter loaned to him by Sam Rayes from the pizza shop as his was ‘wrecked’ from another accident in May 2011.[12]
[12]T71, LL23-29.

On 15 August 2011 the plaintiff and Sam were in Frankston. The plaintiff had two cans of Jim Beam and cola. He left at 4:00 pm to return keys to the pizza shop. He came up Hammond Road and turned left into Cheltenham Road. Cheltenham Road has three lanes heading in one direction and three lanes heading in another direction. He was in the right hand lane of Cheltenham Road as he was going to be turning right further on. He was driving at approximately 60–70 km/h. A car that was in the middle lane came from behind him and the next thing the plaintiff noticed was an indicator flashing right next to him.[13]
[13]T73, LL11-15.

As soon as he saw that indicator the plaintiff took evasive action. The car struck the left hand side of his motor scooter but not with any force and there was no damage whatsoever done to it.[14]
[14]T73, LL16-19.

He said that as a result of the motor vehicle touching his motor scooter he headed towards the gutter of the median strip, taking evasive action to the right. He had to swerve to come to the left to miss the gutter, and in the meantime the car was still moving into his lane. He swerved right again and then went to straighten the front wheel of the motor scooter. As he did this, the front wheel started to slide out from underneath him and that is when his left foot came off the motor scooter onto the road. He said that he felt a jarring type sensation and some pain, which settled straight away.[15]
[15]T74, LL8-13.

It was put to the plaintiff in cross-examination that this was the first time the plaintiff had said that he swerved right, left and right again and that previously he had said he went right,[16] then swerved to the left and, at that point, his bike went from underneath him and he put his foot down. Counsel for the defendant took the plaintiff to his TAC claim form[17] and the description of the incident in Associate Professor Bruce Love’s report in which the plaintiff did not mention that he swerved to the right a second time.[18]
[16]T152, LL5-11.
[17]Exhibit P1.
[18]T192, LL10-14.

The plaintiff maintained in cross-examination that as he came over towards the car for the second time, he ‘leaned that way on the bike [to the right] to sort of stop my motion and then I straightened up, which is when the wheel’s come out from under me’.[19] However, the plaintiff acknowledged that he was ‘just guessing’[20] and maintained that he has always said right, left, right. He said, ‘…it wasn’t like I swerved and went totally right, it was to stop me from going any further that way…’.[21]
[19]T191, L29 - T192, L2.
[20]T192, L5.
[21]T192, LL14-16.

The plaintiff then turned right into Bennet Street from Cheltenham Road and continued to Jones Road. He turned right into Hemming Street. The pizza shop was close to the corner of Hemming Street and Jones Street. When he arrived he drove up onto the footpath and parked in front of the pizza shop. He went to get off the motor scooter and as soon as his left leg hit the ground he felt excruciating pain and collapsed to the ground. He said that there were about three people there at the time, including Sam’s parents and brother. An ambulance was called and was in attendance by 5:00 pm.[22]
[22]Exhibit P4, 5.

The ambulance report records the description given by the plaintiff at the time as:

40 YO male, riding scooter at 50-60kph along Lower Dandenong Rd when he was touched by motor vehicle travelling in same direction. Pt lost balance and put his left leg down on the road to stabilise himself. Nil fall from scooter and Pt felt pain to lower left leg. Pt continued to ride scooter for another 3-4kmh and parked scooter. On attempting to ambulate Pt felt acute onset of severe pain – AV called…[23]

[23]Exhibit P4, 1.

The ambulance report records the plaintiff’s presentation as:

Conscious, orientated, anxious/distressed, pearl, nil headstrike… left leg – pain to proximal tibia/fibula – rated 7/10 – increased with MVMT/palpitation, deformed/large haematoma present… Pt unable to weight bare/ambulate.[24]

[24]Exhibit P4, 2.

There is no description in the ambulance report of any abrasion to the plaintiff’s left leg or any description consistent with a fall from the motor scooter onto the road. The hospital emergency record dated 15 August 2011[25] makes no mention of damage to the skin. The hospital records the following history:

Riding scooter at 50km/hr when he was touched by a motor vehicle travelling in the same direction patient lost balance and put his feet down on the road to stabilise himself. Nil fall from scooter and patient felt pain to lower left leg, patient continue to ride scooter for another 4km and parked scooter. On attempting to ambulate patient felt acute onset of severe pain ambulance called.[26]

[25]Exhibit P5.

[26]Exhibit P5.

In cross-examination, the plaintiff was questioned as to whether the motor vehicle struck his body. It was put to the plaintiff that the ambulance report states that ‘he was touched by a motor vehicle travelling the same direction’.[27] The plaintiff’s evidence was ‘…I say it touched me, the bike…’.[28] On 16 January 2017, Dr Andrew Muir, the plaintiff’s pain management consultant, reported, ‘circumstances were somewhat unusual, and that he was struck on his left knee…’.[29] When asked whether he told Dr Muir that he was struck on the left knee, the plaintiff said, ‘I don’t think so, no’.[30]
[27]T176, LL11-12.
[28]T176, LL13-14.
[29]T188, LL8-11.
[30]T188, LL12-13.

The plaintiff’s evidence was that he was not one hundred per cent sure, that the motor vehicle could have touched his leg, he ‘honestly could not tell you’,[31] and that he ‘can’t tell you a hundred per cent yes or no it hit me or not’.[32] He repeated, ‘I’m not sure. I’m not sure’.[33]
[31]T169, L6.
[32]T169, LL16-17.
[33]T172, LL5-6.

In cross-examination, the plaintiff said that the motor vehicle hit him just once. It was put to the plaintiff that he described the accident to Mr Patrick Chan, neurosurgeon, as ‘a car hitting him on the side of his motorbike. This apparently crushed him twice…’.[34] The plaintiff said, ‘I wasn’t crushed twice, no’.[35] The plaintiff was taken to Mr Michael Dooley’s report which states, ‘He swerved and thinks he may have been hit a second time’.[36] The plaintiff said, ‘I’m not sure.’[37] He said he does not believe he really was hit twice, ‘it could have, who knows… but I don’t think he hit me the second time’.[38] The plaintiff maintained, ‘I was very close, that’s all I know… I’ve never said he’s hit me twice’[39] and ‘I’ve always been not certain whether I got hit the second time’.[40]
[34]T188, LL21-23.
[35]T188, L30.
[36]T189, LL17-18.
[37]T189, L18.
[38]T189, LL22-26.
[39]T189, LL27-29.
[40]T192, LL24-25.

In cross-examination, in relation to the colour of the motor vehicle, the plaintiff said that even though the motor vehicle was so close and he could have touched it, he was in panic mode as it was heading towards him. He said that he saw the indicator and he knew that the motor vehicle was in his lane but that he did not look at it and cannot say what colour it was. He knew that the motor vehicle was within arm’s reach of him[41] and that it was passing him at that time,[42] and that it was going faster than him.[43] He said that he recalled that the motor vehicle was dark in colour but could not recall the precise colour.[44]
[41]T132, L18.
[42]T132, LL22-23.
[43]T133, L5.
[44]T131, LL1-7.

The plaintiff said that the force with which the motor vehicle hit him was just a tap and that there was no damage to the motor scooter. He said that the front fender of the motor vehicle collided with the front of the motor scooter behind the front wheel near the footplate.[45] After the motor vehicle struck his motor scooter it continued in his lane[46] and it was at that point the plaintiff sped up. He said, ‘well, as I‘ve panicked, I think I’ve hit the throttle, I’m not a hundred per cent…’.[47]
[45]T135, L9.
[46]T135, LL23-24.
[47]T136, LL14-16.

The plaintiff said that after the motor vehicle struck him, it was just in front of him. They were continuing along Cheltenham Road and at this stage the motor vehicle has moved, took off to the left and ended up in the far left lane. He did not keep an eye on the car as he was watching where he was going. He was not concerned about any damage to the motor scooter as there was not enough force to do any damage. He said that he did not take any note of whether the motor vehicle was registered or of the license plate. It was put to the plaintiff that it was implausible that, in circumstances where he was almost run off the road and the motor vehicle was in front of him, he did not take chase or could not identify the motor vehicle or whether it was registered.[48] He said that he did not take chase because he did not think there was any damage, and that after jarring his leg, his pain was over within 10 seconds.[49]
[48]T161, LL11-22.
[49] T161, LL25-29.

It was put to the plaintiff in cross-examination that having told numerous doctors how the incident occurred he had never mentioned speeding up. He said that he had never been a hundred per cent sure whether he did speed up or not, but he thinks he may have.[50] He denied that it was something that came to him on the day before in the witness box.
[50]T151, LL25-27.

The plaintiff was asked whether, in fact, his leg even hit the road to which he said, ‘Yes, it definitely hit the road’.[51] He said that when his foot was jarred and touched the ground it was something that only took seconds. He said that he continued to drive approximately four kilometres and that there were two controlled intersections and a roundabout between the point of the incident and reaching his final destination. He could not recall if he stopped in that period of time but that if he did, at an intersection he would normally put his right leg on the ground. He was wearing sneakers.
[51]T172, LL26-27.

When the plaintiff parked the motor scooter he engaged the stand on the left side. He did not feel any pain. The stand does not require force and it goes down ‘so easy’;[52] once it has moved a little bit it ‘automatically flicks’.[53] He said that when he got off the motor scooter as soon as his leg hit the ground he came off it and fell to the ground.[54] He denied ever trying to walk on the left leg.
[52]T177, L10.
[53]T177, L18.
[54]T177, LL29-30.

The plaintiff acknowledged making a statement to the TAC in his TAC claim form dated 24 October 2011.[55] His evidence was that the description of the incident in the TAC claim form was not written by him but typed in by someone else. He was asked whether when he signed the form he saw the small print at the back ‘Extra Information to Q5’[56] and he said no. He said that if he had seen it he would have rung the TAC and questioned it. His description of the incident, provided at point number 5 of the form in his handwriting, is:
[55]Exhibit P1.
[56]Exhibit P1, 12.

Car moved from middle lane into right lane where I was causing me to lose control of my bike after hitting me.

At the back of the TAC form was a fuller, typed response to question 5. The typed answer is:

I was riding my bike when a car in the middle lane decided to get into my lane. The car has hit me and sent me over to the gutter. I swerved back to miss the gutter, the car came over again I put my left foot down on the road. My leg was shattered. I tried to get off and my leg bent sideways and collapsed.

It was put to the plaintiff that this was his evidence, however, he took issue with the ‘leg bent sideways’. He said he doesn’t know where his leg went, he just knows it was painful.[57]

[57]T183, LL16-29.

The plaintiff drew a diagram in answer to question 5 of the TAC form. He said the diagram was not one hundred per cent accurate and it was ‘not drawn to scale’.[58] The diagram was to show that the car came from the middle lane into the right hand lane but it was not meant to be describing how anything happened.[59] He denied having no clear recollection of the incident and denied trying to reconstruct the incident. It was put to the plaintiff that the incident did not happen in the manner in which he had described it to the jury, to which he responded, ‘how’d it happen then?’[60] He went on to say that yes it did happen in the manner in which it was described to the jury.[61]
[58]T185, LL9-13.
[59]T185.
[60]T190, L17.
[61]T190, L19.

Credit and reliability

In summary, for the following reasons, the plaintiff impressed me as a straightforward person doing the best he could to recall details of the incident. He struck me as an accurate historian in relation to the circumstances of the incident. The ambulance report and the account recorded in the hospital record are on the whole consistent with the plaintiff’s evidence. While there are some minor inconsistencies about the details,[62] they do not detract from the accuracy of the plaintiff’s account and recollection of the incident.
[62]For example, the hospital records state: Riding scooter at 50km/hr when he was touched by a motor vehicle travelling in the same direction patient lost balance and put his feet down on the road to stabilise himself.

I accept the plaintiff’s evidence as to the circumstances – a version validated by the contemporaneous details obtained by the ambulance officer at the pizza shop. The differences between these versions of the incident and those relied upon by the defendant – the versions obtained from the TAC claim form and from histories taken by medical practitioners – can, in my opinion, be most likely explained by the passage of time.

The defendant submitted that the plaintiff is not a reliable witness due to his poor pre-existing mental health in the six months prior to the motor vehicle accident, and in particular the blackouts he was experiencing.[63] It was submitted that the Court only has the plaintiff’s word that the blackouts ceased after his hospital admissions in February and March 2011[64] and that it is unlikely they would have stopped in the absence of treatment.[65]
[63]T597, LL1-31.
[64]T597, L30 - T598, L1.
[65]T686, LL1-2.

It was submitted that in circumstances where Dr Donald McIntosh, the plaintiff’s general practitioner, Dr Armando Sta Ana, the plaintiff’s former general practitioner, and Ms Rhiannon Weber, the plaintiff’s psychologist, did not give evidence, the Court can draw an inference that the evidence from these treaters would not have assisted the plaintiff in his contention that his mental health had improved significantly prior to the incident.[66]
[66]T686, LL4-26.

The defendant referred to the plaintiff’s evidence in relation to his cannabis use and submitted that the Court only has the plaintiff’s word as to the quantity of use, and when he ceased use. The plaintiff gave evidence that he stopped in early 2011, whereas on 8 October 2012, Dr Sta Ana reports that the plaintiff is ‘still smoking cannabis – will affect his mental wellbeing’.[67] It was submitted that the plaintiff’s evidence is not consistent with the report of his former doctor.
[67]Exhibit P6, 2.

It was submitted that there was inconsistency as to the plaintiff’s quantity of cannabis use and that the plaintiff gave evidence to try and make his cannabis use sound better. It was submitted that, in considering the plaintiff’s reliability as a witness, the Court can take into account that the plaintiff’s withdrawal from cannabis in early 2011 affected his mental health.[68]
[68]T600, LL26-29.

It was submitted that the plaintiff’s evidence is a reconstruction, that he is trying to look back and piece it together without really having the first-hand knowledge that he says he did.[69] The plaintiff used the expression that he is ‘not one hundred per cent sure’ on numerous occasions, and the defendant submitted that the multiple use of the expression suggests that the plaintiff has a poor memory of, and is reconstructing, the circumstances of the accident.[70]
[69]T604.
[70]T605, LL1-13.

In relation to the plaintiff’s evidence as to socialising at the pizza shop to avoid being lonely, it was submitted that the fact that he is not able to name one other of the six workers, makes the evidence inherently unreliable and goes to the plaintiff’s credit generally.[71] I agree that the plaintiff’s evidence on this topic was difficult to accept.
[71]T619, LL11-15.

Counsel for the plaintiff submitted that the overwhelming picture that emerges from the plaintiff’s evidence is that he was a man who was doing his best to describe what happened to him in circumstances that must have been terrifying and in circumstances where it is easily understandable that his observations on certain points would not have been accurate.[72]
[72]T701, LL4-10.

It was submitted that on any view, while suffering from a serious injury and suffering what must have been excruciating pain, the plaintiff gives a story to the ambulance officer that is consistent with what he has told the Court, and he also gives a story to the hospital which is more or less consistent.[73]
[73]T701, LL14-20.

Findings as to credit and reliability

I note that throughout his evidence, the plaintiff readily and frankly admitted to having had a history of significant cannabis use and illicit drug use, and serious pre-existing psychiatric illness including schizophrenia and psychotic episodes, which manifested themselves with hallucinations, hearing voices and having blackouts. He said that he hadn’t worked for some time because of a back injury he sustained in 2003.

I find no merit in the defendant’s submission that there is difficulty when one looks at the histories the plaintiff has provided to various medical practitioners which are not consistent with the evidence he gave in court. Numerous other doctors took histories consistent with the plaintiff’s evidence about the circumstances of the incident, his level of pain following the incident, his ability to continue to drive for some four kilometres and the instant excruciating pain when he alighted from the motor scooter.

I consider the plaintiff’s account to be coherent and plausible in the circumstances.

In cases such as this, there are multiple records of the incident given to experts, in answers to interrogatories, and in claim forms. The records and histories are often drafted by solicitors and it is not known how much time the plaintiff actually spends ensuring that the record is accurate. The plaintiff’s evidence about the typed response in the TAC claim form,[74] which he says he did not complete, is a prime example. The plaintiff’s evidence was that he did not see the typed entry and if he had he would have told the TAC it was wrong. Interestingly, Dr Andrew McIntosh, the defendant’s biomechanist expert, also missed the entry in the TAC claim form.
[74]Exhibit P1, 12.

I agree with the plaintiff’s counsel that critical in all the varying accounts and histories are the ambulance report and the history recorded in the hospital records, made on the same day as the incident. They are consistent with the plaintiff’s evidence of how the incident occurred. The plaintiff was in excruciating pain, and litigation at that stage was not contemplated. These are the strongest, and I consider most accurate, descriptions of the incident, given their proximity to the time of the incident and in circumstances where no lawyers were involved and litigation was not contemplated.

I accept that some histories given by the plaintiff somewhat later contain departures from the plaintiff’s evidence. However, given my observations of the plaintiff in the witness box and the accounts he gave, I accept his evidence in relation to the incident.

Conclusion in relation to breach

Having accepted the plaintiff’s version of the incident, I consider that the unidentified driver breached his or her duty of care to the plaintiff in that the unidentified driver attempted to move into the plaintiff’s lane unsafely, resulting in the collision with the motor scooter causing the plaintiff to take the evasive action as described in court.

Causation

A number of witnesses gave evidence in relation to causation.

Associate Professor Bruce Love’s evidence

Associate Professor Love, orthopaedic surgeon, prepared three reports for the plaintiff’s solicitors. He examined the plaintiff in August 2017.

On the basis of the plaintiff’s history, documents, the extensive nature of the surgery and the requirement to perform compartment syndrome decompression, Associate Professor Love considered that in the absence of any history of leg injury prior to 15 August 2011 and accepting the details of the incident as described by the plaintiff, sufficient energy was parted to the left leg to cause his injuries as described on the radiology performed on 15 August 2015.[75]
[75]T224; LL10-17.

Associate Professor Love said that the fact that the plaintiff had been riding a motor scooter immediately prior to the incident and the observation that he was taken by ambulance to hospital (and was unable to weight bear), suggests the only cause of the described injuries was the incident while riding a motor scooter on 15 August 2011.[76]
[76]T224; LL22-27.

Associate Professor Love said that based on the plaintiff’s description of the incident, it appears as though a significant impact was taken on the left leg when the plaintiff attempted to correct the sliding front wheel of the motor scooter by putting his left leg onto the roadway.[77] It was Associate Professor Love’s impression that when the plaintiff alighted from the motor scooter and placed his left leg on the ground, further displacement possibly took place to what was already a fracture of the proximal tibia.[78]
[77]T232, LL2-7.
[78]T232, LL8-12.

Associate Professor Love gave evidence that he suspects there were two separate events, the first being when the plaintiff put his foot on the roadway, and the second when he alighted from the motor scooter. He suspects that a fracture of some type occurred to a significantly lesser degree at the moment the plaintiff put his leg on the road. He postulated that the fractures that were probably minimally displaced and perhaps unrecognisable were significantly worsened as a result of alighting from the motor scooter.[79] In cross-examination, he agreed that at most there may have been further damage or displacement once the plaintiff got off his motor scooter. However, he could not tell what damage occurred at what point in time.[80]
[79]T233, LL15-28.
[80]T241, LL5-16.

Associate Professor Love said that based on the plaintiff’s history, the plaintiff was not in excruciating pain after jarring the leg, and that at the moment of jarring, the fracture was not significantly displaced.[81] Associate Professor Love said that if the fracture was as displaced as it is in the CT images, he would not expect the plaintiff to be able to ride the motor scooter, and his interpretation of the events is that the second event had possibly greater impact than the first.[82]
[81]T244, LL5-12.
[82]T245, LL2-9.

Associate Professor Love considered that there would not necessarily be injury to the ankle in the circumstances described by the plaintiff, although it is possible. He did not agree that it would be more likely that the plaintiff would suffer an injury to the ankle in the absence of protective footwear.[83]
[83]T247, LL17-19.

In cross-examination, Associate Professor Love agreed that there are a variety of ways the incident could have occurred, and it is possible that it happened in a completely different way than what he had been told.[84] However, he said that it is improbable that the fractures would have occurred from just stepping off the motor scooter, and he doesn’t believe there is anything inconsistent from a medical point of view in what the plaintiff told him.[85]

Dr Clayton Thomas’s evidence

[84]T248, LL20-24.

[85]T254, LL1-6.

Dr Thomas is the plaintiff’s treating pain specialist. He said that in the circumstances of the incident as described to him by the plaintiff, injuries to the ankle, knee or hip are possible. He said if there is enough stress then something will give and in this case it was the plaintiff’s knee. He said that he was not concerned that the injury was to the knee and not the ankle. He considered that if the plaintiff’s leg was outstretched and extended at the time of the impact, then the knee would have received ‘a fair bit of the brunt of the impact’.[86]
[86]T307, LL17-26.

Dr Thomas was shown the CT scans of the plaintiff’s left leg.[87] He agreed that the images demonstrated a nasty fracture and that such a fracture would cause significant pain and require narcotic analgesia for relief at some stage. He agreed that a significant force must have been applied on that joint to cause the complex fracture and that it was a traumatic injury that would not result from simple weight bearing, such as getting off a motor scooter.[88] However, he said that this was a matter that was best put to an orthopaedic surgeon.
[87]Exhibit P3.
[88]T310, LL25-27.

Dr Thomas said that in his experience some individuals who have a complex fracture, such as that demonstrated in the CT scans, do not seek medical care for some time after the fracture, and that is not uncommon. He said you would expect some jarring to the joint but whether you would expect the plaintiff to have had significant pain to actually get off the motor scooter depended on a number of factors, such as the plaintiff’s consumption of alcohol which may have been helpful and the fact that it was not a long drive.

Dr Thomas said that when he takes a history from his patient, he takes the patient ‘…at their word until they leave the room…’ and then he forms his own opinion.[89] He also said that he never doubted the history given by the plaintiff to him about the incident. The fact that the plaintiff was not in too much pain or no pain until he got off the motor scooter did not concern him and he considered this to be reasonable.[90] He noted that in initial periods of trauma there can be an element of increased adrenaline and patients do not actually feel that pain. He explained that pain from a fracture is due to a release of chemical transmitters and that there is no way to know whether he would or would not have felt pain along that ride if the ride had been longer than five minutes.[91] He said that in due course the plaintiff would have undoubtedly felt pain.
[89]T311, L28-29.
[90]T312, L15.
[91]T313.

Dr Thomas considered the fracture he observed on the CT scans was consistent with the plaintiff’s description of the incident and the placement of his foot on the road while travelling.[92]

Dr Andrew Muir’s evidence

[92]T317, LL10-17.

Dr Muir is the plaintiff’s pain management specialist and is responsible for the insertion of the spinal cord stimulator and its ongoing monitoring. Dr Muir considered it was ‘somewhat unusual’ that the plaintiff was struck on his left knee but was able to continue to ride his motor scooter until his destination.[93] He said that in his experience, fractures most often cause pain. He said that an orthopaedic surgeon or an accident emergency specialist would be more able to comment on the pain in the immediate aftermath of an accident. In his opinion, less than 50 per cent of people would not experience pain following a fracture.[94]
[93]T402, LL27-30.
[94]T403, LL6-12.

Dr Muir, given his expertise in pain management, was asked whether he would expect a patient to be in excruciating pain upon the occurrence of the sort of fractures seen on the CT images. He said that he would but he pointed out that it is very common in the immediate aftermath of an incident for pain not to be present for even two to three hours after.[95]

Mr Michael Dooley’s evidence

[95]T403, LL19-25.

Mr Dooley is an orthopaedic surgeon. He provided two reports for the defendant’s solicitors in this case. He examined the plaintiff on 22 May 2017.

Mr Dooley was asked in cross-examination to give an opinion in relation to the mechanism of the plaintiff’s fracture and if it was likely to have occurred in the circumstances as described by the plaintiff. Mr Dooley considered that at the speed the plaintiff’s foot hit the road, twists and fractures can occur. He said that such injuries are sometimes seen when people jump or fall from heights and that whether it is a knee or an ankle, the patient does not describe any pain or much pain initially and then it is not until someone takes their boot off, until they stop and get moving or cannot walk that they experience significant pain or disability. He said that if a patient experiences pain at the time of the injury you would expect them to note the pain, but some people will not necessarily describe that. He agreed that it is an unusual mechanism of injury and that there were some unusual factors, but it is all believable from his point of view that the injury could have occurred in the way that the plaintiff described.[96]

Dr Andrew McIntosh’s evidence

[96]T482, LL3-15.

Dr McIntosh is a biomechanist, specialising in biomechanics, ergonomics and human factors. He was engaged by the defendant to prepare a report dated 5 August 2016 in relation to the circumstances of the incident.

Dr McIntosh gave evidence that very high forces were required to cause the plaintiff’s injury and that if the plaintiff put his foot on the ground in a skating motion, the forces would not be sufficient to cause a fracture to the tibia and fibula.[97]
[97]T543, LL17-29.

Dr McIntosh said that in his opinion, on balance, it was possible for the plaintiff to have put his left foot on the road and maintain the motor scooter in an essentially upright position while traveling at approximately 50–60 km/h, however, the forces applied through his foot and leg would have been much less than those required to cause the left lower leg fractures.[98]
[98]T542, LL14-21.

He said that had the plaintiff placed his left foot on the road and the contact forces caused the left lower leg fractures, it was his opinion, on balance, that the plaintiff would not have been able to maintain the motor scooter in an upright position, swerve and continue to ride.[99]
[99]T544, LL2-7.

Dr McIntosh said that as a result of the forces required to cause the lower limb factures, it is more likely than not that the incident that caused the fracture would be an incident in which the motorcyclist lost control and crashed.[100] He agreed it is unlikely but not impossible that a person could suffer this fracture and maintain sufficient control of the motor scooter to slow it down and bring it to a safe stop as quickly as possible.[101]
[100]T544, LL8-11.
[101]T544, LL11-15.

In summary, Dr McIntosh said it was not likely that the plaintiff sustained the reported injuries when his foot struck the ground, while he maintained the motor scooter in an upright position and continued to ride. Dr McIntosh said he would be surprised that jarring of the plaintiff’s foot on the ground could cause a tibia and fibula fracture.

Dr McIntosh said that turning, accelerating, braking, stopping and starting would have loaded the plaintiff’s left lower leg, and required a level of function unlikely to be present with his injuries.[102]
[102]T545, LL18-23.

Dr McIntosh considered that while pain may be one factor as to why the plaintiff could not have continued to ride for three to four kilometres after jarring his leg, his primary reason was that from a functional point of view, the fracture would interfere considerably with the function of the plaintiff’s lower leg.

Dr McIntosh did not accept Associate Professor Love’s opinion about the mechanism of the injury and the occurrence of a second fracture.

The defendant submitted that the Court ought to accept Dr McIntosh’s opinion, and reject the plaintiff’s evidence that he was able to maintain balance after placing his foot on the ground.[103] As to whether the plaintiff was able to continue riding, it was submitted that the Court ought to find on the balance of probabilities that it is unlikely.
[103]T681, LL1-7.

Based on the evidence before the Court, including the plaintiff’s evidence, the ambulance report and the history given to the hospital, I consider it highly improbable that the plaintiff’s motor scooter crashed. Given the evidence about the nature of the plaintiff’s fracture, the likely mechanism of the fracture, as explained by Associate Professor Love, it is highly unlikely that the plaintiff could have crashed the motor scooter, sustained the fracture and somehow been able to pick up his motor scooter and put himself back on it and then ride for another four to five kilometres.

Conclusion in relation to causation

I find the incident was caused by the negligent driving of the unidentified motor vehicle moving into the right lane and forcing the plaintiff to swerve right and left and then, as he tried to straighten the motor scooter, forcing him to place his left foot on the ground. I find that the plaintiff’s left leg injuries were caused by the unidentified driver’s negligence.

Damages

The plaintiff claims damages for pain and suffering and loss of enjoyment of life. In order to assess the damages, the Court must consider the nature and extent of the plaintiff’s injuries, taking into account his evidence of his physical and psychiatric injuries, symptoms and the opinions of medical practitioners.

The plaintiff claims general damages for the impact of the injury on his life, including the need for the surgical procedures, admissions to hospital, the treatment of infection and the impact of his ongoing pain and psychological sequelae from the incident.

The defendant is not liable for any medical condition or injury that does not arise from the unidentified driver’s negligence. The defendant submits that the plaintiff had a number of pre-existing back, psychiatric and shoulder conditions, arising from a motor scooter accident in May 2011, which continue to cause him pain and suffering and that appropriate deductions should be made for the pre-existing conditions.

The plaintiff’s evidence in relation to damages

I will deal firstly with the plaintiff’s evidence in relation to his pre-existing injuries and then the injuries related to the incident.

The plaintiff said that his psychiatric problems commenced when he was approximately four or five years old, when he witnessed his eight year old sister hit by a motor vehicle and killed. As a result of the accident he developed psychiatric problems, including visions of his sister, hearing her voice at times and experiencing blackouts. He did not receive treatment for the hallucinations and blackouts until he was an adult. He was subsequently diagnosed with schizophrenia. He still hears voices, but minimally, and he no longer experiences blackouts.

The plaintiff was hospitalised on 7 February 2011 for approximately two weeks as he had passed out and could not recall two or three hours before he passed out. The plaintiff had been battling depression, mood swings and personality problems for a long time. He had suicidal thoughts since Christmas 2010 and he had been seen by a psychiatric team in 2010.

His evidence was that his memory problems in February and March 2011 related to him forgetting what he had done for two hours or so and prior to the blackouts. He said he was in a very bad way in February 2011.[104]
[104]T110, L31.

The plaintiff had a second admission to Dandenong hospital in March 2011 due to further blackouts and hallucinations. He said that at the time of the admissions in 2011 he was smoking marijuana but his consumption was not extreme. The plaintiff candidly admitted that he was a significant user of marijuana, which he took up in his early teens.

His evidence was that following the two admissions to hospital in February and March 2011, the blackouts stopped. At the same time he met a new girlfriend, which put him in a better frame of mind. His marijuana smoking lessened following the admissions.

The plaintiff agreed that his pre-existing psychiatric condition was controlled by the Seroquel and that he has not seen a psychologist since seeing Ms Weber. He agreed that he was mentally doing alright at the current time.

The plaintiff’s evidence in relation to when he saw Ms Weber is unclear. At one point he said it was either 2015 or 2016 and then he said he thought it might have been in 2012. Dr Sta Ana, his former treating general practitioner, records that he was seeing a psychiatrist in 2015 and that he was referred to Ms Weber on 21 August 2012.

In relation to the pre-existing back injury the plaintiff agreed that he had a lower back injury but he has not had any treatment for it following the August 2011 incident. The condition stopped him from working as a motor cycle courier in 2007/2008 and it continues to cause him pain. He said that the back condition was a reason he has not worked consistently since 2003 and stopped him from having any hobbies. He said that the back pain has varied at different times and that the medication he takes for his knee may help with controlling his lower back pain.[105]
[105]T193, LL5-16.

The plaintiff said that for the first three years after injuring his back, from 2003 to 2006, he could do very little. He said that his back got a bit better, nowhere near good enough in that he could not run but he was able to walk.[106]
[106]T112, LL17-25.

He went on a disability pension from 2009 due to his back condition, which stopped him from working.

The plaintiff completed a disability support application dated 26 October 2009.[107] It had annexed to it a medical report completed by his general practitioner, Dr McIntosh dated 27 October 2009. Dr McIntosh identifies medical conditions including lower back, lumbar disc bulge, inflammation defects and spondylolisthesis at L5 with right-leg sciatica, long term lower back pain, muscle tightness and restricted movement from hip, groin and down the leg, with variable severity over years. The plaintiff agreed that this was an accurate description of his lower back pain as at October 2009. He said that he had commenced treatment at the Caulfield pain management clinic in October 2009 in relation to his lower back because he was having trouble walking.[108] At that time he was taking Feldene and Panadeine Forte and was having cortisone injections into his back, which provided him with temporary pain relief.
[107]Exhibit D1.
[108]T121, LL3-5.

The plaintiff gave evidence about another motor vehicle accident he had on 5 May 2011 involving a car, and him being thrown off his motor scooter some nine metres. He said that he sustained bruising to his shoulder but did not require any treatment and that it is now not a major problem. He never issued proceedings in relation to the 5 May 2011 motor vehicle accident.

Following the incident on 15 August 2011, the plaintiff was taken by ambulance to Dandenong Hospital. On 16 August 2011 he underwent surgery and on 30 August 2011 he was discharged.[109]
[109]T77, LL7-8.

Following discharge the plaintiff contracted an infection in his wound. He said that he noticed a hole growing in the wound of his leg in that it was opening up and that it was a brown colour. He returned to hospital on 23 September 2011 and underwent surgery to deal with the infection. It included skin being removed from the plaintiff’s thigh area, which was used to cover the hole in his leg.

Following his discharge in October 2011 the plaintiff was referred to a pain medicine clinic at Monash Medical hospital in February 2012. He also said that when he was discharged he used a wheelchair and crutches. The plaintiff’s evidence was that he continues to use crutches indoors predominantly and uses an electric wheelchair outside.

He said that in 2012 he was experiencing pain and had psychological problems in that it was hard dealing with the pain.[110] He said that he stopped smoking marijuana at the latest in February or March 2012 and has not smoked marijuana since that time.
[110]T82, LL23-24.

In the middle of 2013 the plaintiff was referred by his general practitioner to a local orthopaedic surgeon. The local orthopaedic surgeon was unable to assist the plaintiff and referred him to Dr Thomas, who referred him to the Victorian Rehabilitation Centre (‘VRC’) in Glen Waverley. The plaintiff was an inpatient there for approximately five to six weeks. In that time he received a ketamine infusion and painkilling medication, which he said helped a lot. He remained at the VRC where he underwent physiotherapy and saw a psychologist. His pain became worse after the ketamine infusion and he described it as excruciating. In 2014 the pain was from his knee down to his ankle and he had a shooting and throbbing pain, and a burning sort of sensation that comes and goes.[111] He has still not made any real headway in his treatment since that time.
[111]T84, LL26-27.

In 2014 he thought he would be better off having his left leg amputated. He discussed this with his doctors who explained that they thought this would make his pain worse in that phantom pain can be worse than the pain he experiences. He no longer wants to have the left leg amputated.

Dr Thomas referred the plaintiff to Dr Muir in relation to the insertion of a spinal cord stimulator. The plaintiff underwent a trial of the spinal cord stimulator on 26 August 2014 and said that he felt about 80 per cent relief from his pain and that he was ‘over the moon’ with that outcome.[112] He said that when the trial spinal cord stimulator was removed the pain went through the roof again and he needed no convincing to have a spinal cord stimulator permanently implanted, which occurred on 6 October 2015. He said that in the period between the trial and the permanent insertion he suffered a lot of pain in his left leg to the extent that in December 2014 he went to Frankston Hospital where he was given another ketamine infusion, which gave him some relief for a couple of weeks.
[112]T86, LL25-28.

The plaintiff said that he was in hospital for approximately two weeks to have the spinal cord stimulator permanently inserted. Initially, the relief he felt was ‘pretty good’, not quite as good as the trial but he was nonetheless happy.[113]
[113]T88, LL19-22.

The plaintiff subsequently had a fall that displaced the leads; his pain escalated and it was excruciating. He was re-admitted to hospital where the leads were reset in February 2016. After the revision in February 2016 he felt a big improvement but it did not last. He said that the wires moved again and Dr Muir referred him to Mr Chan, neurosurgeon, who he saw in July 2016. Mr Chan undertook a procedure to place an electrode paddle in the epidural space in the plaintiff’s spine to lock the leads in.

Following the procedure by Mr Chan the plaintiff felt some relief but it was not as good as the trial nor was it as good as when he had the permanent spinal cord stimulator inserted. He said initially he experienced about 50 per cent relief which then decreased to probably 30 per cent or so but it has settled at around 40 per cent.[114] He was asked what his verdict is now in relation to his left leg and he said, ‘I can live with it’[115] and that it was not as bad as it was from 2012 to 2014. He still has pain and the majority of it is in the shin area and the ankle. He has pain on both sides of his left knee through the joint, which is pretty constant and which he described as ‘an ache’.[116] He said that the spinal cord stimulator assists with the knee pain.
[114]T90, LL2-5.
[115]T90, L10.
[116]T91, LL3-4.

The plaintiff last saw Dr Muir in May 2017. His next appointment is in November 2017 and he agreed that there was nothing dramatic to report to Dr Muir.

The plaintiff’s evidence is that he currently takes 100 mg of Palexia, an opiate medication, twice a day. He takes Seroquel for his schizophrenia and he has been on that for a bit over six years. The Seroquel helps him in relation to the visions, which have not completely stopped but have settled at least 90 per cent.[117]
[117]T96, LL12-15.

The plaintiff currently lives alone in a unit in Morwell. His mother comes and helps him around the house. He is no longer able to ride a motor scooter and he has never had a driver’s licence for a motor vehicle. His mother picks him up or he gets a taxi for medical appointments.[118]
[118]T103, LL26-29.

He has lived on his own for three years and manages to do his day to day cooking and chores, dressing and washing. He uses the Internet and occasionally dates. The plaintiff does not socialise with other people much; he said it is too hard when he is in pain and also that half the people he knew in Morwell he did not want to associate with as it might drag him back into things he did not want to do.[119]
[119]T202, LL10-13.

The plaintiff has had a couple of relationships since the incident. He said that he would like to have a relationship with a woman and that he felt that with improvement in his mental state he would be in a better positon mentally to pursue a relationship. His evidence was that his current pain is a physical barrier to pursuing a relationship with a woman. He said that it can be hard to get out sometimes and that ‘Sex equals pain’.[120]
[120]T210, L13.

The plaintiff gave evidence that in 2014 he had a holiday in Mildura and subsequently a holiday with his daughter in Brisbane and the Gold Coast. He does photography as a hobby but has not pursued any formal training in it because he finds it hard to concentrate.

He agreed that he had back problems before the incident. His evidence was that in the months before the incident he was feeling pretty good. He said that before the incident there were times where he would get aches in his back and he would not go to the pizza shop.[121]

Mrs Mary Burke Love’s evidence

[121]T207, LL19-25.

The plaintiff’s mother, Mary Burke Love, said that following the incident and shortly after his discharge from hospital the plaintiff came to stay with her in Morwell. She said that he stayed in bed and the only time he got out of bed was to shower or have a smoke. She was required to do just about everything for him in this period. In relation to his pain during that period her evidence was that what she heard day after day was the word ‘agony’.[122]
[122]T323, LL23-27.

Mrs Love takes the plaintiff to his appointments and shopping. She said that she attends and tidies his house once a week, including doing the dishes, vacuuming carpets, washing floors, scrubbing the shower but lets him do his own toilet. She said that she performs those tasks because they are hard when you have got a crutch under one arm. She thought the plaintiff would end up falling in the shower if he had to clean it. She said that after the spinal cord stimulator had been inserted the plaintiff could do a bit more for himself and that he has been able to get out and about.[123]
[123]T333, L4-5.

Mrs Love agreed that the plaintiff had a back problem but said she did not really know about it and what it involved. She said that what she did know was about his leg and that it kills him. She agreed that he still complains about his back.[124]
[124]T328, LL13-19.

Mrs Love was aware of the plaintiff’s blacking out and fitting which commenced around 2007. She was aware that he had had a problem with hearing voices.

Associate Professor Bruce Love’s evidence

Associate Professor Love gave evidence that following the incident, x-rays showed a minimally displaced transverse fracture of the proximal tibia. CT scans of the left knee showed comminuted fractures of the tibia plateau and the tibial metaphysis and an undisplaced fracture of the fibula head.[125]
[125]T219, LL13-19.

The plaintiff developed compartment syndrome after the incident requiring extensive decompressive surgery on 16 August 2011.[126] The skin and fascia, which is the envelope containing the muscle, were cut to take the pressure off the muscle and long pins were inserted through the bone protruding beyond the skin, with a pin above and below the level of the fracture, which were joined by metal rods to stabilise the fracture.[127]
[126]T226, LL28-30.
[127]T227, LL10-15.

The plaintiff underwent more definitive surgery on 19 August 2011 whereby a plate with multiple screws was applied to the bone adjacent to the fracture, with screws through the plate and into the bone to stabilise the fracture.[128]
[128]T227, LL21-31.

Associate Professor Love noted that the plaintiff described hypersensitivity to touch and that pain is always present. The plaintiff also described a sensation of dislocation of the left knee whereby abnormal rotation takes place at the level of the knee joint.

On examination, Associate Professor Love noted the plaintiff to be walking with an antalgic gait such that full weight bearing doesn’t happen through the left limb. Associate Professor Love’s inspection of the left leg showed scars and muscle wasting around the left thigh. There was no obvious reduction in power and Associate Professor Love could not detect any obvious abnormality in terms of instability when examining the left knee.[129]
[129]T230, L30 - T231, L20.

Associate Professor Love examined the CT scans of the left leg.[130] He considered that the surface of the knee joint has been disrupted, the long term result being degeneration or osteoarthritis.[131]
[130]Exhibit P3.
[131]T237, LL2-10.

Associate Professor Love is of the opinion that the plaintiff’s current condition is permanent.[132]

Dr Clayton Thomas’ evidence

[132]T235, LL9-23.

Dr Thomas first saw the plaintiff on 26 November 2013. He was of the opinion that the plaintiff suffered from neuropathic pain, that is the pain source is organic in nature due to damage to the nerves, caused by the injury to his left leg. He said that the pain remained problematic throughout his involvement with the plaintiff and that it will be a long-term problem for him. He said that he would never have recommended the plaintiff for the insertion of the spinal cord stimulator if he was not confident that it was neuropathic pain. He has known the plaintiff for a long period, and had no doubt as to the veracity of the plaintiff’s complaints and the severity and intensity of the pain. He considers the plaintiff’s dose of Palexia to be moderate.

He confirmed that the trial of the spinal cord stimulator was very pleasing and that the plaintiff’s brief pain inventory dropped from 7.75 aggregate score to 1.75 aggregate. The plaintiff improved to the point that he was able to walk short distances unaided.[133]
[133]T281, LL5-10.

In the period after the removal of the trial spinal cord stimulator and while awaiting the permanent insertion, some 10 months, the plaintiff’s pain had worsened requiring a further ketamine infusion. Dr Thomas said that in August 2015 when he saw him, the plaintiff was on a hefty amount of opioid analgesics pending implantation of the permanent device, including Palexia (200 mg three times per day), Endone (5 mg up to four per day), Panadeine Forte (up to four per day), Norspan (10 mg patches) in addition to Lyrica (300 mg twice daily), Catapres (100 micrograms twice daily), Brufen (400 mg three times a day), Versatis (5000), Lignocaine patches (two per day) and magnesium tablets (1.5 per day).

Dr Thomas reviewed the plaintiff on 2 March and 4 April 2017. He noted that the spinal cord stimulator had helped the plaintiff’s pain in his left leg to a bit over one third. He considered the plaintiff’s pain had substantially stabilised, and that the plaintiff has a high degree of residual disability and still has great difficulty mobilising through the affected left lower limb.

He said that the spinal cord stimulator’s battery does not last forever and requires replacement every five to seven years, and long-term management. The plaintiff will need to be reviewed to ensure there are no complications with medication and to ensure he doesn’t become depressed as a result of his disability which sometimes can be overwhelming, even a long way down the track. He was of the opinion that the plaintiff will require lifelong follow up because of these factors.[134]
[134]T287, L25 - T288, L4.

Dr Thomas noted that ambulation is a problem for patients with leg pain because the easiest way to avoid their pain worsening is to stop walking. He said that it is a difficult problem to treat from a pain perspective. The pain medication does not assist because as soon as you start walking, the pain can slowly ramp up above the baseline. While he would like the plaintiff to walk more, it is not a solution to his mobility problem.[135]
[135]T303, LL1-9.

He considered that the spinal cord stimulator had been successful and had resulted in a marked reduction in the plaintiff’s pain levels which has permitted the plaintiff to markedly reduce his intake of medication, and on the whole he considered that to be a success story.

It was put to Dr Thomas that it is often the case that once a court case is over, an individual’s frame of mind tends to improve, which translates into less pain and a more fulfilling life and it was reasonable to expect that the plaintiff may improve after the court case. Dr Thomas said he knew the plaintiff very well. He said that he has patients where you clearly get a strong impression that their life revolves around seeking justice and compensation. His evidence was:

I have never been impressed that this is the case with this man. I would be absolutely astounded as to whether there is any substantial functional change after this case. You are absolutely correct that going to court can magnify pain. Anything that distresses a patient, causes them to relive and go over their situation magnifies their pain. Any bad news or distress to anyone will magnify their pain. So, outside of that, I don’t expect his baseline from what it is say a month ago to be what it’s going to be in two years’ time is going to be any different. We have a lot of patients like Mr Love who we have seen over a long, long period of time and we don’t see a dramatic, you know, throw the crutches away and start running down the road. We don’t see that.[136]

Dr Andrew Muir’s evidence

[136]T306, LL10-25.

Dr Muir has seen the plaintiff on six occasions from 2014 and continues to treat him. Dr Muir considered that the plaintiff’s pain was neuropathic.

Dr Muir said that following the insertion of the trial spinal cord stimulator it was his impression that there was a significant improvement in the plaintiff’s pain management. He said that the plaintiff’s pain significantly aggravated within four hours of removal of the trial device.

In the post-operative period the plaintiff slipped and fell and, as a consequence, the epidural leads were shifted and the plaintiff lost stimulation. This led to a revision of his device in February 2016 as efforts to reprogram stimulation into appropriate anatomical areas using other electrodes proved fruitless.

The revision procedure took place and the replacement of the leads in an anatomically satisfactory spot was routine. The plaintiff was discharged from hospital with good pain control but in the following weeks it became apparent that the leads had moved again and the patient lost simulation control. Dr Muir said that this occurs in 5 to 15 per cent of patients.[137]
[137]T395, LL27-31.

Dr Muir referred the plaintiff to Mr Chan. Dr Muir explained that a plate electrode was not chosen in the first place because post-operative recovery is slower and it is a much more painful procedure.[138]
[138]T396, LL1-6.

Dr Muir explained that the performance of the plate electrode requires a laminotomy, that is, removal of some bone from the back of the spine to fit the plate into the right position, and it requires extensive surgery. The main aim of the procedure by Mr Chan was for more reliable stimulation.

Dr Muir reviewed the plaintiff in April 2017 and was of the opinion that the spinal cord stimulator was functioning well and reducing the plaintiff’s neuropathic pain significantly.[139] The plaintiff informed Dr Muir that he was getting a significant level of neuropathic pain in his left leg and was experiencing 30 to 40 per cent improvement in his pain since the insertion of the epidural plate.
[139]T399, L1 - T400, L1.

Dr Muir was of the opinion that the spinal cord stimulator at this time was mostly effective in controlling the left leg area but the plaintiff had significant other areas of pain that the stimulator was not capturing well.

The plaintiff reported a long term ache in his knee joint and calf pain on both sides and back pain from a previous lumbar injury he had suffered. Dr Muir considered the plaintiff’s ongoing symptoms in his left knee were likely related to damage to the structures of the knee as opposed to disturbance of the nerve supply around the knee. Dr Muir said that the plaintiff’s somatic referred pain (pain attributable to damage to tissue structures) was causing him problems and was associated with a tendency for the left knee to collapse on occasion.

Dr Muir questioned whether surgical intervention or investigation of the plaintiff’s left knee could provoke an increase in his pain even in a situation where structural issues can be clarified and improved.

Dr Muir was of the opinion that there are some people who experience loss of effect of stimulation over a period of time but noted that the technology has improved and considers that the figures are likely to become more favourable in that regard.[140] He considered that the spinal cord stimulator was going to be useful in a partial palliative sense for the long term for the plaintiff, that is, improve symptoms, not cure the condition.[141]
[140]T400, LL24-27.
[141]T400, L29 - T401, L4.

Dr Muir said that the implantation of the spinal cord stimulator was primarily to treat the leg pain but that in doing so it may be a consequence that the plaintiff’s back pain benefits. He said that he was not aware of the extent of the plaintiff’s back pain but understood it had improved and become intermittent. Dr Muir noted that he had seen the plaintiff walk with a stick. He was asked whether he would expect the plaintiff to be able to walk at least 600 metres without assistance and he said that while the plaintiff may be able to do that on some occasions, if he experienced an episode of severe pain, that may cause him to collapse and having a stick may well enable him to retain an upright posture.[142]
[142]T405, LL9-13.

Dr Muir noted that in the presence of long term neuropathic pain, central sensitisation in the relevant dermatomes is something you would expect to be present, and that would mean that minor levels of pain from an affected joint from something like arthritis, would not be processed in the normal way and may be more painful than one would expect.[143]
[143]T408, LL12-19.

He concluded that it was most likely that the plaintiff’s pain level will remain at approximately the current level but it is possible that it will improve.[144]

Mr Michael Dooley’s evidence

[144]T410, LL17-24.

Mr Dooley considered the plaintiff will continue to have residual post-traumatic symptoms. He expects that the plaintiff will have difficulty with heavy household activity and active impact leisure pursuits and that he would have difficulties with activities that involve a lot of kneeling and squatting of the left knee. He considered the plaintiff’s orthopaedic injuries have stabilised and further surgical amputation will not help.

Mr Dooley is of the opinion that the plaintiff’s described disability is greater than one would expect for his organic injury. He considers that the plaintiff has had a psychological reaction to his situation and that this reaction influences his ongoing symptoms. He believes that the plaintiff’s pre-existing mental health issues have also influenced his ongoing symptoms. He did not believe that the plaintiff’s disproportionate ongoing pain was neuropathic pain and opined that it is psychologically based. He said that continuing to treat the plaintiff’s ongoing pain as though it is organically based will only lead to ‘ongoing disappointment’.[145] He considered it important that the plaintiff receive appropriate medical treatment for his psychological condition, such as counselling and antidepressant medication.
[145]T471, LL7-9.

Mr Dooley said that the plaintiff describes pain and experiences pain. He did not think the plaintiff was imagining the pain, but that the issue is to determine the basis of the pain.[146]
[146]T485, LL13-14.

In cross-examination, Mr Dooley agreed that the plaintiff may have a component of neuropathic pain but he remained ‘steadfast’ that the reason he has disproportionate pain is his psychological reaction to his situation, not neuropathic pain.[147]
[147]T495, LL5-9.

He conceded that he was not aware that the plaintiff had received an 80 per cent improvement following the trial spinal cord stimulator, nor that there was a 14- month delay before the insertion of the permanent spinal cord stimulator and that in those 14 months the plaintiff had a ketamine infusion and his pain medication was significantly increased. Mr Dooley considered that, even if the plaintiff had a good response to the spinal cord stimulator, it did not exclude the theory that the plaintiff’s disproportionate pain relates to a psychological reaction.

Mr Dooley considered that he was qualified to comment on psychologically based pain but agreed he has not generally treated patients with neuropathic pain.

Mr Dooley was of the opinion that the plaintiff’s chance of developing arthritis in his left knee was low.

Mr Dooley agreed with Dr Nathan Serry, psychiatrist, that the plaintiff’s past mental health issues including depression and schizophrenia make him vulnerable to a psychological response with further injury and illness.

Mr Patrick Chan’s evidence

Mr Chan’s report dated 3 January 2017 was read into evidence. Mr Chan removed the plaintiff’s epidural spinal cord stimulator leads on 8 October 2016 and performed a T10-11 laminotomy and insertion of epidural spinal cord stimulator paddle.
Mr Chan last saw the plaintiff on 15 November 2016, six weeks after the procedure. He noted that the plaintiff could manage his pain to about 80 per cent with the spinal cord stimulator, he could walk more than 600 metres with his crutches and his scar was well healed.
Mr Chan considered that the plaintiff’s condition was post-traumatic chronic regional pain syndrome involving his left leg. He thought the plaintiff’s prognosis was good in terms of ability to improve his pain management and that the plaintiff’s condition had stabilised.
Mr Chan noted that given the extent of pain, the extent of traumatic injury and the limitation on the plaintiff’s mobility and ambulation, the plaintiff will be significantly restricted in regards to his domestic duties, his social and leisure activities.
Mr Chan considered that the plaintiff would need ongoing medical treatment and pain management with Dr Muir.
Dr Nathan Serry’s evidence
Dr Serry provided two written reports dated 7 August 2013 and 4 May 2017 that were read into evidence. He assessed the plaintiff on both occasions. In his first report Dr Serry opined that from a psychiatric viewpoint, the plaintiff has been depressed much of the time since the incident, anxious and frustrated. There is no evidence to contradict Dr Serry’s evidence in this regard. The defendant’s solicitors had two reports from Dr Nicholas Ingram, psychiatrist, but did not call him to give evidence.
Dr Serry evaluated the plaintiff’s lifestyle and stated that it appeared to be very much altered by the impact of the incident. Dr Serry considered the plaintiff’s personal relationships have been compromised given the plaintiff’s limitations. He considered that the plaintiff’s social and recreational life has remained quite compromised and commented that the plaintiff was already somewhat restricted given his pre-existing back problems, but was quite social.

In his second report dated 4 May 2017, Dr Serry noted that the plaintiff has suffered psychiatrically in a background of considerable pre-morbid vulnerability. Dr Serry concluded that separate to the pre-existing psychiatric conditions, the plaintiff suffers PTSD and a moderately severe chronic adjustment disorder with anxious and depressed mood arising from the incident. He was of the opinion that the plaintiff’s prognosis is guarded and that there is a significant element of pre-morbid vulnerability—

… with such vulnerability having been very much compounded by the impact of the subject accident. There is an ongoing nexus between the physical and psychiatric aspects of your client’s presentation and the critical feature, at present, appears to be the impact of pain and associated physical limitations. I remain of the opinion that your client should be under the care of a treating psychiatrist, ongoing management …[148]
[148]T385, LL12-21.

Submissions in relation to damages
The defendant’s submissions

The defendant submitted that any award of damages must be considered in the context of the plaintiff’s pre-existing health, including:

(a) his long-term pre-existing low back condition, identified as a disc bulge inflammation and pars defect and spondylolisthesis at L5 with right leg sciatica;[149]

(b) his pre-existing right shoulder injury; and

(c) his pre-existing mental health issues.

[149]Exhibit D1, 2.

The defendant submitted that the plaintiff’s back condition commenced in December 2003 and is an ongoing problem for which the plaintiff has not had any treatment. It was submitted that the condition kept the plaintiff out of regular employment since at least 2003 and he was unable to work since 2009. The defendant referred to Mrs Love’s evidence that the plaintiff still suffers from back pain and to Dr Thomas’ evidence about trying to capture the back pain and submitted that the Court ought not to accept the plaintiff’s evidence that improvement was almost spontaneous. It was submitted that the plaintiff downplayed his back pain to increase his compensation for his leg injury.[150]
[150]T685, LL2-11.

The defendant submitted that the plaintiff’s right shoulder injury, suffered as a result of the May 2011 accident, also continues to cause him pain.[151]
[151]T685, LL21-24.

The defendant submitted that the Court only has the plaintiff’s word in relation to his mental health prior to the incident. It was submitted that the blackouts have been present since at least 2009 and there is no medical support for the plaintiff’s contention they stopped in April 2011, and it is unlikely they would have stopped in the absence of treatment.

It was submitted that Dr McIntosh, Ms Weber, and the unknown treating psychiatrist referred to in Dr Sta Ana’s reports, would have been in a position to assist the Court in relation to the plaintiff’s mental health situation but due to the failure to call these treaters, the Court can draw an inference that their evidence would not have assisted the plaintiff in his contention that his mental health had improved significantly prior to the accident.[152] The defendant submitted the plaintiff’s hospital records[153] do not support the plaintiff’s contention that his blackouts had stopped or that he had a restored mental health of great significance.[154]
[152]T686, LL4-26.
[153]Exhibit D3.
[154]T686, LL27-31.

The defendant accepted that Dr Serry’s evidence was unchallenged in relation to the diagnosis of PTSD and moderately severe chronic adjustment disorder with anxious and depressed moods caused by the incident. However, the defendant submitted that the plaintiff’s pre-existing psychiatric condition continues to impact on him.

The defendant submitted that the plaintiff’s psychiatric condition has not had such a significant impact on his life to have required treatment. The defendant accepted Dr Serry’s and Mr Dooley’s opinions that the plaintiff requires treatment and that if he were to get that treatment, you could expect some improvement in his condition; however, it was submitted that these are medico-legal experts and the plaintiff’s treaters would have been helpful in the Court’s assessment of these matters.[155] Ultimately, the defendant submitted that the plaintiff’s mental health was so significantly damaged that any additional mental health consequences as a result of the incident are minor and are not of such significance when looking at the overall picture.[156]
[155]T688, LL24-29.
[156]T689, LL3-7.

The defendant referred to the plaintiff’s marked history of long-term substance abuse, in particular his significant marijuana use, and submitted this shows a lifestyle of doing nothing and the Court ought to consider this factor in the assessment of damages.

The defendant submitted that there is very little evidence as to the plaintiff’s pre-incident leisure activities or hobbies, particularly as he was very unwell and hospitalised in the six months before the incident. Further the defendant submitted that there is no evidence of any holidays or activities the plaintiff did with his children pre-incident and therefore no evidence that he has had a loss in this respect.

The defendant submitted that the plaintiff has had relationships post-incident, which broke up for reasons not related to the incident. Further, the defendant drew attention to the plaintiff’s internet friendships and his visit to Mildura post-incident to visit someone he met online.

The defendant submitted that the plaintiff has lived on his own for three years and has managed independent living on a day-to-day basis, including showering, dressing and cooking. The defendant submitted that the plaintiff’s back injury would have prevented him from doing heavy household tasks, such as vacuuming and sweeping and, in any event, he had assistance for such tasks before the incident.

The defendant disputes the plaintiff has limited mobility, given Dr Muir’s and Dr Sta Ana’s evidence.[157]
[157]T694, LL14-26.

The defendant accepted that the main consequence of the incident is the plaintiff’s pain. However, the defendant submits that the plaintiff’s pain is subjective, has fluctuated and ought to be considered in light of his pre-existing pain. The defendant emphasized that the plaintiff no longer seeks an amputation, is no longer on excessive amounts of pain medication and said he can live with his pain.[158] It was put that improvement is expected from both a psychological perspective and, on Dr Muir’s account, in relation to the neuropathic pain.
[158]T695, LL12-27.

The defendant submitted that if the Court finds negligence on behalf of the unidentified driver, damages ought to be in the range of $250,000 to $275,000.

The plaintiff’s submissions

Plaintiff’s counsel submitted that the plaintiff was frank about his pre-existing conditions. It was accepted that the plaintiff’s psychiatric condition was having a very significant effect on his life in early 2011 but there was no doubt that florid effect had ceased.[159] Plaintiff’s counsel noted that there was no evidence that the plaintiff’s blackouts had resumed and pointed to the plaintiff’s evidence, Dr Sta Ana’s reports and Dr Serry’s reports to support the inference that whilst his psychotic like episodes have continued, they are not florid.[160]
[159]T717, L29 - T718, L1.
[160]T718, LL2-7.

In relation to treatment, it was submitted that there is no evidence that the plaintiff has required further treatment, save for some psychiatric treatment in 2012, and some psychological treatment, and that Dr Serry thought, in 2017, that the plaintiff ought to see a psychiatrist.[161]
[161]T718, LL8-11.

The plaintiff’s counsel submitted that the plaintiff’s psychiatric condition has not been a major issue and has been overwhelmed by the incident related injury and associated pain.[162]
[162]T718, LL15-17.

In relation to the intermingling of the previous psychiatric history and the plaintiff’s present condition, it was submitted that this has been unravelled in a meaningful way by Dr Serry in his two reports.[163] It was submitted that the diagnosis of ‘moderately severe chronic adjustment disorder’ arising from the accident is significant and means that the plaintiff is suffering psychologically from the fact he has continuing pain.[164]
[163]T718, LL18-31.
[164]T719, LL19-27.

It was submitted that, from a psychiatric point of view, Dr Serry’s evidence is unchallenged and highlights the significance of pain in the plaintiff’s case.[165]
[165]T721, LL2-8.

In relation to Mr Dooley’s argument about the pain being psychologically based rather than neuropathic, it was submitted that the evidence of Dr Muir and Dr Thomas is heavily weighted in favour of the plaintiff.

The plaintiff’s counsel submitted that the plaintiff’s pre-existing back condition was significant and was interfering with his life at the time but that there is no evidence the plaintiff has required any treatment for it. It was submitted that the back condition is not a major feature of his presentation. It was submitted that the defendant has the evidentiary onus in relation to the pre-existing condition and adducing evidence about it. The plaintiff’s counsel noted that Mr Dooley does not mention the back, and the mention to the pre-existing back condition in Dr Sta Ana’s reports is insignificant. It was submitted that the overwhelming thrust of the evidence is that whilst the psychiatric and physical pre-existing conditions have continued, they have been overwhelmed by the left leg injury and pain.[166]
[166]T727, LL8-11.

The plaintiff’s counsel submitted that pain is the predominant consequence of the incident. It was submitted that when you are dealing with pain, there is no suggestion, however dysfunctional your life may have been, that the pain you suffer is in any way ameliorated by the fact you have a dysfunctional background.

The plaintiff’s counsel referred to the plaintiff’s evidence that his pain has been reduced by about 40 per cent but submitted that it’s 40 per cent from very, very severe pain, excruciating pain and is still very considerable.[167] It was submitted that while the plaintiff’s pain is captured at the moment, there is a possibility of improvement and there is a real risk that over the years the spinal cord stimulator will lose its effect.[168] The plaintiff’s counsel submitted that the situation reverting is a horrifying prospect for the plaintiff.[169]
[167]T728, LL20-22.
[168]T730, LL15-17.
[169]T730, LL18-23.

In relation to arthritis, it was submitted that Professor Love’s opinion ought to be preferred to Mr Dooley’s opinion.[170]
[170]T732.

In relation to the suspicion raised by the defendant as to the plaintiff’s use of crutches, the plaintiff’s counsel pointed to Mrs Love’s evidence that she does some of the plaintiff’s housework because he can’t do tasks, such as vacuuming, with crutches. It was submitted that the plaintiff lives by himself, and if he were able bodied you would not expect him to be calling his mother around for help. The plaintiff’s counsel also referred to Dr Sta Ana’s reports and the reference to the electric scooter and submitted that the Court ought to accept the plaintiff’s evidence about how he mobilises, that is with a stick or crutches for short distances and otherwise with a motorised scooter or motorised wheelchair.[171]
[171]T733-734.

It was submitted that the plaintiff’s condition will be a lifetime sentence for him; his mobility is restricted, he is dependent on others for shopping and the heavier aspects of housekeeping. It was submitted that the plaintiff will have continuing significant pain for the rest of his life, which has been modified from excruciating to significant.[172]
[172]T734, LL1-11.

The plaintiff’s counsel submitted that an appropriate figure for damages is in the range of $450,000 to $475,000.

Conclusion in relation to damages

There was no dispute between the parties that the plaintiff sustained a serious fracture to his left leg following the incident. He developed compartment syndrome requiring urgent decompression surgery and a temporary fixation of the fractures. Permanent internal fixation surgery of the fracture took place a few days later. He had a further complication when the wound became infected requiring further surgery.

The initial period after the incident was debilitating and caused the plaintiff severe pain, discomfort and disability.

The central issue is his ongoing pain, its management and his prognosis for the future. The plaintiff has undergone multiple surgical procedures for his pain management. The severity of his pain is such that pharmaceutical treatment alone is not adequate.

I will not repeat the medical evidence save to say, his pain is still present, it has been reduced by the spinal cord stimulator from its severe presentation by some 30-40 per cent. His pain will be ongoing for the rest of his life. The spinal cord stimulator is unlikely to improve his condition much more.

I prefer the evidence of Dr Thomas, Dr Muir and Associate Professor Love, that the plaintiff’s pain is neuropathic, rather than psychological. Having observed the plaintiff and considered his evidence together with Dr Thomas’ evidence, I accept that the end of the court case is unlikely to have any real impact on the plaintiff’s pain levels. Dr Thomas has known the plaintiff for a significant time and is an expert in pain management.

The plaintiff had a difficult life before the incident, including high levels of cannabis use, acute psychotic episodes on a long standing history of serious psychiatric illness, which included hallucinations, blackouts and eventually a diagnosis of schizophrenia. The effects of these pre-existing psychiatric conditions are ongoing but affect him to a much lesser extent after his treatment in February to April 2011.

The plaintiff admitted to still hearing voices, but minimally. He denied having ongoing blackouts. His evidence is that he no longer smokes cannabis. Dr Serry, who examined the plaintiff as recently as May 2017, was of the opinion that the plaintiff experiences mild paranoid ideation of a longstanding nature and continues to experience imperative auditory hallucinations. He confirmed that the plaintiff’s pre-existing psychotic disorder is ongoing and that the plaintiff remains on anti-depressant and atypical antipsychotic medication. He noted the plaintiff has regular sessions with his general practitioner. However, relevantly he considers the plaintiff’s pre-morbid vulnerability has been ‘very much compounded by the subject accident’. It is the plaintiff’s pain and associated physical limitations caused by the incident that Dr Serry considers impact on the plaintiff’s psychiatric presentation.

The plaintiff had a serious back injury in 2003 which impacted on his ability to work and eventually was the reason he went on a disability pension in 2009. I do not consider the plaintiff will ever return to his previous level of functioning physically, a level which was already compromised by a pre-existing back condition.

It was put that the plaintiff had little before the incident by way of his hobbies or a social life. That he was, in effect, dysfunctional because of his drug use and psychiatric illness. However, it is clear after treatment in early 2011, he made a significant improvement in relation to his psychiatric illness. Prior to the incident, he was able to assist in whatever capacity at the pizza shop and was engaging socially.

The plaintiff has said he can live with the pain now but that does not mean it does not negatively impact on him each day. Fortunately the spinal cord stimulator and the Palexia keep his pain from severe to something 30–40 per cent less than that.

I accept that his mobility has been affected and that he will require assistance with either crutches or a stick and the electric scooter or wheelchair into the future.

I accept Associate Professor Love’s opinion that he will most likely develop osteoarthritis in the knee and that, as expressed by Dr Muir, given his pain condition, he is likely to experience a higher level of pain compared to other people with a similar condition.

No matter how dysfunctional a life the plaintiff had before, he now has a life that will be permanently affected by pain which overwhelms all aspects of his life.

I accept the evidence that the plaintiff’s neuropathic pain, his physical limitations, PTSD and adjustment disorder will be unremitting features of the plaintiff’s future life. I assess the damages for pain and suffering, past, present and future, at $380,000. It is appropriate to discount that figure by 10 per cent for the contribution of the plaintiff’s pre-existing conditions to his current situation. Thus, the figure is reduced by $38,000, and the total sum to be awarded for pain and suffering damages is $342,000.

I will hear the parties on interest and costs.

[2017] VSC 584

28 September 2017