| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : MARKOV -v- DUNSTAN [2005] WADC 100 CORAM : O'SULLIVAN DCJ HEARD : 29 NOVEMBER & 3 DECEMBER 2004 DELIVERED : 27 MAY 2005 FILE NO/S : CIV 1105 of 2001 BETWEEN : SASO MARKOV Plaintiff
AND
RODNEY CHRISTOPHER DUNSTAN
Defendant
Catchwords: Damages - Personal injuries - 42 year old male - Soft tissue, dental and psychiatric injuries - Loss of capacity to work
Legislation: The Motor Vehicle (Third Party Insurance) Act 1943 (as amended)
Result: Damages assessed in the sum of $680,639.84 plus interest
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Representation:
Counsel:
Plaintiff : Mr K R Bradford
Defendant : Mr D R Sands
Solicitors:
Plaintiff : Bradford & Co
Defendant : Talbot & Olivier
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
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1 O'SULLIVAN DCJ: The plaintiff claims damages for injuries sustained in a motor vehicle accident on 13 November 1998. Liability is not in dispute.
The plaintiff's background 2 The plaintiff was born and grew up in Macedonia. He is 42 years of age. He graduated from high school with an aptitude for trade subjects and married in 1984. He and his wife came to Australia in 1987 and they have two children born in 1990 and 1991 respectively. 3 After coming to Australia the plaintiff worked in a timber factory labouring at first and then as a machine operator. After two years he found employment as a truck driver with a sea food company and remained in that position for eight years. He then became a lintel cutter for National Lintels Pty Ltd and was so employed at the time of the accident.
The accident 4 The motor vehicle accident occurred at the junction of Geddes and Balcatta Roads, Balcatta. The plaintiff was driving his Holden Gemini along Balcatta Road when a Toyota Corolla driven by the defendant came out into his path and a collision resulted. The Gemini was written off. 5 The plaintiff is 1.92 metres tall and the Gemini is a small car. He said that at impact his head hit the roof of the car and he felt immediate pain in the region of the right shoulder and chest, left leg and back on the left hand side. His dentures were also broken. An ambulance was called and he was taken to Joondalup Hospital where he was examined, x-rayed and given pain killing medication before being taken home by his wife.
Treatment 6 The plaintiff said that he saw a general practitioner, Dr C H (Bob) Tan the day after the accident and was prescribed Panadeine Forte. In a report dated 15 December 1998 Dr Tan noted complaints of cervical shoulder and lumbar sacral pain and bruising of the chest wall and abdominal soft tissue. Dr Tan considered him unfit for work from 14 to 20 November 1998 and noted that although he had gone back to work after that date he was still complaining of a painful neck and shoulder and back pain. When Dr Tan last saw the plaintiff on 12 December 1998 he ordered a course of physiotherapy and commenced him on Indocid suppositories.
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7 The plaintiff said that Dr Tan advised him to go back to work "because if I stay home can come more worser" (sic). However, he said he did so even though he was in pain and had started to limp on his left leg.
8 A few weeks after the accident the plaintiff changed his doctor and went to see Dr Michael Tan in Girrawheen. He said that he changed for reasons of convenience. 9 Dr Michael Tan referred the plaintiff for physiotherapy and hydrotherapy and to Dr John Hayes, rheumatologist, whom he apparently saw in the new year. 10 In the meantime the plaintiff said that he continued to go to work, both before and after the Christmas break, although he remained in considerable pain. Dr Hayes reduced and then eliminated his physical therapy but this did not reduce his symptoms and he continued to take painkillers in the morning and sometimes after work. 11 In relation to his work duties which involved handling and cutting long and heavy pieces of steel, the plaintiff said: "I coping very, very bad … I feel lot of pain and also I got pain in my shoulder, pain in my neck. Also I got pain in my left elbow and low back and also my left leg." 12 The plaintiff said that his condition did not improve and at the end of March 1999 he was referred by Dr Tan to Dr Desmond Williams, orthopaedic surgeon. An appointment was made for him to see Dr Williams on 14 April.
The incident at work on 12 April 1999 13 On 12 April 1999 the plaintiff said that he felt a sharp pain in his lower back on the right hand side while lifting steel to put on a trestle at work. He was unable to continue working and he went home and saw Dr Leong, Dr Tan's partner who advised him to wait until he saw Mr Williams on 14 April. 14 The plaintiff said that following this incident he remained off work for nearly a month. He then returned, despite the pain, working full time at first and then on reduced hours and with an assistant. 15 By 31 May 1999 the plaintiff said that he could no longer cope at work and he has not worked since that date.
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Mr Desmond Williams
16 Mr Williams' first report which is in evidence is dated 10 May 1999 and is addressed to the Insurance Commission of Western Australia. It deals quite comprehensively with the plaintiff's complaints and the medical investigation of his condition prior to that date but curiously does not mention any incident at work on 12 April 1999. He wrote: "In his referral from his general practitioner Dr Michael Tan noted he wasn't making progress and was in fact getting worse. I note that Dr Hayes, rheumatologist who saw him earlier stopped his physiotherapy but overall it seems to have restricted his progress. … I have had the opportunity of reviewing Dr John Hayes' report of 11 January 1999 and I note that he sees his injuries as soft tissue injuries overall and he described them as being of mild severity and they should improve with the passage of time but we are certainly seeing persisting stiffness here but there is some reaction here with his straight leg raise virtually zero and yet he is able to sit with his trunk at right angles to his legs so he does need careful monitoring and I would agree that treatment with physiotherapy won't be indicated but currently some assessment and targeted therapy does seem appropriate combined with an intensive swimming and exercise schedule. I note, as I stated, he is involved in steel factory work with National Lintels in Balcatta and this is heavy work so with his current presentation with pain and restriction and increasing soreness in the neck and back he is not really fit for work in a heavy work area. I have suggested review by me in a month's time and review by his general practitioner in two weeks time. I believe that it is appropriate there is careful monitoring of his progress for a period here and he has quickly moved back to a capacity to get back into a light work situation rather than letting the effects of the accident create an ongoing situation of pain and stiffness." 17 Mr Williams said that he must have written this report in response to a request from the Insurance Commission which referred to the motor vehicle accident. This was why he did not focus upon the incident at
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work on 12 April 1999. On 10 June of that year he wrote another letter to the Commission stating as follows: "To clarify this patient's history in my report of 10 May 1999 this patient was involved in a motor vehicle accident on 13 November 1998. Following that November 1998 accident he has had problems with his left elbow with pain and his right shoulder with pain and he has had neck and back pain. He was off work following the motor vehicle accident for one week. Following this he wasn't coping with a full day's work. He subsequently had an accident at work on 12 April 1999. On this occasion he went to work at 6.30am and was working with steel when he experienced a sharp pain in his right lumbar area at 8.00am. I didn't get clear indication of the work accident when I interviewed him initially and there is a language difficulty but I understood I was dealing with the consequences simply of the motor vehicle accident. In his work accident on 12 April 1999 it was on a Monday and he started work at 6.30am as I have outlined and he was lifting steel when he felt a sharp pain in his right paralumbar area about 8.00am and within a few minutes he reported the incident. He still had some ongoing back pain following the motor vehicle accident and the lifting incident created back pain that was worse. He sees the work incident as creating more significant pain that is persisting in his lumbar area. … As I've outlined he has symptoms still persisting from the motor vehicle accident but with the more significant back symptoms related to the workers compensation lifting incident." 18 Notwithstanding this report, Mr Williams said in evidence that it was his assessment "that the motor vehicle accident was the substantial injury and the work incident was simply an exacerbation that created a transient emergence of symptoms that resolved after a period of time."
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19 On 14 December 1999 Mr Williams wrote to the plaintiff's solicitors stating:
"We therefore see the workers compensation back injury as an exacerbation of symptoms from already existing symptoms related to the motor vehicle accident. Therefore the incident of the workers compensation lifting pain is seen as an exacerbation of pre-existing back pain related to the motor vehicle accident and therefore it doesn't have long term consequences in terms of permanent residual disability as it was an exacerbating incident creating increased symptoms in a situation where there was already persisting back pain. … He certainly presents with significant disability currently but as I have outlined the work injury is largely an exacerbation of the pre-existing back pain present from the motor vehicle accident although we know he was coping with work activities so it was a significant exacerbation but one would see this problem resolving further with the passage of time. At this stage it is not possible to estimate any permanent residual disability in percentages as the situation is unstable and one would be optimistic that problems will continue to resolve significantly with the passage of time." 20 Mr Williams wrote the above report having reviewed the plaintiff on 28 October 1999. He saw the plaintiff again on 1 February 2000 by which time he had been referred to Mr Barry White, psychologist. In a report of 22 March 2000 Mr Williams wrote that psychological intervention had not been successful and that the plaintiff had presented to him as being significantly depressed. He wrote:
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There was abnormal signal due to degenerative desiccation in the lower three discs. … The opinion was that overall there was disc degeneration in the lower three lumbar levels without evidence of dural or nerve root impingement. We can now push his physical therapy along knowing that there is no evidence of disc protrusion and there are no indications of surgery in management and we are simply dealing with underlying degenerative change and the exacerbation of symptoms from his degenerative change. From an orthopaedic point of view we can guarantee that his back pain will gradually go and he will gradually improve his functional capacities and he will gradually increase his work capacities. He may wisely avoid heavy lifting work with bending and awkward postures in the future, but it will leave him with a wide range of work capacities. There is no evidence that the motor vehicle accident or the workers' compensation accident has altered the underlying pathology in his lower lumbar spine, which was pre-existing degenerative change in the lower lumbar discs. … He is not happy with the contact with Barry White and he feels that the contact makes him feel more crazy. He feels that he is half a man now and he is obviously having problems with his relationship with his wife. I will discuss his management with his treating general practitioner and will initiate a further independent psychological review and I believe close psychological management is required here and it will be difficult with his depression and his cultural view of his ongoing problems and the difficulties in communication that he exhibits in this state. 21 In a very comprehensive report dated 12 November 2002 Mr Williams wrote:
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"6. I have outlined the motor vehicle accident is the substantial injury creating consequences and the workers' compensation injury was an injury that created exacerbation of lumbar back symptoms with a time line of that exacerbation resolving. In terms of his injuries he has had soft tissue injury to his cervical spine of a flexion/extension type with exacerbation of symptoms from underlying cervical degenerative change with segmental stiffness persisting. In the thoracolumbar spine he has in the lumbar area soft tissue back injury with exacerbation of symptoms from underlying existing degenerative change and without any evidence of significant disc protrusion. In his right shoulder he has some minor degenerative changes in the acromioclavicular joint and no evidence of rotator cuff pathology and the right shoulder. Injury is largely a soft tissue injury with the underlying acromioclavicular joint arthritis creating some pain. His left elbow was a bruise contusion injury and Dr Anastas refers to the spur in the area that was pre-existing. The major diagnosis and presentation is of persisting significant psychological disturbance with depression a feature. … 8. The medical treatment required is a continuation of swimming and exercise schedules with general practitioner support with pain-relief and anti-inflammatory drugs and ongoing psychological care and counselling. 9. With regard to his current capacity he does not have capacities for heavy lifting and repetitive bending and awkward posture activities but he should be encouraged into lighter sedentary bench work activities.
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Returning to work will improve his psychological status significantly and it should be part of his rehabilitation combined with the ongoing physical rehabilitation needs. 10. His prognosis has to be poor overall with regard to his track record of progress following the motor vehicle accident. As Dr Anastas has noted in his reports, overall with the timeframe since the motor vehicle accident, his problems should have resolved significantly. There is no evidence of underlying pathology that is progressive or ongoing that is perpetuating his physical presentation and the major reason for his poor prognosis is the psychological issues that have emerged and are interacting with the physical presentation. 11. I have noted the motor vehicle accident is the major contributor to his ongoing physical and psychological presentation problems and I saw the work accident as a transient factor exacerbating his low back pain. His current disability in the cervical spine is of the order of 10%, expressed as a percentage disability of the whole functional spine. His current disability in the thoracolumbar spine related to his lumbar pathology is of the order of 10%, expressed as a percentage disability of the whole functional spine. Both these areas of disability have the potential to further resolve with the passage of time and ongoing physical and psychological treatments discussed in the text of the report." 22 Mr Williams last saw the plaintiff on 3 November 2004 and said in evidence that he had noticed very little change in his physical and psychological symptoms. He said: "I did see him more recently and the same flatness of mood remains and the pattern of activity in response to the injury over these years is in keeping with that …
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Jack Edelman 23 The plaintiff has been seen by Dr Jack Edelman, rheumatologist, on three occasions, the first being 5 April 2000. 24 In a report written on that date Dr Edelman noted that although his symptoms were quite marked the objective findings upon investigation showed only minor problems. He wrote: "However, there must be more going on here because his symptomatology seems to be out of context to the objective findings. He now seems to be getting depressed and tells me that he is under a lot of stress and tension." 25 In a second report dated 10 May 2000 Dr Edelman stated that there was a "marked psychological overlay to his symptomatology". At that time he was not considered fit to return to work. However, Dr Edelman wrote that "on first principles, bearing in mind that this is mainly a soft tissue problem, then he should improve." 26 Upon seeing the plaintiff again on 18 October 2002 Dr Edelman repeated these views and stated that apart from attending at a pain management clinic, no further treatment or investigation was called for. 27 When Dr Edelman saw the plaintiff for a final time on 5 November 2004 he found the position to be much the same. He wrote:
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Peter Connaughton 28 Dr Peter Connaughton is a specialist occupational physician. He saw the plaintiff on 11 May 2000 and reviewed the extensive documentation on his case. He wrote in a report dated 22 June 2000: "In summary therefore this man has claims relating to a motor vehicle accident in November 1998, and a low back injury at work in April 1999. He has a complex history as summarised above – including a wide array of symptoms which he reports are progressively increasing. He has had multiple investigations and various referrals. The clinical presentation consists of the full spectrum of signs of abnormal illness behaviour, functional overlay and inconsistency." 29 Dr Connaughton also stated that the plaintiff's behaviour at the clinical presentation made it very difficult to objectively assess any degree of permanent disability and that it was probable that he suffered from anxiety and depression. Nevertheless he wrote: "4. His current presentation relates to the initial accident, and subsequent psycho-social influences. His condition does not relate to activities at work on 12 April 1999 – the direct effects of which have long since resolved. That is based on a range of factors including his history, the medical certificates and reports reviewed, the x-ray findings and the clinical examination." 30 In the course of his evidence Dr Connaughton explained that the term abnormal illness behaviour was not a diagnosis. It was, he said, nevertheless a valid term in his opinion used to described behaviour and vocalisation and movements which are not expected or explicable in terms of a specific anatomical diagnosis or a medical syndrome. It was put to him that given the difficulties of coming to a firm diagnosis in this case he
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was unable to state what the cause of the plaintiff's condition was and he agreed with that but nevertheless said: "I'm relatively certain that it's not the work incident given the information we've looked at, given his symptoms prior to that incident, given the nature of the incident, given those other factors, but yes when we talk about psychosocial factors there are lots of potential parts to that jigsaw."
Nicholas Anastas 31 The plaintiff was seen by Mr Nicholas Anastas, orthopaedic surgeon, on three occasions. Upon seeing him for the first time on 2 May 2000 Mr Anastas noted that the plaintiff said that the incident at work on 12 April 1999 had aggravated his low back pain by some 70 to 80 per cent and the aggravation had remained the same. Mr Anastas also noted that the plaintiff had been able to return to work after the motor vehicle accident and concluded that if it had not been for the incident of 12 April there was no reason why the plaintiff should not have continued in his occupation as a steel cutter. However, in the course of his evidence Mr Anastas said that he wasn't aware that the plaintiff was having difficulty at work before 12 April 1999 and that he had had a day off at the end of March 1999 because of his difficulties and that it was at that time that he had been referred to Mr Desmond Williams. 32 Mr Anastas wrote in a report dated 2 May 2000: 33 In Mr Anastas' opinion as at 2 May 2000, the plaintiff's motor vehicle claim could be finalised but any claim arising out of the incident at work on 12 April 1999 should be deferred for at least six months. 34 Mr Anastas next saw the plaintiff nearly two years later on 2 April 2002.
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35 On this occasion he noted that the plaintiff advised that his low back pain was worse and he wrote: "he presently puts this aggravation as being at 100%." His most limiting factor was the lower back pain, although there were also complaints of increased neck and upper back pain and continuing elbow pain.
36 In Mr Anastas' opinion it was clear that the plaintiff's major source of incapacity was due to his low back symptoms and he considered that the increase in them was spontaneous and due to the natural progression of the degenerative changes. In a report dated 2 April 2002 Mr Anastas repeated his view that the plaintiff did not have a quantifiable disability in his low back as a result of the motor vehicle accident. He added: "He demonstrates inconsistencies with respect to forward flexion of his spine, together with complaining of pain on simulated rotation of his thoraco-lumbar spine. These inconsistencies could suggest that the symptomatology is not as great as given on the history." 37 After seeing the plaintiff a final time on 20 October 2003 Mr Anastas wrote: "In summary, this gentleman did not have back pain prior to the motor vehicle crash on the 13th November 1998. His low back pain as a result of the motor vehicle crash on the 13th November 1998 was aggravated some 70% to 80% by an incident at work on the 2nd April 2002 (sic). Since May 2000 he complained of a spontaneous 100% increase in his low back pain, which in my view was due to the natural progression of degenerative changes. Accordingly, I can only attribute a minor percentage of his present low back pain as being a direct result of the motor vehicle crash on the 13th November 1998."
Michael Alexeeff 38 The plaintiff underwent a further assessment, this time by Mr Michael Alexeeff, orthopaedic surgeon, on 7 September 2004. 39 In a very comprehensive report dated 21 October of that year Mr Alexeeff referred to the many investigations of the plaintiff's condition and set out the history. He noted in particular that the plaintiff said that he returned to work relying on medication to do so because of ongoing symptoms including back pain. It was Mr Alexeeff's view that while the plaintiff might well have sustained soft tissue injuries in the motor vehicle
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accident his injuries could not have been significant given that he returned to work involving the lifting of steel lintels weighing 60 to 80 kilograms. 40 After examining the plaintiff and noting a number of inconsistencies Mr Alexeeff stated in his report: 41 Mr Alexeeff also wrote that while subjectively the plaintiff had marked incapacity objectively it was difficult to define what residual incapacity he had.
Lawrence Terace 42 The plaintiff has been seen four times by Dr Lawrence D Terace, consultant psychiatrist. 43 After seeing him on the first occasion on 22 February 2000 it was Dr Terace's view that the plaintiff might have been exhibiting abnormal illness behaviour. In addition, he suffered from a low grade depressive disorder. 44 Dr Terace explained that the term abnormal illness behaviour was a broad umbrella term under which there are many subtypes, including a number of recognisable psychiatric conditions. The term is used to describe the difference between a patient's physical complaints and the objective findings upon examination. This does not necessarily imply that a patient is malingering and indeed most cases of abnormal illness behaviour relate to the genuine perception of the patient and only rarely is the abnormal illness behaviour the product of conscious exaggeration. 45 Dr Terace explained his finding of a low grade depressive disorder in these terms: "When a psychiatrist refers to a psychiatric condition being low grade, he's distinguishing the terms low grade, moderate or medium and high or severe or profound and the severe or profound disorders are those horrible disorders that lead to people being incarcerated in psychiatric institutions.
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So by comparison, what a psychiatrist calls low grade is still a very significant condition in the community and shouldn't be mistaken to be insignificant …" 46 In his report of 26 February 2000 written after seeing the plaintiff on 22 February of this year, Dr Terace described the plaintiff as suffering from "major depression, reactive subtype, … low grade in nature" and "a low grade depressive disorder". 47 Dr Terace also said in evidence that if a person suffered a physical injury the effects of which were transient in nature and as a result developed abnormal illness behaviour the behaviour would not necessarily cease when the physical effects of the injury wore off. He said: "Sadly it's often the case that a transient incident and what would otherwise have been a transient actual physical injury can give rise to persistent and chronic abnormal illness behaviour. Whether it does or doesn't depends on what kinds of physical, psychological, social, cultural and practical factors are present." 48 Dr Terace also said that most cases of abnormal illness behaviour do involve a transient injury. 49 When the plaintiff was seen by Dr Terace a second time on 5 October 2000 he again thought that he was suffering from a low grade depressive disorder which was partially disabling but not totally so. However, on the third occasion he saw him which was on 23 October 2002 he considered that his condition had improved and that he should no longer be so diagnosed. In Dr Terace's view the plaintiff remained demoralised and frustrated about his perception of pain and disability and handicap and probably the issues of litigation and the medico-legal process but these psychological experiences were not sufficient to meet the criteria for a recognised psychiatric condition. 50 The plaintiff was seen by Dr Terace for the fourth and final time on 11 November 2004 and on this occasion he was diagnosed as suffering from a major depression. 51 In his report of 11 November 2004 Dr Terace stated: "In this case, there are also complicating factors which have worsened the prognosis of the depression and these complicating factors are –
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1. The medico-legal and workers' compensation process. 2. The claimant's financial difficulties. 3. The claimant's ethnic background. 4. The likelihood of abnormal illness behaviour." 52 Dr Terace described the plaintiff's condition as at 11/11/2004 as having worsened "quite dramatically". Asked whether that is what he would have expected he said: "Most depressive disorders do improve and/or resolve with time and treatment but some conditions actually worsen without improvement and some fluctuate and some relapse and remit." 53 As to the cause of the plaintiff's depression and likely abnormal illness behaviour Dr Terace said: … in this case I think it is more likely than not, or at least on the balance of probabilities likely, that the accident was the beginning of a causal chain such that the accident itself then materially and significantly contributed to the contraction of both the abnormal illness behaviour and the major depression." 54 Dr Terace said that this opinion remained the same even if the accident and its physical effects were transient in nature. 55 In Dr Terace's opinion formed in the light of the plaintiff's last consultation with him the prognosis was poor. He stated in his report of 11 November 2004: "I would hope that there would be some improvement after the resolution of the claim, because the protracted nature of the claim and the claimant's present financial difficulties are certainly influencing, and causing, part of his psychiatric disability. However, at this stage, the nature of his symptoms, the chronicity of symptoms and the other complicating factors all mean that he will probably now be left with some residual permanent psychiatric disability."
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56 Dr Terace said in evidence that it was his opinion that Mr Markov would need to see a psychiatrist for at least another two years, on a monthly basis. He also stated: (T167)
"He would certainly require antidepressants for a minimum of two years, probably five years and possibly even lifelong." 57 As to the plaintiff's capacity for work Dr Terace wrote: "8.1 Presently, the psychological condition is so severe as to impair his capacity for work. On its own, the psychological condition prevents him from returning to his former employment, or to any other employments that require the following:- Peter McCarthy 58 The plaintiff was seen by Dr Peter McCarthy, consultant psychiatrist on one occasion, on 18 November 2003. 59 In Dr McCarthy's opinion the plaintiff was suffering from a prolonged depressive disorder which he described as "relatively mild". 60 Dr McCarthy wrote in a report dated 7 December 2003: "His symptoms are not persistent or particularly severe and are overshadowed by a mixture of boredom, lack of initiative and motivation, a degree of conflict and estrangement at home and a lack of direction in life. There may also be some contribution to his depression from a degree of organic pain, however I think it is more likely, in view of his prolonged and apparently excessive complaints of pain, that his mood disorder and demoralisation is contributing to his pain perception." 61 Dr McCarthy went on to state in his report that he was "unable to judge to what extent he has 'genuine symptoms' although I have no reason at this stage to believe that he is malingering."
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62 In Dr McCarthy's opinion the plaintiff was not prevented from returning to work by his relatively mild psychiatric disorder but attempts to get him back into the workforce would involve difficulties because he had assumed "an invalid demeanour". His boredom, demoralisation and unhappiness were significant issues and Dr McCarthy stated:
"There are a variety of cultural aspects to this gentleman's presentation which also decrease the probability that he will return to work in the foreseeable future."
Findings 63 I am satisfied that as a result of the motor vehicle accident the plaintiff suffered injuries to his teeth, right shoulder, left elbow, neck and lower back. 64 It is clear that of these, the symptoms relating to the lower back have been the most persistent. 65 I accept that the plaintiff has suffered soft tissue injuries and that in the normal course of events these could have been expected to have resolved by now but I nevertheless find that they have not done so. 66 In my opinion the incident at work on 12 April 1999 should not be regarded as having resulted in any separate identifiable injury to the plaintiff. In my view on that day he suffered an exacerbation of his lumbar back symptoms but no permanent injury over that which he had already sustained in the motor vehicle accident. 67 Although I have found that the plaintiff's lower back symptoms have persisted I also find that the degree of disability claimed by him is significantly in excess of that demonstrated by any pathology or clinical findings. However, it is not suggested in the psychiatric evidence or in the general medical evidence that the plaintiff is malingering and I do not consider that any such conclusion would be justified. In my view while there is a degree of exaggeration in the plaintiff's complaints that reflects the combination of his physical injuries with his psychological and psychiatric response to them. This finding is, I think, consistent with the opinion expressed by Dr Terace that the plaintiff has probably exhibited abnormal illness behaviour. 68 I am also satisfied that as a result of the motor vehicle accident the plaintiff has suffered psychiatric injury in the form of a major depression. Although Dr Terace thought that a diagnosis of depressive disorder was
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not appropriate when he saw him on 23 October 2002 he had made it earlier and he found that his condition had worsened significantly when he last saw the plaintiff on 11 November 2004. Dr McCarthy also diagnosed the plaintiff as suffering from low grade depressive disorder when he saw him on 18 November 2003. He has not examined him since. Both psychiatrists agreed that it is not unusual to find fluctuations in psychiatric disturbances from time to time. 69 I am further satisfied on the evidence that the plaintiff's psychiatric prognosis is poor. As Dr Terace has said, he will probably now be left with some residual permanent disability in this regard and while it is hoped that treatment will produce some slow improvement complete remission is highly unlikely.
The plaintiff's capacity to work 70 I am satisfied that the plaintiff is permanently incapacitated for his pre-accident occupation of a lintel cutter. Such work clearly involves heavy lifting and repetitive bending and the plaintiff's physical and psychiatric condition is now such that he is unsuitable for such work. 71 The plaintiff remains physically able to engage in a more sedentary occupation but given his psychiatric condition and his background and lack of qualifications he faces difficulties in re-entering the workforce and that should be reflected in the award for future economic loss.
Past economic loss 72 The plaintiff has not worked since 31 May 1999 and I accept that the net amount he would have earned as a lintel cutter from that date until judgment is $201,248. 73 There should be interest at the rate of 3 per cent per annum on so much of this sum as exceeds the amount received by the plaintiff by way of workers compensation.
Past loss of superannuation 74 I allow $10,575.84 under this heading, plus interest at 3 per cent per annum from 31 May 1999.
Future economic loss 75 On present indications it is not possible to say when the plaintiff will be fit to re-enter the workforce. Nevertheless, although more than six years have passed since the accident I am satisfied that there is a
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reasonable prospect that he will do so. His psychiatric condition is a fluctuating one and while it is presently such that he cannot work at all that will not always necessarily be the case. Moreover, the factors contributing to it include financial difficulties and the strain of this litigation and with their removal an improvement might be expected. 76 In the light of the plaintiff's employment history I think that it is appropriate to proceed to assess damages under this heading upon the basis that but for the accident he would have worked until the age of 65 years. Periodic unemployment and the normal vicissitudes of life should of course be allowed for as contingencies. 77 It is also clear from the medical evidence that the plaintiff's background has played a significant part in contributing to his present disability. Given his reaction to the adversity of the motor vehicle accident this suggests some susceptibility which might have reduced his employment prospects in any event. 78 In the light of these considerations and on all the evidence I have come to the conclusion that in calculating future economic loss an allowance for contingencies of 50 per cent should be made. 79 Allowing for a further 22 years of working life the appropriate multiplier is 647. After applying that figure to the amount of $660 net per week, which is the wage the plaintiff was receiving at the time of the accident, and deducting 50 per cent for contingencies the result is $213, 510.
Past loss of services 80 The plaintiff and his wife both gave evidence that they bought a newly built family home in 1996 which had not been furnished. It was their intention that the plaintiff should complete many tasks such as painting and establishing lawns and gardens. He would do this after work and on weekends but has been unable to do so after the accident. A friend has done some work but the house remains unfinished. 81 The plaintiff said that he is able to do some light work in the garden but nothing heavy. He used to mow the lawn but now engages a contractor. 82 Mrs Markov gave evidence that she worked full time and that before the motor vehicle accident she and her husband would do the housework together. Since then she has attended to the heavy chores.
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83 Against this background a claim is made for past loss of services calculated upon the basis of seven hours per week at a rate of $12 per hour. I would allow five hours per week at that rate giving a sum of $18,720. There should be interest on this amount at the rate of 3 per cent.
84 For the future I allow the sum of $20,000.
Future loss of superannuation 85 I accept the plaintiff's calculations in respect of this aspect of the claim and he should have the sum of $17,256 under this heading.
Fox v Wood (1981) 148 CLR 438 86 The amount of $28,572 is agreed.
The costs of future treatment 87 I am satisfied that as a result of the accident the plaintiff has been left with the need for dental, psychiatric and other medical treatment. The cost of these services is agreed at $37,500.
Past medical, rehabilitation and dental expenses 88 I understand that these sums are agreed at $51,549, $2,743 and $14,716.
Non pecuniary loss 89 The plaintiff's physical and psychiatric injuries and his psychological response to them have had a significant adverse effect upon his life. While it might have been expected that his physical injuries would have resolved by now, his progress has been hampered by his psychiatric condition and his prognosis in this respect is a poor one. 90 In all the circumstances I consider that there should be an award for non pecuniary loss calculated upon the basis of 25 per cent of a most extreme case. In the result the plaintiff should receive the sum of $64,250.
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Conclusion
91 The plaintiff should receive damages as follows: Past economic loss $201,248.00 Past loss of superannuation $ 10,575.84 Future economic loss $213,510.00 Past loss of services $ 18,720.00 Future loss of services $ 20,000.00 Future loss of superannuation $ 17,256.00 Fox v Wood $ 28,572.00 Cost of future treatment $ 37,500.00 Past medical expenses $ 51,549.00 Past rehabilitation expenses $ 2,743.00 Past dental expenses $ 14,716.00 General damages $ 64,250.00
92 In addition to these sums the plaintiff should receive interest calculated at the rate of three per centum per annum on past economic loss, and past loss of superannuation from 31 May 1999 and the amount awarded for past loss of services from the date of the accident. 93 I will hear from counsel as to the appropriate judgment sum and any further or other orders.
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