Mathews v Schuler

[2019] NSWDC 203

District Court

New South Wales

Medium Neutral Citation:	Mathews v Schuler [2019] NSWDC 203
Hearing dates:	28-29 June 2018; 3-6 September 2018; 29-30 November 2018; 6 February 2019; 29 March 2019 (written submissions); 26 April 2019
Date of orders:	23 May 2019
Decision date:	23 May 2019
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	(1) Judgment for the plaintiff. (2) The defendant is to pay the plaintiff's costs of the proceedings as agreed or assessed. (3) Leave to the parties to seek within 14 days a different costs order to that set out in order 2 above. (4) The parties are to bring in agreed short minutes of order within seven days reflecting these reasons for decision. (5) Exhibits to be returned at the expiry of 28 days.
Catchwords:	Torts – negligence – motor vehicle accident – liability not in issue – extent of injuries arising from the accident – whether doctor had backdated documents - extent to which, if at all, the plaintiff’s future earning capacity has been affected – whether plaintiff prevented from being a commercial pilot – approach to the award of a buffer for loss of future earning capacity – plaintiff’s credit strongly attacked by defendant
Legislation Cited:	Civil Liability Act 2002 (NSW) Evidence Act 1995 (NSW) Motor Accidents Compensation Act 1999 (NSW)
Cases Cited:	Afoa v McBride [2017] NSWCA 323 Allianz Australia Insurance Limited v Kerr [2012] NSWCA 12 Boateng v Dharamdas [2016] NSWCA 183 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Croucher v Cachia [2016] NSWCA 132 Cubillo v Commonwealth (No 2) [2000] FCA 1084; (2000) 103 FCR 1 Danckert v Tonkin [2015] NSWSC 1570 Davis v Swift [2014] NSWCA 458 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72 Karabay v Carr [2014] NSWCA 143 Leung v Fordyce [2019] NSWSC 18 Mason v Demasi [2009] NSWCA 227 New South Wales v Moss [2010] NSWCA 133; (2000) 54 NSWLR 536 Nguyen v Tran [2018] NSWCA 215 Polo v Nominal Defendant [2019] NSWDC 53 Sangha v Baxter [2009] NSWCA 78 Sretenovic v Reed [2009] NSWCA 280 Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR
Category:	Principal judgment
Parties:	Aylwin Mathews (Plaintiff) Jennifer Schuler (Defendant)
Representation:	Counsel: P Mooney SC (Plaintiff) B Wilson (Defendant)   Solicitors: TBC Lawyers (Plaintiff) Hall & Wilcox Lawyers (Defendant)
File Number(s):	2017/00347085

CONTENTS

PARAGRAPHS
Judgment	1
The pleadings	5
Plaintiff’s background and employment history	9
Prior medical history	21
The motor vehicle accident	23
Records at Royal Prince Alfred Hospital arising from the accident	32
The plaintiff’s evidence
The plaintiff’s oral evidence	34
Oral evidence of Mr David Newling	127
Oral evidence of Dr Anthony Lam	132
Oral evidence of Dr Aladdin Matter	148
Evidence for the defendant
The defendant's oral evidence	162
Oral evidence of Ms Anne Nielsen	177
Medical evidence relied upon by the plaintiff	182
Medical certificate prepared by Dr Matter	183
Opinions and notes of Dr Lam	184
CT scans 11 December 2014	186
Ultrasound right shoulder	188
Reports of Michael Ryan, physiotherapist	189
Reports of Dr Y K Lee	195
The plaintiff’s motorcycle accident	204
Report of MAS assessor Dr E Parmegiani	208
Report of MAS assessor Dr Alan Home	216
Report of Dr R O’Toole, occupation and environmental physician	221
Medical evidence of the defendant	224
Report of Dr J Roberts, psychiatrist	225
Reports of Dr A Keller	239
Credit issues relating to the witnesses	253
Mr Newling	254
Ms Nielsen	255
Dr O’Toole	257
Dr Lam	261
Dr Matter	263
Ms J Schuler – the defendant	272
Mr Aylwin Mathews – the plaintiff	275
Submissions of the parties	278
Factual findings	281
Medical findings
Findings in relation to alleged physical injuries arising from the accident	287
Findings in relation to alleged psychiatric injuries arising from the accident	293
Consideration
Duty of care and Breach of duty of care	303
Contributory negligence	304
Causation	312
Damages	318
Past out-of-pocket expenses	320
Future out-of-pocket expenses	323
Past economic loss	328
Loss of future earning capacity	329
Disposition	346

Judgment

1. In this matter, the plaintiff, Mr Aylwin Mathews, seeks damages under the Motor Accidents Compensation Act 1999 (NSW) (“the Act") for personal injuries alleged to have been suffered by him as a result of the negligence of the defendant in driving a motor vehicle which collided with the plaintiff’s motor vehicle on 11 October 2014. Breach of duty of care has been conceded by the defendant although contributory negligence has been pleaded.

2. At the time of the accident, the plaintiff was residing in Sydney pursuant to a student visa.

3. The plaintiff was born in New Delhi in India in October 1989. He was 25 years of age at the time of the accident and nearly 29 years of age at the date of the commencement of the trial. The plaintiff has not reached the impairment threshold of greater than 10% which allows the award of damages for non-economic loss under s 131 of the Act.

4. The plaintiff's claim for damages is limited to past and future out-of-pocket expenses, past economic loss and future economic loss, the latter being sought as a significant buffer.

The pleadings

5. The plaintiff relies on a Statement of Claim filed on 16 November 2017. The plaintiff pleads in summary as follows:

1. On 11 October 2014 at approximately 6:15 am (later evidence corrected this to 6.15 pm: T51.17) the plaintiff was driving his motor vehicle along Belmore Road near the intersection of Belmore Road and Washington Avenue at Riverwood in Sydney (paragraph 4);

2. As the plaintiff entered the intersection of Belmore Road and Washington Avenue, the defendant entered the intersection in her motor vehicle and collided with the plaintiff’s vehicle. As a result, the plaintiff sustained injury, loss and damage (paragraph 6). It is alleged that the injuries suffered as a result were caused by the negligence of the defendant (paragraph 7);

3. Particulars of injuries are given including injury to the chest, concussion, injury to the cervical, thoracic and lumbar spine; injury at the L4/5 and L5/S1 levels, rotator cuff injury of the right shoulder, injury to the left shoulder, post-traumatic stress disorder and severe psychological injury.

6. A Statement of Particulars was also filed by the plaintiff on 16 November 2017 which repeated the particulars of injuries in the Statement of Claim and referred to extensive particulars of continuing pain including constant pain in the cervical spine and right shoulder, pain in the right shoulder radiating down the right upper limb, pain in the thoracic spine, persistent pain in the low back, reduced standing and sitting tolerances, post-traumatic stress disorder, anxiety disorder and secondary depression. Particulars of damages sought are given.

7. In her Defence filed 2 March 2018, the defendant:

1. Admits the collision;

2. Admits a breach of duty of care owed by her to the plaintiff (paragraph 3(c));

3. Pleads contributory negligence;

4. Alleges that the plaintiff has made multiple statements in connection with the claim which are false or misleading and amount to fraudulent conduct on his part, detailed particulars of which are given (paragraph 5);

5. Denies that any injury, loss and damage claimed by the plaintiff was caused by the negligence of the defendant in the collision (paragraph 3).

8. It will accordingly be seen that a significant issue in the proceedings is what injuries, if any, were caused to the plaintiff as a result of the accident and whether any of those injuries have caused disabilities including disability as a result of psychiatric injury. A significant part of the plaintiff's case is an allegation that as a result of the injuries which he suffered arising from the accident, he has no realistic prospect of obtaining a commercial pilot's licence with the loss of significant future income. A loss of future earning capacity on the basis of a significant buffer is claimed. There is also a related issue of what treatment expenses were appropriate arising from the accident and whether any damages should be awarded for likely future treatment expenses.

Plaintiff’s background and employment history

9. I now set out the background details relating to the plaintiff and his employment history. Unless I otherwise indicate, what follows are my factual findings in the case on these matters.

10. As stated above, the plaintiff was born in October 1989 and was nearly 29 years old at the time of the commencement of the trial. The plaintiff was born in India and completed the equivalent of Year 12 in India in 2007. Whilst in India, the plaintiff completed an entrance test conducted by Aerospace Aviation in New Delhi for the purposes of undertaking a commercial pilot's licence course at Aerospace Aviation’s school in Sydney in Australia. The plaintiff passed the test, was offered a position and arrived in Australia in February 2008 to commence his studies.

11. The plaintiff obtained through his parents a student loan of $50,000 to pay for the fees for his course in order to enable him to obtain his visa to travel to Australia to undertake the course. Between February 2008 and December 2009 the plaintiff undertook his studies at Aerospace Aviation and completed significant hours of flying during the course. At the end of 2009, Aerospace Aviation, which was a company, went into liquidation. At that time, the plaintiff had completed all but one module in his course. Following the completion of the course and undertaking the relevant exams successfully, the plaintiff would have been qualified to be awarded a commercial pilot's licence which had been his ambition or as he described it his “childhood dream”.

12. From the end of 2009 until later in 2010, the plaintiff was unable to continue his studies due to the liquidation of Aerospace Aviation. In order to assist students who had been left in dire straits due to the liquidation of Aerospace Aviation, some students were assigned to complete their course at other organisations. In the latter part of 2010, the plaintiff was assigned to complete his pilot’s course at Basair, another flying school, at Bankstown Airport in Sydney. However, the plaintiff required an additional amount of about $12,000 to complete his training at Basair and he gave evidence that he did not have the funds to undertake the course and was therefore not able to complete his training: Exhibit C; cf T47.6. By the time he ceased at Basair he had undertaken well over 200 flying hours.

13. In May 2012 the plaintiff commenced an Advanced Diploma of Management at AH & B College at Bondi Junction in Sydney. He gave evidence that the purpose of undertaking the course was to obtain a better position to earn more money to complete his commercial pilot's course and to assist him in moving towards the requirements to obtain permanent residency in Australia: T47-8. The plaintiff completed the Advanced Diploma of Management.

14. In July 2013 the plaintiff enrolled in a business degree at Victoria University, Sydney campus, which was a course of two years’ duration. The plaintiff expected that he would complete the course in July 2015.

15. On 11 October 2014, the plaintiff was involved in the motor vehicle accident the subject of the proceedings which will be considered in further detail below. The plaintiff gave evidence that the accident caused him not to complete aspects of his studies at the time and delayed his completion of the degree. In October 2015, the plaintiff completed the course and graduated with the degree of Bachelor of Business majoring in Information Systems Management: Exhibit C.

16. On 2 November 2015, the plaintiff obtained employment with The Lynch Group Australia as a business analyst and in December 2016 was promoted to assistant account manager at The Lynch Group.

17. The plaintiff had undertaken part-time employment during his studies in Australia. From October 2008 to August 2012 he was a warehouse attendant at Clifford Hallam Healthcare. From September 2012 to October 2015 the plaintiff worked at IKEA at their store at Tempe in Sydney. He was a part-time sales assistant and showroom worker. He was in this employment as a sales assistant/showroom worker at the time of his accident. Whilst at IKEA, the plaintiff gave evidence that he took between eight and 10 days off work due to injuries he received in the accident: Exhibit C. This claim was disputed by the defendant.

18. The plaintiff's tax returns and assessments were in evidence. These show that the plaintiff had the following taxable income:

Financial year ending	Taxable income $
2012	$27,404
2013	$29,897
2014	$37,288
2015	$42,874
2016	$53,757
2017	$65,315

19. The plaintiff claims that he would have received substantially higher income if he had completed his commercial pilot's course and obtained appropriate employment as a commercial pilot.

20. The plaintiff is a single man without dependent children and resides in Sydney. He undertakes frequent interstate travel as part of his job. The plaintiff gave evidence that he was granted permanent resident status on 22 January 2018 and in due course will apply to be made an Australian citizen.

Prior medical history

21. The plaintiff’s relevant prior medical history was limited and was as follows.

22. On 23 April 2012 the plaintiff strained his right shoulder whilst he was picking up a 12kg carton from shoulder height whilst in his job as a warehouse attendant: Exhibit A page 219. The plaintiff was certified as being unfit for work until 5 May 2012 but was later certified as fit for restricted duties. A medical practitioner certified the plaintiff as being fit for his preinjury duties from 8 June 2012: Exhibit A page 226. The plaintiff undertook physiotherapy and gave evidence that he eventually regained a full range of movement and strength in the right shoulder: Exhibit A page 56; T49-50. There was no evidence to establish this was not the case.

The motor vehicle accident

23. As stated above, the motor vehicle accident giving rise to these proceedings occurred on 11 October 2014 at about 6:15pm: T51.17. The plaintiff gave evidence that he was proceeding down Belmore Road at Riverwood in Sydney in his Hyundai sedan. He stated that the defendant in her vehicle was travelling down Washington Avenue which concluded at a T-intersection with Belmore Road. He said the defendant failed to give way at the intersection and collided with the passenger side of the plaintiff’s vehicle. Some damage was caused to the plaintiff's car: see the photographs in Exhibit B.

24. I will consider further aspects relating to the circumstances of the accident below.

25. Both police and an ambulance attended the scene of the accident: T56-57. The plaintiff signed an Accident Notification Form on 6 November 2014: Exhibit A page 4. In this Form he described the accident as follows:

“I was travelling on Belmore Road around 6:15pm on the 11/10/14 on my way to Holsworthy when Jennifer’s car came from Washington Avenue and hit my car on the left (passenger) side. After this she took off from the scene without exchanging details. I had to [c]all an ambulance to the scene as I was suffering severe chest pain. I was treated at the scene but was advised to call the ambulance back or go to a hospital emergency if the pain became worse. Later that night I was driven to RPA Hospital Emergency Department by my friend following severe chest pain. I had to stay in the hospital until next morning.” (Exhibit A page 3)

26. In the Accident Notification Form the plaintiff states that he was employed part-time at the time of the accident and lost “one week” of work time from 12 October 2014 until 18 October 2014 (Exhibit A page 3). He indicated that he worked at IKEA Pty Ltd at the time and usually worked 25 hours per week and was paid $600 per week gross and $500 per week net.

27. A medical certificate was completed by Dr Anthony Lam on 18 November 2014. This stated the date of examination as being 22 October 2014 and that Dr Lam’s medical diagnosis was “anterior chest pain” with findings of “tenderness” in the lower sternum. Dr Lam expressed the opinion on the form that the injuries were consistent with the circumstances of the accident as described to him. He indicated that a short-term treatment plan of six weeks was likely to be required and the plaintiff was fit to resume normal duties on 18 October 2014. The medical form stated that the plaintiff had been a patient of the practice for one year (Exhibit A page 5).

28. The plaintiff submitted a motor accident personal injury claim form which he signed on 18 February 2015: Exhibit A page 12. The accident details were similar to those disclosed in the Accident Notification Form. The motor accident personal injury claim form stated that the plaintiff was the driver of the car and was wearing a seatbelt at the time. The diagram of the accident in the form disclosed details similar to the Accident Notification Form. The plaintiff described what happened in the accident in the form as follows: “I was driving along Belmore Rd when a car from a side street did not give way and collided with my vehicle”. It is noted in the form that the police took the plaintiff’s details at the scene of the accident, an ambulance came and he was treated at Royal Prince Alfred Hospital.

29. The list of injuries in the motor accident personal injury claim form was as follows: chest wall, concussion, head, neck, whiplash, back, anxiety, depression, shock and severe headaches. It was noted that the plaintiff had received treatment from Dr A Matter, general practitioner, and a Dr Maniam, specialist, was referred to. The plaintiff claimed, apparently contrary to his oral evidence, that he had not suffered any other injuries or illnesses before or after the accident to the same or similar parts of his body: Exhibit A page 10. The plaintiff indicated that he was a part-time employed sales assistant with IKEA and earned $600 per week after tax at the time (the Accident Notification Form referred to $500 per week).

30. A medical certificate dated 13 October 2014 was attached to the motor accident personal injury claim form: Exhibit A page 13. The certificate was given by Dr A Matter. The certificate disclosed that Dr Matter had examined the plaintiff on 13 October 2014 and diagnosed concussion, “cervical spine spasm” and thoracic and lumbar spine “myoligamentous injury”. Dr Matter’s findings were dizzy spells, neck stiffness and mid-back stiffness and pain. He regarded the injuries and conditions which he found as being consistent with the accident. It was noted that he had referred the plaintiff to a specialist being Dr Maniam. The medical certificate dated 13 October 2014 indicated that the plaintiff was fit to resume normal duties of a light nature with restrictions on 13 October 2014. It was stated that the plaintiff had been a patient for less than a year. The accuracy of the date on this form was the subject of further evidence.

31. The ambulance service records were in evidence with the plaintiff complaining of chest pain as a result of a low-speed motor vehicle accident: Exhibit A page 14. The records recorded “nil damage to Pt car”. This is contrary to the plaintiff’s evidence and the photographic evidence: Exhibits B and E. It was not put to the plaintiff that these photographs were not photographs of his car after the collision.

Records at Royal Prince Alfred Hospital arising from the accident

32. Mr Mathews gave evidence that a friend of his took him to Royal Prince Alfred Hospital on the evening of the day of the accident as he was still suffering from chest pain. The admission records refer to the plaintiff complaining of central chest pain with associated shortness of breath. The plaintiff was given Panadeine Forte, Endone and Nurofen: Exhibit A page 19. The discharge summary referred to a diagnosis of “musculoskeletal chest pain”. On examination the plaintiff had some chest tenderness, his abdomen was soft and was not tender and there were “no other signs of injury”: Exhibit A page 15. The discharge summary states that the plaintiff was given pain relief and the “pain resolved”: Exhibit A page 16. The plaintiff was treated as an emergency patient. He did not stay overnight in the hospital.

33. An x-ray was undertaken of the plaintiff’s chest. No rib fracture was identified and no underlying injury was found: Exhibit A page 21. A CT scan was undertaken of the plaintiff’s chest and no thoracic injury or other problem was identified. There was no fracture located or any suspicious bony lesion: Exhibit A page 22. The plaintiff was discharged for follow-up with his general practitioner.

The plaintiff’s evidence

The plaintiff’s oral evidence

34. I have already set out above a number of my findings in relation to the plaintiff's background. In his oral evidence in chief the plaintiff confirmed that he had wanted to become an airline pilot since Year 8 or Year 9 at school. He said that ultimately he wanted to be a pilot of the Airbus but realised he would have to progress as a pilot through flying different planes. The plaintiff said that when he passed his entrance test with Aerospace Aviation in New Delhi and was selected for the course in Australia he was very proud of this achievement and believed his dream had come true: T42.37.

35. The plaintiff said that he was progressing well in his course at Aerospace Aviation in Sydney and was one of the first students in his course to progress to being able to fly solo: T43.24. This was one of the stages to advance to an ultimate commercial pilot's licence.

36. Mr Mathews gave evidence about Aerospace Aviation going into administration and then liquidation. He said that at this time he had a probable maximum of four months of further study to obtain his Diploma of Aviation from the aviation school and then his commercial pilot's licence from the Civil Aviation Safety Authority: T44.3. He stated that after an extensive period he was offered by a government agency called ESOS, assistance to progress with his aviation study. He said he was given the option of getting some money back from his fees and returning to India or continuing with his course in Australia and he decided that the money offered should be forwarded to the alternate aviation education provider, Basair, which was located at Bankstown Airport: T44.44. He said that the transfer took a lengthy period of time to occur and he had to await the entire liquidation process of Aerospace Aviation. He said it was not until the end of 2010 that he was assigned to Basair and that his student visa was extended: T45.6.

37. The plaintiff said he was with Basair for a little over a year. He said the break between his time at Aerospace Aviation and Basair meant that he had to undertake a number of additional courses. He said he stayed with Basair until his savings were exhausted. His parents said that they could not provide any further financial assistance to him. This meant he had to cease his studies with Basair at the end of 2012. He said he understood that between $15,000 and $20,000 was required to complete his studies depending on the number of hours of flying required: T45-47; cf Exhibit C.

38. The plaintiff said he decided that he needed to settle on an alternative path of study leading to employment in order to save money to undertake his flying studies. The Advanced Diploma of Management and the Bachelor of Business which he undertook from 2012–2015 were undertaken so that he could continue with a student visa and also obtain qualifications to save the money to undertake his aviation studies to complete the requirements for a commercial pilot's licence: T47.34; T48.15.

39. The plaintiff gave some further evidence in relation to his shoulder injury on 23 April 2012. He said he made a workers compensation claim and had physiotherapy for a few months but his shoulder “completely healed” by undertaking the exercises which he was instructed to do. By July 2012 he said he had no issues with his shoulder. He also confirmed that he did not suffer any psychological injury as a result of the accident: T50.6.

40. The plaintiff then gave evidence about his work at IKEA. He said that he worked the number of hours he was permitted as a student which was 20 hours per week. He said that as he was a student he had no Medicare access and no access to Centrelink benefits.

41. The plaintiff gave further detailed evidence in relation to the accident and said that it occurred at 6:15pm on Saturday 11 October 2014 while he was driving from his home in Penshurst to Wattle Grove: T51-56. He said he was driving down Belmore Road in Riverwood at between 40 and 50kph. He said it was fine and there was plenty of light at that time. He said he was travelling in the kerbside lane of two lanes towards the motorway when he approached the intersection with Washington Avenue in Riverwood. He said that as he was passing Washington Avenue he noted in his left peripheral vision a car approaching and almost simultaneously there was an impact by the car with the passenger side of his car. The plaintiff emphasised that he was keeping a lookout while he was driving along: T52.47.

42. The plaintiff described the collision as a “big impact” and his car spun 90 degrees so that the front of the vehicle was facing Washington Avenue: T54.27. He confirmed that the photographs of his car, which became Exhibit E, showed the resultant damage to his car. He said his car was not repaired and he only obtained a salvage value of $500 for it: cf Exhibit 9.

43. The plaintiff said that immediately subsequent to the collision he felt complete shock, his whole body was shaking, his right side had hit the wall of the car as it was being spun around, he felt lightheaded and his whole body was in pain:T55. At that stage he could not isolate particular parts which were in pain but said that the upper body was painful, particularly his chest, right shoulder and back. He said he also had minor pain in his left shoulder: T55.23.

44. After a few seconds he said he got out of the car and spoke to the other driver. She confirmed that she was okay. He said to her that as it was a busy street they could not sort out the details there and he indicated he would reverse his car into Washington Avenue. He said that as he did that the defendant drove off and he noticed another lady standing by: T55-56.

45. The plaintiff said the police attended after 10 or 15 minutes, he spoke to police and provided information to them. He said the police were at the scene for about 20 minutes in two cars and the defendant driver did not return to the scene. He said an ambulance came and examined him at the scene of the accident.

46. The plaintiff said that after 20 to 30 minutes “the pain continued”. He had pain in his chest, his back, his right shoulder and he was shaking. He said emotionally he was “really bad” and he was shivering with shock: T57.26.

47. The plaintiff said that a friend then collected him from the scene and drove him home and then got his car. He said that at home the pain became worse and his body remained in shock and he had chest pain as well as lower back pain and right shoulder pain. His friend took him to Royal Prince Alfred Hospital and he remained in the Emergency Department overnight although was not admitted, while tests were undertaken.

48. The plaintiff was asked whether he saw a general practitioner. He said that he saw Dr Matter and Dr Lam and stated that he believed he saw Dr Lam first (T60.7), although he had a doubt as to who he saw first. He said that having seen the records he could be wrong: T60.14.

49. The records indicate that the plaintiff apparently saw Dr Matter a few days after the accident and Dr Lam somewhat later: Exhibit A pages 5 and 13. The correct sequence was in issue in the proceedings.

50. The plaintiff said that in the first two weeks after the accident he had chest pain then lower back pain and right shoulder pain: T60.29. Dr Lam prescribed Voltaren Rapid tablets and referred him to Dr Maniam, orthopaedic surgeon. Dr Matter referred him to physiotherapy and he had three to four sessions: T60-61.1.

51. The plaintiff said that by early 2015 the problems with the chest pain had completely gone away and he had recovered from his problems with the left shoulder. He said he continued to have pain in the right shoulder, in the lower back and in the neck: T61.29.

52. The plaintiff said that the pain in his right shoulder was in a different area to that where he had the pain in 2012. He said he had a more limited range of movement and the pain in his shoulder arising from the motor accident was different and more intense: T61.36-62.7.

53. The plaintiff stated that he had a few days off work at IKEA and then resumed work. He said he took some leave and lost some pay as a result of the time he took off from IKEA: T62.25.

54. The plaintiff said that the accident had a greater effect on his mental state. He said he had episodes where he kept waking at night, he could not focus and had headaches which prevented him studying: T63.2.

55. The plaintiff said that as at October 2015 his lower back was still painful in the area just above the belt line, although the pain radiated out from there. He said his back pain was constant and became worse with lifting, bending or carrying: T64.48.

56. The plaintiff said that his first job at the Lynch Group was a desk job and required sitting down for lengthy periods. He noted that after he was sitting down for more than 20 minutes that his back became painful but he was able to get up and walk around: T65.32.

57. The plaintiff indicated that having regard to his perceived difficulties in completing his pilot studies due to his accident that he intended to stay in employment with the Lynch Group: T66.22.

58. The plaintiff gave evidence in relation to a motorcycle accident in which he was involved in August 2015 at the Royal National Park where he came off his bike at very low speed in the wet gravel and fell on his right shoulder and broke his clavicle. He agreed that he attended Sutherland Hospital and was eventually operated on by Dr Smith in August 2015 and was reviewed by him later.

59. The plaintiff said that with exercises he recovered from his injury in the August 2015 accident: T67.41-.46. He stated that this injury was in a different location to the motor accident injury to his right shoulder. He said that the motorbike injury was at the top of the shoulder near the base of the neck whereas the injury to his shoulder in the motor vehicle accident was further down the shoulder near the area of the rotator cuff: T67.44-T68.13.

60. The plaintiff stated that prior to the motorbike accident he could not extend his arm up or to the side or rotate it without pain. He also felt pain if he pushed his shoulder too much: T68.28.

61. The plaintiff said that he had no psychological reaction after the motorbike accident: T69.5.

62. The plaintiff then gave evidence about his psychological state when he saw MAS Assessor Dr Parmegiani in October 2015. The plaintiff said that he had “episodes” of the accident during his sleeping and would wake up including with headaches. He said he was anxious, was short tempered and angry and was frustrated. He said that when he was stressed he began shaking and he had never experienced that before. He said he was worrying about his future at the time: T69.28. The plaintiff said that prior to the bike accident he believed that he was no longer suitable for flying. He said that self-control was needed for flying and he had considerable anxiety. He said that flying required concentration on different gauges and instruments and thinking ahead. He said that the stress in flying and the restriction of the range of movements through his injuries meant that he thought he was unsuitable for flying. Mr Mathews candidly stated that he thought his anxiety and stress meant that he was not suitable to be responsible for passengers: T77.32-T78.28.

63. The plaintiff gave evidence that in 2016 his psychological issues became worse: T79.29. In particular, his anxiety level and his stress and lack of concentration became worse. He agreed that he was promoted in this period but said he kept his anxiety issues for when he got home and tried to maintain a professional approach at work.

64. He said that he was having concentration problems at this time and could not locate his keys on occasions.

65. The plaintiff stated that his sleeping pattern was poor in 2016. The plaintiff said that his sleep was often broken and he had flashbacks of the accident which woke him up with an elevated heart rate. He said that in 2016 he had flashbacks of the accident about every second or third day: T80.31.

66. The plaintiff was then asked questions about his last six months. He said his psychological condition was "pretty much the same”: T81.7. He said his low back pain had not improved and if anything it had become worse. He said that having spent a number of hours giving evidence his pain in the back had gone from a mild to a moderate level because at work he was able to get up and walk around to assist with the pain. The plaintiff said his right shoulder was consistently painful: T81.49. He said as at today he did not think he was well enough to resume the studies necessary for a pilot.

67. The plaintiff said he had no high blood pressure prior to the accident.

68. The plaintiff was subject to extensive cross-examination by counsel for the defendant. A number of areas relating to the plaintiff's prior study history, the accident and the alleged injuries arising from the accident were covered. The plaintiff was also asked questions about his current employment with the Lynch Group and his social activities.

69. The plaintiff confirmed that he started his employment with the Lynch Group in November 2015 as a Business Analyst. He said that after 12 months he was promoted to Assistant Accounts Manager and received a pay rise. He said he initially started on a salary of $55,000 per year which was increased in the role of Business Analyst to $60,000. He said he received a further increase in his salary to $70,000 per year on his promotion to Assistant Accounts Manager. This should be compared to page 4 of Exhibit C which has the plaintiff’s salary at $77,000. Mr Mathews gave evidence that performance reviews were conducted at the Lynch Group each October and employees received annual pay rises depending on how the company was going and on the individual's performance and their role. Mr Mathews gave evidence that the average increase per annum was between 3% and 5% of the employee's annual salary.

70. Mr Mathews confirmed that his intention was to stay at the Lynch Group and advance his career. He said that the next progression was to Account Manager which he was looking to be promoted to in about two to three years. Mr Mathews gave evidence that he reported to the Account Manager now, who received a significantly higher salary than he did and had a dual role of dealing with account management and trade marketing. He confirmed that he aspired to the Account Manager position but not in a dual role. Mr Mathews said that although he was not sure, he understood that the Account Manager position earned somewhere around $80,000 with pay rises each year which he presumed would be at least to compensate for CPI increases.

71. Mr Mathews was then asked questions in relation to the impact of the 11 October 2014 accident on his studies. He confirmed that he had started a Bachelor of Business degree at Victoria University in 2013 as a full-time student. Mr Mathews also confirmed that he had given evidence in chief that he had failed a subject in his course after the accident which had led to a delay in completing the course: T105.1-.11; T106.49. This seems to reflect the plaintiff's evidence in chief that he had failed a unit after the accident and his course had been delayed in its completion due to the accident: see T62.42 and T76.9.

72. After some considerable cross-examination in relation to this issue, it appeared clear that the plaintiff had only failed one unit in his Bachelor of Business degree which was the subject of Business Law and which had been failed by him prior to the accident: see Exhibit 1 for the plaintiff's academic transcript from Victoria University. A summary of the plaintiff's evidence in this period of cross-examination is that he relied on working over the summer to raise money for living costs and to pay his fees for the degree. His evidence was that the accident had delayed the opportunity for him to plan to repeat the Business Law course over a summer with the result that he had been forced to delay the course overall: T106.25; T107.35; T109.9. The plaintiff gave evidence, which was confirmed by his academic transcript, which was Exhibit 1, that he had received a number of bare passes in the course of his degree.

73. In my view, the plaintiff's evidence was somewhat inconsistent on this issue. Initially, in his examination in chief, he said that he had failed a unit following the motor vehicle accident which had delayed his studies. He then said that he did not remember clearly when the failure had occurred but that he was hoping to make up the failure in a summer school course but could not because of the accident. He accepted that paragraph 20 of a statement signed by him on 10 February 2016 indicated that he had failed a subject due to the accident: T109.6. The plaintiff then stated that his graduation had been delayed due to the accident. Mr Mathews said that he was attempting to say in his statement that his graduation was delayed as a result of the accident: T109.10. Mr Mathews denied that he was being deliberately misleading in relation to his evidence on this point. He said he had discussions with university counsellors to the effect that because of the accident he could not undertake exams and he was given an extension for his exams: T109.23.

74. Mr Mathews denied that prior to October 2014 he was already having difficulties completing his studies at Victoria University. However, he accepted that he had failed a subject prior to the accident in Business Law. He also accepted that prior to the accident he had problems with his family as his mother had health issues and his parents had some relationship issues. He recalled discussing these problems with his course supervisor Mr Elias who was very helpful. He agreed that he told Mr Elias that he was struggling to live in Australia both financially and psychologically but claimed that he was still determined to complete his course at Victoria University: T111.26. Mr Mathews said that the problems which his parents faced meant that they could not provide him with further financial support which caused him some stress. Mr Mathews gave evidence that during his course he had technically failed subjects other than Business Law but he was given a borderline pass in some units including following sitting additional exams.

75. Mr Mathews appeared to me to have a reasonably poor recollection in relation to the timing of his various university courses and the results. However, he confirmed that he had difficulties with these exams in the period soon after the motor vehicle accident. Mr Mathews denied that his course was extended into the second semester of 2015 only due to his failure to pass his Business Law course in 2013 and not due to the accident. He said he was aiming to take the course during a summer break but was not able to do so due to problems arising from the accident. He denied that he would have had trouble working in the summer anyway because of his need to work full-time for income to support his living in Australia and his fees. Mr Mathews said he had a plan to complete the additional unit at the end of the other subjects in his course. He denied that he was simply attempting to blame the accident for the delay in his course due to his failure.

34. I found the plaintiff's evidence on this topic to be unsatisfactory. Both in his oral evidence in chief and initially in cross-examination, he confirmed that he had failed a course because of the accident. However, he gave contrary evidence that the subject was indeed failed prior to the accident and the accident had merely caused a delay in the course.

35. The plaintiff was then asked questions in relation to his studies at Basair. He said he was studying a Diploma in Aviation to obtain a commercial pilot's licence. He confirmed he did not finish the course or obtain the licence. He said this was due to financial reasons: T118.24. The plaintiff was asked whether he had held himself out as having a Diploma in Aviation or a commercial pilot's licence. The plaintiff said that these were included in his resume. It was put to him that it was untrue to state in his resume that he had a Diploma in Aviation or a commercial pilot's licence. The plaintiff said that he intended completing his studies to obtain them. In answer to the suggestion that it was patently untrue that he had a Diploma in Aviation or a commercial pilot's licence, the plaintiff said that he wanted to “showcase” his experience in flying and his studies: T119.39. He said he was trying to explain his experience and was not trying to lie.

36. In my view, any suggestion in a resume that the plaintiff had a Diploma in Aviation or a commercial pilot's licence was clearly untrue, as the plaintiff conceded. See the plaintiff’s resume which is part of Exhibit 11.

37. The plaintiff was then asked questions as to why he had terminated his studies at Basair. He agreed that the evidence he had given in chief was that the reason he stopped his studies was purely financial: see T45.17. It was put to the plaintiff that he stopped his flying studies as he had failed his last commercial pilot’s licence exam. The plaintiff denied this. He accepted that he had failed one theory exam but said that this did not prevent him continuing with his studies to obtain the licence and have a career in the flying industry. The plaintiff agreed that he had failed his last exam and had rebooked to undertake the exam and then re-scheduled it. He also accepted that he did not turn up to sit the exam on 14 November 2011: T122.12. The plaintiff said it was a theory exam and he did not sit it as he thought he was not ready for the exam. When it was put to him that he had issues with his confidence, the plaintiff repeated that he was not ready for the exam. The plaintiff said that he left Basair because of financial reasons: T122.26. The exam was one theory exam and following that he needed to undertake a number of flying lessons in order to obtain his licence. He said he did not have the money for the further flying training. The plaintiff accepted that the last formal interaction with Basair was a failed exam: T123.15. The plaintiff confirmed that he still wanted to become a pilot and that it was his “childhood dream”: T123.45.

38. The plaintiff accepted that as time went on, although flying hours always remained valid, a person needed a “recency check” in relation to recent flying. He said flying cost time and money and the fees were $2,000 to $3,000 for a day of flying. He said the fees at the AH&B College at Bondi for the course which he took were $8,000 per year and he could pay off the fees whilst he was working.

39. The plaintiff accepted that he had left Basair for three years at the time of the accident and that he had not done anything in that period about updating his “recency” of flying experience. However, he said that his intention was to do the degree, get a job, save money and go back to flying. He said that the Bachelor of Business degree at Victoria University was about $8,000 per semester and about $2,000 per subject, being $32,000 all up but with flexibility to pay it over two years including on credit card. The plaintiff said he had some debt: T126.15.

40. The plaintiff agreed that certain occupations which were favoured for residency in Australia were occupations on the skilled occupation list. He confirmed that pilots were initially on the list but was not sure whether in 2011 the position of pilot went off the list. He said this was not relevant to any decision he made about not taking the flying lessons. He said he did consult immigration agents about relevant studies to assist him with citizenship. The plaintiff said that he obtained permanent residency in January 2018 and then obtained a Medicare card whereas prior to that he had had private health insurance with BUPA.

41. The plaintiff was then asked further questions in relation to the accident itself. He confirmed his evidence at T54 in relation to the movement of the vehicles. He gave evidence that when his vehicle was struck by the defendant's vehicle that it spun about 90° or thereabouts. He gave evidence that after being struck his vehicle turned and was facing the defendant's vehicle. The plaintiff was taken to Dr Roberts’ report dated 7 May 2017 when he said that after being struck his car had spun 180 degrees. He said that was incorrect and it was only 90 degrees and that he had initially made a similar mistake when giving oral evidence in chief. He denied that his vehicle did not spin after being struck. He also denied that after being struck his car proceeded directly ahead. He agreed the photos in Exhibit B showed the damage to his vehicle. The plaintiff denied that the impact of the car accident was “very minor”. He also stated that when he got out of his car after the accident and briefly spoke to the defendant that he only had a quick glimpse at the front of the defendant’s vehicle and did not recall if there was damage to the front of her vehicle.

42. The plaintiff accepted that following the accident and having a quick word with the defendant that he moved his car to put it in a safe location. He said that he initially turned his car to the side of the road and then proceeded ahead and turned into another street before coming back and placing his car in Washington Avenue in order to exchange details with the defendant. By this time, he said the defendant had left in her car.

43. The plaintiff was taken to the report of Mr Ryan, physiotherapist, and it was put to him that he had told Mr Ryan that the accident did not delay his studies (Exhibit A page 114). The plaintiff said that by this time he had already received a pass because of medical reasons arising from the accident but also already knew that the accident had caused a delay in his completion of the course as he had previously explained. Mr Mathews emphasised again that the accident had caused a delay in him finishing his course. The plaintiff denied that saying the accident had caused a delay in the completion of his university course was patently untrue.

44. The plaintiff was then asked a number of questions about the accident notification form and the personal injury claim form. The plaintiff said that he checked the accident notification form and also knew that he had to be truthful in the personal injury claim form. He said he checked the claim form. It was pointed out to the plaintiff that in the claim form in answer to Question 14 (Exhibit A page 8) that the diagram drawn did not show the plaintiff's car spinning 90 degrees. The plaintiff accepted this was accurate and said that the diagram depicted the point of impact and not the position of his car after the impact. He said the diagram showed which directions the cars were going at the time of impact.

45. The plaintiff denied trying to create the impression that the impact of the accident was far greater than it was. The plaintiff accepted that the vehicle he was driving had airbags and they did not deploy in the course of the accident nor did he lose consciousness: T140.46. He also agreed that his vehicle was driveable after the accident. As the plaintiff's evidence was that the defendant’s vehicle left the scene, it must also have been driveable.

46. The plaintiff was then asked a number of questions in relation to the physical symptoms which he asserted arose following the accident. The plaintiff was taken to T55.23 at which he claimed that his whole body was in pain and shock but predominantly the problems were with the chest, shoulder, the back and the upper body. The plaintiff said that immediately after the accident he had pain in the whole of his body and he could not isolate the location of the pain. He said that he was able to isolate the pain in his right shoulder a few days after the accident: T142.17. He denied that the assertion that he had pain in the right shoulder arising from the accident was untruthful.

47. The plaintiff was taken to his claim form at Exhibit A page 10 where he did not refer to right shoulder pain. The plaintiff asserted that this was because he understood he was giving only a brief summary description of the accident in the claim form. When it was put to the plaintiff that he did not refer to pain in the right shoulder because he had no pain in the right shoulder, the plaintiff denied that and said that the injuries referred to were the injuries he was focussing on. It was then asserted that the document was not in his handwriting. The plaintiff accepted that it was his responsibility to check the document and at that time he was focused on the chest pain. This was also the focus he said of the ambulance and hospital at the time: see Exhibit A page 14 (ambulance report) and Exhibit A page 15 (Royal Prince Alfred Hospital discharge referral).

48. The plaintiff confirmed that at the hospital he only complained of chest pain because he had a concern in relation to his heart: T145.45.

49. The plaintiff was then asked a number of questions about whether he first saw Dr Lam or Dr Matter following the accident. The plaintiff said he was still confused on this issue but had the impression that he saw Dr Matter after he saw Dr Lam as the former was busy: T146.29. He said he was confused by the date in Dr Matter’s medical certificate. In the end, the plaintiff agreed that he saw Dr Lam first: T146.42. This issue will be considered further below.

50. When it was put to the plaintiff that when he saw Dr Lam on 22 October 2014 his only complaint was in relation to sternal pain not right shoulder pain, the plaintiff said that his whole focus at that time was on his chest pain. He said he had pain all over the body in addition to his chest pain. When it was put to him that he only mentioned chest pain to Dr Lam on 22 October 2014, the plaintiff denied it and he said he mentioned other parts of his body, but Dr Lam did not seem to think the other matters were important: T148.4. He said that that was one reason why he went to Dr Matter. He said that Dr Lam seemed to be focused on completing the documents and moving on: T148.15. When it was suggested to the plaintiff that he made no complaint to Dr Lam on 18 November 2014 in relation to neck pain or lower back pain, the plaintiff said that his focus was on his chest pain but he did recall complaining about his lower back and shoulder pain at some point to Dr Lam. He gave evidence that he told Dr Lam about other pain apart from his chest before his appointment in February 2015: T148.40.

51. The plaintiff was shown a patient registration form for the Wangee Clinic which was the clinic of Dr Matter. He agreed that he signed a patient registration form and dated it 11 December 2014 and in the light of that he agreed that he first attended Dr Matter on 11 December 2014: T149.43. This should be compared to the date of 13 October 2014 in the medical certificate signed by Dr Matter at Exhibit A page 13: see Exhibit 2.

52. The plaintiff denied the following propositions which were put to him:

1. The only injury he had in the motor vehicle accident was an injury to his chest;

2. That his evidence of subsequent pain in his right shoulder was untruthful;

3. That he had told his treating doctors that he had lower back pain and this was untruthful;

4. That his assertion of pain in his neck was untruthful;

5. That his assertion of anxiety and depression was untruthful: T153-4.

95. The plaintiff was taken to Question 24 in the claim form at Exhibit A page 10 which was to the following effect: “Have you had any other injuries or illnesses, before or after the accident, to the same or similar part(s) of your body?” to which the plaintiff replied “no”. It was put to the plaintiff that this was untruthful. The plaintiff accepted that it was wrong but at that time he did not recollect that he had previously made a workers compensation claim. The plaintiff was then taken to his accident notification form where he stated that he had made a claim for personal injury compensation, workers compensation or other damages but added “not sure of details”: Exhibit A page 2. The plaintiff said he could remember the claim at that stage but could not remember the details of it. He denied that he deliberately did not include an answer indicating a prior claim in the claim form. He said that he would not have included one answer in one form and a different one in another form unless it was accidental.

96. The plaintiff was then taken to Question 23 in the claim form at Exhibit A page 10 where he listed his doctors as Dr Matter and Dr Maniam. It was pointed out that he did not list Dr Lam and it was suggested to him that he intentionally omitted Dr Lam from the form. He denied this and said that Dr Lam was not a “treating doctor” whereas Dr Matter was a treating doctor. His assertion that Dr Lam had never treated him for anything is difficult to accept in the light that the entries in Dr Lam's notes for 22 October 2014 show that Dr Lam prescribed Voltaren Rapid tablets to the plaintiff. The plaintiff denied that he left out referring to Dr Lam as he knew he had only seen Dr Lam for complaints in relation to his chest.

97. The plaintiff was then subject to a detailed cross-examination in relation to his presentation to medico legal experts as opposed to the recreational activities which he undertook at the time. The plaintiff was taken to the report of Dr Lee following a consultation on 23 June 2015. Dr Lee states in his report that the plaintiff still had pain in the right shoulder and his back and “could only sit for 20 minutes” and “could not walk for five minutes or could not run or squat": Exhibit A page 47. The plaintiff said sitting still caused discomfort and he needed to move around. He said he could walk but it also caused discomfort. He said he could run but it caused discomfort. He said he had tried both since the accident and when he did them in the end they caused pain. The plaintiff was then taken to the report of Dr Home where the doctor records the plaintiff estimating a sitting tolerance of 20 minutes and a walking tolerance of 15 minutes before exacerbating back pain: Exhibit A page 29. The plaintiff said that he tried to avoid sitting for lengthy periods or walking for lengthy periods unless he had to.

98. The plaintiff then was cross-examined in relation to his recreational activities. He stated the following:

1. He had undertaken bushwalking in the Berowra Waters area with friends in the last month or two for just under two hours. He said it was a light to medium walk in terms of difficulty and it caused him a lot of discomfort. He said he carried a small backpack on the walk with water. Prior to this he said his last bushwalking was “a while ago” and he could not recall the details: T161.18;

2. He had attended swimming at Cronulla beach in the rock pool. The plaintiff said he was a non-swimmer and entered the water in safe areas. He said that he had tried swimming but it caused discomfort in his back. He said that his intention was to undertake swimming classes to improve his swimming but he could not do it because of back and shoulder pain. He said he went to swimming areas about once a fortnight in summer including to the rock pool at Cronulla for relaxation purposes;

3. The plaintiff said he did not undertake fishing;

4. The plaintiff conceded undertaking travelling for work interstate and also recreational travelling in and around Sydney: T164.13. He said his job required frequent travel to Melbourne and he often extended his stay over a weekend to see friends;

5. The plaintiff agreed that he used a “Go Pro” camera to take photographs which had been a gift from friends some two or three years ago. He said the Go Pro camera could be used underwater and was able to record recreational activity.

The plaintiff confirmed that the majority of use of the Go Pro camera was on a stick which involved him using his right or left arm: T167.3. The plaintiff confirmed that he could raise his right arm above his head but it was painful to keep it there or push.

99. When the plaintiff was questioned whether he had described to Dr Parmegiani symptoms of persistent anxiety, recurrent and intrusive memories of the accident, waking at night in a sweat, feeling anxious when driving his flatmate’s car and having a tendency to “freeze” if cars approached from his left, the plaintiff said that he had and still “occasionally” freezes on cars approaching him: T168.1; see Exhibit A page 40. However, the plaintiff says that he tries to push himself. He said he has permanent residency and a job and tries not to let these things hold him back at 28 years of age: T168.8.

100. The plaintiff was cross-examined in relation to his purchase of a motor bike following his car being a write-off in the accident. The plaintiff denied that the motorbike, a Kawasaki 250cc, was a “sport bike”. He said that his car had been written off in the accident, he had little money, he needed to commute to work and he could only afford buying a motorbike: T168.17. When questioned about the use of the motorbike, the plaintiff said that it was primarily used to commute to work but that he did ride it on occasions through the National Park and on other rides including when he had his accident on 1 August 2015 where he hurt his right clavicle. The plaintiff stated that prior to the purchase of the motor vehicle which was shortly before the 1 August 2015 accident, he had used public transport or borrowed a friend's car when needed: T169.28. At the time of the 1 August 2015 accident, he had a learner’s licence. He agreed that he liked motorbikes as he had ridden one in India and he was a motorbike enthusiast.

101. The plaintiff denied that when he attended Dr Parmegiani he attempted to present in a depressed state and said that he presented in his normal state. He said he had been very anxious since the motor vehicle accident and realised riding the motorbike made him vulnerable but said it was the best option for transport after his car was written off in the accident and when he had little money: T179.

102. The plaintiff was cross-examined in relation to other recreational activities and agreed that he had been on a wine tasting to Orange in October 2015, had been to a wedding in the Hunter Valley in September 2015 (as he was in the bridal party), had been on a week holiday to Kuala Lumpur in July 2015 where he had taken a bag, had ridden his motorbike from Sydney to Wollongong, had attended the rock pool at Maroubra, had gone on a walk to Bundeena in September 2016; and was able to take photographs of himself using a “selfie stick” with his right arm being extended in front of him away from his body: T175.

103. It was put to the plaintiff that he claimed he had a sitting tolerance of only 20 minutes but he was able to sit in the court for longer than 20 minutes. The plaintiff said that he had to do what he had to do and that sitting in court for lengthy periods had caused him some pain.

104. When it was put to the plaintiff that he could have bought a cheap car instead of buying a motorbike, the plaintiff said that you could not buy a reliable car for $2,000. He denied he was simply a motorcycle enthusiast taking up an opportunity to buy a motorcycle. He said it was his only practical option.

99. It was put to the plaintiff that he had not obtained any psychiatric help even though he had been working full-time for two years and had a Medicare card since February 2018. He said he was waiting for the case to finish to obtain treatment. He denied the suggestion that there was no severe psychological impairment arising from the accident.

100. The plaintiff was asked numerous questions by counsel for the defendant in relation to material which appeared on the social websites Facebook and Instagram. Extracts from the material appearing on accounts of the plaintiff on Facebook and Instagram became Exhibit 4 in the proceedings. The cross-examination was essentially to the effect that the plaintiff's Facebook and Instagram accounts showed that the plaintiff had an active social life including riding his motorcycle which was said to be inconsistent with the injuries and psychiatric condition put forward by the plaintiff in the proceedings. Examples included:

1. The plaintiff saw Dr Parmegiani on 8 October 2015 where he was diagnosed with post-traumatic stress disorder with secondary depression and complained of anxiety whilst travelling in a motor car, yet in October 2015 he drove his motorbike from Penshurst to Tom Ugly’s Bridge in Sydney and filmed the trip with his Go Pro camera placed on his helmet. The plaintiff accepted that the ride was entirely recreational and occurred only shortly after seeing Dr Parmegiani where he complained of anxiety, but said that the trip was a fairly short one and he found being near the water relaxing. The plaintiff emphasised that his injuries did not stop him from living his life. The plaintiff denied that there was no difference in his physical abilities or emotional state following the accident;

2. The plaintiff was asked further questions about his motorbike accident on 1 August 2015 and the fact that he picked his motorbike up after it had fallen over. The plaintiff said he was in shock and picked up the motorbike despite his injury through an “adrenaline rush”;

3. The plaintiff was asked about a weekend at Batemans Bay in November 2014 and said he had no physical activity at the time and was driven by his friend;

4. The plaintiff denied he had an active social calendar but said that he did go out with friends for meals and drinking which he enjoyed. The plaintiff said that he ate out virtually every day for at least one meal as he was a poor cook. He said he was anxious if he sat alone for more than five minutes (T199.23) and was a volunteer for church activities but did not go out frequently drinking or clubbing: T199.26;

5. The plaintiff was asked about photographs of him at a bar on 18 March 2017. He said he was there with his manager and they were celebrating an event and had three to four hours there celebrating: see Exhibit 4 page 39;

6. The plaintiff was asked about a photograph showing him with a child. This was dated 24 October 2015. The plaintiff confirmed that he undertook babysitting for a friend for four hours and pushed the baby on the swing: see Exhibit 4 page 51;

7. The plaintiff was asked about a photograph on 23 November 2015 of him riding his motorbike at Sea Cliff Bridge which was taken by a Go Pro placed on his helmet. The plaintiff confirmed that he rode his motorcycle from Sydney to Wollongong on that day: see Exhibit 4 page 49;

8. The plaintiff confirmed that he attended an India/Australia cricket match on 23 January 2016 with friends and was present for at least three to four hours. While this involved being seated for a long time the plaintiff said he occasionally got up. When it was put to him that he had a seating tolerance of only 20 minutes on his evidence he said he did not miss out on opportunities with friends because of his injury: see Exhibit 4 page 48;

9. The plaintiff was asked about photographs showing him at a beach with friends on 8 February 2016: see Exhibit 4 page 47. The plaintiff said he attended the beach and went into the water but did not swim;

10. The plaintiff confirmed that he went to charity balls and to a stand-up comedy show;

11. The plaintiff confirmed that he went to the Yarra Valley for a social weekend to visit wineries in October 2016 and was able to take his own carry-on bag;

12. The plaintiff confirmed that he went with friends driving in 2017. When it was put to him that he had no anxiety driving he said that he still had anxiety every time he saw a car on his left approaching. The plaintiff confirmed that he tried to get away when possible and to make the most of his life with his friends as he did not like to be alone.

107. The plaintiff was asked questions about the last time he saw a general practitioner about his right shoulder. He said he had not seen a general practitioner about his right shoulder for a considerable period of time. He blamed the fact that the insurer would not pay for the medical visits and he had $15,000 in credit card debt with minimal savings: T205.23.

108. The plaintiff was asked questions about the medical expenses which he incurred when he broke his right clavicle in the motorbike accident. The plaintiff confirmed this cost and said he had broken his shoulder and had to get it fixed but he paid the anaesthetist $600-$700 over a one year period. The plaintiff denied that the reason he had not taken any steps to obtain treatment in relation to his right shoulder was because he had no pain in his right shoulder: T206.36. In relation to the plaintiff’s willingness to spend money on social events, including an $80 ticket to a show, the plaintiff said that treatment was not given by general practitioners but by specialists who were considerably more expensive: T208.5. The plaintiff denied that the reason he had not seen a specialist with a referral from his general practitioner was because he did not have any reason to do so: T209.3. The plaintiff said he had a shoulder and back injury.

109. The plaintiff was then asked about his presentation to doctors. In relation to his consultation with Dr Keller, the plaintiff denied that he had deliberately restricted the range of motion in his shoulder when seeing Dr Keller. The plaintiff said he was asked to stop moving his arm when it began to be painful. He also denied exaggerating his pain when seeing Dr Roberts, the psychiatrist, on 1 May 2017.

110. The plaintiff was asked questions about his medical assessment for the purposes of extending his visa in 2015. The assessment became Exhibit 5 in the proceedings. The examination occurred on 7 October 2015. The plaintiff said he was truthful in the examination and realised that it was important to be so. The plaintiff was taken to that part of the assessment when in answer to issues relating to “prolonged medical treatment and/or repeated hospital admissions for any reason, including a major operation or psychiatric illness”, the plaintiff had replied “yes” because of his right clavicle fixation but had not mentioned any other treatment. The plaintiff said that as at the date of the examination he had not received any diagnosis in relation to a psychological or psychiatric disorder including PTSD. He also said that he was not formally seeing anyone for treatment at that time. The plaintiff said that in relation to the reference to anxiety, depression and shock in the claim form at Exhibit A page 10, he regarded these as symptoms and had not received any formal diagnosis at the time of the assessment.

111. In answer to the suggestion that the plaintiff had not mentioned any physical injuries in the form, he said that the question related to prolonged medical treatment, major operations and repeated hospital admissions and he had received none of these in relation to his physical injuries. By that stage, no diagnosis had been made formally in relation to any psychiatric injury. It is noted that in the assessment (Exhibit 5) the plaintiff made no reference to health concerns, fatigue or night sweats.

112. The plaintiff was asked some further questions in relation to the details of the accident. It was put to the plaintiff that as he approached the intersection of Belmore Road and Washington Avenue that he was in the non-kerb lane of the two relevant lanes. He denied that and said he was in the left lane and proceeded through the intersection. This should be contrasted with the evidence of Ms Schuler, the defendant, who placed the plaintiff in the non-kerb lane of the two lanes going west. Mr Mathews denied going from the centre lane to the kerbside lane suddenly. It was put to the plaintiff that as he moved through the intersection he did not see the defendant’s vehicle. He said that he saw the defendant’s vehicle approach on the passenger side of his car almost at the time of impact. He also denied that the defendant's vehicle was slightly protruding out from Washington Avenue. He said he was keeping a proper lookout for cars at the time and was travelling about 40kph. He denied he was travelling too fast for the traffic conditions at the time as there was a green light, it was broad daylight and his speed was not too fast. He also denied that he was not keeping a proper lookout.

113. Mr Mathews was asked questions by counsel for the defendant in relation to the medical assessment conducted for the Department of Immigration and Border Protection in October 2015 which became Exhibit 5 in the proceedings.

114. Under the heading “Miscellaneous”, the following was stated: “Are there any physical or mental conditions which may prevent this person from attending a mainstream school, gaining full employment or living independently now or in the future?”, to which the answer was “no”. The plaintiff said that the answer “no” was correct at that point as he had not been diagnosed with any condition as described. Whilst the plaintiff said that he understood that he had been diagnosed with a psychiatric condition and had relevant symptoms, he only had a vague idea about his condition. In particular, he did not know if any medical condition diagnosed would prevent him “gaining full employment” within the question. He denied that answering “no” was a false answer and said that he read questions carefully and regarded himself as suitable for full employment.

115. The plaintiff was then taken to the question at page 4 of Exhibit 5 which asked: “Are you taking any prescribed pills or medication (excluding oral contraceptives, over the counter medication and natural supplements)? Please list”, to which the answer was “no”. It was suggested to the plaintiff that on the very next day, 8 October 2015, he had told Dr Parmegiani that his medications at the time of the assessment “included Brufen, Panadol and occasionally Panadeine”. The plaintiff said that he took Brufen “on and off”. He said that he stated to Dr Parmegiani that he tried to avoid taking any medication at all. He conceded that he had told Dr Parmegiani that he was taking Brufen, Panadeine and Panadol: T301.20.

116. The plaintiff confirmed that he had taken Panadol on many occasions but said that the last time was probably about a month ago: T301.27. When it was suggested to the plaintiff that his current treatment was “absolutely nothing” in relation to his complaints, the plaintiff said he only took medication when it was “absolutely necessary”, including painkillers: T302.7. When it was suggested to the plaintiff that he had told doctors that he was regularly taking Panadol, the plaintiff said that he did so when he was in excruciating pain: T302.12. The plaintiff said he last took Panadeine probably about two weeks ago: T302.39. He importantly conceded that he had last seen his GP Dr Matter in relation to his complaints arising from the accident over two years ago: T303.38.

117. The plaintiff was then taken to page 19 of Exhibit C, his chronology, which he had confirmed as correct in his evidence: T40.26. Exhibit C states at page 19 next to “current medication” that the plaintiff takes “Panadol 2×2 per day” and “Panadeine – one per week”. As to this, the plaintiff said this was true when it was absolutely necessary because of severe pain. It is to be noted that there is no such qualification on page 19 of Exhibit C. The plaintiff accepted that Panadeine was now a prescription medicine and he had not seen a general practitioner in relation to the accident for over two and a half years: T304.35. He accepted that any Panadeine that he was taking must have been bought before Panadeine became a prescription drug. The plaintiff said that he had “bought a lot of drugs” including Panadeine prior to 1 February 2018. The plaintiff denied that he was being untruthful in relation to the taking of medication or that he was exaggerating his intake of medicine in order to advance his case: T305.32.

118. The plaintiff was then asked questions about his responses to an application for a temporary graduate or skilled regional visa which became Exhibit 6 in the proceedings. The plaintiff agreed that he had filled in the form shortly after February 2016 which was soon after his graduation. One question on the form asked whether the plaintiff expected to incur medical costs or require treatment or medical follow-up for “mental illness”, to which the answer was “no”. The plaintiff said that he was not sure at the time whether he would incur costs in relation to treatment as he had not been receiving treatment and could not afford to obtain specialist treatment for his injuries. The plaintiff confirmed that he had seen a copy of Dr Parmegiani’s October 2015 report at the time he filled in the application for a visa form: T309.38.

119. The plaintiff was then asked a number of questions in relation to obtaining medical certificates for his accident notification form and his personal injury claim form: see Exhibit A pages 1-13. The plaintiff said that prior to completing the accident notification form on 6 November 2014 (Exhibit A page 4), he was informed by the NRMA that he should promptly make a notification of an accident in which he was injured. The plaintiff said he believed that Dr Lam was the first doctor which he saw for the purposes of obtaining a CTP medical certificate: T314.41. The plaintiff was then taken to his personal injury claim form and confirmed that he signed this on 18 February 2015: Exhibit A page 12. The plaintiff said he presumed that the claim form was lodged after the accident notification form from the dates. The plaintiff did not recall whether the medical certificate at Exhibit A page 13 was lodged with the claim form on or about 18 February 2015 but believed it must have been: T316.13.

120. The plaintiff gave evidence that the date on the medical certificate of Dr Matter being 13 October 2014 had caused him some confusion as to which doctor he had seen first. The plaintiff said that he did not know whether the medical certificate dated 13 October 2014 had been backdated by Dr Matter but he said he was there when Dr Matter was completing the form: T318.23. The plaintiff said he did not know whether he first attended on Dr Matter in December 2014 rather than in October 2014. When the plaintiff was asked whether he saw Dr Matter within three days of the accident, he answered that he saw both doctors just after the accident: T319.15. The plaintiff asserted that he had been given both the accident notification form and the accident claim form: T323.20. However, he accepted that he sent the accident notification form out first.

121. When it was put to the plaintiff that as at 13 October 2014 he had a blank claim form in his possession he said that he doubted it but it was a possibility. The plaintiff said he had obtained two certificates, one for work and one for the NRMA in their required form.

122. The plaintiff was asked questions about his referral to the Physio Rehabilitation Centre. He said he was referred for treatment and had two to three sessions. The referral was from Dr Matter. He stated that he was advised to have more sessions of physiotherapy but payment for them had been refused by the insurer. The plaintiff denied that he had received any advice at the Physio Rehabilitation Centre in relation to how to present to doctors for medicolegal purposes or of the desirability to have radiological investigations.

123. The plaintiff confirmed that he had consulted Brydens, solicitors, prior to seeing Dr Matter on 11 December 2014, as he wanted to understand his legal situation. He confirmed that according to the records he had been to see Dr Matter on 13 October 2014: T355.8. The plaintiff denied that he saw Dr Matter from 19 December 2014 onwards for the purposes of his CTP claim rather than for treatment: T355.19.

124. The plaintiff confirmed that he wanted to work as a pilot and that in his view the accident precluded him from becoming a pilot. He denied that there was no reason why he could not become a pilot. He said he regarded himself as not physically or emotionally able to fly a plane as a commercial pilot. When it was suggested to him that he had not obtained any treatment from a doctor for two and half years and that accordingly he was not interested in becoming a pilot, the plaintiff said that his claim was not finalised. He said that when the proceedings were finished he wanted to get back on with his treatment and move on with his life. He specifically denied that he was being deliberately untruthful about the reason stopping him becoming a pilot or that he could have done a lot more than he had for treatment. He said he wanted to seek treatment but the insurer had denied cover and he was not financially able to get assistance particularly from a specialist, which the GP had recommended, due to the cost involved. The plaintiff said that he could not afford seeing a specialist who he believed cost more than $400 per consultation to see. The plaintiff said that he had done everything possible for treatment within his financial limits and regarded himself as having “hit a wall”. He said he hoped to obtain physical and emotional treatment for his injuries. He said he believed that in an interview for any job as a pilot with an airline, that his condition would “pop-up” in the interview and would stop him being accepted: T360.11. The plaintiff also stated that as a person who had done some flying he was quite aware what an airline interview involves: T360.25.

125. The plaintiff was then cross-examined in relation to his social activities and expenditure, particularly the expenditure revealed in his CBA Smart Access Account for the period from 1 November 2015 to 30 April 2017, which statements for that account became Exhibit 7. The plaintiff said that he had three bank accounts with the Commonwealth Bank and one needed to have a complete review of those accounts to understand his situation. The plaintiff confirmed that he had spent money on social activities in the period covered by the statements.

126. A review of the CBA Smart Access bank account statements shows regular social expenditure by the plaintiff including on meals, at hotels, for clothes and at the cinema. It was essentially put to the plaintiff that he had made his social expenditure a priority over his treatment expenditure. The plaintiff denied this and said that as a young man he had to get on with his life and could not afford treatment.

Oral evidence of Mr David Newling

127. The plaintiff called to give oral evidence Mr David Newling, a retired flight instructor. Mr Newling stated that he had 25 years’ experience as a flight instructor from 1990 to 2015. He stated that he was an experienced pilot with experience on single-engine piston driven aeroplanes to 100 seat Jets.

128. Mr Newling said that he had been a flight instructor at Aerospace Aviation in the period from March 2009 to November 2009 on a full-time basis. During 2009, he stated that he was responsible for between 8 to 12 students. Over his instructing life he had about 3,500 flight hours of instructing. Mr Newling gave evidence that he was an instructor on the Aerospace Aviation course in 2009 to obtain a commercial pilot's licence. After obtaining a commercial pilot's licence, no more instructional flying hours were required but further theory courses were required to be undertaken. Once a pilot obtained a commercial pilot's licence they could go on to fly commercial aeroplanes.

313. The plaintiff was in good health prior to the October 2014 motor vehicle accident and his right shoulder injury from 2012 had recovered.

314. In my view, the physical injuries caused to the plaintiff in the accident and the PTSD which I have found were clearly caused by the breach of duty of care by the defendant. But for the breach, these injuries would not have occurred.

315. Accordingly, causation is established in the present case. In my view, there is no reason why it is not appropriate for the scope of the defendant’s liability to extend to the harm caused: s 5D(1)(b) of the CLA. Similarly, there is no reason why responsibility for the harm should not be imposed on the defendant: s 5D(4) of the CLA.

Damages

318. The plaintiff makes no claim for non-economic loss. The heads of damages claimed are past out-of-pocket expenses, future out-of-pocket expenses, past economic loss and loss of future earning capacity. The latter is claimed on a buffer basis.

319. The amounts submitted by each of the parties as to the appropriate damages to be awarded are as follows:

Plaintiff	Defendant
Past out-of-pocket expenses	$2,891.23	$1,100.90
Future out-of-pocket expenses	$50,000	Nil
Past economic loss	One week’s pay was available on the evidence	Nil
Loss of future earning capacity (buffer)	A substantial figure but less than $400,000	Nil; alternatively, a minimal amount if a loss of earning capacity is found and some risk of loss is established

Past out-of-pocket expenses

320. I have accepted that the consultations with Drs Lam and Matter arose out of the accident. Any expense relating to the call of the ambulance on 11 October 2014 should also be allowed. The attendance by the plaintiff at Royal Prince Alfred Hospital should be allowed. I accept and find that the alleged consultations on 28 October 2014 and 14 April 2015 with Dr Matter occurred despite the lack of notes in Exhibit G. I note the reference to “Date of next mediaI [sic – medical] review: 28/10/2014” in Exhibit H which suggests that a consultation with Dr Matter on 28 October 2014 was to occur. I accept Dr Matter’s evidence that he would not have charged for consultations if they had not occurred. This indicates these two consultations occurred.

321. In relation to the physiotherapy expenses, the plaintiff initially claimed $654.53 for physiotherapy services provided by the Physio Rehab Centre. Exhibit L suggests 7 consultations occurred. The plaintiff only recalled “a handful of sessions” with a physiotherapist (T324.26) although he had a specific memory of discussion of a treatment plan at the first session: T326.3. He later said he remembered two or three consultations: T324.45. On 6 February 2019, Senior Counsel for the defendant said that the $654.53 was no longer claimed by the plaintiff.

322. Accordingly, the amounts claimed by the plaintiff as set out in Exhibit L totalling $2,891.23 are in my view established as to the sum of $2,236.70 as proper out of pocket expenses.

Future out-of-pocket expenses

323. I have found that the plaintiff’s only continuing physical restrictions relate to continuing pain and tenderness in his lower back.

324. The plaintiff will likely suffer occasional aches and pains arising from the injuries in the accident. At T302.7 the plaintiff said that he takes painkillers when it is “absolutely necessary” and only takes Panadol and Panadeine irregularly.

325. Having regard to this evidence, I allow only $200 for future non-prescription analgesics when the plaintiff feels the necessity to take painkillers.

326. In my view, the plaintiff would probably benefit from physiotherapy as needed. However, there is no adequate evidence to support an award of damages for this: see Dr Lee at Exhibit C page 49 (“he may require physiotherapy”); Dr Keller 10 April 2018 report page 9. The report of Mr Ryan is over three years old and the recommended physiotherapy was aimed at achieving a physical capability which has already been achieved: see Exhibit C page 109.

327. I have found that the plaintiff suffers from PTSD of mild to moderate severity. Accordingly, the plaintiff should receive treatment for this condition from either a psychologist and/or psychiatrist. General practitioner consultations will be needed for this purpose. Medications also may be required. There is no clear evidence as to the costs of this treatment. Doing my best on the evidence and being conservative I award a buffer of $4,000 for this.

Past economic loss

328. The plaintiff asserts some past economic loss arising from the accident: Ex A page 3; T62.25. In final submissions, this claim was not pressed strongly by senior counsel for the plaintiff. On the evidence, I was unable to determine any loss. The plaintiff was a casual part-time employee at IKEA at the time. Any loss of earnings as claimed was not established to my satisfaction. The IKEA records in Exhibit 4 are unclear and do not establish the loss claimed. If I am wrong as to this point, I would only have allowed $500.

Loss of future earning capacity

329. The plaintiff claims a significant buffer for the loss of a chance to become a commercial airline pilot on a high salary.

330. I accept the plaintiff's evidence, as indicated above, that he desired to become a commercial airline pilot. I accept that this was his “childhood dream”. I also accept his evidence that when he ran out of money at Basair that he proposed undertaking tertiary studies, obtain a degree, start work, save the money and then return to his flying studies to obtain a commercial pilot's licence. This is consistent with the great effort he had made to get to Australia to undertake the aviation course and the financial burdens this had placed on his family. In coming to these conclusions, I take into account the difficulties I have had in accepting a number of other aspects of the plaintiff’s oral evidence and the defendant’s forceful and detailed submissions on this issue.

331. The award of damages to a plaintiff in a motor vehicle accident for loss of future earning capacity is governed by s 126 of MACA which provides as follows:

“126   Future economic loss—claimant’s prospects and adjustments

(1)  A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant’s most likely future circumstances but for the injury.

(2)  When a court determines the amount of any such award of damages it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events concerned might have occurred but for the injury.

(3)  If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.”

332. The plaintiff gave evidence that he had a credit card debt of about $15,000: T358.29. He said he was slowly paying off this debt: T358.30. It accordingly seems to be likely that it would be some time before the plaintiff would have the financial resources to undertake flying studies to obtain a commercial pilot's licence even if the accident had not occurred. Exhibits 4 and 7 show that the plaintiff has a fairly constant social life. He seems to be successful in his job at the Lynch Group and has obtained a promotion. This raises the question whether the plaintiff would give up that social life and job with prospects of advancement in order to return as a student to undertake flying lessons at considerable cost. It is possible that the plaintiff may have been able to undertake lessons whilst continuing with full-time employment to fund them. It is also possible that the plaintiff may have been much more driven to pursue his pilot dream if he had not been involved in the accident and suffered the injuries I have found.

333. I am satisfied on all the evidence that it is unlikely that a person with even mild to moderate PTSD who had continuing symptoms would obtain a medical certificate to obtain a CARS 1 licence to become a commercial pilot. This was the view of Dr O’Toole. It is to be expected that the plaintiff’s PTSD which involves moderate anxiety and stress would make him unsuitable to be a pilot. In my view, the plaintiff would be honour bound to disclose his diagnosis of PTSD in applying for a pilot's licence, undertaking any medical for that licence and in applying for interviews with airlines to be a commercial pilot. This could possibly be counteracted to some degree by the provision of Dr Roberts’ opinion.

334. Clearly on the evidence, in order to be a commercial pilot the plaintiff would need a CARS 1 licence. While it is the ultimate decision for CARS whether it grants a pilot’s licence, whether a potential pilot passes the relevant medical would likely be very significant. It also seems clear to me that in recruiting for pilots, airlines would likely prefer pilots with good health and without PTSD and its related anxiety. His back problems may also be relevant as pilots are required to climb into the cockpits of aeroplanes and operate instruments, often reaching for the instruments. Again, employers are likely to prefer pilots without any health problems such as back pain. However, the evidence from Dr O’Toole establishes that back pain itself may not be a disentitling factor if it is mild and does not prevent the pilot being able to respond properly to pilot duties and acting in an emergency.

335. Taking all of these matters into account, I consider it more likely than not that the plaintiff would have saved the money, eventually returned to his pilot’s studies, and sought and obtained a job as a pilot but for the accident. I find these are the plaintiff’s most likely circumstances if the accident had not occurred. Against that are the plaintiff’s debt, his social life, his apparent good job with prospects of advancement and his Business degree which has nothing to do with aviation. However, in the end I consider the fact that being a pilot was the plaintiff’s childhood dream, the financial support of his parents to become a pilot, his studies to be a pilot and his abilities as attested to by Mr Newling, make it more likely than not that he would have returned to his pilot’s studies in due course and gone on to obtain a licence and probable secure employment as a pilot but for the accident. In deciding this I take into account Karabay v Carr [2014] NSWCA 143 at [24]-[32] and [47] and the extensive expert evidence led in that case on the issue. However, each case must be decided on its own facts and expert evidence.

336. On the evidence, I therefore accept on the balance of probabilities that the diagnosis of PTSD and back pain arising from the accident involves a loss of future earning capacity.

337. The plaintiff seeks a significant buffer for this. There was before me evidence as to pilot’s salaries which establishes, in the light of the plaintiff’s dedication and ability as attested to by Mr Newling, that the plaintiff has the capacity to earn higher incomes than his present position with the Lynch Group: see Exhibit A (page 306), Exhibit K and Exhibit 11. Exhibit K establishes the receipt by pilots of weekly salary rates as at 2016-2017 higher than the plaintiff’s current salary. This is also the case with the Average Salary for Pilots document in Exhibit 11. The evidence in Exhibit A page 306 and following is less clear except in the case of captains of larger aircraft. Mr Mathews is currently a Business Analyst. Whilst an Account Manager may earn substantially more money than a Business Analyst (Exhibit 4 “What Jobs Pay” information) and the plaintiff seems to be well regarded by his current employer (reference dated 22 May 2017 part of Exhibit 11), Exhibit 11 and Exhibit K seem to establish higher salaries for pilots overall at this stage of the plaintiff’s age and career. No submission was made contrary to that on behalf of the defendant.

338. In New South Wales v Moss [2010] NSWCA 133; (2000) 54 NSWLR 536 Heydon JA stated as follows at [70]-[71]:

“[70]First, damages to compensate for that part of reduced economic capacity which will be reflected in the future are sometimes analysed as being one type of "general damages". Like other types of "general damages", as Fullagar J said in Paff v Speed (1961) 105 CLR 549 at 559, they are "of their very nature, incapable of mathematical calculation and (although the expression is apt to be misleading) commonly very much 'at large'. They are also at large in the sense that a jury has, in serious cases, a wide discretion in assessing them." In Russell v J Hargreaves & Sons Pty Ltd (1956) 30 ALJ 533 at 534 Taylor J said:

"Since ... it is impossible to prescribe fixed or precise standards for the translation into terms of money of physical injuries and pain and suffering and varying degrees of physical incapacity, it is inevitable that individual opinions as to what amount may be said to constitute full compensation in any particular case will vary. Indeed within the bounds of reasonableness they may vary greatly."

The field is an "uncertain" one: Breska v Lysaghts Works Pty Ltd (1956) 74 WN (NSW) 168 at 169 per Street CJ.

[71]Secondly, strictly the issue does not turn on a comparison between what money the plaintiff would have earned apart from the injury and what money the plaintiff will earn after the injury. The compensable loss is not a loss of income but the loss of capacity to earn income in a manner productive of financial loss: Graham v Baker (1961) 106 CLR 340 at 347. The income earned before the injury is relevant, but only as an evidentiary aid in assessing damages for the loss of capacity to earn income: Paff v Speed (1961) 105 CLR 549 at 566 per Windeyer J. Evaluation of the worth of a loss of capacity to earn - of a lost chance to earn - is of its nature a more imprecise inquiry than calculation of a lost income. It rests on the hypothesis - that the plaintiff will have undiminished capacity - which has been rendered false by events. It does not depend on calculating the income from a particular career which is no longer possible, but in calculating the damage to a capacity to carry on various careers. It is an exercise in estimation of possibilities, not proof of probabilities. Luntz, Assessment of Damages for Personal Injury and Death, 3rd ed, para[1.9.18], said:

"it is not necessary for the plaintiff to establish the future loss with the same degree of precision as the present and past loss ... The court is really being asked to estimate as best it can the future effect of the injuries from which the plaintiff has been proved to be suffering as a result of the defendant's wrongful act."

In Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 at 639 Brennan and Dawson JJ said: "the ascertainment of earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history." They approved Lord Diplock's statement in Mallett v McMonagle [1970] AC 166 at 176: "in assessing damages which depend upon its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that a particular thing would or could have happened and reflect those chances, whether or not they are more or less than even, in the amount of damages ...". The majority (Deane, Gaudron and McHugh JJ) in Malec v J C Hutton Pty Ltd said at 643 that when the law takes account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring in a range from just above the speculative to just below the certain. The inquiry - the process of estimation of possibilities - is thus an imprecise and indeterminate one to be carried out within very broad parameters. The trier of fact may have to form conclusions on "slender materials": Callaghan v Wm C Lynch Pty Ltd [1962] NSWR 871 at 877 per Evatt CJ, Herron and Sugerman JJ. That language, unlike the reference to permitting "guess work or speculation" elsewhere in that judgment, was not criticised in Ivkovic v Australian Iron & Steel Ltd [1963] SR (NSW) 598 at 607 per Manning J. However, Menzies J said that sometimes the assessment of damages involves "guess work rather than estimation": Jones v Schiffman (1971) 124 CLR 303 at 308; see also Linsell v Robson [1976] 1 NSWLR 249 at 259 per Mahoney JA; Chaplin v Hicks [1911] 2 KB 786 at 792 per Vaughan Williams LJ. Lord Diplock described the factors underlying the assessment of damages for diminished earning capacity as "matters of prophecy or judicial guesses" in Paul v Rendell (1981) 34 ALR 569 at 578. The English position was summarised thus by Lloyd LJ in Foster v Tyne and Wear County Council [1986] 1 All ER 567 at 570:

"when it comes to estimating loss of earning capacity, there is no such thing as a conventional approach; there is no rule of thumb which can be applied. It would be so much easier if there were. But there is not. In each case the trial judge has to do his best to assess the plaintiff's handicap, as an existing disability, by reference to what may happen in the future. As has been said so often, that is necessarily a matter of speculation; it is necessarily a matter of weighing up risks and chances in all the circumstances of a particular case. The very fact that the approach must necessarily be so speculative means, of course, that the occasions on which this court will feel justified in interfering with a judge's assessment will be few and far between, for there is no established range or standard against which to measure the judge's award."”

339. In Allianz Australia Insurance Limited v Kerr [2012] NSWCA 12 at [32]-[36], Basten JA considered the applicable principles. Basten JA also said in Kerr at [24] that s 126 of MACA does not appear to depart from or vary the general law principle that the compensable loss is not a loss of income but the loss of capacity to earn income which “is or may be productive of financial loss”: see Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 at page 347 and Moss, above, at [71].

340. In Sretenovic v Reed [2009] NSWCA 280, McColl JA stated as follows at [79]-[81]:

“[79] I turn then to the issue of future economic loss. The primary judge’s finding in this respect was also tainted by reason of the erroneous findings I have identified. It was also, in my view, inappropriate for his Honour to assess the impairment of the respondent’s future earning capacity over the entire period of his anticipated working life. Rather this was a case where, as the appellants submitted, a buffer should have been awarded.

[80] Compensation for lost earning capacity is awarded because diminution in an injured plaintiff’s earning capacity “is or may be productive of financial loss”: Graham v Baker [1961] HCA 48 ; (1961) 106 CLR 340 (at 347). It is incumbent upon the plaintiff to prove the loss for which compensation is claimed: Todorovic v Waller [1981] HCA 72 ; (1981) 150 CLR 402 (at 412).

[81] It is appropriate to award damages by way of a buffer, including in a case such as this where damages are to be determined pursuant to the Civil Liability Act, when the impact of the injury upon the economic benefit from exercising earning capacity after injury is difficult to determine. In such a case where the plaintiff has an earlier demonstrated earning capacity, the court undertakes a comparison between the economic benefits the plaintiff derived from exercising that earning capacity before injury and the economic benefit derived from exercising earning capacity after injury, although the difference cannot be determined otherwise than by the broad approach of a buffer: Penrith City Council v Parks [2004] NSWCA 201 (at [3]–[5]) per Giles JA; applied K-mart Australia Ltd v McCann [2004] NSWCA 283 (at [62]) per Pearlman AJA (Handley and Ipp JJA agreeing); see also Hornsby Shire Council v King [2005] NSWCA 67 (at [23]) per Ipp JA (Mason P and Brownie AJA agreeing); Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 (at [33]) per Hodgson JA (McColl JA agreeing). In the latter case Mason P (at [2]) opined that “a buffer or cushion award is usually reserved to the situation where there is a smallish risk that otherwise secure employment prospects may come to an end, in consequence of the tort-related injury, at some distant time in the future”.”

341. Accordingly, McColl JA stated that an award of a buffer or cushion to a plaintiff is reserved to a situation where the precise loss of the plaintiff is difficult to determine and there is a “smallish risk” that the plaintiff's existing employment prospects will be limited or the plaintiff's capacity has been clearly reduced but how that will inhibit his or her earning capacity in the future as a consequence of the injury suffered is uncertain.

342. I referred to the above principles in Polo v Nominal Defendant [2019] NSWDC 53 at [150]-[156]. Counsel for the defendant accepted that Polo correctly stated the principles to be applied.

343. In the present case, I find that the plaintiff’s most likely circumstances but for the accident would have been to save money, eventually return to his pilot’s studies (possibly part-time), complete his studies, obtain a pilot’s licence and probably obtain a pilot’s position. I find that his injuries arising from the accident make that much less likely and have reduced his earning capacity.

344. Having regard to the uncertainties and the costs that would be involved and the possibilities that the plaintiff may have had trouble for some time securing a suitable position or advancing himself within the aviation industry, particularly in the light of his current position and prospects, I am only willing to allow a very limited award of damages as a buffer for loss of future earning capacity. I agree with the defendant’s submissions that many contingencies and risks need to be taken into account, including the problems the plaintiff may have had securing a career in a challenging industry. Balancing all the factors I have referred to, I consider the figure of $45,000 takes into account the various matters. The amount sought by the plaintiff is, in my view, excessive and not established on the evidence for the reasons I have given.

345. Accordingly, the amount I would allow for damages is as follows:

Past out-of-pocket expenses	$2,236.70
Future out-of-pocket expenses	$4,200.00
Past economic loss	Nil
Loss of future earning capacity	$45,000.00
TOTAL	$51,436.70

Disposition

346. The parties should check my calculations and raise any issues with them.

347. Accordingly, I make the following orders:

1. Judgment for the plaintiff.

2. The defendant is to pay the plaintiff's costs of the proceedings as agreed or assessed.

3. Leave to the parties to seek within 14 days a different costs order to that set out in order 2 above.

4. The parties are to bring in agreed short minutes of order within seven days reflecting these reasons for decision.

5. Exhibits to be returned at the expiry of 28 days.

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Decision last updated: 27 May 2019