McLennan v The Nominal Defendant
[2010] NSWDC 28
•8 June 2010
CITATION: McLennan v The Nominal Defendant [2010] NSWDC 28 HEARING DATE(S): 30, 31 March; 1, 2, 3, 6, 7, 8, 9 April; 15, 22, 25 May and 11 June 2009
JUDGMENT DATE:
8 June 2010JURISDICTION: Civil JUDGMENT OF: Levy SC DCJ DECISION: 1. Verdict and judgment for the plaintiff in the sum of $643,607;
2. The defendant is to pay the plaintiff’s costs on the ordinary basis unless otherwise ordered;
3. The exhibits may be returned;
4. Liberty to apply on 7 days notice if further orders are required.CATCHWORDS: TORT – negligence – collision between unidentified motor vehicle and pedestrian in a railway car park – no witnesses – all issues contested by Nominal Defendant - EVIDENCE – credibility of testimony – extensive credit challenges by defendant – consideration of expert medical evidence concerning genuineness of plaintiff’s claim - DAMAGES – assessment of damages pursuant to Motor Accidents Compensation Act 1999 – considerations for proof of claim for damages for domestic care and assistance pursuant to s 128 LEGISLATION CITED: Civil Procedure Act 2005
Motor Accidents Compensation Act 1999
Motor Accidents Act 1988
Motor Vehicles (Third Party Insurance) Act 1942
Workers’ Compensation Act 1987
Uniform Civil Procedure Rules 2005CASES CITED: Angel v Hawkesbury City Council [2008] NSWCA 130
Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320
Donoghue v St Luke’s Hospital Ltd [1969] 2 NSWR 647
Flounders v Millar [2007] NSWCA 238
Harrison v Nominal Defendant (1975) ALR 680
Luxton v Vines [1952] HCA 19
Malco Engineering Pty Ltd v Ferreira [1994] NSWCCA 117
Mason v Demasi [2009] NSWCA 227
Nominal Defendant v Smith (1998) 28 MVR 165
Nominal Defendant v Swift [2007] NSWCA 56
Oztan v Nominal Defendant (1995) 23 MVR 259
Sretenovic v Reed [2009] NSWCA 280
Strinic v Singh [2009] NSWCA 15PARTIES: Terrence John McLennan (Plaintiff)
The Nominal Defendant (Defendant)FILE NUMBER(S): 2004/00193754; 5365 of 2004 COUNSEL: Mr A J Lidden SC with Mr M Daley (Plaintiff)
Mr J Poulos QC with Mr JJ Ryan (Defendant)SOLICITORS: Brydens (Plaintiff)
Moray & Agnew (Defendant)
JUDGMENT
Table of Contents
A. INTRODUCTION Nature of the case [1] – [8] Issues for determination [9] – [10] Approach to evaluation of credibility of testimony of the plaintiff [11] – [15] Summary of findings [16] – [18] Assessed heads of damage [19] – [20] Array of evidence [21] – [24] Oral evidence
[22] Documentary evidence
[23] – [24] B. FINDINGS – BACKGROUND FACTS [25] – [27] Plaintiff’s personal background [28] Plaintiff’s pre-injury work history [29] – [39] Plaintiff’s pre-injury health history [40] – [48] Plaintiff’s pre-injury leisure pursuits [49] C. EVIDENCE REVIEW - LIABILITY [50] – [58] Plaintiff’s version of events [51] – [54] Plaintiff’s account of subsequent events [55] – [56] Inquiries made by plaintiff [57] – [58] D. EVIDENCE REVIEW - DAMAGES [59] – [194] Post-injury work history [60] – [61] Domestic activities [62] Medical and allied evidence review [63] – [194] Reports relating to treatment
[64] – [105]
Dr Tablante
[65] – [83]
Dr Rail
[84] – [85]
Professor Lance
[86] – [96]
Dr Granot
[97] – [100] Reports of medical investigations arranged by Dr Tablante
[101] – [105] Reports obtained by plaintiff’s solicitor
[106] – [121]
Dr Conrad
[107] – [109]
Dr Lorentz
[110] – [115]
Dr Ellis
[116] – [120]
Ms Laverack - All Parental Care
[121] Reports obtained by workers’ compensation insurer
[122] – [134]
Dr Parameswaran
[123] – [124]
Dr Basser
[125]
Dr Vignaendra
[126] – [129]
Dr Davies
[130] – [134] Reports obtained by Motor Accidents Authority
[135] – [138]
Dr Fitzsimons
[136]
Dr Ayscough
[137]
Dr McKenna
[138] Reports obtained by defendant’s solicitor
[139] – [196]
Dr O’Neill
[140] – [142]
Dr Maguire
[143] – [146]
Dr Delaney
[147] – [148]
Dr Cromer
[149] – [151]
Professor O’Rourke
[152] – [156]
Associate Professor Spira
[157] – [189]
Ms Barbuto
[190] – [196] E. FINDINGS - CREDIT AND LIABILITY ISSUES [197] – [311] Issue 1 – Credibility of testimony [198] – [311] Dr Tablante
[199] – [208] Mrs McLennan
[209] – [219] The Plaintiff
[220] – [311] Issue 2 – Whether the plaintiff was struck by an unidentified vehicle [312] – [338] Issue 3 – Was the driver of the alleged unidentified vehicle negligent [339] – [349] Issue 4 – Alleged contributory negligence [350] – [353] Issue 5 – Due inquiry and search for the identified motor vehicle [354] – [371] F. FINDINGS - DAMAGES ISSUES [372] – [430] Findings as to injuries [373] – [389] Findings as to treatment and rehabilitation [390] – [391] Findings as to mitigation [392] – [395] Findings as to disabilities [396] – [425] Findings as to plaintiff’s probable life span [426] – [430] G. ASSESSMENT OF DAMAGES [431] – [558] Past loss of earnings [432] – [460] Fox v Wood [461] – [464] Future loss of earning capacity [465] – [481] Past superannuation losses [482] Future superannuation losses [483] Past domestic assistance [484] – [521] Future domestic assistance [522] – [537] Future treatment [538] – [550] Past out-of-pocket expenses [551] – [557] Summary of damages assessment [558] H. DISPOSITION & ORDERS [559] – [560] Disposition [559] Orders [560]
A. INTRODUCTION
Nature of case
1. The plaintiff seeks damages for injuries he claims to have received when he was allegedly run down from behind by an unidentified motor vehicle whilst he was on his way to work. At the time he was walking in the car park of the Holsworthy railway station in the early hours of the morning of Tuesday 5 September 2000.
2. No witnesses came forward, and the identity of the vehicle and the driver of that vehicle remain unknown. The plaintiff consequently brought his claim against the Nominal Defendant pursuant to s 34 of the Motor Accidents Compensation Act 1999 [“MAC Act”].
3. The defendant treated the plaintiff’s claim with great suspicion and the question of the credibility of the plaintiff’s testimony loomed as a large issue in the case. The claim was extensively defended in a vigorous and far-reaching contest over 13 hearing days.
4. In disputing the plaintiff’s claim, the defendant mounted a multi-faceted attack upon the plaintiff’s credit. This attack fell short, but not far short, of alleging actual fraud on the plaintiff’s part. There were no concessions made by the defendant during the course of the proceedings, and almost every aspect of the plaintiff’s claim was contested, including details of his pre-injury health and background situation, the factual and liability circumstances of his claimed injury, the extent of the claimed disabilities, as well as numerous quantum issues to be decided in the proceedings.
5. On behalf of the defendant, Mr Poulos QC ultimately submitted that the pivotal issue in the case was the credibility of the testimony of the plaintiff. The defendant submitted that the plaintiff’s evidence, and the histories given to medical examiners was, at times, contradictory. The defendant also submitted that aspects of the plaintiff’s claim were fanciful, and at times, obviously false, thus requiring the veracity of the plaintiff’s claim to be assessed in the light of all the evidence.
6. Mr Poulos QC submitted that in the absence of corroboration, the plaintiff’s account of matters in issue should not be accepted unless competing versions are assessed were being glaringly improbable.
7. On behalf of the plaintiff, Mr Lidden SC submitted that the overwhelmingly most probable inference to be drawn from the facts relied upon, was that the plaintiff was struck from behind by an unidentified motor vehicle that subsequently left the scene. It was submitted that the circumstances of the incident compelled a findings of negligence against the driver of the unidentified vehicle without any contributory negligence on the part of the plaintiff. Mr Lidden SC pointed to aspects of the evidence that supported the claims made by the plaintiff for damages. Those matters were in strong contention between the parties.
8. The attack on the credibility of the testimony of the plaintiff made it necessary to examine in some detail the issues calling for decision in the case.
Issues for determination
9. The material liability issues calling for determination in the proceedings are summarised as follows:
Issue 1 : The credibility of testimony;
Issue 2 : Whether the plaintiff was in fact struck by an unidentified motor vehicle;
Issue 3 : Was the driver of the alleged unidentified motor vehicle negligent;
Issue 4 : Was there contributory negligence on the plaintiff’s part and if so, to what degree;
Issue 5 : Whether the plaintiff has established that the owner and driver of the unidentified motor vehicle cannot be identified after due inquiry and search.
10. The issues concerning the plaintiff’s pre-injury situation, the nature and extent of the plaintiff’s injuries, the residual effects of any ongoing disabilities, the effects on the plaintiff’s earning capacity and the assessment of the individual heads of damage claimed, are dealt with in the portions of my reasons that deals with damages.
Approach to evaluation of credibility of testimony
11. In essence, the defendant has pointed to the many challenges it made to credibility of the plaintiff’s testimony, and to the credibility of aspects of the plaintiff’s case, to assert that the plaintiff’s case should simply be rejected on the basis of credit. That submission was made on the basis that the plaintiff should not be believed on significant and determinative matters as to his description of the events of the incident he claimed to have occurred, the aftermath of those events and on many aspects of his claim for damages.
12. Those submissions made by the defendant have some considerable force in this case. In some circumstances a conclusion to that effect would lead to the proceedings being disposed of in the manner submitted by the defendant, namely, that because the acceptance of the plaintiff’s case is dependent upon the acceptance of the plaintiff’s testimony, which has been shown to be unreliable on key matters, the plaintiff’s case should necessarily be rejected.
13. That said, for the reasons that I have outlined in that portion of my reasons concerning the credibility of testimony, Issue 1, I consider that although the submission made by the defendant is open on the evidence, and has more than just a superficial attraction, on the evidence available, such a result would be unjust and would ignore important aspects of the evidence that serve to support some of the claims made by the plaintiff.
14. On my analysis of the evidence, I consider that it would be wrong to approach the matter simply by determining that because the plaintiff should not be believed on some aspects of his claim, his entire evidence should be assessed through the prism of suspicion as being tainted by credit findings, as was argued by the defendant, such that the plaintiff’s case should be rejected entirely. The submissions made by the defendant makes no acknowledgment of the fact that it is open for me to either accept or reject parts of the plaintiff’s evidence as dictated by the results of analysis of the evidence : Malco Engineering Pty Ltd v Ferreira [1994] NSWCCA 117 per Handley JA at 118.
15. In view of the many credit issues raised by the defendant in this case, and because those credit issues span both the liability and damages issues to a degree, it was necessary to segregate the reasons for my credit conclusions into the appropriate categories in which those issues arose for evaluation and analysis. However, simply because I have separated some of the reasons for my conclusions into those separate categories, I should not be taken to have made separate determinations of individual credit issues without having considered the overall inter-relationship of the credit challenges made by the defendant when determining the issues calling for decision.
Summary of findings
16. I have found that the defendant’s attack on the plaintiff’s credit has succeeded in part, but not to the point requiring that the plaintiff’s claim be rejected in its entirety.
17. I have found that shortly before 5.00am on Tuesday 5 September 2000, the plaintiff was walking within the Holsworthy railway station car park when he was struck from behind by an unidentified motor vehicle. I have found that the driver of that vehicle was negligent and I have found that such negligence caused the plaintiff to suffer injuries. I have found that the defendant has failed to establish its asserted defence of contributory negligence. I find that due search and inquiry has failed to establish the identity of the owner or driver of the unidentified motor vehicle.
18. I have found that in the collision, the plaintiff suffered a blow to the back of the legs with bruising. This caused him to fall and sustain a blow to the head, grazes and bruising to other parts of his body and limbs. I have found that this incident has left the plaintiff with lasting disabilities that require an assessment of damages. Principal amongst those disabilities are severe, recurrent and debilitating migraine headaches. I have assessed the plaintiff’s damages in the sum of $643,607.
Assessed heads of damage
19. The plaintiff made a claim for a total of 9 claimed heads of damage for assessment. The parties made disparate submissions on quantum based on differing assumptions. The heads of damage claimed by the plaintiff and the submissions of the parties are listed below, together with paragraph references to my assessment of the various heads of damage claimed:
Head of Damage claimed by plaintiff
Primary SubmissionsParagraphs (a) Past loss of earnings (b) Fox v Wood (c) Future loss of earning capacity (d) Past loss of superannuation (e) Future loss of superannuation (f) Past domestic assistance (g) Future domestic assistance (h) Future out-of-pocket expenses (i) Past out-of-pocket expenses Totals
20. Although the effect of the defendant’s primary submission was that any entitlement of the plaintiff to damages should be limited to the sum of $2500, the defendant’s alternative submission was that any entitlement of the plaintiff to damages should be assessed in an amount far less than that contended for by the plaintiff. That submission was dependent upon a number of assumptions specific to each head of damage.
Array of evidence
21. It is convenient to set out an overview of the array of the evidence. The oral evidence was in a relatively short compass. The defendant took the opportunity to test that oral evidence through extensive cross-examination. Voluminous documentary material was copied and tendered from the materials produced in answer to a large number of subpoenas.
Oral evidence
22. The following witnesses gave oral evidence:
(a) The plaintiff’s oral evidence in chief was relatively short. His cross-examination was extensive, the plaintiff’s evidence was interrupted by a hospital admission on the fourth day of the trial for a stress-related problem;
(b) Mrs Cathy McLennan, the wife of the plaintiff gave oral evidence. Her evidence was directed to corroboration of the plaintiff’s testimony concerning his appearance, movements and reactions shortly after the occurrence of the claimed incident as well as damages issues
(c) Dr Augusto Tablante, the plaintiff’s treating general practitioner gave oral evidence, his evidence was directed to corroboration of the plaintiff’s claim of having been injured, and to some damages issues generally;
(e) Mr Craig Wright was called by the defendant, mid-way through the trial, to support an application made by the defendant to have the plaintiff’s computer produced for forensic examination. In a separate judgment I refused that application. Mr Wright’s evidence had no bearing on any other issues in the case and I have not summarised his evidence in these reasons.(d) Associate Professor Paul Spira, a consultant neurologist qualified by the solicitor for the defendant gave oral evidence. He was present in court to observe almost the entirety of the plaintiff’s oral evidence as well as the evidence of Dr Tablante. He gave opinion evidence on the issues that related to the plaintiff’s claim generally and concerning his experience of headaches;
Documentary evidence
23. The plaintiff tendered bundles of medical reports of the kind that are often seen in a personal injury damages case. I have reviewed and summarised the significance of those reports in my review of the medical evidence.
24. Voluminous documentary exhibits were tendered by the parties. The plaintiff’s exhibits were in the series “A” to “PP” and the defendant’s exhibits were in the series “1 “ to “ 32”. There were 24 other documents that were marked for identification. Where it became relevant to do so, I have referred to the exhibits in my reasons.
B. FINDINGS – BACKGROUND FACTS
25. Before embarking upon an examination of the issues calling for decision it is necessary to set out the factual background to the case, and to summarise the history of the plaintiff in order to achieve an appropriate context from which to understand and analyse the attack made upon the credit of the plaintiff, and to also provide a convenient framework for arriving at my ultimate findings on the issues that arise.
26. Where it became relevant to do so, in the course of setting out my background findings I have identified the challenges made by the defendant concerning the factual account given by the plaintiff. Where no challenges are identified, I have accepted as fact the evidence as summarised. Wherever I have summarised a matter by reference to what the plaintiff has stated in his evidence, where the matter is in contention and remains to be resolved, such summary should not be taken to represent a fact finding pending the consideration of all of the evidence relating to the issues calling for decision.
27. In the paragraphs that follow I set out my findings concerning the plaintiff’s pre-injury personal circumstances, his pre-injury work history, his perspective of his pre-injury health history, and his pre-injury leisure activities.
Plaintiff’s personal background
28. The plaintiff was born in Sydney in 1954. At the time of the claimed incident he was aged 46 years. At the trial he was aged almost 55 years. He is a married man with 6 children ranging in ages from 35 to 15 years. He lives with his wife and with 2 of his children in accommodation rented by his wife from the Department of Housing.
Plaintiff’s pre-injury work history
29. The plaintiff’s formal education ceased at the School Certificate stage when he was aged 15 years. Some time beforehand, due to family circumstances, the plaintiff was required to leave Singleton High School and to continue his education by correspondence so that he could assist by working on the family property. These circumstances arose because of financial pressure experienced by his family due to experiencing an extended period of drought. This precluded the family from employing outside labour and the plaintiff was required to assist on the farm. In that period the plaintiff also worked in a hardware store for the Burns Philp company, in Singleton.
30. At age 16 the plaintiff joined the army to train as an engineer. Whilst serving there he trained as a small arms gunsmith, fitter, turner and machinist. He also completed a Grade 3 welding course at Singleton TAFE. He left the army after completing 15 years of service. Whilst in the army he had a disciplinary issue with a superior. He stood his ground on the matter at issue and this resulted in his demotion from the rank of sergeant to that of private. Whilst in the army he had sustained a back injury. The defendant highlighted this injury as a credit issue.
31. After the plaintiff left the army, he joined the heavy machinery company Waugh & Josephson. That company had a Caterpillar heavy mining machinery and equipment outlet and repair facility near Singleton. The plaintiff was recruited for this job whilst he was still in the army. His role for that company was to set up and run the machine, welding and spraying departments for the repair of heavy earthmoving and mining equipment. He continued in this work for several years before moving to Sydney to seek lighter work as he had been experiencing some trouble with his back. The defendant highlighted the plaintiff’s level of disclosure of his back injury in the employment application for that job and subsequent jobs as a credit issue.
32. In 1987 and 1988, after the plaintiff had moved to Sydney, he concurrently worked in 5 part-time jobs. Two of these positions were in service stations and three others involved security work. This led to a full time security position in the employ of Sydney Night Patrol.
33. In 1988/1989 the plaintiff changed his career direction and obtained employment in the fast food industry. Initially, he undertook training with Kentucky Fried Chicken [“KFC”]. He then worked as an assistant manager and then as a store manager for KFC in some 15 locations throughout the Sydney metropolitan area before that company franchised its stores. In that employment the plaintiff was sent to a particularly high volume store in order to sort out some staff training, production and theft issues. He later became the manager of the Punchbowl store for KFC. He left that position due to a disagreement he had with management over the alleged theft of stock.
34. Exhibit “M” comprised a bundle of testimonials, certificates, letters of commendation and bonus advices that comfortably permit the inference that up until 16 December 1999, being the date of the last letter in a series in that bundle, which advised the plaintiff of a 20.31 per cent incentive bonus for the previous quarter, KFC was looking forward to and wishing the plaintiff a prosperous next quarter as well.
35. The timing of the plaintiff ceasing his employment with KFC coincided with his father having a protracted illness. The plaintiff remained out of the workforce for about 9 months whilst he tended to his father’s need for care arising from recurrent attempts at complex heart surgery. The defendant submitted this evidence should not be accepted as the plaintiff’s father was not called to corroborate this testimony. I decline to make that finding because, after viewing this evidence with caution, I considered the evidence of this fact was genuine.
36. On 19 June 2000, the plaintiff re-entered the workforce and commenced employment with Hungry Jacks as a trainee manager at that company’s fast food flagship store in George Street, Sydney. He had passed the training requirements of that employment. Just before the alleged incident that gave rise to these proceedings, the plaintiff was given to understand that he would be formally appointed to the position of manager of that store. Before this, he had been running that store for some time and had the expectation of taking on the position of manager. At the time, his duties included ordering stock, handling cash and taking responsibility for the day-to-day management and maintenance of the store. At the time of the alleged incident, the plaintiff was still in the course of negotiating his salary for that position.
37. Also of significance to the plaintiff’s claim for economic loss was Exhibit “R” which comprised certificates issued by Burger King Corporation certifying the plaintiff was certificated by that company through basic management training, guest service, crew food safety requirements and a supervisory training programme.
38. I infer from the foregoing evidence that the plaintiff had some acknowledged training, skills and acumen for work at a retail management level in the fast food industry.
39. At around this time the plaintiff also had an interest in a shop business called Blue & Grey. This arose from his longstanding hobby and leisure past-time involving war games and military models. That business was ultimately sold but the plaintiff retained a stock of model soldiers and the like which he used to occasionally sell through internet trading.
Plaintiff’s pre-injury health history
40. In evidence the plaintiff described how, at around the age of 10 or 12 years, he began to have trouble with headaches. These problems involved him experiencing numbness in the left hand, left side of the face and excruciating pain in the head. This was also associated with vomiting. The plaintiff described these problems as having occurred about once per year. He said that pattern continued until about the age of about age 21 years when he said these headaches ceased. He said that thereafter, they did not recur until the time of the claimed injury. The existence, nature and cause of the plaintiff’s post-incident headaches were matters of serious contention in the proceedings.
41. The plaintiff stated that whilst he was in the army, he had injured his back during the course of manhandling and lifting approximately 40 oxygen and acetylene cylinders and placing them onto a high table top truck. Since that time he has experienced recurrent lower back problems of muscular and disc origin. This causes him swelling and discomfort over a large area of his back around the belt line and it also causes him problems with walking about. After he left the army he was granted a disability pension. At the time of the trial that pension was in the amount of $158.10 per week.
42. The plaintiff said that during the time of his employment with Waugh & Josephson his back was “fine” and he had no time off work due to back problems. The issue of the condition of the plaintiff’s back, before and during the course of that employment, were matters of contention in the proceedings.
43. The plaintiff’s army medical records show the plaintiff occasionally suffered from psoriasis, allergic rhinitis and had occasional episodes of low back troubles following the initial back injury. At the time he was discharged from the army the discharge medical examination revealed “no major problems of late”. The discharge was on account of the plaintiff’s back problems : Exhibit “BB”.
44. The defendant raised credit issues as to the historical pattern of the plaintiff’s weight before his injury, and the extent of his weight gain afterwards. The Department of Defence records and the plaintiff’s pre-injury medical records show that whilst he was in the army the plaintiff had gained weight and was considered to be overweight. In the period September to October 1999, he underwent an operation for removal of his gall bladder, the Liverpool Hospital notes variously recorded the plaintiff’s weight on separate dates as being between 114kgs and 116kgs.
45. In the period before the plaintiff’s injury there was some recorded evidence of him having hypertension. In February and May of 1982 the plaintiff had recorded diastolic blood pressure readings of 95 mm/Hg. On 13 October 1999 his general practitioner recorded a blood pressure reading of 170/100 mmHg. On 7 September 1999 the Liverpool Hospital notes recorded the plaintiff’s blood pressure as being 167/89 mm/Hg. That was a pre-operative anaesthetic finding before a proposed gastroscopy procedure on that day. It was noteworthy that at that time the notes recorded that the plaintiff was extremely stressed and was affected by hospital phobia. The evidence disclosed that there were fluctuating pre-injury readings of the plaintiff’s blood pressure.
46. The Liverpool Hospital pre-anaesthetic assessment notes dated 7 September 1999 recorded that at that time, the plaintiff was waiting for a cholecystectomy procedure for gallstones. The health assessment notes made at that time stated that he was affected by chronic back trouble and was a “bad sleeper”.
47. The plaintiff said he was right-handed and had not had any previous problems with his right shoulder before the incident in question.
48. There was no evidence that before his injuries, the plaintiff had been affected by diabetes, including Type II diabetes. There was evidence that there was a history of hypertension and Type II diabetes affecting his parents.
Plaintiff’s pre-injury leisure pursuits
49. The plaintiff described his pre-injury leisure interests as playing golf, squash and swimming, as well as activities associated with the sedentary pursuit of the table-top activity described as war gaming. He followed this pursuit with his friends using model soldiers. These games were played in accordance with an intricate set of rules to recreate battle scenes. He also pursued other activities associated with the construction and repair of computers. He also occasionally engaged in the internet trading of computers, computer parts and other objects on the eBay trading site. He denied that these activities were aimed at producing an income. This was a matter contested by the defendant.
C. EVIDENCE REVIEW – LIABILITY
50. As there were no witnesses to the events it is necessary to examine the plaintiff’s version of events in some detail.
Plaintiff’s version of events
51. In describing the events leading up to the claimed incident, the plaintiff stated that at about 4.30am on Tuesday 5 September 2000, he had left his home early in order to catch the 5.00am train from Holsworthy railway station so he could travel to the city to go to work. He said he was due to commence his work at the Hungry Jack’s store in the city at 6.00am on that day. He said that he recalled that he had parked his car in darkness in the car park at the place he normally parked, namely, in the second row next to the station entrance, about 100 feet from the entrance. He stated that when he had arrived there, some 30 or 40 cars were already parked there.
52. The plaintiff stated that he recalled walking in the car park behind a line of parked cars and towards the railway station. He stated that when he had walked a distance of about two or three cars from where he had parked his own car he heard the sound of a car start up and “rev” and he said he was aware that lights had come on. In the context of his evidence, I interpret the reference to lights to be a reference to vehicle headlights. He stated that he recalled that there was a line of parked cars to his left and he was walking in a line about 6 inches out from the backs of those vehicles.
53. The plaintiff said he thought there was ample room for a vehicle to drive past him on his right. He said he did not turn around and he said that whilst walking towards the station he became aware of the increasing brightness of headlights illuminating the area around where he was walking. He stated that the sound of acceleration was as if the accelerator of the vehicle had been pushed all the way to the floor. He said that he perceived from the noise and from the lights, that the vehicle was drawing closer to him. He said that he did not recall having looked to his rear in these events.
54. The plaintiff stated that his next recollection was of being aware that he was laying on his side between two parked cars on the paved ground surface of the railway station car park in daylight.
Plaintiff’s account of subsequent events
55. The plaintiff said that after the incident, he initially did not recall seeing anyone around him in the car park. The plaintiff said that there was nobody around at the scene. He clarified this by saying that when he found himself laying in between parked cars there were people walking through the car park. There was no evidence of anyone from amongst those people coming forward to assist the plaintiff at the scene. He said he had trouble standing up and he had a massive headache. He said he felt sore in several places, including both hips and a little towards the back, his left knee and right shoulder.
56. The plaintiff said that at the time he was feeling confused. He said it took him a while to realise where his car was and he then went to it. He recalled getting into his vehicle. He remains uncertain as to whether or not he had passed out. He thought it was at least an hour before he left the car park. He said he drove home at about 10:00am on that day. He described a gap in his memory. He said that when he arrived home, his wife and his son assisted him. He noticed his clothes were “messed up” and that his trousers had been torn at the left knee. He saw his general practitioner, Dr Tablante, the following day.
Inquiries made by plaintiff
57. The plaintiff said he telephoned Liverpool police station on the following day to report the incident. He said he spoke to a female police officer and gave her his details, confirmed that he did not have a registration number for the vehicle involved in the incident and he requested that the incident be investigated. He stated that he heard nothing further from the police in this regard and was given no expectation that something positive was likely to come out of that conversation.
58. He said that about a week or so after the incident he put up a paper flyer at the railway station car park requesting information from anyone who might have seen the incident. He said he printed that flyer on his home computer. The defendant questioned the authenticity and the timing of the creation of that flyer. The plaintiff said that he had received only one reply to his flyer. The plaintiff said that reply was said to be from someone who had indicated that in return for some monetary payment, the respondent would be prepared to say anything that was required. He said that nothing of use was obtained from that person. The plaintiff then consulted his solicitors.
D. EVIDENCE REVIEW - DAMAGES
59. Before setting out my findings on the liability and damages issues, and on the credit findings that underpin those matters, I set out a short summary of the evidence of the plaintiff’s post-injury work situation and the claim relating to his post-injury domestic activities, followed by a review of the medical evidence that was variously called or tendered.
Post-injury work history
60. The plaintiff stated that since the incident he did not return to work at Hungry Jacks because he was unable to do so. He ultimately resigned from that employment. He did so whilst he was still receiving workers’ compensation benefits. He said that those benefits were paid intermittently, although the insurer’s payment records show that payments have effectively been made for the continuous period from the time of the incident until the time of the trial.
61. The plaintiff had a period of employment with Woolworths for a short period after he had resigned his employment with Hungry Jacks. This topic was the subject of a credit challenge to the plaintiff’s probity as to his concealment from Woolworths of his complete work and compensation history, as well as the concealment from his general practitioner of his employment with Woolworths. The plaintiff stated that he has been unable to pursue other work since that time. He said he has from time to time derived some monies from his hobby of repairing or rebuilding computers. However, he denied that this was an income producing activity or that it was representative of a residual earning capacity. This area of the plaintiff’s evidence was also the subject of credit challenges by the defendant. The plaintiff claimed he has been, and remains, unfit for work as a result of his post-injury disabilities.
Domestic activities
62. The plaintiff stated that before his injury he and his wife had shared the burden of domestic tasks on an approximately 50 / 50 basis but this had not continued to be the case after the incident. He said that since that time his wife and his son undertook the burden of some 10 to 15 additional hours per week to carry out tasks around the home that he would have otherwise attended to if he had not been injured. He stated that he no longer carried out the gardening at home but forced himself to mow the lawns. He said that one of the tasks undertaken by his family was to assist him when he lay down with his migraine headaches. The assistance provided to him at these times was said to be aimed at ensuring that he remained hydrated and to assist him to go to the toilet. The plaintiff made significant monetary claims for the value of past and future domestic assistance. The extent of the need of the plaintiff for past and future domestic assistance was challenged by the defendant.
Medical evidence review
63. The medical evidence consisted of numerous reports. The array of reports was from treating doctors and medico-legal assessments by experts variously retained by the workers’ compensation insurer, the Motor Accidents Authority, as well as by the solicitors for the respective parties. The only medical witnesses who were called to give oral evidence were Dr Tablante, the treating general practitioner, and Associate Professor Spira, a consultant neurologist, who was retained by the defendant in these proceedings. The paragraphs that follow review and summarise the medical evidence.
Treatment reports
64. The only treating doctors’ reports tendered by the plaintiff were from Dr Tablante, Dr Rail, Professor Lance, Dr Grant and a number of reports following radiological investigations of the plaintiff’s head and spine.
Dr Augusto Tablante – treating general practitioner
65. Dr Augusto Tablante, the plaintiff’s treating general practitioner, has provided 4 reports. These were respectively dated 16 November 2004, 20 July 2005, 8 February 2007 and 18 March 2009. A number of medical certificates he had issued to the plaintiff were also in evidence. Dr Tablante has been the plaintiff’s general practitioner since 24 September 1999.
66. On 6 September 2000, the plaintiff consulted Dr Tablante for an examination concerning the injuries he had received the previous day. Dr Tablante recorded that the plaintiff did not have a clear recollection of the events of his injury. His findings on examination revealed multiple bruising which, in the opinion of Dr Tablante, were consistent with the plaintiff having been hit from behind by a vehicle and then falling to the ground unconscious. At this initial consultation, Dr Tablante noted that the plaintiff had sustained injuries “to his head + front due to the impact on the ground.”
67. On 20 July 2005, Dr Tablante wrote to the solicitor for the plaintiff noting that the plaintiff showed no improvement in his migraine headaches, which were occurring on a regular basis and with a severe intensity. At that time, he noted the prognosis to be poor due to failure of the multiple medications which had been trialled in order to attempt to treat the plaintiff’s migraines. Dr Tablante’s progress notes between 5 November 2003 and 2 June 2005 reveal that the plaintiff had 11 consultations with Dr Tablante in that period. Some of those progress notes were difficult to decipher. The entry for 16 November 2004 indicates that in respect of the plaintiff’s claim of having been injured in the claimed incident, the plaintiff had made Dr Tablante aware that the insurer was “claiming that he was bashed” rather than having been hit by a car. On 21 April 2005 Dr Tablante referred the plaintiff to Professor Antony for review of his migraines. No reports from Professor Antony were tendered.
68. On 8 February 2007, Dr Tablante again reviewed the history of the plaintiff having been hit from behind by a car whilst at the railway car park. He recounted a history of the plaintiff having no recollection of the actual incident, having woken later whilst laying on the ground, approximately 30 minutes later.
69. Dr Tablante’s initial examination of the plaintiff had revealed multiple bruising to the plaintiff’s chest and lower limbs, tenderness to the head and to the cervical region of the spine. Dr Tablante stated that he put in place conservative management for these injuries which included mainly simple analgesic and rest.
70. On 19 September 2000, the plaintiff again consulted Dr Tablante complaining of headaches. Dr Tablante recounted the plaintiff’s history that the headaches have persisted since that time up to February 2007 and had become severe. He described the evolution of the headaches as being persistent and worsening, leading to trialling of multiple medications to alleviate those headaches, without success. Dr Tablante recorded a history of the headaches having become very debilitating for the plaintiff, to the point that he was bedridden for days at a time.
71. Dr Tablante stated that he had referred the plaintiff to Dr Rail and to Professor Lance, both being consultant neurologists, for assessment, treatment and management of the headaches. There was a series of reports tendered from Professor Lance and a short report from Dr Rail.
72. Dr Tablante stated that the diagnosis was that the plaintiff had resistant migraine headaches. Dr Tablante stated that :
“… (these were ) exacerbated to a serious extent by a head injury sustained on 5/9/00. He was then trialled on multiple strong medications again, however the headaches persisted and to the state has (sic ) worsened to the point where his daily activities even at hoem (sic) has been severely compromised. The headaches at present occur on a adily (sic) basis with varying intensity. More oftet (sic ) as he states, he is bedridden for a few days.”
73. Dr Tablante expressed the opinion that the lack of activity forced upon the plaintiff by his condition has caused the subsequent development of diabetes and hypertension requiring medication, as well as reactive depression due to the failure of treatment to that point in time. Dr Tablante expressed the opinion that the plaintiff’s prognosis was poor, with the headaches being expected to continue given the failure to respond to medications to date. He stated that the plaintiff remained unfit for work as at the time of the report, namely 8 February 2007, and required ongoing specialist review for further treatment for headaches, diabetes and hypertension.
74. On 30 March 2008 Dr Tablante referred the plaintiff to Dr Granot for a neurological consultation. At that time, in addition to indicating that the plaintiff had migraines, hypertension, diabetes, lumbar arthritis, sinusitis and an eye inflammation he noted the plaintiff also had reactive depression.
75. On 18 March 2009, Dr Tablante reported that the plaintiff was still suffering frequent and intermittent migraines and remained under the care of a neurologist, Dr Granot, who reportedly, had unsuccessfully trialled the plaintiff on the medication Topamax for treatment of his migraines. It was noted that the plaintiff was awaiting a further review by Dr Granot at the time of the trial.
76. When Dr Tablante gave oral evidence he was in some personal discomfort due to his own illness. He confirmed that before the plaintiff consulted him on 6 September 2000 in respect of the incident, the plaintiff had not consulted him with respect to any problems with headaches. He confirmed that following the incident in question, the plaintiff showed signs of multiple bruising, he complained of persistent headaches and Dr Tablante had formed the view that the plaintiff had concussion.
77. Dr Tablante was asked to consider the mechanism by which the plaintiff came to be injured and expressed the view that the bruising on the posterior legs was consistent with having been hit from behind by a motor vehicle. He stated that this was a distinguishing feature from his experience of people having been assaulted, as in those cases, the striking was more on the upper body, at the front and on the sides rather than lower down at the lower leg level.
78. Dr Tablante also regarded it to be significant that the bruising on the plaintiff's lower legs extended across both lower legs. When asked to explain bruising to the chest and face Dr Tablante stated that the plaintiff could have fallen forward and hit his head in the incident. He noted that the plaintiff had a lump on the side of the head at the back and stated that because this was in conjunction with bruising to the back of the legs, this was more consistent with having been struck by a vehicle than having been assaulted was a blunt object.
79. Dr Tablante agreed that he regularly provided the plaintiff with certificates of unfitness for work since the time of the incident. This pattern commenced on 6 September 2000 and continued up until the present time. Those certificates were provided to the workers’ compensation insurer certifying the plaintiff as being unfit for work. In cross-examination there was implied criticism for the brevity of his notes but he made it clear that his notes were intended only as an aid to memory rather than as a transcript of consultations.
80. Dr Tablante agreed that in assessing the plaintiff’s truthfulness, he was entirely dependent upon what the plaintiff had told him about the frequency of his migraine attacks. He agreed that when he provided the plaintiff with certificates, he was declaring the plaintiff to be completely unfit to work on those dates. In cross-examination Dr Tablante confirmed that the plaintiff had complained to him that his compensation payments had at times been late. When cross-examined about the plaintiff’s period of employment with Woolworths, it was suggested to him that the plaintiff had been “pulling the wool” over his eyes with regard to his medical fitness and entitlement to receive compensation payments. In response Dr Tablante explained that he had understood that the plaintiff was not actually at work, but was in a training position at that time.
81. Dr Tablante agreed that the plaintiff had been subject to back problems for many years and occasionally walked with a limp because of back problems. He agreed that the problem had been getting progressively worse over the years and extended to problems for the plaintiff with arthritis, difficulty with prolonged standing, lifting, repetitive bending including, on one occasion, bending down to simply pick up a cat.
82. Dr Tablante was asked questions about the plaintiff's report of having been unconscious at the scene of the incident. He stated that he recalled the plaintiff saying he had been knocked unconscious and he had assumed this had been for a matter of only a few minutes. Dr Tablante was asked whether it was unusual that the plaintiff’s headaches had not responded to a whole series of medications. He responded by saying that he thought this was more unfortunate than unusual.
83. Dr Tablante was asked questions about the plaintiff’s weight and related conditions. He agreed that the plaintiff was “a big fellow”. He agreed that a person suffering from Type II diabetes could suffer from lethargy and tiredness. He stated that lifestyle was a contributing factor to hypertension, including a high salt intake diet and a lack of exercise. He agreed that with continued weight gain over time this could lead to a person in the plaintiff’s position suffering incapacitating symptoms.
Dr David Rail – consultant neurologist
84. On 5 October 2000, at the referral of Dr Tablante, the plaintiff was examined by Dr David Rail, a consultant neurologist. Dr Rail took a history of a loss of consciousness for about half an hour with recurrent headaches since that time, typically generalised throbbing and present on most days as distinct from the previous experience of migraines averaging 1 or 2 per year. Dr Rail stated:
“Mr McLennan’s EEG showed some bilateral slowing. He has a tension vascular picture and needs to start some neck and scalp care as indicated in the chart I have given him. I have also given him some Propranolol 40mg b.d. as a prophylactic. I will review in a couple of weeks.”
85. No evidence was called on the diagnostic significance of the EEG findings or of the significance of the tension vascular picture. This is a matter on which speculation is not permitted : Strinic v Singh [2009] NSWCA 15; Sretenovic v Reed [2009] NSWCA 280. The follow-up report was not tendered by either of the parties although there is evidence in the report of Ms Barbuto that a later report from Dr Rail was in the possession of the defendant.
Professor James Lance – consultant neurologist
86. Professor James Lance, a consultant neurologist, treated the plaintiff at the referral of Dr Tablante. Professor Lance has provided a series of 7 reports. These were respectively dated 13 March 2001, 25 June 2001, 13 September 2001, 4 December 2001, 8 March 2002, 2 October 2002 and 7 November 2002. These reports were essentially clinical communications with Dr Tablante with the exception of a short report dated 2 October 2002 to the plaintiff’s solicitor inviting a medico-legal examination.
First consultation with Professor Lance – 12 March 2001
87. At the first consultation with Professor Lance on 12 March 2001, he recorded a past history of the plaintiff having experienced headaches once or twice a year from the age of 16, associated with nausea, photophobia and pins and needles in his left arm, persisting for about 6 to 8 hours.
88. Professor Lance recorded the account related to him by the plaintiff as to the occurrence of the incident. He recorded that the plaintiff did not know whether he had been assaulted or was struck by a car, but he regained awareness after about 40 minutes, feeling confused with bruises on his left hip, knee and ankle as well as his right shoulder and hand, and a lump on the top of the head. He recorded the plaintiff as having told him that at some time he realised his car was in the car park, after which he then sat in the vehicle feeling off-balance. He described having then driven home, arriving there at about 10:00am.
89. At his first consultation with Professor Lance, the plaintiff told him that since his injury he had been subject to 2-3 headaches per week, often waking in the middle of the night or early morning. He described these headaches as being either bilateral or left-sided, associated with nausea, vomiting, sensitivity to light, sounds and smell as well as experiencing blurred vision. He also stated that these headaches were brought on by any concentration such as reading or using a computer. A variety of medications were noted as having been trialled without benefit. Professor Lance prescribed Sibelium, a new medication, and warned the plaintiff about the possibility of weight gain because it was appetite stimulant. At that consultation the plaintiff’s weight was recorded as being 121kgs. He also warned the plaintiff about the possibility of the onset of depression as a side effect of this medication.
90. Professor Lance thought that the plaintiff’s pre-injury experience of migraine headaches was exacerbated to a serious extent by the effects of a head injury sustained on 5 September 2000.
Second consultation with Professor Lance – 21 June 2001
91. On 21 June 2001, Professor Lance examined the plaintiff for a second time. At this consultation Professor Lance was told that the plaintiff’s headaches had not responded to Sibelium and the plaintiff had experienced weight gain, drowsiness and mood swings. Professor Lance suspended the use of this medication on the strength of that history. At that time he recorded the plaintiff’s weight as having increased from 121kgs to 133kgs in a period of three months. The plaintiff’s medication regime was then changed to Epilim and Imigram in an inhaled form.
Third consultation with Professor Lance – 12 September 2001
92. On 12 September 2001, Professor Lance examined the plaintiff for a third time. He noted that the plaintiff was not responding to Epilim. Professor Lance recorded that the plaintiff’s weight had reduced from 133kgs to 123kgs following a strict diet and an increase in exercise. He prescribed the alternative medication of Sandomigran and he arranged to review the plaintiff again in six weeks time
Fourth consultation with Professor Lance – 29 November 2001
93. On 29 November 2001, Professor Lance examined the plaintiff for a fourth time. He noted that Sandomigran had not assisted the frequency of the plaintiff’s experience of headaches which were being experienced at the rate of 1-2 per week. He noted the history that the Imigran spray helped to dull the plaintiff’s experience of headaches sufficiently to help him get to sleep. On this occasion Nardil was also prescribed.
Fifth consultation with Professor Lance – 5 March 2002
94. On 5 March 2002, Professor Lance examined the plaintiff for a fifth time. On this occasion he noted that in the intervening period, the plaintiff‘s weight had reduced from 122kgs to 114kgs, but in the interim had increased again to 120kgs. Professor Lance recorded the plaintiff's history of still having 1-2 headaches per week, but milder on the current medication. The medications were adjusted at this consultation.
Sixth consultation with Professor Lance – 5 November 2002
95. On 5 November 2002, Professor Lance examined the plaintiff for a sixth time. On this occasion the plaintiff’s medications were again adjusted. A history of headaches was five in the 2 week period instead of 7, persisting for about 12-14 hours. The plaintiff’s headaches were described as the left-sided, associated with nausea and accompanied by vomiting if there was movement. Photosensitivity was also noted. Professor Lance described the history of the plaintiff being unable to sustain a full-time job, losing 2 days per week if he attempted to work. He recorded the plaintiff as describing himself as an unreliable worker because of his proneness to headaches. On this occasion, Professor Lance thought the plaintiff’s prognosis for improvement was poor.
96. Earlier, on 2 October 2002, when writing to the plaintiff’s solicitor to enclose copies of reports to the treating general practitioner, Professor Lance responded to a number of questions asked of him by the plaintiff's solicitor. He indicated that he would have to see the plaintiff again in order to assess his employment capacity and prognosis. Professor Lance indicated that he was prepared to provide a full medico-legal report to the plaintiff’s solicitor and he was prepared to see the plaintiff again for this purpose. There is no evidence that this offer from Professor Lance was not taken up. A report in those terms was not tendered in evidence in the proceedings. Subsequently, Professor Lance retired from practice and he therefore no longer provided treatment to the plaintiff.
Dr Ron Granot – consultant neurologist
97. On 30 April 2008, at the referral of Dr Tablante, the plaintiff was examined by Dr Ron Granot, a consultant neurologist, for management of his migraine headaches. Dr Granot elicited a history of post-traumatic amnesia of around 3 hours with an uncertain period of loss of consciousness. Dr Granot reviewed the history of the plaintiff’s symptoms and attempts at treatment, noting that the plaintiff “cycles through a variety of acute migraine treatments” the current one including opioids. He noted that the plaintiff’s medications are useful for several months and then lose efficacy.
98. Dr Granot noted an episode of binocular loss of vision about 2 months before his consultation. He requested a copy of the MRI and ophthalmic report that had been obtained but there is no evidence that he was supplied with that material and the carotid Doppler studies and other material he had requested. In any event, it was not tendered in evidence.
99. In his management plan, Dr Granot stated the plaintiff’s headaches were likely to be migrainous in origin and were clearly exacerbated following the presumed head injury sustained in 2000. He adjusted the plaintiff’s medications and arranged a follow-up consultation in 2 months.
100. On 9 July 2008 Dr Granot saw the plaintiff for a follow-up consultation. He was still awaiting the MRI report in relation to the plaintiff’s episode of loss of vision. Dr Granot made further adjustments to the plaintiff’s anti-migraine medications and arranged a further review after 6 weeks. No further reports were tendered in relation to that or any other review by Dr Granot.
Reports of medical investigations arranged by Dr Tablante
101. The plaintiff underwent a number of medical investigations, both neurological and radiological as arranged by Dr Tablante. Not all of the results of these investigations were tendered or described in evidence.
102. On 5 February 2003, at the request of Dr Tablante, Dr Sing reported on a CT scan taken of the plaintiff’s cervical spine between the levels C3 to T1 and found that no disc protrusion, or a significant central canal stenosis and no other bony abnormality was noted, although there were some degenerative changes described at various levels.
103. On 25 October 2005, at the request of Dr Tablante, Dr Cohen reported on an ultrasound examination of the plaintiff’s right shoulder. No abnormalities were noted on that examination but it was noted that the plaintiff was unable to abduct or rotate the right arm to assess impingement.
104. On 2 February 2007, at the request of Dr Tablante, Dr Jones reported upon a CT brain scan, a CT of the cervical spine and an ultrasound of the right shoulder. There were no brain abnormalities noted and no cause was shown for the plaintiff’s headaches. The neck imaging showed a disc osteophyte complex impinging on the thecal sac on the right of C3/4, possibly involving the existing nerve root. Otherwise, only mild degenerative features were noted at the other levels. The report noted painful right shoulder abduction, limited to 90 degrees but no other abnormalities.
105. On 3 January 2008, at the request of Dr Tablante, Dr Van der Merwe reported on CT scans of the plaintiff’s brain, his lumbosacral spine and paranasal sinuses. No cranial cause was determined for the plaintiff’s headaches. The abnormalities that were noted were described as disc bulging, disc narrowing and facet joint degeneration were variously noted at the levels L2 through to S1. The scan of the sinuses revealed either a maxillary antral mucous retention cyst or a maxillary antral polyp.
Reports obtained by plaintiff’s solicitor
106. The solicitor for the plaintiff obtained medico-legal reports from Dr Conrad, Dr Lorentz and Mr Ellis. These reports were tendered in the plaintiff’s case.
Dr Peter Conrad – consultant surgeon
107. On 3 March 2003, at the request of his solicitor, the plaintiff was examined by Dr Peter Conrad, a consultant surgeon. The report that followed this consultation was dated 6 March 2003.
108. Dr Conrad summarised the history as the plaintiff having been injured in a hit-and-run accident after hearing a car revving up behind him and then hitting him in the railway station car park at about 5:00am on the morning in question. A history of loss of consciousness and subsequent waking in the car park was also noted.
109. Dr Conrad took a history of headaches, blurred vision and dizziness. He recorded that at the time of this consultation, on careful questioning, the plaintiff denied any symptoms in any other part of his body. Dr Conrad expressed a view that the plaintiff sustained a severe concussion with ongoing severe post-concussion syndrome with symptoms and signs of a neck strain. He noted the opinions of Professor Lance and agreed with his opinion that the plaintiff’s prognosis was poor.
Dr Ivan Lorentz – consultant neurologist
110. On 25 January 2005, at the request of his solicitor, the plaintiff was examined by Dr Ivan Lorentz, a consultant neurologist. The report of that consultation was dated 2 February 2005.
111. Dr Lorentz obtained a history from the plaintiff of him having experienced migraine attacks about once a year since childhood, usually accompanied by tingling in the left-hand, visual disturbances, nausea and vomiting, but not requiring time off work.
112. Dr Lorentz recorded a history of the incident whereby the plaintiff was described getting out of his car, locking it, recalling a car revving up behind him, and seing some headlights but having no further recollection until he woke up sometime later to find himself lying down between two cars in the car park, in daylight and feeling confused. He recorded the plaintiff’s account of having recovered his senses after a while, and then driving himself home at about 10:00am and going to bed. Dr Lorentz recorded the plaintiff as having told him he had experienced a bump on the head, injuries to the left ankle, left knee, left side, the shoulders and bruising to the right hip and having a sore neck.
113. Dr Lorentz noted the plaintiff's description of a change in his pattern or headaches since the injury in that beforehand he experienced headaches only infrequently, whereas afterwards the headaches had become frequent and severe, occurring about twice a week at the time of the examination. Two kinds of headaches were noted, one causing waking and intense photophobia with noise intolerance, accompanied by nausea and vomiting. This headache was described as being difficult to settle. The second type of headache was described as starting in the middle of the day and occurring about twice a week, aggravated by exertion.
114. Dr Lorentz noted the plaintiff's complaints of tingling in his fingers, especially in the right hand, neck pain especially on reversing the car, difficulty turning the neck, inability to do strenuous work and even minor tasks around the house. On the occasion of this examination, the plaintiff was noted to have been wearing sunglasses because of an apparent migraine.
115. Dr Lorentz noted that since the injury in September 2000, the plaintiff has been suffering from severe and incapacitating migraine attacks, and on account of this, has been unable to engage in any gainful occupation. He thought it was unlikely that there would be any significant improvement and noted his opinion that the prospect of the plaintiff returning to work was very slim. He thought it was unlikely the plaintiff would become employable in the future, and would require ongoing management and treatment.
Dr Max Ellis – consultant orthopaedic surgeon
116. At the request of his solicitor, the plaintiff was examined on 4 occasions by Dr Max Ellis, a consultant orthopaedic surgeon. The relevant dates were 21 October 2005, 30 January 2007, 26 February 2008 and 13 March 2009. The reports that followed these examinations were respectively dated 26 October 2005, 5 February 2007, 29 February 2008 and 17 March 2009.
117. At his initial consultation, Dr Ellis summarised the history provided by the plaintiff having been injured at about 5:00 in the morning in question at the railway station car park after having heard a car revving up behind him, then being hit by the vehicle. Dr Ellis recorded that the plaintiff believed that he had been “hit purposefully by a local drug syndicate. He was forced by the police with a threat of arrest, to give evidence against the syndicate who had been involved in an armed assault outside of his Hungry Jack's store. He objected to giving evidence because his life had been threatened by the group but was forced to comply by the police and a week later this unexplained attack on his life was made.” If correctly recorded, this could only have been speculation on the plaintiff’s part.
118. In his first report, and within the confines of his specialty, after commenting upon his impression of the plaintiff having suffered a cerebral concussion with resultant severe recurrent migraine headaches, Dr Ellis reviewed the orthopaedic complaints, noting the existence of a prior back injury. He stated that the CT scan revealed the presence of degenerative changes in the cervical spine that had been aggravated. He stated there had been disc prolapse in the mid-cervical discs, bilateral spinal nerve compromise consistent with referred pain and neurological deficit in both arms. Dr Conrad expressed the view that it was unlikely that the plaintiff would return to employment in the future.
119. In his second, third and fourth reports, Dr Ellis updated the previous history and reiterated his earlier opinion that it was unlikely the plaintiff would return to employment in any capacity in the future.
120. Dr Ellis recommended that the plaintiff be assessed by an ENT surgeon. There was no evidence that an assessment of this kind has been carried out and no report was tendered by either party in that regard.
All Parental Care report – Ms Laverack
121. On 14 February 2007 the plaintiff was assessed at the request of the plaintiff’s solicitor by Ms Karen Laverack, a consultant occupational therapist. Her report is of relevance to the plaintiff’s claim for domestic assistance. I will refer to it where relevant to the assessment of that aspect of the plaintiff’s claim for damages.
Reports obtained by workers’ compensation insurer
122. The workers’ compensation insurer for the plaintiff’s pre-injury employer arranged examinations and obtained reports and opinions from Dr Parameswaran, Dr Basser, Dr V Vignaendra and Dr Davies.
Dr Thambipillai Parameswaran – consultant surgeon
123. On 8 January 2001, at the request of the workers’ compensation insurer, the plaintiff was examined by Dr Thambipillai Parameswaran, a consultant orthopaedic surgeon, who issued his report on the same date.
124. Dr Parameswaran obtained from the plaintiff a history of the incident, which was essentially consistent with the earlier descriptions recorded by other practitioners. He examined the plaintiff's neck, right shoulder, left knee and lower back expressed the opinion that all of these areas were normal to his examination. Dr Parameswaran considered the history of soft tissue injuries to the left ankle, left knee, ankle and right shoulder, as being consistent with the circumstances described. Dr Parameswaran offered no comment on the plaintiff’s complaints of migraine. In his opinion, the plaintiff had made a complete recovery from the physical soft tissue injuries that he sustained in the incident.
Dr LS Basser – consultant neurologist
125. On 15 February 2001, at the request of the workers’ compensation insurer, the plaintiff was examined by Dr LS Basser, a consultant neurologist. His report of that consultation was dated 19 February 2001. After reviewing the history and setting out his findings on examination he stated his diagnosis, which was of migraine, made much worse since the incident.
Dr V Vignaendra – consultant neurologist
126. On 19 February 2002, and again on 6 August 2002, at the request of the workers’ compensation insurer, the plaintiff was seen by Dr V Vignaendra, a consultant neurologist. The reports that followed these examinations were issued on the same dates as the examinations.
127. In his first report, Dr Vignaendra obtained a history from the plaintiff as to the occurrence of the incident, which was largely consistent with earlier descriptions recorded by other practitioners. He recorded a history of the plaintiff’s experience of continuing to suffer from severe headaches at least 3 times per week, with a maximum headache free period of about 6 days. His summary of the plaintiff’s history included a description of physical exertion, aggravating ongoing migraine type headaches thus causing the plaintiff to avoid strenuous physical activity so as not to precipitate such headaches. He also noted that computer use tended to precipitate migraine type headaches. He also noted a complaint by the plaintiff of impairment of short-term memory. He also noted that the plaintiff’s severe headaches were affecting his concentration.
128. Dr Vignaendra made a diagnosis of post-traumatic headaches with features of post-traumatic migraine. He also noted a complaint of impairment of the plaintiff’s short-term memory and his experience of intermittent dizziness as being part of the symptoms of a head injury. He attributed these problems to the injury in question. He suggested that any return to work on suitable restricted duties should be supervised by an occupational rehabilitation provider. He noted that the prognosis for recovery from post-traumatic headaches was variable, and could take months to years to resolve. He had the expectation of ultimate recovery. He added that the plaintiff’s symptoms were real and were well-known complications of head trauma, one of the major residual symptoms being intractable headaches.
129. In his second report, Dr Vignaendra confirmed the earlier history he obtained from the plaintiff and noted that treatment was still being received from Professor Lance. In his second report Dr Vignaendra reiterated his earlier diagnosis of the plaintiff’s headaches as being compatible with post-traumatic migraine type headaches. He thought it would be therapeutic for the plaintiff to return to a desk job in a managerial position within a range of nominated positions he thought would be suitable. He noted that most people manage to remain in the work force despite migraine attacks. He noted that the plaintiff may have unpredictable headaches which were noted to be severe. He also noted that post-traumatic headaches can take a long time to settle, that is, months or years. He thought that as at 6 August 2002, the plaintiff had not yet reached his point of maximal medical improvement.
Dr Michael Davies – consultant neurosurgeon
130. On 30 January 2004, at the request of the workers’ compensation insurer, the plaintiff was examined by Dr Michael Davies, consultant neurosurgeon, who issued his report on the same date.
131. Dr Davies recorded a history of the incident which was essentially consistent with that recorded by other practitioners. The focus of the examination by Dr Davies was an examination of the neurological consequences of the plaintiff’s head injury.
132. Dr Davies obtained a history of the plaintiff having experienced a “blinding headache” following the incident and having to lay down. He reviewed the treatment provided by Professor Lance. He recorded a history of the plaintiff’s experience of headaches once or twice per week lasting anything from 2 days to 3 weeks, affecting the left side of his head and extending down the left side of his neck, with a burning sensation in the centre of the neck at the base, posteriorly. Dr Davies also recorded a history of the plaintiff being limited in his capacity to read much or to use a computer for any length of time, because these activities would precipitate a headache. He recorded 6 types of named medication currently being prescribed for the plaintiff.
133. Dr Davies stated that he thought the plaintiff appeared to have had soft tissue injuries affecting multiple parts of his body but that these problems had since resolved, leaving him with troubling ongoing left sided headaches with radiation to the neck, these being symptoms consistent with post-traumatic migraine. Dr Davies noted that the plaintiff wore dark glasses virtually all of the time because of difficulty being in bright lights. Dr Davies noted that there were “no hard neurological findings” at the time of this examination, but he acknowledged that this was not unusual in the case of someone reporting post-traumatic headaches. He noted a degree of unresolved anger about the plaintiff’s presentation and recommended counselling and pain management.
134. Dr Davies also noted some worsening of the plaintiffs pre-existing back problems resulting from a reduced level of activity due to his migraines. Dr Davies thought that the diagnosis of post-traumatic headaches, probably migrainous in nature, was consistent with the history given, as it was unusual for the symptoms to continue for so long without real improvement. He suspected there may be some ongoing psychological factors such as unresolved anger contributing to the persistent symptoms. He recommended continued care by a neurologist and he also recommended a psychological assessment.
Reports obtained by the Motor Accidents Authority
135. The Motor Accidents Authority arranged to have the plaintiff medically assessed by Dr Fitzsimons, Dr Ayscough and Dr McKenna. The reports that followed these assessments were tendered by the defendant.
Dr Robin Fitzsimons – consultant neurologist
136. On 28 August 2003, at the request of the Motor Accidents Authority, the plaintiff was examined by Dr Robin Fitzsimons, a consultant neurologist. Her report that followed this consultation was dated 6 September 2003. Dr Fitzsimons was asked to determine the manifestations in the plaintiff of the complaint of a head injury. She obtained a history of the incident which was generally consistent with the earlier descriptions given by the plaintiff. She noted that the plaintiff had been treated for migraines by Professor Lance and Dr Zagani. There were no reports tendered in the proceedings from Dr Zagani. Dr Fitzsimons found no evidence of cognitive abnormality in the plaintiff. She expressed the opinion that the incident had activated a latent migraine diathesis (predisposition) for this in the plaintiff. She also thought that the pre-existing asymptomatic degenerative changes in the plaintiff’s neck at C3/4, which were aggravated by the injury and rendered symptomatic, may also have been a contributing factor to the plaintiff’s headaches, which she thought may well be referred as headache symptoms.
Dr Rodney Ayscough – consultant musculo-skeletal specialist
137. On 12 September 2003, at the request of the Motor Accidents Authority, the plaintiff was examined by Dr Rodney Ayscough, a consultant musculoskeletal specialist, who issued his report on the same date. Dr Ayscough focused upon an examination of the soft tissue injuries to the plaintiff’s left ankle, left knee, right hip, left hip, right shoulder and neck. His examination revealed that the plaintiff had no current complaints in the areas to be assessed as these problems had resolved completely at the time of the assessment. Dr Ayscough noted the presence of ongoing migraines but this was outside the terms of his examination.
Dr Clive McKenna – consultant musculoskeletal specialist
138. On 1 November 2006, at the request of the Motor Accidents Authority, the plaintiff was examined by Dr Clive McKenna, a consultant musculoskeletal specialist. His report which followed that examination was dated 16 November 2006. Dr McKenna was asked to report upon the plaintiff’s physical injuries. Dr McKenna obtained a history from the plaintiff of having current symptoms of moderate burning type pain in the neck and right shoulder, severe occipital headaches, difficulty sleeping on the right shoulder, with symptoms being aggravated by movement. His diagnosis was of soft tissue injury to the cervical spine and right shoulder and neurapraxia of the greater occipital nerve on the left side. He thought this was consistent with the presentation and noted that whilst some improvement may occur, the condition has stabilized.
Reports obtained by solicitor for defendant
139. The defendant tendered reports from Dr O'Neill, Dr Maguire, Dr Delaney, Dr Cromer, Professor O'Rourke, Associate Professor Spira and Ms Barbuto.
Dr John O’Neill – consultant neurologist
140. On 20 January 2003, at the request of the solicitor for the defendant, the plaintiff was examined by Dr John O’Neill, a consultant neurologist. Dr O’Neill’s report was issued on the same day as the examination.
141. After reviewing the events of the incident, which were summarised in a similar way to other accounts in the medical evidence, Dr O’Neill quoted the plaintiff as saying “I still cannot be sure what happened; whether I was hit by a car”. Dr O’Neill obtained a history from the plaintiff of persisting headaches since the incident, against a background of proneness to migraine before the incident. In this regard he recorded the plaintiff as having stated that “I’d (sic) lucky I got one a year”. After his review of the history Dr O’Neill concluded his report as follows:
“ CONCLUSIONS: It is unclear as to what took place in the incident in the car park on 5.9.2000. Mr. McLennan may have been hit by a vehicle or he may have fallen. In any case it would seem he sustained a mild closed head injury which, in my view, would not be expected to result in any subsequent medical problem.
Prior to the incident of 5.9.2000 he was prone to rare episodic headaches which would fit with a diagnosis of migraine. These would settle quickly with analgesic medication.
Since the incident of 5.9.2000 he has been prone to frequent episodic headache of varying quality and I would be loath to attribute these simply to migraine. There is a tension-type quality to some of the headaches. Mr. McLennan certainly has moderately severe untreated hypertension. It is possible he is prone to obstructive sleep apnoea.
Even if one were to accept that current headaches might be classified as migraine, I would not attribute any aggravation of the minor closed head injury of 5.9.2000 but rather to the untreated hypertension and possibility of concomitant obstructive sleep apnoea. If fact, following my consultation today I told Mr. McLennan to go straight to Dr. Tablante with a note to state that he should undergo urgent investigation and treatment for hypertension.
1) It is unclear whether or not there was a motor vehicle accident on 5.9.2000.To more specifically answer some of your queries:
2) Any injuries which arose at the time of the incident of 5.9.2000 have stabilised and I am not convinced any permanent impairment arose from the incident.
3) Mr. McLennan certainly needs investigation and treatment for hypertension which might be aggravating pre-existing migraine and he should undergo investigation to exclude the possibility that he might have obstructive sleep apnoea which may be aggravating pre-existing migraine.
4) Because of the medical condition of episodic headache, it would seem he is currently unfit to return to reliable employment. I believe this will be a temporary situation.”
142. Dr O’Neill reviewed the plaintiff again on 5 July 2005, along with some correspondence that had been sent to him by the solicitor for the defendant. He noted the history of the plaintiff having ceased taking all specific anti-migraine preparations as they had not proven to be of any benefit to him. Dr O’Neill made an observation of hypertension and gave the plaintiff a note to take to his general practitioner. At this review Dr O’Neill stated that he had no cause to change what he set out in his original report dated 21 January 2003.
Dr James Maguire – consultant psychiatrist
143. On 20 July 2005, at the request of the solicitor for the defendant, the plaintiff was examined by Dr James Maguire, a consultant psychiatrist. Dr Maguire’s report was issued on the same day as his examination of the plaintiff. The report of Dr Maguire acknowledged receipt of material which was not otherwise tendered in evidence and which was not attached to his report. The material in question was a document dated 12 April 2002 from Work Directions, a document dated 19 February 2001 from Dr L Basser and two documents from Dr L Rail respectively dated 5 February 2001 and 26 February 2001.
144. After reviewing the plaintiff’s history, and after reviewing the material that had been provided to him, Dr Maguire expressed the opinion that there was nothing to suggest that the plaintiff had developed any recognized psychiatric disorder or any theoretical “psychological shock”. Dr Maguire gave consideration to the plaintiff’s history of poor memory and difficulty with concentration, and concluded that the overall history did not suggest that the plaintiff had developed any cognitive deficits as a result of the blow he had received to his head. He qualified that statement by suggesting that any possible genuine organically based cognitive deficits should be addressed by arranging psychometric assessment with an experienced neuropsychologist and possibly, a subsequent MRI scan.
509. I consider that there is some force in the defendant’s submission concerning inclusion in the mix of tasks involving the provision of assistance, namely, activities such as housework as well as outdoor tasks needs to be accommodated as there is some force in that submission. For example, the plaintiff has conceded that he attends to lawn mowing and car maintenance activities. I infer from these matters that he is also capable of carrying out aspects of his allotted share of housework and any required outdoor tasks. There are matters that call for a discounting of the claim for the value of the care provided.
510. I therefore conclude that Ms Laverack’s estimate represents an overstatement. I therefore do not accept her estimate in respect of the period to 17 April 2007, as her report does not provide the means by which to discern, other than by impermissible guesswork, the extent to which the 10 hours per week she had put forward, should be reasonably trimmed back.
511. Further, her report does not provide a reasonable means for determining if, once the argued allowance of 10 hours per week is trimmed back to a more realistic estimate, the remaining analysed hours exceed the statutory threshold of 6 hours per week. For quantification purposes, proof of this component of the claim is mandatory and resolution of the issue merely by speculation or inference without specific supporting evidence is impermissible.
512. Whilst the process of inference can in some cases be employed to guard against injustice where to award nothing for such services would be unfair to the injured person, in the context of the policy behind the legislative framework in which this case has to be assessed, that framework requires that the plaintiff has to discharge the onus of proof for an award of damages of this kind. Without specific evidence on the issue to enable an assessment, it is not for the court to engage in unwarranted speculation as to whether or not the statutory threshold required by s 128 of the Act has been met : Luxton v Vines [1952] HCA 19 at [8]; (1952) 85 CLR 352 at p 358.
513. In her report dated 27 June 2007 Ms Barbuto argues that the plaintiff’s need for care, both past and future, amounts to about 1.5 hours per week. Accordingly, this report is of no assistance to the plaintiff in seeking to discharge the onus of proof of a claim for 6 hours or more of care per week.
514. This review of the evidence in support of the claim for past domestic assistance reveals there are difficulties of proof that lie in the path of this claim.
515. This analysis leads me to conclude that in respect of the period between the date of his injury on 5 September 2000 and 26 October 2005 which was the date on which Dr Ellis provided his first opinion, the plaintiff has failed to provide the requisite proof of his claim that, as a result of the effects of his injuries, he required domestic care services for 6 hours per week for more than 6 months.
516. Whilst I accept that the plaintiff has periodically suffered from debilitating headaches in that period, I see no satisfactory evidence that establishes that he had in fact received domestic assistance of the level required by s 128(3) of the MAC Act before 26 October 2005, which was the time when Dr Ellis first gave consideration to the problem at his first consultation with the plaintiff. On the state of the evidence in this case I do not consider it appropriate to apply the opinion of Dr Ellis retrospectively when the tasks for assistance are not defined in his report.
517. In some cases, in the absence of direct proof, this type of evidentiary difficulty may be overcome by drawing appropriate inferences from the evidence of the party receiving the assistance, as well as from witnesses who have provided assistance, even though the precise number of hours involved have not been recorded and cannot be counted.
518. However, in this case, in the light of the credit findings I have made concerning the reliability of the evidence of the plaintiff, and having regard to my analysis of the evidence given by his wife as to the extent to which it has been proven that past domestic care services were provided, I do not consider this to be a case where it is appropriate to draw such inferences. Accordingly, in respect of the period between 6 September 2000 and 26 October 2005, I find that the plaintiff has failed to discharge the evidentiary onus of satisfying the requirements of s 128(3) of the MAC Act for proof of that component of his claim.
519. In respect of the period from 26 October 2005 until the commencement of the trial, on the basis of the assessment and opinion of Dr Ellis, which was to a degree approved in principle by Associate Professor Spira, and on the basis of a downward adjustment of the estimate by Ms Laverack of the number of hours per week required by the plaintiff as a result of his injury based on the domestic assistance, I find that the plaintiff is entitled to damages for past domestic assistance provided to him by members of his family, predominantly his wife, at the rate of 6 hours per week. I have arrived at that downward adjustment as a result of a broad assessment of the opinion of Dr Ellis in conjunction with a cautious consideration of the tasks described by the plaintiff, his wife and Ms Laverack.
520. In arriving at this conclusion I have not ignored the opinion of Dr Ellis to the effect that after his second report he increased his recommendation from 6 hours per week to 8 hours per week. I have discounted that 8 hour estimate to 6 hours per week to reflect the fact that Dr Ellis has in part based his opinion on the statements made to him by the plaintiff. I consider that in view of the need to be cautious in accepting the evidence of the plaintiff and his wife as to the assistance tasks described by them, the estimate given by Dr Ellis should be discounted from 8 hours per week to 6 hours per week consistent with a conservative approach that is fair to both the plaintiff and the defendant.
521. The calculation required by s 128(4) of the MAC Act for 6 hours per week is set out in the tabulation comprising the Appendix to these reasons. The amount revealed by that tabulation is $24,230. I therefore assess the plaintiff’s entitlement to damages for past domestic assistance in the amount of $24,230.
Future domestic assistance
522. Consistent with my findings in respect of the plaintiff’s entitlement to damages for past domestic assistance, I am satisfied that since 26 October 2005, the plaintiff’s need for past assistance has continued until the present time, such that an assessment of the plaintiff’s future need for such domestic assistance is required.
523. On the basis of my already outlined analysis of the expert evidence on domestic assistance issues, I am satisfied that the plaintiff’s need for such services will continue indefinitely in respect of his migraine headaches and associated problems. This finding requires some qualification because of the plaintiff’s long-standing pre-existing chronic back condition. That is a matter that should be accommodated by a future discount on account of adverse vicissitudes.
524. The plaintiff’s primary submission is for a claim for 15 hours of domestic assistance per week at a cost of about $23 per hour or $345 per week, projected over a claimed lifespan of 31 years on the 5 per cent tables (x 883.8) which yields the amount of $287,661. That calculation is based on an averaged s 128 hourly rate, and from that point of view, could be seen to be a conservative method of costing.
525. Although the plaintiff makes an alternative claim based on the commercial rates identified by APC, namely, $44 per hour, I consider the rate applicable under s 128 of the MAC Act to be appropriate in this case because the care in question is of an intermittent non-commercial nature provided by family members. The current s 128(4) rate is $23.48 per hour.
526. The evidentiary basis upon which these claims are advanced is said to be the failure of the plaintiff’s condition to ameliorate, despite numerous modalities of treatment, including by Professor Lance, over the 8 years since the date of injury.
527. I have already rejected the claim for 10 – 15 hours per week in respect of the claim for past care. I do not see any sound reason in the evidence for departing from the allowance of 6 hours per week in assessing the cost of the plaintiff’s future care needs. I consider this allowance is justified by the plaintiff’s ongoing frequent an debilitating headaches. There is no evidence that the required level of care or assistance will increase.
528. For the reasons I have outlined in respect of my analysis of the claim for past domestic care, I do not accept the estimate of the plaintiff concerning his need for future domestic care. The basis for this conclusion are the antecedent findings as to credit that I have already recorded. Similarly, for the reasons I have already outlined in respect of the claim for past domestic care, I consider that the undifferentiated description by Mrs McLennan, concerning the plaintiff’s needs for domestic care cannot be accepted at face value because that claim has inter-mingled within it, items of claim that are not recoverable for the reasons already stated in the analysis of the claim for past care.
529. In weighing the appropriate allowance of hours for future domestic assistance I have had regard to the opinion of Ms Barbuto who has suggested the provision of 1.25 hours per week of care for dishwashing, bringing clothes in from the clothesline at times when the plaintiff feels unwell. In my view that report provides an unacceptable estimate of the plaintiff’s needs. I take this view for a number of reasons.
530. First, the estimate of 1.25 hours per week is well below what Dr Ellis considers to be reasonable. Secondly, I consider the medical views of Dr Ellis, as adjusted to 6 hours per week, to be more informative than the occupational therapy views of Ms Barbuto. Thirdly, I consider that Ms Barbuto’s views have been unduly influenced by pejorative matters she has selectively cited from the plaintiff’s medical records and as such, I consider that her opinion is adversely affected by unfairly stated credit based conclusions which the plaintiff had no opportunity to deal with. A prime example of this issue is Ms Barbuto’s attempt to highlight her views on inconsistencies in the historical data. One such matter was the irrelevant reference to the opinion of a decades old innuendo from the plaintiff’s military file suggesting that on a particular occasion it was thought he might have been “swinging the lead” when in fact he had quite a serious back injury : Mason v Demasi; Container Terminals Australia Ltd v Huseyin. Fourthly, I consider Ms Barbuto’s estimate of the plaintiff’s need for domestic assistance to be manifestly inadequate having regard to the tasks she described in her allowance, whilst at the same time not providing a balanced discussion as to why she made no time allowances for the matters claimed by the plaintiff to base a need for assistance.
531. For the foregoing reasons, I reject the opinions of Ms Barbuto in this case as having no probative value to the issue calling for decision.
532. Accordingly, based on the opinion of Dr Ellis and aspects of the opinion of Ms Laverack, as well as aspects of the evidence of the plaintiff, I consider that the proper amount for damages for future domestic assistance to be an indefinite allowance of 6 hours per week over the remainder of the plaintiff’s probable life span, at the rate of $23.48 per hour, which on the 5 per cent multiplier tables (x 737.8), yields an amount of $103,941.
533. I consider that this amount has to be discounted on account of the plaintiff’s chronic pre-existing back condition. There are some competing considerations that need to be weighed in this regard.
534. On the one hand the plaintiff had a chronic back condition that has limited and will continue to limit his activities. The inference is open that as he ages, the restrictions caused by his back condition will not lessen, but rather, will increase, thereby further limiting his ability to undertake physically active tasks around the home, including aspects of self care.
535. On the other hand, the injury in question has caused the plaintiff to become more sedentary, put on more weight and thereby contribute to his back problem. In that sense, the effects of the injury, being a material contributing cause of ongoing back pain, arguably, should not mandate a discount on future damages. I consider that position to be unrealistic as the plaintiff had a serious pre-existing back problem which had the ever-present potential to cause him to suffer significant problems, including in association with activity.
536. Having regard to the plaintiff’s pre-existing back condition, which undoubtedly affects his ability to perform a full range of physically dextrous activities and duties, and given the obvious difficulty in seeking an accurate differentiation of the injury related need for domestic assistance, as distinct from the pre-existing incapacity and the potential for that pre-existing capacity to either intermittently restrict or to progressively further restrict the plaintiff’s domestic activities, I consider that a greater than usual discount for possible adverse vicissitudes is required.
537. In these circumstances, I consider the appropriate discount on account of possible adverse vicissitudes to be a factor of 25 per cent. Accordingly, applying a discount of 25 per cent to the sum of $103,941, this yields the amount of $77,955. I therefore assess the plaintiff’s claim for damages for future domestic assistance in the sum of $77,955.
Future out-of-pocket expenses
538. The plaintiff makes a claim of $3000 per annum to cover the cost of future out-of-pocket expenses for his probable future treatment needs over the remainder of his probable life span. The submitted projection of this sum over the plaintiff’s remaining lifespan is the equivalent to the amount of $48,103.
539. The sum of $3000 per annum is the equivalent of $57.69 per week. The projection of $57.69 per week at 5 per cent over 24 years (x 737.8) yields the adjusted submission of the plaintiff for future-out-of-pocket expenses to be in the amount of $42,563.
540. The plaintiff submitted that the amount claimed is justified based on the following components from within the evidence of Dr Lorentz:
(a) General practitioner consultations /assessments every two months at $50 per visit. This is the equivalent of $300 per annum;
(b) Neurological assessments twice a year at $200 per assessment. This is the equivalent of $400 per annum;
(c) Medications at $28 per month. This is the equivalent of $336 per annum;
(e) The total of these amounts is in the range $2836 to $3436 per annum or between $54.53 per week to $66.07 per week.(d) Botulinum toxin treatment 3-4 times per annum at $600 per treatment. This is the equivalent of between $1800 and $2400 per annum;
541. This foregoing analysis is broadly equivalent to $3000 per annum. The plaintiff points to the 7 March 2009 report of Dr Ellis who has estimated the plaintiff’s ongoing treatment costs to be approximately $3000 per annum. It has also been submitted that the report of Dr Maguire suggests the need for counselling for depression to assist with adjustment to the disability of his headaches : Exhibit “10”. The plaintiff submits that an additional allowance should be made on account of this factor. This seems a reasonable approach since Dr Tablante’s letter of 30 March 2008 to Dr Granot indicated the plaintiff was suffering from reactive depression, as did his letter dated 8 February 2007, indicating the plaintiff’s problem with depression was not an isolated event: Exhibit “Y” and Exhibit “A”, page 7.
542. The defendant has submitted that the plaintiff should not receive an award for future treatment expenses as the plaintiff claims to have derived no benefit from such treatment. The defendant also points to the fact that the plaintiff has an ongoing entitlement to have his treatment expenses met by virtue of his workers’ compensation claim : s 60A of the Workers’ Compensation Act 1987. The defendant also points to the fact that the actual cost of the plaintiff’s treatment to date has been significantly less than the claimed $3000 per annum.
543. I consider the defendant’s submission on the issue of future treatment expenses to be flawed for several reasons.
544. First, the fact that the plaintiff has not derived much benefit from past attempts at treatment is not to the point. The question for analysis is the extent and likely cost of the plaintiff’s reasonable need for treatment. The answer to that question is to be found in the analysis of the medical evidence, in conjunction with the plaintiff’s duty to mitigate by seeking treatment. In my view this provides the justification for an award of damages to meet the cost of such treatment.
545. Secondly, the submission to the effect that the plaintiff has workers’ compensation rights, including the right to have his reasonable treatment expenses met, does not enable a third party tortfeasor to escape liability for damages. Section 60A of the WC Act does not in my view exclude such sums for a damages award under the MAC Act.
546. Thirdly, I consider that when assessing an entitlement to damages for future treatment it is inappropriate to make a comparison between the recommended costs for future treatment and the extent of treatment received to date. These are entirely separate questions and the first does not properly provide the basis for estimating the plaintiff’s future need and entitlement for treatment. The comparison the defendant sought to make is not equivalent. The issue under consideration here is the reasonable and probable cost of the plaintiff’s future treatment needs, not an assessment of what those treatment needs should be, based on the cost of any past incidence of treatment actually provided.
547. The defendant has submitted that a general lump sum allowance of $5000 should be adequate compensation for the plaintiff’s future treatment needs. I regard that sum as being manifestly inadequate having regard to the opinions on future treatment needs as expressed by Dr Lorentz, Dr Ellis and Dr Maguire, whom I accept.
548. I consider the combined formulations by Dr Lorentz, Dr Ellis and Dr Maguire to be generally reasonable, with one exception.
549. The plaintiff makes a claim for the cost of Botulinum toxin treatment of migraines by injection as was suggested by Dr Lorentz. Without intending any criticism whatsoever of Dr Lorentz, the plaintiff has left the evidence on this issue in an entirely speculative state. Dr Lorentz put the suggestion for this treatment forward on the basis that “there is some evidence” it “may be beneficial”. Dr Lorentz stated that the plaintiff “may have to undergo special treatment for his headaches”. Again, without criticism of Dr Lorentz, this evidence does not satisfy the requisite test for proof of the need for such expenditure. Dr Lorentz indicated the cost of such treatment would be about $2400 per annum. This is the equivalent of $46.15 per week or the projected amount of $33,311. Since the recommendation by Dr Lorentz for Botulinum injection treatment was not followed up by further written or oral evidence to explain or justify the amount claimed, as it easily could have been, on the state in which the evidence has been left I do not accept that component of the claim.
550. On this analysis I consider that the appropriate sum to be allowed for the plaintiff’s reasonable future treatment needs should be an amount of $19.92 per week. The projection of $19.92 per week at 5 per cent over 24 years (x 737.8) yields an amount of $14,696. To this sum I add an allowance of $6000 for the arthroscopic subacromial decompressive acromioplasty procedure which Dr Ellis stated was likely to be required because of the evidence of traumatic capsulitis affecting the plaintiff’s right shoulder. I therefore assess the plaintiff’s entitlement to damages for future out-of-pocket expenses in the sum of $20,696.
Past out-of-pocket expenses
551. The plaintiff makes a claim for out-of-pocket expenses in the amount of $11,223.80.
552. These claimed expenses are documented and have already been paid by the workers’ compensation insurer and by Medicare. The defendant agrees with the arithmetic total of these claimed expenses but does not concede that the claimed expenses have been reasonably incurred as a consequence of any injuries for which the plaintiff claims. Alternatively, the defendant conceded that any award for out-of-pocket expenses should be limited to $617.70 which related to the time the plaintiff started his stint of work with Woolworths in the months following his injury.
553. The plaintiff submits that the reasoning behind the defendant’s stance concerning the documented expenses is difficult to discern as the defendant has called no evidence concerning challenges to specific items of the claimed expenditure that would provide a rational basis for disputing particular items of the plaintiff’s claim for out-of-pocket expenses. However, that is not the test. It is for the plaintiff to prove the quantum of his claim.
554. In this regard, the plaintiff points to the evidence of Associate Professor Spira acknowledging that the treatment the plaintiff has received seems to have been reasonable. I infer from that evidence, and the fact that payments have been made by authorities that are accountable for their expenses, namely a workers’ compensation insurer and Medicare, that the amounts claimed have been netted before payment and assessed as having been properly incurred. I therefore accept the plaintiff’s submission on the claim for out-of-pocket-expenses paid by the workers’ compensation insurer and by Medicare, subject to an adjustment to deduct an identified amount of $210, in respect of a non-attendance fee at a medical examination. This reveals a reduced amount of $11,183.92.
555. In addition to this amount, the plaintiff makes a claim for the cost of pharmaceutical expenses he has incurred over the years. This component of the claim is undocumented. That of itself is not necessarily a bar to a claim of this nature being made. However, the state in which the evidence has been left does not enable me to reasonably determine whether the plaintiff has actually incurred such additional amounts. The evidence does not disclose whether the plaintiff claims for gap payments for pharmaceutical costs not paid by an insurer, or for amounts not covered by a pharmaceutical safety net scheme.
556. In some cases evidence is called identifying the nature of such additional expenditure in order to reasonably base an estimate of the probable cost of such items. In this case the plaintiff seeks an inference in order to base an estimate. In view of the credit findings I have made, without some form of reliable corroborative evidence, that is other than from the plaintiff or Mrs McLennan, from which I could reasonably draw the inference sought, I am not prepared to accept this additional aspect of the plaintiff’s claim.
557. I therefore assess the plaintiff’s claim for out-of-pocket expenses in the sum of $11,183.92.
Summary of damages assessment
558. My assessment of the plaintiff’s entitlement to damages is summarised as follows:
(a) Past loss of earnings (b) Fox v Wood (c) Future loss of earning capacity (d) Past loss of superannuation benefits (e) Future loss of superannuation benefits (f) Past domestic assistance (g) Future domestic assistance (h) Future out-of-pocket expenses (i) Past out-of-pocket expenses
Total
H. DISPOSITION AND ORDERS
Disposition
559. I have determined the contentious liability issues in the plaintiff’s favour. I have assessed the plaintiff’s entitlement to damages in the sum of $643,607. The plaintiff is entitled to a verdict and judgment in his favour in the assessed amount, together with an order for costs
Orders
560. I make the following orders:
(a) Verdict and judgment for the plaintiff in the sum of $643,607;
(b) The defendant is to pay the plaintiff’s costs on the ordinary basis unless otherwise ordered;
(d) Liberty to apply on 7 days notice if further orders are required.(c) The exhibits may be returned;
APPENDIX
PERIOD WEEKS WEEKLY
s.128(4)
RATEHOURLY
s.128(4)
RATE1. 26.10.2005 to 18.11.2005 03.28 $874.60 $21.87 2. 19.11.2005 to 17.02.2006 12.85 $878.10 $21.95 3. 18.02.2006 to 19.05.2006 12.85 $868.90 $21.72 4. 20.05.2006 to 18.08.2006 12.85 $884.00 $22.10 5. 19.08.2006 to 17.11.2006 12.85 $892.30 $22.31 6. 18.11.2006 to 17.02.2007 13.00 $916.10 $22.90 7. 18.02.2007 to 18.05.2007 12.71 $918.90 $22.97 8. 19.05.2007 to 17.08.2007 12.85 $929.70 $23.24 9. 18.08.2007 to 16.11.2007 12.85 $929.30 $23.23 10. 17.11.2007 to 15.02.2008 12.85 $937.80 $23.45 11. 16.02.2008 to 16.05.2008 12.71 $921.60 $23.04 12. 17.05.2008 to 15.08.2008 12.85 $933.50 $23.34 13. 16.08.2008 to 21.11.2008 13.85 $938.50 $23.46 14. 22.11.2008 to 20.02.2009 12.85 $946.40 $23.66 15. 21.02.2009 to 30.03.2009 05.28 $939.00 $23.48
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9
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