Miszkurka v Kidd

[2017] NSWDC 177

District Court

New South Wales

Medium Neutral Citation:	Miszkurka v Kidd [2017] NSWDC 177
Hearing dates:	14 and 15 June 2017
Date of orders:	07 July 2017
Decision date:	07 July 2017
Jurisdiction:	Civil
Before:	Wilson SC DCJ
Decision:	1. Judgment for the plaintiff in the sum of $398,517.00; 2. The defendant to pay the plaintiff’s costs; 3. Liberty to apply within 14 days to vary the cost order, if necessary; 4. Exhibits to be returned forthwith.
Catchwords:	MOTOR VEHICLE ACCIDENT – ASSESSMENT OF DAMAGES
Cases Cited:	Metaxoulis v McDonalds Australia Limited [2015] NSWCA 95 (13 April 2015) Sampco Pty Limited v Wurth [2015] NSWCA 117
Category:	Principal judgment
Parties:	Waldemar Miszkurka (Plaintiff) Alexander Thomas Kidd (Defendant)
Representation:	Counsel: Mr J Turnbull SC with Mr M Sciglitano (Plaintiff) Mr A Renshaw (Defendant)   Solicitors: Mr L Hagipantelis, Brydens Compensation Lawyers (Plaintiff) Mr P Hunt, Curwoods Lawyers (Defendant)
File Number(s):	2013/147269
Publication restriction:	None

Judgment

Introduction

The Dispute

Evidence of the Plaintiff

Mariola Solis

The Medical Evidence

The Plaintiff’s Medical Evidence

Defendant’s Medical Evidence

Assessment of Damages

Non Economic Loss

Past Out of Pocket Expenses

Future Out of Pocket Expenses

Past Economic Loss

Future Economic Loss

Past Domestic Assistance

Future Domestic Assistance

Summary of Assessment of Damages

ORDERS

Judgment

introduction

1. The plaintiff brings a claim for damages in respect of personal injuries suffered in a motor vehicle accident which occurred on 2 March 2008 at approximately 6.15pm.

2. There was no issue about the defendant’s liability to the plaintiff and the matter came before the Court for the assessment of damages.

3. Relying upon a Third Further Amended Statement of Particulars filed 9 June 2017, the plaintiff claimed damages under the following heads of damage:

1. non-economic loss;

2. past treatment expenses;

3. future treatment expenses;

4. past economic loss;

5. past loss of superannuation;

6. future economic loss;

7. future loss of superannuation;

8. past domestic assistance;

9. future domestic assistance.

4. The only item agreed between the parties was past out of pocket expenses, in the sum of $2,017.00.

The Dispute

5. The principal basis for the dispute between the parties related to the plaintiff’s pre-accident medical condition and earning capacity.

6. There were several pre-accident injuries which are detailed below. At the time of the subject accident, the plaintiff was in receipt of a disability and support pension and had been for about six years.

7. Accordingly, the questions for determination include:

1. whether the plaintiff was injured as a consequence of the subject accident;

2. whether those injuries gave rise to ongoing disabilities;

3. the plaintiff’s earning capacity at the time of the subject accident;

4. whether the plaintiff’s earning capacity was affected by the subject accident which involves consideration of:

1. whether there is a physical incapacity caused by the accident;

2. whether, on the balance of probabilities, that incapacity is likely to be productive of economic loss;

3. the value to be ascribed to that loss of capacity;

4. whether the plaintiff has a reasonable need for domestic assistance arising from the subject accident;

5. if so, the extent to which that should be discounted by reason of pre-existing conditions.

8. Evidence was given by the plaintiff and his cousin, Mariola Solis.

9. In addition, the plaintiff relied upon a tender bundle, including medical reports (Exhibit B). Similarly, the defendant relied upon medical expert evidence (Exhibit 1). None of the medical experts were required for cross-examination.

Evidence of the plaintiff

10. Prior to the commencement of the hearing, a Chronology was prepared. The Court was informed that the plaintiff had read and adopted the contents of the Chronology and it became Exhibit A in the proceedings.

11. The plaintiff was born in Poland in 1959 and at the time of hearing was 49 years of age. He migrated to Australia in May 1982.

12. After completing school in 1974, the plaintiff commenced the study of painting and obtained a diploma in painting at a secondary vocational painting school in Poland.

13. He then worked in various positions in Poland as a painter and ambulance paramedic.

14. The plaintiff married his wife in April 1980. That relationship ended after they migrated to Australia. Two children were born of that relationship. The plaintiff’s daughter was born on 5 October 1980 in Poland and the plaintiff’s son was born on 4 January 1986 in Australia.

15. In 1982, the plaintiff commenced work at Sims Metal Pty Limited as a process worker. He did what he described as a small quantity of physical work in that employment.

16. Whilst in that employment, the plaintiff suffered an injury to his knee after tripping and twisting his body. He underwent surgery and returned to work at Sims Metal working reduced hours.

17. In about 1986 the plaintiff left his employment with Sims Metal and commenced operating his own take-away food business. For reasons not explored, that business was sold in 1987 whereupon the plaintiff commenced employment as a contract courier driver. He was required to pick up and deliver parcels around Sydney. He had a van which he used for that purpose.

18. In relation to the knee injury suffered in 1984, the plaintiff told the Court that that did not interfere with his capacity to work in the take-away food shop or as a courier.

19. The plaintiff worked as a courier for several months before starting work with Able Doors installing roller doors. He did that job for about two or three months. His employment ceased after he suffered an accident at work in which he suffered an injury to his head, face, left ankle and toes on the right foot. It seems the ankle injury was the most severe for which he underwent surgery.

20. The plaintiff did not return to work at Able Doors but instead started his own painting business doing domestic painting, mainly houses. In performing that work, the right knee injury did not cause any difficulty, however, the ankle was problematic “but not that much”.

21. The plaintiff owned and operated his own painting business from 1989 to 1997. He told the Court the business was successful, at times employing seven or up to 15 people. He did both the physical work as a painter and also the managerial work involved in running the business.

22. The plaintiff ceased operating his own business in 1997 when he commenced work as a contract painter through Skilled Engineering. That company was a labour hire company and the plaintiff was sent to domestic premises to undertake painting work. Around the same time, the plaintiff also worked for Trojan, another labour hire business. He worked as a painter.

23. Exhibit A refers to an injury to his back at work in 1997. He was asked about that in his evidence-in-chief. He said that he lifted a drum of paint and twisted his body and then felt pain in the back. He received treatment including physiotherapy and hydrotherapy.

24. He told the Court that despite the injury he returned to work permanently with Skilled Engineering in the office and was doing that job until the end of 1999.

25. At the end of 1999, he was let go from the company. He unsuccessfully tried to obtain other jobs but ultimately applied to Centrelink for a JobSearch allowance.

26. On 6 July 2001, the plaintiff suffered another accident when he slipped in the toilets at a cinema. He told the Court that he slipped on the floor in the toilet and he grabbed the basin but continued to slip, hurting his left knee and left shoulder. That injury gave rise to ongoing disability for which the plaintiff applied for and received the Disability Support Pension. That commenced in 2002.

27. In a somewhat confusing answer, the plaintiff was asked what disabilities caused him to receive the Disability Support Pension and his response was:

That was the ankle. That was the knee and the shoulder and that was a partial pension.

[T13.36].

28. Then followed what is referred to in Exhibit A as a minor motor vehicle accident on 14 October 2006. The plaintiff said that he suffered minor injuries and did not bring a claim.

29. The subject accident occurred on 2 March 2008. He told the Court that, at the time, he was doing courier work and still receiving the Disability Support Pension. He was working under contract for a company called Holly Lolly which was owned by his cousin. The job involved doing pick-ups and deliveries.

30. In respect of the employment with his cousin, the plaintiff undertook the deliveries using a Mazda 929. He was shown a diary entry which became Exhibit C. It set out the work undertaken by the plaintiff for his cousin. He said that he received about $20 per delivery or pick-up.

31. Exhibit C reveals the following:

1. that the plaintiff commenced working for his cousin on 24 January 2008;

2. that he last worked in that employment before the accident on 22 February 2008;

3. that on most days between the period 24 January 2008 and 22 February 2008, the plaintiff would do two to three deliveries per day on the days which he worked;

4. in that period, he worked just 10 days;

5. on 30 January 2008, he did five deliveries and earned $100.00;

6. on 18 February 2008, he did six deliveries earning $120.00;

7. according to the plaintiff’s mathematics, he earned $645.00 between 24 January 2008 and 22 February 2008;

8. the plaintiff returned to work on 16 March 2008 on which day he did one delivery earning $20.00;

9. throughout the remainder of March, he worked on just four days;

10. in all of March 2008, he earned just $220.00;

11. the plaintiff next worked on 30 April 2008 for just one day during which he made four deliveries and earned $80.00.

32. The plaintiff was challenged about the veracity of Exhibit C, a topic which I will comment on below.

33. During the period of employment with Holly Lolly the plaintiff was continuing to receive the Disability Support Pension. He had not yet registered the business for the contract courier work which he was doing. Accordingly, he told the Court that he was not paid for that work but the expectation was that he would be paid once the business was registered. He later said that he was paid an amount by his cousin in 2016 for work done in 2012.

34. His evidence about his future work intentions was that he intended to work as a contract courier, working at least five days a week to age 75. He planned to employ up to four couriers after he established the business.

35. Despite the plaintiff working prior to the accident and his intended plans for future work, when it came to completing the Claim Form relating to the subject accident, he indicated that he had not lost income as a result of the accident. His explanation for the manner in which he completed the Claim Form on 23 October 2008 was confusing and unsatisfactory (see T23).

36. Also at the time of the accident in 2008, the plaintiff was living with his cousin, Ms Solis, the proprietor of the company.

37. They lived in a rented house which was two storeys and comprised four bedrooms. They occupied two bedrooms each. There were also common areas which included a lounge-room, dining room, kitchen and bathrooms.

38. When asked whether he did any of the domestic chores around the house before the subject accident, his response was yes. He indicated that he was vacuuming, cleaning the toilet and so on. He would vacuum the hallway and his own two bedrooms. He would also do all of his own washing, cooking and shopping. The house comprised both a front yard and back yard and the plaintiff was responsible for mowing the lawns before the accident. He would also trim the shrubs, when necessary.

39. In terms of the plaintiff’s pre-accident health, he told the Court that in the months before the accident he was not receiving any treatment from doctors for the injuries which he had suffered prior to the accident. He said that “long before” the accident he was taking a couple of tablets but while he was working for the Holly Lolly business he was not taking any pain killers during that time. He also said that he was not experiencing any physical problems carrying out that work or any limitations in his capacity to carry out domestic activities, previously described. Nevertheless, I note that he continued receiving the Disability Support Pension during that period.

40. In terms of the subject accident, the plaintiff provided a description of what occurred (commencing at T16). When asked what happened to his body in the car, he said that he snapped into the front then to the back.

41. Following the accident on 2 March 2008, the plaintiff experienced pain in his neck, left shoulder, back and knee. He thought that he consulted a GP, Dr Zaki, the day after the accident but he could not remember exactly.

42. It was not until 29 May 2008 that the plaintiff consulted his regular GP, Dr Knapik.

43. For a few days after the accident, the plaintiff’s neck was quite painful. He had difficulties moving his neck. He could not turn his neck. He also had quite a lot of pain in the lower back limiting his capacity to turn around.

44. When asked to compare his neck prior to the accident and after the accident, he told the Court that his condition was much worse after the accident. Similarly, when asked to compare his back condition after the accident he indicated that it was quite painful.

45. In relation to the knee, he said that it was swollen, dark in colour and was much worse than it was prior to the accident. He had problems walking and sitting.

46. There was also some minor complaint regarding the movement of his little finger on the left hand.

47. He also referred to problems with his lower arm and left shoulder. He described an “electrical shock” going down his left arm to his palm. His ability to raise his left arm was limited. He could only raise it to shoulder level.

48. In terms of treatment, Dr Zaki prescribed some pain killing medication and ointment. The latter was used on his neck, shoulder and back.

49. The plaintiff said that the condition of his neck worsened over time post-accident and that “these days” on a scale of zero to 10 he would assess the pain as between four and eight.

50. In relation to his lower back, the pain has not gone away but it has got much worse, assessed at between six and eight on a scale of zero to 10. That pain is constant.

51. In respect of his left shoulder, he said that the pain was not there all the time but when it was present it ranged between four to eight out of 10 in severity.

52. At the time of giving evidence, the plaintiff said that he still suffered left knee pain which was much worse than immediately after the accident. He said that it gives way sometimes. In relation to the right shoulder, he told the Court that he had pain there all the time but it was mild.

53. Dr Knapik prescribed pain killing mediation, Panadeine Forte, which helped a bit. Dr Knapik also referred the plaintiff to Dr Lee, Orthopaedic Surgeon, whom he saw on 2 April 2009. Apparently, Dr Lee suggested an injection and perhaps surgery.

54. The plaintiff consulted Mr Ayala, Chiropractor, on 16 April 2013 for an initial assessment but could not go through with the treatment plan due to the expense of doing so.

55. He also gave evidence about feeling depressed and difficulty sleeping. He has difficulty walking, standing, sitting and bending.

56. The plaintiff described the impact which the accident had on his social and leisure activities. He no longer plays the guitar and cannot attend his son’s soccer matches.

57. When asked about his capacity to work, he said that he could not return to doing courier work on a full time basis, but perhaps could do that work over shorter distances.

58. In relation to the domestic chores which the plaintiff performed prior to the accident, the plaintiff told the Court that his cousin now does the vacuuming, cleaning, lawns, cooking and shopping.

59. The plaintiff was cross-examined about a number of inconsistencies in his evidence.

60. In respect of the work accident which occurred on 5 December 1988, the plaintiff retained lawyers who referred him to an orthopaedic surgeon, Dr Roebuck. Before cross-examining the plaintiff about the consultation with Dr Roebuck, counsel for the defendant had him confirm that following the 1988 accident he owned and operated a painting company at Erskine Park from 1989 to 1997.

61. The consultation with Dr Roebuck took place on 18 October 1994, six years after the 1988 accident.

62. Dr Roebuck recorded that the plaintiff had been unemployed since the accident because of problems with his legs. When it was put to the plaintiff that what Dr Roebuck recorded was true and what the plaintiff told the Court was “utterly false”, the plaintiff’s response was “I don’t know”. In a follow-up question to the same effect, the plaintiff’s response was “I didn’t work, I operate the company”.

63. Counsel for the defendant then put to the plaintiff a series of complaints recorded by Dr Roebuck and suggested that he could not have worked as a painter due to those symptoms. The plaintiff’s response was “I operate the business”. The plaintiff then provided evidence as to the name of the company through which the business operated and how he acquired the company through his accountant.

64. The plaintiff was cross-examined about this employment with Trojan and Skilled Engineering as a contract painter. In a statement dated 7 February 2011 the plaintiff apparently stated that he operated his own business during that period. As I understand it, however, operating his own business and working as a contract painter are not necessarily inconsistent.

65. He was further cross-examined about an entry in his statement dated 7 February 2011 in which he stated that he had not worked since 1997 and had been receiving a Centrelink allowance since that time. The plaintiff denied knowledge of that statement and said that it was not correct. In answer to a follow-up question, the plaintiff said that he had tax returns for the period 1998 to 1999. Counsel for the defendant did not seek access to those documents but continued to cross-examine the plaintiff about the inconsistencies between his evidence in Court and the statement dated 7 February 2011. When pressed, the plaintiff conceded that the contents of that statement, in some respects, contradicted his sworn evidence in Court.

66. Although counsel for the defendant had access to that statement, he did not tender it. Accordingly, the Court was not assisted by an understanding of the context in which those statements were made.

67. The cross-examination then moved to the incident which occurred at the cinema toilet in July 2001. The plaintiff told the Court that he brought a claim in respect of those injuries. Counsel for the defendant put to the plaintiff that he claimed domestic assistance in respect of that accident, seemingly with instructions which would permit him to do so. The plaintiff said that he could not remember.

68. The Statement of Particulars in respect of the 2001 accident was subsequently provided. It revealed that a claim for domestic assistance was not made in respect of that accident. It was clear that the proposition put to the plaintiff by counsel for the defendant was not accurate.

69. The plaintiff was next cross-examined about the lack of treatment he had had since the accident. The effect of his evidence was that he could not afford it. It was put to him that he could have sought payment through the insurer. The plaintiff said that the insurer refused to pay for treatment.

70. In questioning the plaintiff about his capacity to perform domestic assistance prior to the accident at the cinema, and following the 1988 work accident, the plaintiff’s evidence was that his condition improved over time which permitted him to return to work.

71. The plaintiff brought to Court a diary note setting out assistance provided to him by his cousin from time to time (Exhibit E). He was cross-examined about the document and it was put to him that it was invented. The plaintiff denied that.

32. It was further put to the plaintiff that the accident itself was extremely minor. The plaintiff agreed.

33. The plaintiff was then cross-examined about his attendance on Dr Zaki which resulted in the tender of Exhibit 2, the patient progress notes.

34. He was then cross-examined at length about Exhibit C, namely the hand-written document recording the time worked prior to the accident. I do not propose to go into any detail about the cross-examination on that topic as nothing much was made of it. Ultimately, as I understood the cross-examination, it was to the effect that the document was a fabrication created for the purposes of the legal proceedings. Despite lengthy cross-examination as to that document, I am not satisfied that the document is fictitious.

35. Overall, I considered the cross-examination did little to affect the reliability of the plaintiff’s evidence.

Mariola Solis

76. Ms Solis is the plaintiff’s cousin with whom he lives at Preston. She is also the proprietor of Holly Lolly described as an online business supplying confectionary and packaging. That business commenced in 2006.

77. Ms Solis described how she would use contractors to perform pick-up and deliveries. The amount paid to contractors varied between $5.50 to $100.00 depending upon the destination. She thought that about 25% of the deliveries were for $5.50 at about 15% would cost about $100.00. The majority costs was somewhere between those two amounts.

78. Ms Solis told the Court that in 2008 she retained the plaintiff to work in the business. He was working pursuant to a verbal agreement performing the pick-up and delivery of parcels. The verbal agreement required Ms Solis to pay the plaintiff $20.00 per delivery or pick-up. Although she was unclear about the precise date, her recollection was that the plaintiff commenced working for her in January 2008. She expected it to be a long term form of employment.

79. They agreed upon a trial period of three months. The accident intervened. During the period for which work was performed, however, Ms Solis described the plaintiff’s performance as excellent. She stated:

I was extremely impressed with his performance and so were all my customers. I had no complaints whatsoever. I could rely on him at any time. I didn’t have to check on him so that was very important to my business.

[T89.15].

80. Ms Solis confirmed the plaintiff’s evidence that prior to the accident, they shared domestic responsibilities equally. He washed his own clothes and cooked his own meals. She also confirmed that prior to the accident, the plaintiff was responsible for the lawns and shrubs.

81. When asked to described the effect of the accident upon him, Ms Solis said that he was not as mobile as he used to be. She could see that he struggled with domestic chores although he was trying. She said that he even attempted to work on a couple of occasions which resulted in lots of pain.

82. Ms Solis recalled that the plaintiff complained of pain in his right arm, problems using the stairs due to his left knee and difficulties with his lower back and neck.

83. After the accident, Ms Solis took over the majority of the domestic duties. She engaged a lawn mowing contractor which cost between $40.00 and $50.00. That did not last long and Ms Solis eventually took over doing the lawns herself. In summer she mows the lawns about once a fortnight and in winter about once a month. The front yard takes about an hour and the rear yard less.

84. Inside the house, Ms Solis has taken over vacuuming the floors which takes about 30 to 45 minutes. She vacuums every day.

85. In terms of the general cleaning of the inside of the house, Ms Solis estimated that she would spend about three hours per week doing things which, prior to the accident, the plaintiff would have done.

86. In relation to the laundry, sometimes the plaintiff would place the clothing into the washing machine and Ms Solis would take them out and collect the clothing from the clothesline. She estimated that she would spend up to half an hour per week doing laundry.

87. In relation to the shopping, Ms Solis told the Court that she now does this for the plaintiff. She estimated that that occupies at least one hour per week.

88. Ms Solis has also taken over responsibility for the cooking. She estimated that she would spend 1.5 hours per day in the preparation, cooking and cleaning after dinner.

89. Ms Solis has also taken over the ironing of the plaintiff’s clothes and bed sheets, estimated at 1 hour per fortnight.

90. In cross-examination, Ms Solis said the plaintiff was able to perform domestic tasks before the subject accident, despite his pre-existing condition.

91. In many incidences, her evidence was difficult to follow as the cross-examiner interrupted her answer.

92. As a result of the failure of counsel for the defendant to put various matters to Ms Solis, it was necessary to remedy that unfairness by asking her three questions over the telephone and obtaining her answers. The questions and answers were recorded in Exhibit 9. That evidence was to the effect that there may have been documents in existence which bore the signature of the plaintiff which were most likely disposed of now. It also confirmed that the arrangement between the plaintiff and Ms Solis in terms of his employment was purely verbal.

The medical evidence

The Plaintiff’s Medical Evidence

93. The plaintiff’s medical reports and the schedule thereto are Exhibit B.

94. A report by Dr Knapik dated 23 February 2009 confirmed that the plaintiff sustained back and leg injuries as a result of the accident causing a diminished ability to walk. He recommended a home gym exercise programme but funding was not made available for that.

95. In a report dated 6 May 2010, Dr Knapik confirmed the plaintiff presented on 29 May 2008 with depression, sore throat, back pain and right and left sciatica. He reported deteriorating back pain. On examination, the plaintiff’s back was tender with restrictions in movement. His neck was tender. His left shoulder was tender with restrictions in movement. There was tenderness to the left elbow and left forearm. Dr Knapik noted that on subsequent visits, the plaintiff complained of back pain radiating to both legs, numbness in the left calf and left foot, neck pain and left scapula pain, left shoulder pain and left elbow pain.

96. Following an assessment on 7 June 2010, Dr Matalani, Occupational Physician, opined that the plaintiff suffered soft tissue injuries to his neck and back with symptoms consistent with radicular complaints in the left arm and left leg. He also thought it likely that the plaintiff suffered from a discogenic lesion and aggravated pre-existing symptoms in his neck and back.

97. Dr Matalani assessed whole person impairment of 8%.

98. The plaintiff was reviewed by Dr Matalani on 10 September 2013 with a similar outcome. Whole person impairment at that time was assessed at 20%.

99. The plaintiff was assessed for medico-legal purposes by Dr Yuk Lee on 19 March 2015. At that time, the plaintiff complained of pain and stiffness to the left shoulder, back, neck and left knee. Dr Lee found that he suffered injuries in those areas of his body in the subject accident. He thought that the plaintiff was limited in his capacity to lift, stand, sit or walk for long periods. Whole person impairment was assessed at 17%.

100. The plaintiff was reviewed by Dr Lee at the request of his solicitor on 4 June 2016. He repeated his diagnosis of injury and assessed whole person impairment at 16%.

101. The plaintiff was first examined by Dr Thomas Oldtree Clark, Psychiatrist, on 3 May 2011 at the request of his solicitor. Dr Clark diagnosed a severe or major depression and assessed whole person impairment at 19%. When reviewed on 25 September 2013, the diagnosis of major depression was unchanged. A further examination took place with Dr Clark on 24 February 2015. At that time, Dr Clark diagnosed a persistent depressive disorder and assessed whole person impairment at 16%. Yet a further consultation was arranged with Dr Clark for 30 May 2016, the diagnosis of persistent depressive disorder was repeated.

102. Dr Davis examined the plaintiff on 25 August 2011 and found that he had suffered an aggravation of pre-existing degenerative changes and instability in his lower back as well as whiplash -associated disorder in the cervical region. In addition, he found the plaintiff suffered a trauma to his left knee. Whole person impairment was assessed at 14%.

103. About two years later on 5 August 2013, the plaintiff was reviewed by Dr Davis. Dr Davis stated that his opinion was based upon the acceptance of the history as provided by the plaintiff, the doctor’s clinical findings and other material provided to him. He noted that the plaintiff had been in receipt of a disability pension and had not worked since 1997 as a result of a back injury. He noted that the pension also related to an anxiety state. Dr Davis reached the same conclusions as in his previous report and thought that the plaintiff should undergo a sub-acromial injection. Whole person impairment was assessed on this occasion at 12%.

104. A repeat examination took place with Dr Davis on 10 March 2015. Dr Davis diagnosed an aggravation of pre-existing degenerative changes in his upper and lower spine as well as left patella-femoral trauma and trauma to his left shoulder. Whole person impairment was assessed at 17%.

105. The plaintiff was assessed by Dr Gorman, Pain Management Specialist, at the request of the Medical Assessment Service. He generated a Certificate dated 13 May 2014, together with Reasons. Dr Gorman found that the plaintiff suffered soft tissue injuries to his cervical spine, lumbar spine, left shoulder and left knee as a result of the accident and assessed whole person impairment at 12%, thereby entitling the plaintiff to an award of damages for non-economic loss. In reaching the assessment of 12%, Dr Gorman reduced the impairment by 5% on account of pre-existing conditions.

Defendant’s Medical Evidence

106. The defendant relied upon two reports by Dr Roebuck dated 18 November 1994 and 24 January 1995. The histories given to Dr Roebuck by the plaintiff were the subject of cross-examination, referred to above. The medical opinion expressed by Dr Roebuck is of extremely limited value given the age of the reports. Essentially, Dr Roebuck found that the plaintiff had significant permanent residual disability in his legs as a result of the work accident on 8 December 1988. Further, Dr Roebuck expressed the opinion (Exhibit 1, page 3) that the plaintiff’s physical capacity will be diminished over the years and that it was likely that in 10 or 15 years’ time he would become totally unemployable and unable to perform any job involving any physical exertion beyond almost complete sedentary. That prognosis would extend to the period 2004-2009.

107. The defendant also sought to rely upon a report by Assessor Arnold, a MAS Assessor who saw the plaintiff on 26 November 2012. The assessment related to the need for domestic assistance. Ms Arnold found:

(a)   that lawn mowing and yard maintenance once every 3.5 weeks for the period 1.10.10 to the date of assessment was reasonable and necessary in the circumstances;

(b)   that 12 hours of domestic assistance for the period from the date of the accident to 2.10.10 was not reasonable and necessary in the circumstances;

(c)   that 12 hours of attendant care and domestic assistance for the period 1.10.10 to date was not reasonable and necessary; and

(d)   that 10 hours of domestic assistance for the duration of the claimant’s life expectancy was not reasonable or necessary in the circumstances.

108. The plaintiff was seen by Dr McClure, Psychiatrist, at the request of the defendant on five occasions (16 January 2012, 3 December 2013, 12 February 2015, 26 October 2015 and 4 October 2016).

109. Following the first examination, he expressed the opinion that, if the plaintiff did have an adjustment disorder as suggested by Dr Moore, Psychiatrist (MAS), on 10 November 2010 then it had, by the time of Dr McClure’s examination, resolved.

110. In his second report (3 December 2013) Dr McClure stated that the plaintiff did not have any psychiatric injury that would require any treatment. In a report dated 12 February 2015, Dr McClure repeated that diagnosis, that is, that there was no diagnosable psychiatric injury. In a second report of the same date, Dr McClure had regard to some other medical evidence and said that if hypothetically the plaintiff did have a psychiatric diagnosis, he would estimate whole person impairment at 1%. He stressed, however, that in his opinion, the plaintiff was not suffering from an adjustment disorder, major depression or indeed any other psychiatric condition.

111. In his report dated 26 October 2015, Dr McClure re-examined the plaintiff and also some documentary material. None of this caused him to alter his previous opinion that the plaintiff was not suffering from any psychiatric disorder.

112. In his final report dated 4 August 2016, Dr McClure stated that the plaintiff did have chronic pain and clearly described a pain/fear/avoidance cycle. Nevertheless, he was still of the opinion that the plaintiff did not qualify for any psychiatric diagnosis.

113. After careful consideration, I prefer the opinion of Dr McClure to Dr Clark. Dr McClure’s assessment accorded more with my lay observation of the plaintiff when he gave evidence. Many of the factors relied upon by Dr Clark under “Detailed Description” (Exhibit B, pages 62 to 65) bore little or no resemblance to the evidence. Further, many of the observations made in examination were at odds with the level of impairment assessed by Dr Clark.

114. Dr McClure’s reports, on the other hand, were sensibly reasoned and generally accorded with the evidence led in the case.

115. On 24 June 2009, the plaintiff was examined by Dr Brian Stephenson, Orthopaedic Surgeon, at the request of the defendant. Following an examination of the plaintiff, Dr Stephenson formed the opinion that there was no muscular skeletal diagnosis of a condition persisting following the motor vehicle accident. Accordingly, there were no relevant restrictions or treatment needs.

116. A supplementary report was obtained from Dr Stephenson following a re-assessment of the plaintiff on 7 March 2012. Dr Stephenson also had access to other documentary material at that time. Following an examination of the plaintiff, Dr Stephenson formed the opinion that there was an impairment rating due to the restriction in range of motion of the left shoulder of 3% WPI. Neither the cervical spine, left knee nor lumbar spine attracted any impairment rating.

117. In terms of diagnosis, Dr Stephenson found tendonitis and impingement of the left shoulder with some restriction in elevation as a result which he thought was due to the accident.

118. The plaintiff was seen again by Dr Stephenson on 20 January 2014. At that time, the plaintiff was complaining of pain radiating to the left arm like electric shocks, left shoulder pain, low back pain and left knee pain. On examination there was some restriction in the range of motion of the left shoulder which warranted an impairment rating of 3%.

119. At a review on 9 March 2015, Dr Stephenson again found a limitation in the plaintiff’s range of motion in the left shoulder.

120. Dr Stephenson saw the plaintiff yet again on 13 October 2015 (report 20 October 2015). He found some mild restriction in elevation of the left shoulder.

121. The plaintiff saw Dr Stephenson for the sixth and final time on 4 July 2016. In that report, Dr Stephenson found that there may have been an episode of musculo-ligamentous cervical and lumbar spine contusion or strain suffered in the accident but did not expect any long term disability.

122. Although Dr Stephenson does not readily support the need for assistance, he does not entirely rule it out. The plaintiff’s medical expert (Dr Lee) embraces the claim and expressed the opinion that the plaintiff would require approximately eight hours of assistance per week. I am mindful of what the New South Wales Court of Appeal said in Sampco Pty Limited v Wurth [2015] NSWCA 117 at [83] and, for the reasons exposed therein, I prefer the evidence of the plaintiff and his cousin to the opinion of medical experts, save as to the question of need.

assessment of damages

123. The plaintiff claims damages as follows:

(a)	Non-economic loss	$200,075.00
(b)	Past economic loss – calculated at $650.00 npw for 476 wks	$309,400.00
(c)	Past loss of superannuation benefits	$Nil
(d)	Future economic loss – calculated at $650.00 npw for 11 yrs (multiplier 444.0) less 25% for vicissitudes	$216,440.00
(e)	Future loss of superannuation benefits	$Nil
(f)	Past out of pocket expenses (agreed)	$2,017.00
(g)	Future out of pocket expenses	$61,672.00
(h)	Past domestic assistance – Calculated at 7 hrs pw at $26.00 ph for 484 weeks	$88,088.00
(i)	Future domestic assistance – approximately calculated, alternatively, at 7 hrs pw at $26.00 ph to age 80 or 4 hrs pw at $45.00 to age 80 (multiplier 685.0)	$124,000.00
Total	$1,001,702.00

Non economic loss

124. Determining damages based upon the evidence of the plaintiff and the opinions of the medical practitioners retained by both parties is always difficult when the medical opinions are not the subject of testing by way of cross-examination. In coming to a view about non-economic loss, I have had regard to the independent assessment performed by Assessor Gorman of MAS who found a 5% whole person impairment in relation to the cervical and lumbar spine and a 7% whole person impairment in respect of the left shoulder.

125. As to the plaintiff’s physical condition, I have preferred the opinions of Assessor Gorman and Dr Stephenson over the other doctors who expressed views on that subject. As to the plaintiff’s psychiatric condition, I accept the opinion of Dr McClure.

126. Having regard to the medical evidence which I have preferred and the evidence of the plaintiff and Ms Solis, I assess non-economic loss at $150,000.00.

Past Out of Pocket Expenses

127. Agreed in the sum of $2,017.00.

Future Out of Pocket Expenses

128. The plaintiff advanced a claim of $61,672.00 for future treatment expenses. In addresses, senior counsel for the plaintiff, sensibly conceded that an allowance of about one third of that amount would be reasonable. For the defendant, the amount of $4,000.00 was conceded.

129. Given my finding in respect of the absence of any psychiatric condition, none of the treatment in respect of such a condition is justified. Again, I prefer the opinion of Dr McClure over the opinion of Dr Clark.

130. In terms of the plaintiff’s physical condition, Dr Stephenson has consistently acknowledged a restriction in the movement of the plaintiff’s left arm but stated in his last report (Exhibit 1, page 121) that no further treatment was required. He noted, however, that the plaintiff, from time to time, would take medication.

131. Against the opinion of Dr Stephenson is the opinion of Dr Lee (Exhibit B, page 56) that the plaintiff would benefit from surgery to the left shoulder. He said that the plaintiff should have an MRI scan of the left shoulder and “may” require arthroscopic acromioplasty, together with post-operative physiotherapy. He estimated the cost of same to be in the order of $10,000.00.

132. Although his opinion was not tested by cross-examination, I have difficulty accepting Dr Lee’s view that the plaintiff would come to surgery. Instead, I prefer the opinion of Dr Stephenson that the plaintiff will continue to receive conservative treatment, from time to time. This might comprise consulting his GP and the taking of medication. He may, in the future, also require some physiotherapy treatment.

133. Absent costings as to those matters, I propose to allow the sum of $5,000.00 in respect of future treatment expenses noting that in the period since the accident (nine years) the cost of treatment received is only $2,017.00.

Past Economic Loss

134. The plaintiff advanced a case in the Amended Schedule of Damages for past economic loss in the sum of $650 net per week for 476 weeks. The defendant made no concession for past economic loss and submitted that no allowance should be made.

135. Economic loss is the most problematic area of the plaintiff’s claim. His medical history, combined with the prior claims of disability as a result of unrelated accidents, together with the fact that he was in receipt of a disability pension at the time of the accident, all bear upon the assessment of economic loss.

136. The threshold question is whether or not the plaintiff has suffered a reduced capacity for work as a result of an injury suffered in the accident.

137. Given that the plaintiff has only ever been engaged in manual employment, and accepting Dr Stephenson’s opinion about the plaintiff’s disability in his left arm, in my view there is some loss of capacity.

138. The work which the plaintiff performed immediately prior to the accident in delivering parcels for Holly Lolly, further demonstrates a pre-accident capacity.

139. Contrary to the approach adopted by the defendant as to the legitimacy of the plaintiff’s work for Holly Lolly, I find that the plaintiff did, in the periods identified, carry out the work which is summarised above and for which he was ultimately paid. I accept the evidence from the plaintiff’s cousin that he in fact did work in the business for those periods pursuant to a verbal agreement for him to do so. I also accept her evidence that he was an impressive employee and find, but for the accident, he most probably would have continued in that form of employment working increasing hours.

140. The real question is as to the value of that employment and the loss suffered as a result of the incapacity caused by the accident.

141. In my opinion, the defendant’s position (nil) is unrealistic. Similarly, I consider the plaintiff’s claim of $650.00 net per week from 1 May 2008 to date to be excessive given his employment history and actual earnings at the time of the accident.

142. In respect of the claim for economic loss, I have found that the plaintiff would most likely have continued in the business of courier delivery, but for the accident.

143. I also find that the plaintiff has a residual capacity for employment and, in that regard, I rely upon the opinion of Dr Stephenson.

144. In light of the plaintiff’s extensive medical history and his modest earnings for a short period before the accident, I do not believe that a precise calculation of loss can be determined.

145. In my view, the incapacity caused by the accident and which has been productive of loss is best compensated by the award of a buffer of $75,000.00 for past economic loss.

Future Economic Loss

146. I refer to the findings above in respect of the most likely circumstances, but for the accident, as required by s126 of the Motor Accidents Compensation Act 1999.

147. The plaintiff is now 58 years of age. I find that he would have continued working until the age of 65, being a period of seven years.

148. The question as to the adverse vicissitudes of life looms large in this case. To some extent, I have already adjusted the plaintiff’s claim for future economic loss to reflect his pre-existing condition by adopting a retirement age of 65.

149. I am of the opinion, however, that a higher than usual reduction ought to be applied for vicissitudes. I am mindful of the principles raised by the New South Wales Court of Appeal in Metaxoulis v McDonalds Australia Limited [2015] NSWCA 95 (13 April 2015).

150. As for the past, mathematic precision in the calculation of loss is not achievable. I propose to allow a buffer for future economic loss. In determining the sum to be allowed, I have given careful consideration to the plaintiff’s pre-accident work history and medical conditions.

151. To reflect my finding that the plaintiff has suffered an incapacity which will be productive of loss, I allow a buffer of $50,000.00 for the future.

Past Domestic Assistance

152. Despite the initial claim of over $300,000.00 for past domestic assistance, senior counsel for the plaintiff sensibly reduced the claim to more accurately accord with the evidence. In final addresses, the claim for past domestic assistance was put on the basis of seven hours per week at $26.00 per hour for a period of 448 weeks which came to $88,088.00.

153. The medical need for domestic assistance arises out of the opinions of Dr Davis and Dr Lee. MAS Assessor Arnold also found that lawn mowing and yard assistance were reasonable and necessary.

154. Whilst I note that Dr Stephenson expressed the opinion that there was no requirement for domestic assistance, I rely upon the evidence of the plaintiff and, more particularly, his cousin as to what care is required and what has been provided. Unfortunately, Dr Stephenson did not give evidence and did not have the benefit of Ms Solis’ evidence.

155. I accept that, prior to the accident, the plaintiff and Ms Solis shared the domestic chores equally save for laundry and cooking meals which they did for themselves. I also accept that, prior to the accident, the plaintiff was responsible for gardening and yard maintenance.

156. The evidence of Ms Solis is that after the accident, the plaintiff struggled with domestic chores [T90.34] and that, as a result of injuries sustained by the plaintiff in the accident, Ms Solis took over the majority of domestic duties.

157. Whilst I am of the view that daily vacuuming and the ironing of bed sheets may be undertaken, I do not consider a claim in respect of those matters reasonable. I find that Ms Solis has provided domestic assistance to the plaintiff in respect of lawn mowing, vacuuming, general cleaning, laundry, shopping and meal preparation. Further, I find that there was and is a reasonable need for that assistance to be provided.

158. The need for domestic assistance is acknowledged by the defendant’s own Schedule of Damages which, whilst not making any allowance for the past due to thresholds, included an allowance of $30,000.00 in respect of the future.

159. For the past, I allow damages based on assistance of six hours per week at $26.00 per hour for a closed period of four years. Thereafter, I find that the need for domestic assistance would not have satisfied the statutory threshold of six hours. Instead, I find that after four years the need for assistance would have been in the order of four hours per week. I acknowledge that this is a somewhat arbitrary approach to the claim but find that even if extra assistance was provided after March 2012 it was not reasonable or necessary. This finding is reached after giving careful consideration to all of the evidence, including the medical evidence, the evidence of the plaintiff and the evidence of Ms Solis. This finding is made in the face of conflicting medical evidence in circumstances where the opinions of the doctors were not tested.

160. Allowing six hours per week for four years at $26.00 per hour comes to approximately $32,500.00.

Future Domestic Assistance

161. I repeat my findings made above in relation to the need for domestic assistance and find that a need will continue into the future.

162. Whilst the plaintiff’s claim was originally put on the basis of 31.5 hours per week at $45.00 per hour for life, it was reduced in the course of addresses. At that time, senior counsel for the plaintiff put forward two alternative calculations. The first, based on seven hours per week at $26.00 per hour to age 80 and the second for four hours per week at $45.00 per hour to age 80.

163. I find that the plaintiff’s need for the future will continue four hours per week. I further find, that the likelihood is that the assistance will be provided commercially at a cost of around $40.00 per hour. Allowing that for the plaintiff’s life (27 years, multiplier 783.0) comes to $125,280.00.

164. In determining what is a reasonable allowance for future domestic assistance, I have had regard to the normal ageing processes and also the likelihood that the plaintiff may have required domestic assistance at an earlier stage because of his pre-existing injuries (see Metaxoulis v McDonalds Australia Limited [2015] NSWCA 95 (13 April 2015). Applying a reduction of 33%, reduces the allowance for future domestic assistance to approximately $84,000.00.

summary of assessment of damages

165. Accordingly, I assess the plaintiff’s damages as follows:

(a)	Non-economic loss	$150,000.00
(b)	Past out of pocket expenses	$2,017.00
(c)	Future out of pocket expenses	$5,000.00
(d)	Past economic loss	$75,000.00
(e)	Future economic loss	$50,000.00
(f)	Past domestic assistance	$32,500.00
(g)	Future domestic assistance	$84,000.00
Total	$398,517.00

ORDERS

1. Judgment for the plaintiff in the sum of $398,517.00;

2. The defendant to pay the plaintiff’s costs;

3. Liberty to apply with 14 days to vary the cost order, if necessary;

4. Exhibits to be returned forthwith.

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Decision last updated: 10 July 2017