Moussa v Confoy

[2015] NSWDC 103

District Court

New South Wales

Medium Neutral Citation:

Moussa v Confoy [2015] NSWDC 103

Hearing dates:

4, 5, 6, 19, 25 May 2015

Date of orders:

30 June 2015

Decision date:

30 June 2015

Jurisdiction:

Civil

Before:

Levy SC DCJ

Decision:

1.   Verdict and judgment for the plaintiff in the sum of $731,095 ;

 

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 or other orders are required.

Catchwords:

TORTS – negligence – motor vehicle accident – admission of negligence – whether contributory negligence; DAMAGES – assessment of claimed heads of damage in context of other non-compensable injuries – whether aggravation injuries occurred – whether all of plaintiff’s claimed disabilities were caused by the subject accident – s 5D of the Civil Liability Act 2002

Legislation Cited:

Civil Liability Act 2002, s 5D
Civil Procedure Act 2005, s 58
Evidence Act 1995, s 60
Motor Accidents Compensation Act 1999, s 83, s 126, s 134, s 141B

Cases Cited:

Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13
Aon Risk Services Australia Limited v Australian National University [2009] HCA 27
Arian v Nguyen [2001] NSWCA 15
Boral Bricks Pty Ltd v Cosmidis; Boral Bricks Pty Ltd v DM & BP Wiskich Pty Ltd [2013] NSWCA 443

Brown v Petranker [1991] 22 NSWLR 717
Cupac v Cannone [2015] NSWCA 114
Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25
Girlock (Sales) Pty Ltd v Hurrell [1982] HCA 15; (1982) 149 CLR 155
Holloway v McFeeters [1956] HCA 25; (1956) 94 CLR 470
Hunt v Knight Frank (NSW) Pty Ltd & Ors [2005] NSWCA 139
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Kentwell v The Queen [2014] HCA 37
Larson v Commissioner of Police [2004] NSWCA 126
Luxton v Vines [1952] HCA 19
Majkic v Bonnano [2008] NSWCA 253
Manley v Alexander [2005] HCA 79; (2005) 223 ALR 228
Manly Municipal Council v Skene [2002] NSWCA 385
Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383
Paul v Cooke [2013] NSWCA 311
Penrith City Council v Parks [2004] NSWCA 201
Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164
Sampco Pty Ltd v Wurth [2015] NSWCA 117
Shoalhaven City Council v Humphries [2013] NSWCA 390
Smith v NSWBA [1992] HCA 35; (1992) 176 CLR 256
State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536
Strinic v Singh [2009] NSWCA 15
Strong v Woolworths Ltd [2012] HCA 5
Urban Transport Authority v Nweiser [1992] 28 NSWLR 47
Watson v Foxman (1995) 49 NSWLR 315
Watts v Rake [1953] HCA 18; (1953) 89 CLR 200

Category:

Principal judgment

Parties:

Salaah Moussa (Plaintiff)
Raymond Confoy (Defendant)

Representation:

Counsel:
Mr T Boyd (Plaintiff)
Mr D Williams (Plaintiff on 25 May 2015)
Mr J Turnbull (Defendant)
Mr W Reynolds (Defendant on 25 May 2015)

  Solicitors:
Cameron Gillingham Boyd (Plaintiff)
Holman Webb (Defendant)

File Number(s):

2014/222989

Publication restriction:

None

Judgment

Table of Contents

Nature of case and background	[1] – [5]
Issues	[6]
Other accidents and injuries	[7] – [15]
Dismissed application to re-open the case	[16] – [51]
Credit	[52] – [56]
Facts	[57] – [288]
Plaintiff’s pre-accident situation	[58] – [65]
Plaintiff’s pre-accident medical records	[66] – [73]
Plaintiff’s pre-accident work history	[74] – [80]
Plaintiff’s most likely future circumstances but for the accident	[81] – [111]
Circumstances of the subject accident	[112] – [120]
Medical and allied reviews and assessments	[121] – [288]
Issue 1 – Alleged contributory negligence	[289] – [300]
Issue 2 – Plaintiff’s pre-accident health status	[301] – [334]
Issue 3 – Findings concerning accident-related injuries	[335] – [342]
Issue 4 – Effect of further accident on 12 February 2011	[343] – [368]
Issue 5 – Significance of right knee injury on 18 August 2012	[369] – [411]
Issue 6 – Findings on accident-related disabilities	[412] – [529]
Right index finger	[421] – [422]
Chest	[423]
Neck	[424] – [447]
Back	[448] – [472]
Left shoulder	[473] – [493]
Right knee	[494] – [517]
Left knee	[518]
Surgical scarring	[519]
Psychological problems	[520] – [526]
Continuing medical and allied treatment	[527] – [529]
Issue 7 – Assessment of damages	[530] – [613]
Plaintiff’s probable life span	[531]
Mitigation	[532] – [534]
Non-economic loss	[535] – [546]
Past loss of earning capacity	[547] – [566]
Future loss of earning capacity	[567] – [579]
Past domestic assistance	[580] – [583]
Future domestic assistance	[584] – [600]
Future treatment expenses	[601] – [607]
Past out-of-pocket expenses	[608] – [612]
Summary of damages assessment	[613]
Disposition	[614] – [615]
Costs	[616]
Orders	[617]

Nature of case and background

1. At about 2.50pm on Wednesday 13 May 2009, the plaintiff, Mr Salaah Moussa, was injured in a motor vehicle accident involving a front to rear-end collision between two trucks on the flat carriageway of Jedda Road, Prestons, NSW.

2. At the time, the delivery truck being driven by the plaintiff was travelling along Jedda Road. It was slowing down in preparation for making a right turn into a driveway. At that time, a truck being driven by the defendant, Mr Raymond Confoy, drove into the rear of the plaintiff’s truck with some force, despite the heavy application of brakes by the defendant when he attempted to stop his vehicle before the collision.

3. Just before the collision, the defendant had been momentarily looking away from the road ahead, and to his left. The defendant has admitted negligence but claimed there was contributory negligence on the plaintiff’s part in allegedly failing to indicate an intended right turn, an allegation which was disputed by the plaintiff.

4. In the collision, the plaintiff claimed that he injured his neck, chest, low back and left shoulder. He also claimed that he injured his right knee when he fell whilst he was alighting from the truck. As a result, the plaintiff claims damages in respect of those injuries. The defendant disputed a number of aspects of causation of injury and disability on account of the plaintiff’s history of prior injuries.

5. Those matters required a detailed evaluation of the evidence, including the medical evidence, for the purpose of making relevant findings of fact. The proceedings are governed by the provisions of the Motor Accidents Compensation Act 1999 (MAC Act) and the Civil Liability Act 2002 (CL Act).

Issues

6. The parties initially identified numerous issues for determination: MFI “1”. Following a consideration of the pleadings, the evidence and the arguments, the issues for determination may be conveniently identified as follows:

Issue 1 -   Whether there was contributory negligence on the part of the plaintiff, and if so, in what apportionment;

Issue 2 -   Identification of the plaintiff’s relevant pre-accident health status;

Issue 3 -   Findings as to the plaintiff’s accident-related injuries;

Issue 4 -   Whether the plaintiff’s injuries were aggravated by a further accident that occurred on 12 February 2011;

Issue 5 -   The significance of the plaintiff suffering a twisting injury to his right knee on 18 August 2012;

Issue 6 -   Findings as to the plaintiff’s accident-related disabilities;

Issue 7 -   The assessment of the plaintiff’s entitlement to damages for his accident caused injuries and losses.

Other accidents and injuries

7. The defendant claimed that not all of the plaintiff’s alleged injuries and disabilities were caused by the subject accident. In that regard, the defendant pointed to a number of pre-accident injuries the plaintiff had sustained, including to his neck, back, left shoulder and right knee. These were the same areas the plaintiff claimed he had injured in the subject accident.

8. The bundle of medical evidence tendered on behalf of the plaintiff included references to a number of other pre-accident incidents, namely an assault that occurred on 7 February 2004; a workplace accident that occurred on 5 December 2007; and a motor vehicle accident that occurred on 11 August 2008. The tendered documents also included a reference to a motor vehicle accident on 12 February 2011, in which he injured his chest, left shoulder and left knee; and an incident in which the plaintiff twisted his right knee on 18 August 2012 when he turned whilst he was in bed.

9. These matters have a bearing on the issue of causation of the plaintiff’s claimed ongoing disabilities in this case, and his claimed inability to work. Those matters stand to be analysed according to an assessment of the plaintiff’s evidence and the medical evidence.

10. There is a well-recognised category of cases litigated in the District Court where analysis of medical evidence must be undertaken in circumstances where the issues are narrowly confined, and where the calling of oral evidence from medical experts would involve undue inconvenience to the practitioners and their patients, or would involve disproportionate expense to the parties: Manly Municipal Council v Skene [2002] NSWCA 385, at [22]. This case is not within that category.

11. In this case, the task of grappling with and analysing the medical evidence, in conjunction with the evidence of the plaintiff, for the purpose of arriving at findings of fact on matters of injury and disability, has been rendered more difficult than might otherwise have been the case due to decisions made by the parties as to how they timed and structured their evidentiary medical reports, and because they chose not to call any oral evidence from any medical practitioner to explain or elucidate the key medical issues that were embedded in the evidence given in the proceedings: Majkic v Bonnano [2008] NSWCA 253, at [26]; Cupac v Cannone [2015] NSWCA 114, at [17] – [18].

12. In that context, it unquestionably remains for the plaintiff to prove that he was injured as claimed, and that those injuries are the relevant cause of his claimed ongoing disabilities and his claimed losses: s 5D of the CL Act: Paul v Cooke [2013] NSWCA 311, at [80].

13. The principles cited in the preceding paragraphs are relevant to the consideration of the submissions made by the defendant to the effect that the plaintiff’s ongoing knee problems were caused by a pre-existing injury or condition: Watts v Rake [1953] HCA 18; (1953) 89 CLR 200; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164; Shoalhaven City Council v Humphries [2013] NSWCA 390, at [87] – [88].

14. In cases where there are disputes concerning matters of causation involving medical issues, absent the uncontroversial availability of a simple common sense or logical analysis to resolve such disputes, a court is constrained from drawing conclusions on medical matters without the guidance of expert evidence: Arian v Nguyen [2001] NSWCA 15, at [22], Strinic v Singh [2009] NSWCA 15, at [60].

15. In this case, those principles identify an evidentiary difficulty in the path of an acceptance of some of the plaintiff’s arguments concerning his claim that all of the ongoing problems involving disability are due to the subject accident.

Dismissed application to re-open the case

16. The hearing of the case took place on 4, 5 and 6 May 2015. Final arguments concluded on 6 May 2015. At that hearing, Mr T Boyd appeared for the plaintiff, and Mr J Turnbull appeared for the defendant.

17. After judgment had been reserved and in the course of analysing the medical evidence, some of which, comprising clinical records in the form of a hospital discharge letter dated 18 August 2012, revealed what appeared to be a relevant item of history, namely that on that date, the plaintiff had suffered a twisting incident involving his right knee whilst he was turning in bed: Exhibit “B”, pages 110 – 111.

18. During the hearing, neither party had directed any questions to the plaintiff concerning that occurrence. None of the medical opinions tendered in the case for the plaintiff had either referred to or had discussed that historical event, although it appears that the relevant hospital discharge letter which contained the detail of that event, had been provided to the examining and reporting doctors before they furnished their respective reports.

19. In closing arguments, neither party had directed any submissions to that matter of history. It appeared that neither party had attached any significance to the incident involving the plaintiff’s right knee on 18 August 2012.

20. Following the final submissions made on 6 May 2015, and in the course of analysis of the medical evidence, it became apparent that the plaintiff’s experience of a knee twisting incident on 18 August 2012 had some potential relevance to the assessment of the issue of causation of the plaintiff’s ongoing disabilities and to aspects of his claimed losses.

21. In those circumstances, and in accordance with the requirements of procedural fairness, that matter was drawn to the attention of the parties. On 19 May 2015, after due notice, further argument was invited on the significance of that history. Following those further submissions judgment was again reserved: T150 – T160.

22. Subsequently, on 20 May 2015, on behalf of the plaintiff, a notice of motion was filed seeking leave to re-open the plaintiff’s case for the stated purpose of obtaining further medical evidence on the significance of the knee twisting event involving the plaintiff on 18 August 2012. At the hearing of the motion on 25 May 2015, Mr D Williams appeared for the plaintiff/applicant and Mr W Reynolds appeared for the defendant/respondent.

23. In support of his application to re-open the case, the plaintiff relied upon three affidavits prepared by his solicitor, Mr Stephen Smith. These were respectively sworn on 20, 21 and 25 May 2015. No objection was taken to the timing of those affidavits in relation to the hearing of the motion.

24. In essence, the affidavit sworn on 20 May 2015 deposed to the fact that in the course of the MAS and CARS assessment processes which preceded the hearing, no novus actus interveniens type arguments had been raised in relation to the incident involving the plaintiff’s right knee on 18 August 2012. The affidavit noted that the issue under present consideration had been raised for the first time during interchanges between the bench and counsel at the further listing of the proceedings on 19 May 2015. That statement, which was in the nature of a submission, wrongly assumed that the only legal issues to be determined in the proceedings were those that had been identified by the parties.

25. Paragraph 11 of Mr Smith’s affidavit of 20 May 2015 went on to assert that if any relevant error had occurred in failing to specifically ask questions of the plaintiff in relation to his hospital attendance on 18 August 2012 concerning his right knee problems, or if there had been any relevant failure to advise on the need to obtain medical evidence on the relationship between the incident of 18 August 2012 and the injury on 13 May 2009, such a mistake was said to have been that of counsel in failing to advise on the need for further evidence.

26. The detailed circumstances underlying that statement by the plaintiff’s solicitor were not explained or explored in the application to re-open. In any event, the statement in question seemed to be over-simplistic, as it was also part of the obligation of the plaintiff’s solicitor to identify the contested issues requiring proof at a trial, and to obtain the necessary evidence to meet those issues, assuming that such evidence was obtainable.

27. Mr Smith’s further affidavit sworn on 21 May 2015 in essence deposed to the fact that copies of the Canterbury Hospital Discharge Summary which related to the plaintiff’s attendance at that hospital on 18 August 2012 for treatment of his twisted and stiff right knee, had been respectively provided to Dr Peter Giblin, the plaintiff’s consultant orthopaedic expert, and to the MAS Assessor, Dr Peter Johnson, and to one of the plaintiff’s treating orthopaedic surgeons, Dr Maniam, prior to the preparation of their reports which were ultimately tendered in evidence in support of the claim that the plaintiff had proven his case.

28. A review of the tendered reports from those respective experts reveals that none of those reports made any mention of the incident of 18 August 2012 concerning the plaintiff’s right knee leading to a hospital admission on that day. The inference sought to be drawn on behalf of the plaintiff was that if those experts had not referred to that material in their reports, then the incident of 18 August 2012 should be taken to be irrelevant to a causation analysis. Such a submission is plainly wrong in circumstances where the experts made no mention of that factual matter, and where, in examining the evidence for the purpose of making findings of fact, the court must have regard to the requirements of s 5D of the CL Act when determining causation.

29. Apart from the content of the document comprising Exhibit “B”, pages 110 – 111, no opinion evidence tendered in the proceedings gave any consideration to the events of 18 August 2012. This circumstance was of some significance to potential findings on the issue of causation of the plaintiff’s disabilities affecting his right knee after 18 August 2012, and as to the assessment of damages generally.

30. The further affidavit of Mr Smith sworn on 25 May 2015 annexed a copy of Dr Maniam’s handwritten clinical notes relating to his treatment of the plaintiff. The solicitor for the defendant had previously served a copy of those notes on the plaintiff’s solicitor in the lead-up to the hearing. It is significant to observe that Dr Maniam’s clinical notes had not been tendered by either party at the hearing. It was not suggested that this was as a result of any oversight. Those notes do not of themselves relevantly constitute expert opinion evidence.

31. On 25 May 2015, the plaintiff’s motion seeking leave to re-open his case was heard and dismissed. The plaintiff was ordered to pay the defendant’s costs of the dismissed motion. At that time it was indicated that the reasons for the dismissal of that motion would be incorporated into this judgment. Those reasons now appear in the paragraphs that follow.

32. The principles to be applied in consideration of whether a party should be given leave to re-open their case involve the exercise of a discretion. The exercise of such discretion must proceed according to the dictates of justice generally, and in particular, to the parties: s 58 of the Civil Procedure Act 2005. There are no guidelines for the exercise of a discretion where the relevant criteria involves a consideration of the justice of the circumstances: Kentwell v The Queen [2014] HCA 37, at [30].

33. Such discretion is more readily exercised in favour of leave to re-open in cases where there has been oversight that can be cured without causing significant prejudice to the opposing party, and where the dictates of justice indicate that it is appropriate to grant leave to re-open: s 58 of the Civil Procedure Act 2005.

34. The threshold for granting leave to re-open appears to be much lower in a case where a final judgment has not yet been delivered compared to a case where the application had been made after final judgment had been delivered: Smith v NSWBA [1992] HCA 35; (1992) 176 CLR 256, at pages 266 – 267; Urban Transport Authority v Nweiser [1992] 28 NSWLR 47, at pages 478G – 479A.

35. In considering whether leave should be granted in cases of disclosed oversight or inadvertence by counsel, the general tendency is for leave to be granted where the application to re-open has occurred due to the overlooking of a matter proven in the opponent’s case, or where counsel has acted upon some misapprehension. Conversely, the grant of leave to re-open is generally less indicated where the failure to lead evidence from a witness whom it is afterwards desired to call, has arisen due to a tactical decision by counsel: Urban Transport Authority v Nweiser [1992] 28 NSWLR 47, at pages 475G – 476A. In this context, the initial non-reliance by both parties upon Dr Maniam’s notes represents a tactical decision as to what was to be tendered and what need not be tendered.

16. Cases where counsel has made a mistake, or has failed to appreciate the relevance or the admissibility of the evidence that was omitted from being led, should generally be seen as falling into the category where it may be justifiable to grant leave to re-open: Urban Transport Authority v Nweiser [1992] 28 NSWLR 47, at p 476B, pages 476G – 477A.

17. However, those considerations must be balanced against the interests or the dictates of justice, including the public interest of the need for finality of litigation and limiting the number of issues it is open to the parties to contest at a hearing, where the reasonable limiter on the grant of leave in the circumstances is an overriding consideration of the overall interests of justice, including justice to not just one party, but to all parties: Urban Transport Authority v Nweiser [1992] 28 NSWLR 47, at p 476D.

18. In recognising there are no hard and fast rules to be applied in such circumstances, a number of matters need to be considered in determining whether the interests of justice are better served by allowing a case to be re-opened.

19. Foremost and pivotal amongst those considerations is the need to ensure the client seeking to re-open his case does not suffer as a result of his counsel’s deliberate decision or oversight, but this also needs to be balanced against another counter veiling pivotal consideration, namely, whether a grant of the leave sought would be likely to cause significant prejudice to the opposing party: Urban Transport Authority v Nweiser [1992] 28 NSWLR 47, at p 478E.

20. Ordinarily, the interests of justice would favour the grant of leave to re-open where the evidence sought to be adduced had been overlooked and the other party would not be prejudiced by the fact that additional evidence is to be given after cross-examination of the witness had already been completed: Brown v Petranker [1991] 22 NSWLR 717, at p 728F.

21. In essence, what the plaintiff seeks in this instance is an unconfined indulgence by which he would have the opportunity to be medically re-examined, and to then give further factual evidence, followed by further medical evidence as to the nature and cause of his knee problems. All of this proceeds on the assumption that such further evidence, which has not yet been obtained and which remains unconfirmed as to whether it is likely to be obtainable, would favour his case. The speculative nature of that enterprise is self-evident, and it is emphasised by the fact that the terms and parameters of such contemplated further medical evidence have not yet been identified or defined.

22. In my view such a proposal offends the public policy principle by which litigation should be considered and finally determined after a fair trial based on the evidence chosen to be tendered by the parties. In the present context, the course proposed on behalf of the plaintiff would undoubtedly create a prejudice in exposing the defendant to an unconfined prolongation of the dispute, without a clearly stated definition of the exercise, or its likely cost, and where it is uncertain as to whether, at the end of the exercise, the proposed course is likely to advance the plaintiff’s case.

23. The evidence adduced in support of the plaintiff’s application to re-open his case provided no cause for confidence that, on the balance of the probabilities, the plaintiff’s case on the causation of his right knee problems, is likely to be improved or relevantly clarified. What is in reality being sought here is the pursuit of a mere chance that is uncertain in its nature and in its likely outcome.

24. In reality, what the plaintiff now seeks is an adjournment in order to pursue an opportunity to re-litigate an aspect of his damages case as a result of realising that a weakness has been exposed in the course of analysis of the evidence, whereas beforehand, both parties had been content to leave the state of the evidence as it was. This was in circumstances where it could be reasonably assumed that the parties had approached the trial of the issues by aiming their best or at least reasonable efforts at the issue of causation of injury and disability, recognising that they were embarking on a course where that issue was to be determined by a trial, and not by a trial run of a trial.

25. In effect the plaintiff is seeking to recommence his case, but with further evidence that is unwarrantedly assumed to be available. That course would necessarily require the defendant to significantly restructure his case, at a cost. The prejudice to the defendant in such circumstances is self-evident, and would involve substantial wasted costs in defending what may well be an entirely different case on damages.

26. I am not persuaded that the problem under present consideration has truly arisen as a result of oversight of the kind suggested by the plaintiff’s solicitor. Rather, I consider that the problem has arisen because the parties, for whatever reason, made the tactical decision not to call medical oral evidence from the relevant practitioners, and they chose not to clarify the underlying evidence and assumptions with those experts. In such cases, there must at some point be an end to litigation.

27. I consider that in this case where judgment was reserved following full argument on the evidence tendered, that advanced stage has been reached: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27, at [111] – [114].

28. A further matter affecting the exercise of discretion also requires mention. As will become apparent in the consideration of Issue 6, the plaintiff faced a number of other difficulties of proof concerning the cause of his ongoing neck, back, left shoulder, right knee and psychological problems. The plaintiff’s application to re-open his case was not directed at seeking to resolve those problems.

29. If those matters were to be addressed in a re-opened case (for which there was no application) the defendant would necessarily be forced to face an entirely different damages case, on different evidence, which would involve significant prejudice not readily curable by a cost order.

30. I also took those practical matters into account in refusing the plaintiff’s application to re-open, because granting the application would not have addressed or resolved those other problems, as will become apparent from my review of the medical and allied evidence, my findings on Issues 4, 5 and 6, and my findings on the assessment of damages.

31. For the above reasons, the plaintiff’s application to re-open his case for the purpose stated, was refused.

Credit

52. The plaintiff is a relatively unsophisticated and inarticulate man. He has obvious difficulty expressing himself in words. Without intending any criticism or disrespect to him, it was plain that his evidence included many clichéd self-interruptions, incomplete sentences and expressive hand gestures, by which he sought to explain what he was trying to say.

53. In the course of cross-examination it became apparent that the plaintiff had some difficulties with comprehending the mutually exclusive difference between the concepts of an injury and the existence of disabilities consequential upon injuries. He appeared to equate injury to disability: T56.39 – T58.23. I consider this to have been due to a problem with comprehension on his part, and with his ability to articulate what he wanted to say, rather than constituting a deliberate evasiveness or an unwillingness to make appropriate concessions in cross-examination. This is consistent with his history of having had learning difficulties and needing special assistance with reading and writing when he was at school: Exhibit “B”, p 129. Accordingly, I do not accept the suggestion that the plaintiff lied about his pre-injury state of health, although the reason for the defendant making that suggestion is founded upon a reasonable interpretation of the evidence: T61.2.

54. Accordingly, I do not consider that the issues raised by the defendant concerning the plaintiff’s answers to questions he was required to address when filling out personal injury, and sickness and accident claim forms, (Exhibits “2” and “3”) about whether he had any prior history of injury should be seen as reflecting adversely on his credit, as was claimed by the defendant. Rather, I consider that the true significance of those documents is to demonstrate, without any suggestion of dishonesty on the plaintiff’s part, his evidence was confused due to his limited insight into what comprised injury as distinct from disability. However, the conclusion to be drawn from that view is that the plaintiff’s own evidence, when read alone, is not entirely reliable on matters of his past medical history, particularly when describing the effects of his various injuries in relation to a series of incidents and accidents in which he has been involved over the course of time. For that reason, a close evaluation of the medical evidence takes on a particular importance in this case.

55. I nevertheless considered that the plaintiff gave his evidence on matters of injury and disability, as he saw it, without exaggeration or guile. I formed the view that the plaintiff endeavoured to be a truthful witness on matters in dispute to the best of his understanding and ability, subject to the usual considerations that concern the fallibility of memory: Watson v Foxman (1995) 49 NSWLR 315. The reliability of the plaintiff’s evidence on matters of injury, disability and claimed losses, therefore stands to be evaluated against the evidence as a whole.

56. A further matter to be considered is the defendant’s attack on the plaintiff’s credit by the suggestion that the plaintiff had deliberately understated the income he had declared in his 2009 and 2010 income tax returns. The plaintiff denied that suggestion: T64.3 – T66.32. That evidence, and that denial, will be analysed in the overall context of the findings required in respect of the claim for economic loss.

Facts

57. Unless otherwise stated, and as a prelude to making findings on the issues calling for decision, I set out my findings of fact as follows.

Plaintiff’s pre-accident situation

58. The plaintiff is presently aged 32 years. At the time of the subject accident he was aged 26 years. He is married and has children aged 7 and 6. He left school in Year 11. He reportedly experienced learning difficulties at school. He completed 3 years of a 4 year apprenticeship and TAFE trade course in cabinetmaking and shopfitting. He did so whilst employed in a family business. He unfortunately left that work to pursue other employment because he developed an allergy to MDF dust exposure in that industry, which made it difficult for him to continue in that work.

59. The plaintiff said he was in good general health before the subject accident. However, that evidence needs to be assessed with caution as he had been involved in a number of previous incidents involving injury, as was disclosed in his own evidence and in the albeit sparse pre-accident medical records.

60. On 7 February 2004, the plaintiff was the victim of an assault in which he sustained a head injury in the form of a fracture of the left orbit. In relation to that incident the plaintiff stated, without contradiction, that he made a full recovery, and was back to his normal self: T24.13 – T24.28. He later received the sum of $10,000 by way of victim’s compensation in relation to that event. Although there is no record or evidence of him having any specific lasting disability from that incident, one would ordinarily expect that the payment of a sum of that order by way of victims’ compensation would be supported by medical or allied evidence. No such evidence was tendered in these proceedings.

61. On 30 March 2004, the plaintiff saw his then general practitioner in relation to a complaint of disturbed sleep. On 18 February 2005 he again saw his general practitioner in relation to complaints of a sleep disorder, as well as problems comprising anxiety and depression. On 6 December 2005 the plaintiff also consulted his general practitioner in relation to insomnia and family problems. On 18 March 2006, the plaintiff consulted his general practitioner in relation to experiencing palpitations and panic attacks. The evidence did not disclose the cause of those presenting problems, nor does it disclose whether they were in any way related to the assault on 7 February 2004.

62. On 5 December 2007, the plaintiff sustained an injury to his left shoulder following a slip and fall incident at his work. He saw his general practitioner at the time, Dr Tadros, in relation to that injury which comprised pain in the left shoulder with some time off work (T44.17 – T44.25), but there is no record that any treatment was required. The injury appears to have been minor. The plaintiff’s evidence was that he had obtained a complete recovery from that injury insofar as any symptoms were concerned: T10.26 – T10.39.

63. On 11 August 2008, the plaintiff was a passenger involved in a motor vehicle collision in which he injured his chest and his left shoulder. He also injured a knee in that incident, but he could not recall whether or not the injury was to his right knee, but other records suggest it was the right knee. Other evidence suggests he had x-rays of his right knee in relation to that incident: Exhibit “B”, p 75.

64. Absent contradictory evidence based on contemporaneous medical records, I accept the plaintiff’s evidence to the effect that he saw a general practitioner in relation to those matters and he underwent some scans, following which he made a full recovery and went back to work and to his physical training regime: T11.30; T12.2.

65. It appears that in respect of the matters outlined above, the plaintiff’s general practitioner at that time was either a Dr Youssef, a Dr Erfani or a Dr Houfani. No reports or clinical records from those doctors were tendered by either party. In those circumstances, it was not inherently improbable that the plaintiff made a full recovery from the 11 August 2008 accident before the subject accident, 9 months later. The plaintiff’s evidence on those matters must be assessed in light of the available medical records.

Plaintiff’s pre-accident medical records

66. Unusually for this type of case, where matters of causation of injury and disability remains in significant issue, only sparse pre-accident medical records relating to the plaintiff were tendered by the parties. There were no records available in respect of the 7 February 2004 assault. The available records concerning the other pre-accident incidents revealed only the following matters.

67. On 6 December 2007, and following his fall at work the previous day, the plaintiff underwent an x-ray and ultrasound study of the left shoulder at the referral of Dr Youssef. The report of those investigations was difficult to decipher due to poor photocopying, but overall, that imaging has been reported as revealing a normal x-ray and a normal ultrasound study: Exhibit “B”, p 73. The report of those investigations also noted that the reporting radiologist considered the plaintiff had provided good historical evidence of the occurrence of a dislocation of his left shoulder, that had been followed by a relocation.

68. On 15 August 2008, the plaintiff underwent x-rays of the cervical spine and left shoulder at the referral of another general practitioner, Dr Houfani. Those x-rays were reported as being normal: Exhibit “B”, p 74. Those investigations were not identified as relating to any particular incident.

69. On 19 August 2008, a week after being involved in a motor vehicle accident in which his truck hit a pole, the plaintiff underwent an x-ray of the right knee at the referral of Dr Houfani. That x-ray was reported as being normal: Exhibit “B”, p 75.

70. The plaintiff acknowledged that he had right knee pain following the 11 August 2008 accident, as well as quite bad back and left shoulder pain for which he required pain medication as well as time off work: T43.1 – T44.11. The plaintiff sought to downplay the injuries to his knee and left shoulder from that accident and based his view that he had recovered on his understanding of the results of the scans which had been ordered, “came back clear”: T11.39; T43.32.

71. There was a 9 month interval between the plaintiff’s 11 August 2008 accident as referred to above, and the subject accident on 13 May 2009.

72. On the basis of the right knee x-ray dated 19 August 2008, the defendant argued that the plaintiff had a pre-existing injury to his right knee before the subject accident, and that this was the relevant cause of the plaintiff’s ongoing right knee disabilities.

73. Whilst that could possibly be so, the defendant’s consequential submission that there was a pre-existing disability of that knee which had an ongoing effect after the subject accident was not based on medical evidence. Generally, a submission along those lines would have to be sustained by reasoned inference from supporting medical evidence. These matters will be revisited in connection with the findings concerning Issue 2, namely the plaintiff’s relevant pre-accident health status.

Plaintiff’s pre-accident work history

74. Between the years 2000 and 2005, the plaintiff worked in a family shopfitting business. He had obtained a TAFE Certificate III in Shopfitting. He became unsuited to that trade due to his specific dust allergy.

75. In 2005, the plaintiff pursued and obtained training and certification in other areas of potential work activity, including fire fighting awareness, blue card and green card certificates, a heavy rigid vehicle licence, and a forklift licence.

76. In 2006, the plaintiff pursued and obtained training and certificates in manual handling awareness, safety checking of electrical appliances, confined space entry awareness, first aid, responsible service of alcohol, and a security guard licence.

77. Those certificates permitted the plaintiff to engage in a wide range of potential employment pursuits.

78. In 2006, the plaintiff commenced full time employment as a truck driver with Toll Fast, carrying out delivery work in Sydney.

79. In 2008, the plaintiff commenced similar employment as a courier and truck driver with Bonds. In October 2008, the plaintiff purchased his own 8 tonne truck and became a sub-contract truck driver for Bonds. His work duties involved, driving, loading, strapping loads, and unloading his truck for deliveries, including activities such as the lifting and carrying of goods.

80. The subject accident occurred whilst the plaintiff was engaged in that work on a full time basis. At that time he had in mind to develop a business plan for purchasing an additional delivery truck, and to employ a sub-contract delivery driver with the aim of deriving profits from a planned business venture along those lines. The feasibility of that plan, in the plaintiff’s circumstances, involved uncertainty on a number of levels.

Plaintiff’s most likely future circumstances but for the injury

81. It is necessary to make findings of fact on the plaintiff’s most likely future economic circumstances but for the subject injury before an assessment can be made of his claim for loss of earning capacity: s 126 of the MAC Act.

82. The plaintiff’s work experience has only ever been as an employee. Relevantly, he has had no experience running a business in which others were employed. Although it appears that several of his family members were involved in running their own businesses, that does not necessarily mean the plaintiff would have been successful in operating his own business as an employer of another delivery truck driver whilst also carrying out such work himself.

83. The plaintiff had shown, from the previous mal-administration of his own financial reporting obligations, that in the past he had not taken timely care to check and ensure that his income tax returns had been prepared correctly. This has necessitated the preparation of amended income tax returns once that fact had come to notice in the course of the preparation of his case.

81. Although the plaintiff claimed the error in his income tax returns was due to mistakes on the part of his former accountant who was apparently no longer locatable, I consider that the plaintiff’s history of lack of scrutiny of the work carried out by the former accountant on his behalf, thus permitting scope for major errors to occur in his income tax returns, did not auger well for the plaintiff to operate his own business as a contractor driving trucks and employing others. This would appear especially so where success of such a business was at least in part obviously dependent upon competitive profit margins, timely and effective monitoring of overheads, cashflow, and compliance with the need for accurate accounting and financial returns.

82. The plaintiff tendered his copy income tax returns for the years ended June 30th 2007 to June 30th 2010. Those returns appear to have been lodged on 21 May 2012, which appeared to be well after the normally expected lodgement times: Exhibit “C”, pages 1 – 36. The reasons for this were not explored in the evidence. The effect of those returns, for the 2007 to 2010 years, is as follows:

Financial Year	Disclosed Taxable Income	Amended Disclosed Taxable Income
2007	$20,417	No change
2008	$16,393	No change
2009	$25,358	$51,187
2010	$25,217	$50,898

86. The plaintiff had sustained injuries in accidents that had occurred in 2007 and 2008. Whether or not those injuries had an impact on his level of earnings as tabulated above cannot be determined.

87. In the 2010 year, tax was assessed on the amended disclosed income of $50,898 in the amount of $9119.40. This reveals the sum of $41,778.60 net per annum: Exhibit “C”, p 51. This equates to a weekly income of $803.43 per week net.

88. For the purposes of comparison and analysis, the 2009 and 2010 years are roughly equivalent, and those earnings can be reasonably taken to be an indication of the plaintiff’s likely level of earnings both before and after the subject accident, and until the time he ceased working for Bonds at the beginning of June 2010.

89. Allowing for some variation in income levels due to possible fluctuating or increasing levels of work, and possible CPI or equivalent increments, I propose to treat the plaintiff’s pre-accident and post-accident earning capacity from the date of the accident until the present time, as being in the rounded up average amount of $850 per week net.

90. Having regard to possible increases in income as referred to above, I consider that a reasonable approach to the assessment of the plaintiff’s potential future earnings as a truck driver, assessed at the present time, uninjured, would be in the rounded amount of $900 per week net.

91. I do not consider that the higher general economic yardstick figure of average weekly earnings to be an appropriate guide to the plaintiff’s earning capacity in this case as his declared earnings appeared to be below published rates of average weekly earnings.

92. In considering the plaintiff’s most likely circumstances but for his injury, account must be taken of the past financial errors that have been identified in the plaintiff’s tax returns as initially lodged, and late lodgement issues generally. These matters raise real doubts about the plaintiff’s capacity for regular and appropriate financial compliance which in turn must have an adverse impact on the likelihood of the plaintiff successfully pursuing profitable self-employment.

93. It seems that the plaintiff was not someone who would have paid sufficient assiduous and timely attention to such matters of detail: T66.32. I do not accept the suggestion made on behalf of the defendant that the plaintiff deliberately understated his income as was suggested to him: T64.3. The evidence was not sufficient to sustain such a finding. However, the historical discrepancies in his reporting of his income suggests doubtful confidence should be placed in his ability to successfully run a contract or sub-contract trucking business that employed others to generate profits for him. The circumstances and the content of his inaccurate tax returns raise such doubts.

94. In those circumstances I consider that it would be unrealistic and speculative to include in any award of damages for accident-related loss of earning capacity, an allowance for additional income from operating a business involving a second truck with an employed driver.

95. Instead, I consider that it was most probable that the plaintiff would have continued to work on his own as a sub-contract delivery truck driver in Sydney, deriving income of the order disclosed in his amended income tax return for the 2010 year, with periodic increments and or fluctuations, depending upon the availability of work and the competitive nature of the industry in which he was engaged.

96. Therefore, the plaintiff’s amended income tax returns and notices of assessment for the period 1 July 2009 to 30 June 2010, as analysed at paragraphs [85] – [92] above, provide a useful guide to the assessment of his claim for past and future earning capacity: Exhibit “C”, pages 50 – 71.

97. In support of his claim for loss of earning capacity, the plaintiff relied on a purported agreement he claimed to have entered into with RH Trading & Transport Pty Ltd. The agreement, Exhibit “5”, was dated 20 May 2010, and was signed by Mr Rabih Homsi on behalf of that company. The document had not been signed by the plaintiff.

98. The document stated the plaintiff was to be engaged as a heavy vehicle driver for a period of 24 months from 14 June 2010 at the rate of $500 per day, 5 days per week, which equated to $2500 per week gross. The document in question provided that the plaintiff was to be responsible for his own vehicle, it’s maintenance, insurances and indemnities. In that purported arrangement, he was in effect, to be a self-employed sub-contract delivery driver.

99. The plaintiff considered this contract to have been a massive opportunity for his economic self-advancement: T18.2 – T18.7. He considered that he would have managed to continue driving his own truck and employ another driver to drive a second truck: T32.10 – T32.11. Whether that ambition could have been realistically achieved by the plaintiff requires assessment on the balance of probabilities.

100. The plaintiff met with Mr Homsi on 19 June 2010 and communicated to Mr Homsi his inability to proceed with the described employment because at that time he was unable to perform the required duties. He communicated this to Mr Homsi in the form of a letter to RH Trading Pty Ltd: Exhibit “6”. The typographical error as to the date in that letter is of no significance.

101. The defendant submits that those documents are self-serving, and absent any explanatory evidence from Mr Homsi as to the circumstances and feasibility of the claimed offer, and the plaintiff’s relinquishment of the position that had apparently been offered to him, the plaintiff’s evidence on those matters should not be accepted as being a true indication of the extent of his earning capacity.

102. On the evidence, I am not persuaded the plaintiff would have successfully continued with and completed such a contract. It was in effect self-employment. I consider that in the context of attending to his own driving duties, he lacked the business acumen, ability and supervisory focus to ensure he would be compliant with his taxation obligations in a timely and accurate manner in 2010, as is evident from his history on that subject. On the balance of probabilities, I consider that such issues would have operated as a real and insurmountable difficulty in the plaintiff’s path, quite apart from ordinary uncertainties and vicissitudes associated with running a small business.

103. Furthermore, in the absence of evidence from Mr Homsi as to the nature and extent of the work that was contemplated and its likely continued availability, I am not persuaded that the purported contract relied upon by the plaintiff (Exhibit “5”) was likely to have been performed.

104. I therefore find that the contemplated driving position performing work for RH Trading & Transport Pty Ltd did not represent a realistic basis upon which to assess the plaintiff’s loss of earning capacity.

105. In support of the plaintiff’s claim for economic loss, his solicitors obtained a report dated 1 April 2014 from WorkTogether, which was authored by Mr Craig Martin, a rehabilitation counsellor: Exhibit “C”, pages 76 – 111. It appears that the plaintiff was not interviewed for the purposes of that report.

106. The report identified two classifications for the purposes of estimating potential earnings, namely those of employee truck drivers and contractor truck drivers. The methodology of the report was to utilise a review of occupational classifications and a labour market research analysis, to undertake an internet job match process, and to make assumptions on percentage earnings increments: Exhibit “C”, pages 78 – 81.

107. The report concluded that but for the plaintiff’s injury, he “would have reasonably expected to earn at least $1,404 gross per week, probably $1,538 gross per week and possibly up to $1,730 gross per week working as a Truck Driver (employee) in Sydney”: Exhibit “C”, p 77.

108. The report also concluded that but for the plaintiff’s injury, he “would have reasonably expected to earn at least $1,923 gross per week, probably $2,307 gross per week and possibly up to $2,500 gross per week working as a Truck Driver (contractor) in Sydney driving a similar truck to the one he drove prior to his accident”: Exhibit “C”, p 77.

109. Whilst the WorkTogether report might otherwise provide some useful background to the assessment of the plaintiff’s claim for economic loss, the starting point of the analysis must be the assessment of the plaintiff’s most likely future circumstances but for his injury, as outlined in the preceding paragraphs: s 126 of the MAC Act.

110. I have concluded that it would have been unlikely the plaintiff would have operated a successful business as a self-employed contractor truck driver. I consider it more probable than not that the plaintiff’s earnings as a truck driver would have been in the capacity of an employee truck driver in Sydney. This declared income is the most useful guide to his likely level of earnings in that capacity.

111. Having reviewed the theoretical considerations of the WorkTogether report, and having regard to the plaintiff’s particular pre-accident circumstances, I consider that his declared actual pre-accident earnings as analysed at paragraphs [85] – [90] above, represent a more reliable guide to the assessment of the plaintiff’s claim for loss of earnings and loss of earning capacity. When it comes to assessing damages I propose to assess the plaintiff’s claim for loss of earnings and loss of earning capacity on that basis, in conjunction with the evidence of the plaintiff and the medical evidence touching upon that issue.

Circumstances of the subject accident

112. At the time of the accident the plaintiff’s vehicle was stationary with the right hand indicator on when he was struck from behind by the defendant’s truck. In those events the plaintiff expressed what he described as a “massive shock” when he experienced the impact of the collision, which caused him to be thrown around in the cabin of his truck whilst restrained by his seatbelt. In those events his vehicle was pushed forward a distance which he estimated to be about 20 metres: T15.3 – T15.43.

113. The plaintiff’s Lumley’s income protection insurance claim form, which he completed on 7 July 2010, described the collision into his stationary truck as being at full speed: Exhibit “3”, p 2. It is not clear on the evidence as to how the plaintiff could have reasonably formed that view. Nevertheless, I accept that the collision between the two vehicles was sufficiently forceful to push his unladen 8 tonne truck forward a number of metres, at least 5 – 6 metres as claimed by the defendant, if not 20 metres as claimed by the plaintiff.

114. At T15.45 – T16.25 the plaintiff described the immediate aftermath of the collision as follows:

“Q. Then what did you do then?

A. I just I jumped out of the I undone my seatbelt and just I don't know what had happened, you know, just stationary and bang, you know, it's like I felt like I nearly came out of the windscreen. It just so I just undone my seatbelt and jumped straight out and the truck was pushed forward. I walked, you know, I walked across limping. There was a grass area in the gutter and just lied down in the gutter, sat there and everyone just, you know, there was factories everywhere, everywhere you know. Everyone just you know, was surrounded us.

Q. A lot of people came around at that time?

A. Yeah, a lot of people came around, there were factories everywhere.

Q. Where did you finish up at after the accident?

A. On the

Q. You jumped out and you

A. I jumped out you know, I'm not I jumped out, I didn't know what I felt, I was just numb everywhere, I didn't know what I felt, I was just shocked. You know, I felt pain in my knee, I don't know what I felt.

Q. What's your memory of jumping out of the vehicle?

A. I felt a sharp pain to my knee.

Q. What knee?

A. My right knee. And then when I sat, when I sat down on the grass, I just tried to lie, I just lied down on my back and I felt my left shoulder dislocate or come out of place. So I just sat, I was just shocked, it was a shock, I didn't know what you know, you know, I realised there was I realised I had an accident you know, someone had ran into the back of me but it was just overwhelming.”

115. It appears from the above description that when the plaintiff jumped out of his vehicle as a reaction to the collision, he sustained what appears to have been a jarring injury to his right knee, as evidenced by his experience of a sharp pain in that knee.

116. In the defendant’s evidence which described the events of the accident, I consider that he downplayed the significance of the impact of the collision, and suggested the impact was not as severe as that described by the plaintiff, stating that before the accident, and before braking, he had been travelling at about 30 – 40kph, and at the time of the accident, his vehicle had just “slid into” the plaintiff’s vehicle: T108.44; T109.15. The defendant also disputed the distance over which the plaintiff’s truck had been pushed forward as a result of the collision. The defendant estimated that in the collision, the plaintiff’s vehicle had been pushed forward about 5 or 6 metres, but he acknowledged this was a guess: T109.36.

117. In considering that divergence in the evidence, I prefer and accept the evidence of the plaintiff. I take that view because I consider the defendant’s version to involve a process of inaccurate reconstruction due to the circumstance of his opportunity for only limited observations in the lead-up to the collision as he had been looking away: T109.14; T113.37 – T114.5. He stated that he was jolted forward and winded: T115.49 – T116.3. I consider that in those combined circumstances, including the relatively short interval of time in which he had the opportunity to make accurate observations because he had not been keeping a proper lookout, his claimed recollection was less reliable than that of the plaintiff as to the events of the collision.

118. Instead, I consider that the plaintiff was in the better position to provide an accurate account. In my view, within his limited ability to express himself, the plaintiff’s account was unembellished. I considered his evidence was spontaneous and truthful, whereas in contrast, the defendant sought to speculate on the plaintiff’s actions in the form of reconstruction: T115.35.

119. The collision involved the centre of the defendant’s truck striking the rear of the plaintiff’s truck. The photographs of the defendant’s vehicle show that the collision was of sufficient force to dislodge and deform the centre of the bumper bar at the front of the defendant’s truck: Exhibit “D”. The collision was also of sufficient force to wind the defendant. In my view, the dispute as to the distance over which the plaintiff’s vehicle was pushed forward as a result of the collision is of little if any significance.

120. I will defer stating my findings as to the nature and the extent of the injuries the plaintiff sustained in the subject accident until after completing a review of the medical and allied evidence relating to that issue. That matter will be the subject of findings in respect of Issue 3.

Medical and allied reviews and assessments

121. Before arriving at factual findings on the nature and extent of the plaintiff’s accident-related disabilities (Issue 4), as an aide to analysis, I have found it helpful to undertake a chronological review of the voluminous medical and allied evidence that was tendered as well as the evidence of the plaintiff as to his medical attendances. That approach is necessitated because of the non-sequential manner of assembly and the content of the medical material tendered on behalf of the plaintiff, and because of gaps that became evident within the medical evidence, as well as the plaintiff’s limited ability to describe the relevant events.

122. That review, which follows, reveals some historical gaps in the evidence. This is marked by a lack of continuity, documentation and explanation of some of the historical events relating to the plaintiff’s claimed injuries and disabilities and the treatment of those problems.

123. Although the accident occurred on 13 May 2009, the first documentary evidence from Dr Alameddin, the general practitioner whom the plaintiff consulted about the effects of the accident two days following the accident, appears in the chronology some 15 months after the event. That evidence is in the very limited form of a workcover certificate dated 2 August 2010: Exhibit “B”, p 2.

124. Whilst it appears that there have been some early medical assessments by Dr Alameddin that were more contemporaneous to the time of the accident, there are no explanatory or historical reports or documents from him concerning such consultations.

125. On 15 May 2009, the plaintiff first consulted Dr Alameddin: Exhibit “E”, p 5. The plaintiff continued to see Dr Alameddin on “several occasions” between 15 May 2009 and 27 August 2010: Exhibit “A”, p 2. The plaintiff has had a total of 61 consultations with Dr Alameddin between 15 May 2009 and 9 October 2014: Exhibit “E”, pages 5 – 6. The total cost of those consultations amounted to $4022: Exhibit “E”, p 1. In those circumstances, it is surprising that there is no detailed medical report or contemporaneous clinical notes in evidence from Dr Alameddin in relation to those consultations. This is also unfortunate, given the plaintiff’s limited ability to provide a cogent account of events.

126. On 30 May 2009, the plaintiff commenced receiving physiotherapy treatment to his right knee from Mr Ghassan Hijazi, of Lakemba Physiotherapy. Between that date and 25 September 2010, the records show that the plaintiff attended that physiotherapist for what was described as complex physiotherapy treatment on some 55 occasions at a total cost of $5525: Exhibit “B”, pages 98 – 102. The defendant claims not all of those attendances were for accident-related treatments. However, no evidence has been presented to assist in undertaking a differential analysis on that issue.

127. On 7 September 2009, the plaintiff underwent an x-ray examination of the right knee at the referral of Dr Alameddin. This was reported as showing no acute fracture or dislocation, and no significant joint effusion or significant degenerative change: Exhibit “B”, p 76.

128. On 14 November 2009, the plaintiff underwent x-rays of the cervical and lumbar spines, and a CT scan of the right knee at the referral of Dr Alameddin. The CT scans were reported as showing a small joint effusion and some stranding of the subcutaneous tissues in the pre-patellar region, giving the examining radiologist the impression of a mild pre-patellar bursitis of the right knee. No abnormalities were reported concerning the x-rays of the cervical and lumbar spines taken at that time: Exhibit “B”, p 77.

568. The baseline for assessment of damages for future economic loss until the age of 60 is the plaintiff’s most likely circumstances that would have prevailed but for the subject accident. My findings in that regard appear between paragraphs [81] – [111] above. The effect of those findings is that at the present time, uninjured the plaintiff would most likely have been deriving earnings of $900 per week net.

569. The baseline for projection of future losses must also take into account the aggravating effects of the plaintiff’s knee twisting injury on 18 August 2012, and the earlier accident of 12 February 2012, which requires that the future projection be discounted by a suitable percentage to reflect that added layer of impairment of earning capacity that is unrelated to the accident of 13 May 2009.

570. In my view, as already indicated, that unrelated additional layer of impairment due to aggravation of the injuries sustained on 13 May 2009, should be treated as an adverse vicissitude that has already been crystallised. That factor should be allowed by applying an overall discount of 25 per cent. When that percentage is applied to the sum of $900 per week, this yields the amount of $675 per week net.

571. Before projection of that amount, an offset must be allowed for the plaintiff’s proven mitigatory earning capacity of $398 per week net. This yields the weekly loss for projection to be the sum of $277 per week net.

572. That amount requires projection to the plaintiff’s age of 60 years as the damages to be awarded for the plaintiff’s loss of earning capacity between ages 60 and 67 years has already been agreed at $30,000.

573. The projection of $277 per week net at 5 per cent for 28 years to age 60 (x 796.6) yields the sum of $220,658. A discount for vicissitudes has already been applied. When the agreed sum of $30,000 is added, this yields the amount of $250,658.

574. I therefore assess the plaintiff’s damages for future loss of earning capacity in the amount of $250,658.

Past domestic assistance

580. The plaintiff makes a claim for past paid domestic assistance in the submitted amount of $5460. That amount represents the cost of the plaintiff having paid someone to maintain his lawns and garden from the time of the accident at the rate of $70 per month, or $17.50 per week, over 312 weeks or 78 months from 13 May 2009 to 4 May 2015.

581. In contrast the defendant submitted that the rounded down sum of $4200 would represent sufficient compensation for this head of damage. The discounted basis of that submission was not explained.

582. The plaintiff’s actual expenditure on this item has been at the rate of $70 per month over the past 78 months. On that basis, I consider that the proper sum to be awarded is the amount actually paid by the plaintiff for those services, namely, $5460.

583. I therefore assess the plaintiff’s damages for past domestic assistance in the amount of $5460.

Future domestic assistance

584. The plaintiff makes a claim for future paid domestic assistance in the submitted amount of $96,418, which comprises two components:

• The first component is the projection of 2 hours of commercially provided care per week for 53 years to age 80 years (x 988.9) at $40 per hour, undiscounted, which calculates at $79,112;

• The second component is the projection of $17.50 per week for gardening and lawn maintenance for 53 years to age 80 years (x 988.9), which, undiscounted, calculates at $17,306.

585. In contrast, the defendant submits that it would be appropriate to award the plaintiff the sum of $15,472 for future lawnmowing to age 80 years, at the rate of $70 per month. That was said to equate to $17.50 per week. This actually equates to $16.15 per week ($70 x 12 ÷ 52).

586. In my view both submitted approaches are problematic. In order to determine whether damages for future paid domestic assistance is justified, it is necessary to refer to the evidence.

587. The plaintiff gave only limited evidence on the question of his likely need for future domestic assistance. One of his concerns about his residual physical restrictions was that he might re-injure himself: T25.34; T36.18. His evidence in chief on the specific issue of ongoing domestic assistance was limited to the following extract which appears at T35.40 – T36.24:

“Q. Just a couple of other questions. At the moment you live in rented accommodation with your family, is that right?

A. That's correct, that's right.

Q. Was it your intention to purchase a home in due course?

A. Yes, of course.

Q. Had you been able to continue in your practice in the trade that you were in previously.

A. Yeah.

Q. Would you have expected to have a home by now?

A. Yeah, yes.

Q. Were you handy in terms of handyman activities?

A. Yeah, like you know, like I said I was a fitter and you know all round the carpenter. I used to service my vehicles, wash my vehicles. It's just something that I loved doing. I was an outdoor person. Yeah.

Q. If you had a home, what about lawn mowing and gardening, would you be able to undertake those sorts of things?

A. Yeah, yeah, I used to. It's normal, you know. It was normal you know do what I have to do, you look after.

Q. What about now, are you able to do those now?

A. Now I get someone to come out and cut the grass and do all that.

Q. Why do you do that?

A. Because l'm afraid of reinjuring. I know it's going to be a bit difficult. You know what I mean, I probably can do it but I I can guarantee that I'm going to pay the price, I'm going to, you know, at night I'm going to feel the pain.

Q. Have you tried to mow the lawn since the accident?

A. No. I've been through a lot so I just, I just very fragile and more concerned about reinjuring.”

588. On a more general level, when speaking about his physical capacity for carrying out truck maintenance, driving and deliveries, the plaintiff said “Everything became uncomfortable. Everything became a lot harder”: T73.49. It could be inferred from that evidence that the plaintiff would find it harder to carry out domestic maintenance and cleaning tasks. However, those tasks were not described in detail and there was inadequate discussion in the evidence of the plaintiff as to the likely provision for time that would be required to address an accident-related need for domestic assistance.

589. Furthermore, apart from identifying a fear of re-injury, there was nothing in the plaintiff’s evidence that assisted with an analysis of what, if any, effect the injuries he sustained on 12 February 2011 and 18 August 2012 influenced his decision to continue to pay someone for lawnmowing. This was a significant omission from the evidence in circumstances where the burden of proving the need for such assistance lay with the plaintiff: s 5D of the CL Act.

590. It is therefore necessary to turn to a survey of the medical evidence in order to ascertain whether that evidence provides proof or support for a relevant need for domestic assistance.

591. The issue is addressed only indirectly in the report of Dr Maniam dated 2 February 2015, which was based on an examination of the plaintiff on 10 October 2014: Exhibit “B”, p 53. There, Dr Maniam identified the plaintiff’s current situation as stable due to his sedentary lifestyle, the current complaints being minimal symptoms in the cervical and lumbar spines, a constant ache in the left shoulder and a constant ache in the right knee.

592. In his report dated 2 July 2013, Dr Giblin made the following general prognostic comments:

“His condition is stable.

Some symptoms are going to persist in a recurrent fashion being present in terms of exacerbations and remission but will be associated with life long physical restrictions.

In relation to his spine, he is permanently unfit for heavy repetitive, bending, lifting and twisting, or associated labouring duties.

In relation to his left upper extremity, he is permanent unfit for heavy repetitious pushing, pulling, lifting and twisting, repetitive impact work, load bearing, or recurrent activities above shoulder height.

In relation to his right lower extremity, he is unfit for kneeling and squatting, pivoting and twisting, stair or ladder climbing, working at heights, repetitious impact activities or labouring duties.

Whilst he might be fit for a sedentary job, avoiding the aforementioned physical restrictions, and preceded by the appropriate vocational rehabilitation, his injuries may be susceptible to aggravation as well as long term deterioration.”

[Exhibit “B”, pages 174 – 175]

593. Dr Giblin’s final report dated 14 January 2015 noted the plaintiff’s physical activities, including his household activities were restricted, with sitting and standing limited to 10 mins, and walking limited to 15 mins. He considered the plaintiff’s condition to be stable, with persisting symptoms in the foreseeable future, marked by exacerbations and remissions, but with permanent physical restrictions: Exhibit “B”, p 179.

594. Dr Giblin’s report dated 14 January 2015 then went on to state:

“Specifically, he is permanently unfit to use his left upper extremity for repetitious pushing, pulling, lifting and twisting, load bearing, operating vibrating machinery or recurrent activities above shoulder height.

He is unfit to use either lower extremity for constant kneeling and squatting, pivoting and twisting, stair or ladder climbing, impact activities or working at heights.

He is unfit for any labouring duties including prolonged periods of walking or standing.

I view his injuries as having the propensity for further material aggravation as well as ongoing deterioration.

…

In terms of his domestic environment he will need some degree of recurrent physical support in terms of domestic responsibilities but this will increase as his injuries deteriorate. Eventually, he will need a wheelchair friendly domestic environment.”

[Exhibit “B”, p 180]

595. The evidence of the plaintiff did not assist in dealing with the specific tasks of domestic activity that required him to have the claimed assistance. Nord did it assist with estimating the time required for the tasks for which he required assistance.

596. The report of Dr Barrett dated 30 October 2013, was provided at a time the plaintiff’s condition was not stable and when the plaintiff was affected by pain behaviour: (p 8). He found it difficult to address the question of whether, or to what extent, the plaintiff required domestic assistance: (p 9).

597. The compelling conclusion to be drawn from the foregoing survey of the evidence on this issue is that the evidence did not demonstrate much in the way of a specific injury-based need for domestic assistance. Recent authority indicates the need for specific evidence to justify such a claim: Sampco Pty Ltd v Wurth [2015] NSWCA 117, at sub-paragraph (b) of [92]; and paragraphs[104] – [105]; Boral Bricks Pty Ltd v Cosmidis; Boral Bricks Pty Ltd v DM & BP Wiskich Pty Ltd [2013] NSWCA 443, at [97] – [100].

598. There was no evidence as to the claimed market rate of $40 per hour for paid domestic assistance. Apart from the evidence of the relatively modest cost of lawnmowing services at $70 per month, in this case the only reliable basis for identifying an hourly rate for domestic assistance is the statutory rate provided by s 141B(4)(a) of the MAC Act. However, no specific hours are identifiable.

599. As the state of the evidence does not permit an identified amount for projection as a future source of likely expenditure for domestic assistance, and as there are some tasks identified in the cited medical evidence which suggest the plaintiff would have difficulty, and might therefore need occasional external assistance if those tasks were not continued to be carried out by his wife or family members (for which there was no evidence), I consider that the appropriate method by which to compensate the plaintiff for this head of damage is by way of a modest buffer amount of $20,000 to reflect the value of the chance the plaintiff may need such assistance: State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536, at [71] and [87]; Penrith City Council v Parks [2004] NSWCA 201, at [58]; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13, at [7].

600. I therefore assess the plaintiff’s damages for future domestic assistance in the amount of $20,000.

Future treatment expenses

601. The plaintiff made a claim for future treatment expenses involving two components.

602. The first submitted component was a claim for $50,000, not as a projected amount, but a global sum representing an allowance for future general and specialist medical reviews, pain management, investigation, medications, hospitalisation, physiotherapy, hydrotherapy and psychotherapy.

603. The second submitted component was for possible operative procedures based upon the report of Dr Giblin dated 14 January 2015. The sum claimed was $166,000, without dissection of its component costs. It was said to be on account of reconstructive surgery to the left shoulder, bilateral knee arthroscopies, bilateral knee replacements and future revision of bilateral knee replacements. In my view that claim was extravagant and exaggerated, and without adequate foundation in the evidence. Dr Giblin’s report dated 14 January 2015 did not support such an approach: Exhibit “B”, p 180.

604. In contrast, the defendant submitted that the plaintiff should be awarded a lump sum buffer amount of $25,000 on account of possible future treatment expenses.

605. An evaluation of Dr Giblin’s views on the need for future surgical treatment was that it was not mandatory at this stage, but it could not be excluded. He estimated the total medical costs of a total knee replacement to be in the order of $25,000: Exhibit “B”, p 175. That evidence did not suggest that it was more probable than not that the plaintiff would require such surgery, either in the short or longterm. At best, there is a chance that future surgery may be required.

606. The plaintiff said he has had enough surgeries: T23.4 – T23.13. It therefore seems from that evidence that it is unlikely he will agree to further surgical procedures on his right knee unless it was absolutely indicated. The evidence does not suggest such an indication. Therefore, rather than identifying individual lump sum costings of future treatment for discounting for deferral of cost, or identifying a weekly sum representing recurring treatment costs for projection, I consider that the most appropriate method by which to compensate the plaintiff for the prospect that he will require accident-related future treatment is by an award of a buffer sum of $25,000: State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536, at [71] and [87]; Penrith City Council v Parks [2004] NSWCA 201, at [58]; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13, at [7].

607. I therefore assess the plaintiff’s damages for future treatment expenses in the buffer amount of $25,000.

Past out-of-pocket expenses

608. The plaintiff claimed out-of-pocket expenses for treatment and allied expenditure in the sum of $109,383.30. The defendant conceded the mathematical correctness of that amount, which comprised the total of the amounts listed in Exhibit “E”, but contended the whole of that amount should not be awarded having regard to the defendant’s contentions concerning the cause of the plaintiff’s right knee problems.

609. It is difficult to determine how much of the expenditure for treatment as identified in Exhibit “E” specifically refers to the aggravations due to the further injuries sustained by the plaintiff on 12 February 2011 and 18 August 2012.

610. Whilst it is possible to identify some specific treatment costs on those dates (at pages 6 and 24 of Exhibit “E”), it is difficult to discern which treatment costs incurred after those dates are wholly due to the subject accident, and which amounts may be due to treatment needs caused by non-compensible aggravation injuries for which the defendant is not responsible. Both parties carry an onus of proof in respect of the contentions and counter-contentions in that regard: s 5D of the CL Act: Watts v Rake [1960] HCA 58; (1960) 108 CLR 158, Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164.

611. On the evidence, doing the best I can to achieve a fair balance between the parties on those matters, I consider the most appropriate way of acknowledging the defendant’s position on those matters is to apply a general buffer discount to the total amount identified in Exhibit “E”. I therefore consider that the amount claimed for past out-of-pocket expenses should be rounded down to $100,000.

612. I therefore assess the plaintiff’s damages for out-of-pocket expenses in the amount of $100,000.

Summary of damages assessment

613. My assessment of the plaintiff’s damages is summarised as follows:

(a) Non economic loss	$150,000
(b) Past loss of earning capacity	$179,977
(c) Future loss of earning capacity	$250,658
(d) Past domestic assistance	$5,460
(e) Future domestic assistance	$20,000
(f) Future treatment expenses	$25,000
(g) Past out-of-pocket expenses	$100,000
Total	$731,095

Disposition

614. The plaintiff is entitled to a verdict and judgment in his favour in the amount of $731,095 without discount for alleged contributory negligence.

615. The defendant has asked that it be noted that the defendant is entitled to some credits to be offset against the amount of the judgment when satisfying that judgment. Those credits total $99,142.95. In that regard, the defendant has made payments pursuant to s 83 of the MAC Act in the amount of $69,142.95 and an advance made in the sum of $30,000 on account of damages: T148.

Costs

616. The plaintiff is entitled to have his costs of the proceedings paid by the defendant on the ordinary basis unless a party can show an entitlement to some other costs order.

Orders

617. I make the following orders:

1. Verdict and judgment for the plaintiff in the sum of $731,095;

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 or other orders are required.

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Decision last updated: 30 June 2015