O'Neill v Rhodes

[2016] TASSC 17

[2016] TASSC 17

COURT:  SUPREME COURT OF TASMANIA

CITATION:                 O'Neill v Rhodes [2016] TASSC 17

PARTIES:  O'NEILL, Craig Andrew
  v
  RHODES, Natasha

FILE NO:  415/2009
DELIVERED ON:  30 March 2016
HEARING DATES:  21 – 24, 27 July 2015
JUDGMENT OF:  Porter J

CATCHWORDS:

Limitation of Actions – Limitation of particular actions – Torts involving personal injuries – Actions for damages in respect of personal injuries to be brought within 3 years from date of discoverability – Plaintiff injured in April 2006 – Within a month of accident plaintiff spoke to a solicitor to ensure payment of medical expenses by statutory insurer – Solicitor wrote to statutory insurer making a claim for damages – No damages to be awarded for non-economic loss where the loss is not more than $4,000 with CPI adjustment from 2004 – Plaintiff did not know or ought to have known injury sufficiently significant to warrant bringing proceedings.

Allianz Australia Insurance Ltd v Mercer [2016] TASFC 2, applied.

Aust Dig Limitation of Acts [1024]

Damages – General principles – General and special damages – Costs of future medical treatment properly characterised as general damage – Failure to formally particularise such costs not to preclude an award particularly where the need for the services and the costing addressed in evidence tendered without objection.

Shearman v Folland [1950] 2 KB 43, followed.

Aust Dig Damages [1]

Damages – Particular awards of damages – Tasmania – 37 year old male – 47 at trial – Low back injury and minor soft tissue injuries to neck, shoulder and hand – Pre accident anxiety and vulnerability – Hyper-vigilant of symptoms – Loss of earning capacity where employed in a sedentary occupation – Non-economic loss of $60,000 – Total award of $583,923.
Aust Dig Damages [61]

REPRESENTATION:

Counsel:
             Plaintiff:  B R McTaggart SC and N Munting
             Defendant:  K E Read SC
Solicitors:
             Plaintiff:  Wallace Wilkinson & Webster
             Defendant:  Dobson Mitchell & Allport

Judgment Number:  [2016] TASSC 17
Number of paragraphs:  147

Serial No 17/2016

File No 415/2009

CRAIG ANDREW O'NEILL v NATASHA RHODES

REASONS FOR JUDGMENT  PORTER J

30 March 2016

Introduction

1. On Saturday 8 April 2006, the plaintiff, Craig O'Neill, was injured in a motor vehicle accident.  On the afternoon of that day he was driving a utility and was stationary in the right hand turning lane of a busy road, preparing to make a turn. His vehicle was struck from behind by a vehicle driven by the defendant, Natasha Rhodes.  As a result of the collision, the plaintiff injured his back, shoulders, neck, knees and left hand.

2. The plaintiff has sued the defendant for damages for personal injuries. The defendant has admitted that her driving was negligent, and that the plaintiff has suffered injury and damage. There is no allegation of contributory negligence. The defendant has, however, pleaded that the plaintiff is not entitled to any relief because the action was not brought within three years of the date of discoverability, as provided for in s 5A(3)(a) of the Limitation Act 1974. The writ was issued on 20 May 2009, and the defendant says the date of discoverability was before 21 May 2006.

3. Accordingly, the issues to be considered are whether the plaintiff's action is statute barred, and if not, the quantum of the plaintiff's damages.

The limitation point

1. Section 5A provides as follows:

   "5A  Actions in respect of personal injuries incurred on or after commencement day

   (1)  This section applies only to an action where the cause of action accrues on or after the commencement day.

   (2)  ...

   (3)  An action for damages for negligence, nuisance or breach of duty (whether that duty exists by virtue of a contract or a provision made by or under an enactment or independently of any contract or any such provision), where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of, or include, damages in respect of personal injuries to any person, must not be brought after the expiration of whichever of the following periods of limitation is the earlier:

   (a)  3 years commencing on the date of discoverability;

   (b)  12 years commencing on the date of the act or omission which it is alleged resulted in the personal injury or death that is the subject of the action."

2. Section 2(1) of the Limitation Act provides that "the date of discoverability in the case of an action for damages for personal injuries or death means the date when the plaintiff knew or ought to have known that personal injury or death —

   (a)had occurred; and

   (b)was attributable to the conduct of the defendant; and

   (c)in the case of personal injury, was sufficiently significant to warrant bringing proceedings."

The evidence

1. The plaintiff was born on 8 May 1968, making him nearly 38 at the time of this accident.  At the time, he was working for a Hobart firm of lawyers, Page Seager, as a conveyancing clerk.  He had been employed by that firm since 1986.  Of some relevance is that in that year he was involved in a motor vehicle accident on the east coast, (the 1986 accident).  He was driving a vehicle and was struck head-on by a vehicle travelling in the other direction being driven on the wrong side of the road.  His evidence was that he suffered facial injuries; he bit through his tongue, suffered some chipped teeth and a laceration under his chin.  He also had a deep laceration to his right knee. He spoke to a solicitor at Page Seager who had approached him about the accident. The solicitor asked him if he was going to seek damages "from the MAIB" (the Motor Accidents Insurance Board). In evidence, the plaintiff said, "I didn't really understand what he was on about because I was only 17 years old". The plaintiff said that the solicitor said he would look after it, and about 12 months later an offer of $4,000 was made, which he accepted.  He signed a deed of release to conclude the settlement.

2. The plaintiff's evidence about the injuries he received in the 2006 accident and their consequences, and what he did about getting advice, was as follows. When struck, his left hand moved from the steering wheel and hit a dashboard vent.  His head struck the back window of the utility and was then flung forward.  He moved his vehicle by turning right into the street he had intended going into.  When he pulled over he noticed a sore head, neck, shoulders and wrist.  His back and knees were also hurting.  He noticed significant damage to both vehicles. 

3. He was at the scene for about half an hour.  When he arrived home, he was feeling sore in all the same areas. He rested and took painkillers over the course of the weekend but went into work on the Monday morning.  He said he found that very hard going, being generally very stiff and very sore.  He consulted his general practitioner, Dr Alex Sutherland, on 12 April 2006, four days after the accident.  It was recommended that he take analgesic and anti-inflammatory medication.  On 12 April 2006 he completed and forwarded to the Motor Accidents Insurance Board an application for scheduled benefits.  He was seeking payment of his medical expenses.  In the following weeks he stayed at work but was having difficulty sitting.  His low back was causing a lot of pain, as well as his shoulders and wrist. He was able to have some time off at Easter which was in mid-April. He continued to see Dr Sutherland, and in late April had an X-ray of his left wrist done, but this was inconclusive.  He also started a course of physiotherapy. By 11 May 2006 he had had about two or three days off work because of the back, neck and wrist symptoms, and there is no evidence of any further days off before 21 May.

4. On 11 May 2006 he spoke to a solicitor at Page Seager, David Barclay. He did so at the insistence of another solicitor, David Shelley, who was the plaintiff's supervisor. The plaintiff's evidence was that Mr Shelley suggested he see Mr Barclay, with Mr Shelley saying:

   "You want to make sure you get David [Barclay] to write a letter to the Board because there's various time limits … I'm not really up on what time limits are for what … but the sooner you notify them the better."

5. I infer that the plaintiff saw Mr Barclay on the same day as he spoke to Mr Shelley.  The plaintiff's evidence about the discussion of Mr Barclay is as follows.  He said he poked his head in Mr Barclay's door and asked him if he had a moment.  Mr Barclay said he did.  The plaintiff had a quick chat to him, saying that he had been in an accident, outlining his physical difficulties, and telling Mr Barclay that he was a bit worried that the MAIB may not continue to keep paying for his medical expenses.  He explained in evidence that he said this, not out of any great concern, but because he just wanted to ensure that payments were continued. 

6. He said he told Mr Barclay that his injuries were not improving much at all, that he had seen the general practitioner and been to physiotherapy.  He said he agreed with Mr Barclay that "he was to write to the MAIB to seek their attitude as to whether they admitted liability". When asked what his understanding of the process was, or the purpose of that letter, the plaintiff said, "Well to me that meant that the MAIB would keep paying my medical expenses in relation to the accident."  He said Mr Barclay did not give him any "legal advice".  The plaintiff said that there was no discussion about what he might be entitled to arising from the accident that he remembered, and that his purpose in seeing Mr Barclay was "Just to basically have my symptoms on the record to ensure that I'm reimbursed for any out of pockets in regard to medical expenses."

7. The plaintiff said that at the time he saw Mr Barclay he thought that his injuries would just get better, and that he did not think that things were going to amount to anything of a serious nature.  He said that his only intention at the time he saw Mr Barclay was to receive reimbursement for medical expenses to the extent he was out of pocket.  He said that Mr Barclay did not discuss costs with him or provide him with any form of costs agreement.  The plaintiff said that before 21 May 2006 he did not speak to Mr Barclay or any other solicitor about a common law claim.  He did not receive any advice about what damages he might receive, and had not discussed legal costs with anyone.

8. On 15 May 2006 Mr Barclay wrote on firm letterhead to the general manager of the MAIB.  The letter is in the following terms:

   "CRAIG O'NEILL

   I act for the abovenamed.

   In accordance with the enclosed authority would you please let me have copies of my client's notice of accident form and his application for benefits.

   I advise that I have instructions to make a claim for damages in Common Law.

   I understand the circumstances of the accident entail that my client was stationary when the driver of your insured's vehicle drove into the rear of my client's vehicle.  He has suffered personal injuries.

   Would you please therefore confirm the liability he has admitted [sic] and advise the name of your solicitors."

9. In cross-examination, the plaintiff agreed that the $4,000 he had obtained in 1986 was worthwhile, that it was "useful money".  He denied seeing Mr Barclay because he wanted to obtain "useful money" in this case. He was asked to think about the matter very carefully, and it was suggested to him that he was in a bad way and went to see Mr Barclay because he wanted to make a claim.  The plaintiff responded:

   "No, I went up to Mr Barclay at the insistence of somebody else in the firm, because he – I – like my experience with sort of stuff is minimal, and another individual in the firm, in the office next to me, was concerned for me and he suggested I go up and talk to Mr Barclay.  At that time I really didn’t have much to do with Mr Barclay because he was upstairs and down the far end and I didn’t sort of really know what he did because I was downstairs in commercial, it was like two different businesses. Any rate once I was told or suggested to that I go up and chat to him, my – my intention was to basically have my symptoms recorded and to – just to ensure that the Board pays any medical expenses, because I didn’t want to be left out of pocket."

10. The plaintiff again denied that it was his intention to make a claim similar to the one he had made in 1986.  It was put to him that he knew it was worthwhile taking proceedings, but he said that because there had been no investigation as to his back, and as far as he was concerned he "could have been right in a couple of months and it just wouldn't have been worthwhile, it certainly wouldn't have been worth the headache".  He agreed that he had "come right" within a few months after the accident in 1986, and agreed that making the claim had been worthwhile.  He agreed that he knew he had been injured when he saw Mr Barclay, but not to what extent.  He also knew that he had been injured because of the conduct of the other driver whose details he knew.  When it was put to him that he may not have known how serious his injuries were, but that he knew that they were sufficiently serious to make it worthwhile suing, the plaintiff said he did not consider suing, but that he was basically doing what Mr Shelley suggested he do, which was to speak to Mr Barclay.

11. As to Mr Barclay's letter to the Board, the plaintiff denied that Mr Barclay suggested writing to the Board and making a claim.  He said that after he had briefly outlined the details, Mr Barclay acknowledged what he had been told, took a few notes and said that he would send a letter off to the Board seeking its attitude as to liability.  The plaintiff said that he did not recall Mr Barclay saying anything about making a claim, and that Mr Barclay did not get instructions from him to make a claim for damages in common law.  Neither party called Mr Barclay to give evidence.

12. The plaintiff called Mr Shelley. On the issue of the plaintiff's seeing Mr Barclay, Mr Shelley's evidence was as follows.  The plaintiff saw him on the Monday after the accident. The plaintiff told him that he was not having any significant symptoms.  He told the plaintiff that sometimes those sorts of injuries get worse with time, and he encouraged him to make sure he reported the accident to the MAIB, and that if he had continuing symptoms to make sure he saw a general practitioner about it.  He said he did not tell the plaintiff to speak to anybody else at Page Seager.  Mr Shelley said that he and the plaintiff talked about the plaintiff's symptoms over the next few weeks, and at one point he reviewed the plaintiff's employee records to see what time the plaintiff had had away from work.  That was some time after 2 May 2006.  Mr Shelley said that from the end of July 2006 until August 2007, the plaintiff was off work completely, and then returned to work on a part-time basis after that.  Mr Shelley was not cross-examined.

13. Dr Sutherland's evidence is also relevant to this issue.  He said that he had been the plaintiff's general practitioner since 1994.  He confirmed that the plaintiff saw him on 12 April 2006, when he gave the history of being involved in a motor vehicle accident on the previous Saturday. Dr Sutherland noted complaints of the left wrist being painful, giving way when he was trying to pick up heavy books, and of pain in his neck, shoulders, upper back and lower back radiating to his buttocks, along with sore knees.  On examination, there was a full range of movement in the wrist, with no swelling, although some reported tenderness.

14. Dr Sutherland also noted that the plaintiff was tender in several neck muscles, and had slightly reduced range of movement of his cervical and lumbar spine. Dr Sutherland assessed the plaintiff as suffering from multiple soft tissue injuries and suggested the use of simple analgesia to see how things went.  He said that since that time there has been no evidence of bony injury in spite of a lot of imaging being performed.  In the relevant period, Dr Sutherland's notes show a further wrist X-ray on 18 May 2006.  Other evidence shows that the plaintiff saw Dr Sutherland five times between the accident and 21 May 2006, with all accounts being paid relatively promptly by the MAIB.

The law

1. The definition of date of discoverability calls for actual or constructive knowledge of three things.  It is the the timing of the plaintiff's actual or constructive knowledge of the injury being sufficiently significant to warrant bringing proceedings, par (c) of the definition, which is the real issue in this case. Before turning to that, I note that constructive knowledge is approached from the perspective of a person with the quality and characteristics of the plaintiff.  It is on that basis that consideration is given to what steps might have been taken in order to acquire relevant knowledge.  That in turn leads to an inquiry as to the likelihood of such steps resulting in the acquisition of the particular knowledge. See Kaye v Hoffman (2008) 17 Tas R 176 at 193 [31], 196 [42]; on appeal (2009) 19 Tas R 357 per Crawford CJ at 360-361 [14]-[18].

2. The issue of actual or constructive knowledge in relation to par (c) of the definition has been the subject of considerable discussion. The authorities were recently reviewed by the Full Court in Allianz Australia Insurance Ltd v Mercer [2016] TASFC 2. It is convenient to set out part of my judgment, with which Tennent and Wood JJ agreed:

   "84    … The fundamental point is that the provision is to fix a time at which time commences to run. The clear purpose of the provisions is to deal fairly with cases where the existence of some injury, or the seriousness of it, is not apparent for some time, particularly where it is of a progressive nature. It seems to me that against the backdrop of the rationale for the date of discoverability provisions, and on the wording of a definition as a whole, it is the significance of the injury which is the focal point of par (c).  It is the injury which must be known to be sufficiently significant to warrant bringing proceedings, although it is plain from Baker-Morrison [(2009) 74 NSWLR 454] and Frizelle v Bauer [[2009] NSWCA 239], that in certain circumstances the knowledge referred to in par (c) will involve legal and medical information and evaluation. Whether or not a degree of impairment is required, as is the case under s 138AB [of the Workers Rehabilitation and Compensation Act 1988], is a good example. Relevant knowledge would include knowledge that the threshold exists and whether the injury has given rise, or might well give rise, to the particular degree.

   85    Of course, as Basten JA made clear in Frizelle, it is not every case which involves legal or medical evaluation.  In Baker-Morrison, his Honour expressly said that the introductory words refer to knowledge of identified facts, 'and not to an assessment of prospects of success in the prospective proceedings'.  The possible need for medical and legal evaluation where such things as thresholds and other legal factors bearing on the viability of an action, does not mean that knowledge of sufficient significance to warrant bringing proceedings extends to knowledge of all of the various favourable and adverse contingencies which will affect the ultimate outcome.  Those matters are relevant to the decision as to whether to institute proceedings. 

   86    I do not think that par (c) is to be read as saying that a person only knows or is taken to know that the injury is sufficiently significant to warrant bringing proceedings until they are in possession of all information enabling a full evaluation of the likely outcome of proceedings, and if relevant, a comparison to alternatives which may be available. In my view, par (c) does not mean knowledge that the injury is sufficiently significant to warrant bringing proceedings, in the sense that the anticipated outcome, assessed on the basis of the significance of the injury and all other factors which may affect the outcome, warrants proceedings actually being taken."

Resolution

1. For the defendant to succeed on this issue, she needs to establish that the date of discoverability occurred before 21 May 2006.  As I have noted, there is no dispute that by 21 May 2006, the plaintiff knew or ought to have known of the facts set out in pars (a) and (b) of the definition.  The contention is about par (c).  The defendant does not challenge the plaintiff's evidence about the course of his injuries and treatment in the relevant time.  The defendant's position rests heavily on Mr Barclay's letter of 15 May 2006.  It is essentially from that letter that I am being asked to draw the inference that the par (c) criterion for the date of discoverability was met by or on 11 May, the day of the discussion with Mr Barclay.  The time between the accident and 11 May 2006 is 4 weeks and 5 days, but I do not lose sight of the fact that there are 10 further days to consider. 

2. Actual or constructive knowledge as referred to in par (c), in this case, would have to involve consideration of s 27 of the Civil Liability Act 2002. Section 27(1) provides that no damages are to be awarded for non-economic loss, where that loss is assessed to be not more than an amount known as "A". Subsection (2) provides that if the amount of non-economic loss is assessed to be more than an amount A, and not more than an amount, "B", the damages to be awarded for non-economic loss are calculated as 1.25 times the amount assessed minus amount A. Amount A is set at $4,000 for the financial year ending 30 June 2004, with an annual recalculation done on 1 July each subsequent financial year using a formula involving the CPI figure for Hobart for the March quarter immediately preceding the financial year, and the CPI figure for Hobart for the March quarter of 2003. Amount B is five times amount A.

3. As a preface to all submissions, the defendant submitted that I could not rely on the plaintiff's evidence unless it was reliably corroborated.  It is submitted that in evidence he was argumentative and evasive, and untruthful on some key aspects.  As to this issue, the defendant submits that the plaintiff's evidence about the discussion with Mr Barclay is not corroborated, and is inconsistent with Mr Shelley's evidence.  Further, the defendant submits that I should draw the inference as "the only inference that can be drawn", that Mr Barclay's evidence would not have assisted the plaintiff: Jones v Dunkel (1959) 101 CLR 298.

4. The plaintiff relies on his evidence about his state of knowledge and of the nature of the conversation with Mr Barclay.  The plaintiff says that knowledge under par (c) has not been made out, even accepting that he instructed Mr Barclay to write in the terms of the letter.  The plaintiff did not make any submissions on the Jones v Dunkel issue.  Accordingly, I do not need to consider whether Mr Barclay could have been called by the defendant in the light of the plaintiff having given evidence about the conversation; that is whether, assuming the communications attracted client legal privilege, the plaintiff, by giving evidence, impliedly consented to disclosure. 

5. I will first deal with the plaintiff's actual knowledge as to par (c). On the plaintiff's evidence, he did not turn his mind to making a claim for damages at the time he spoke to Mr Barclay; his only concern was to have his medical expenses paid.  For reasons which I will elaborate on in relation to damages, there is very good reason to exercise caution before accepting the plaintiff's evidence.  Of course, I acknowledge that there are inconsistencies between his evidence and that of Mr Shelley.  However, I consider it less likely that Mr Shelley would have simply told the plaintiff to report the accident to the MAIB and to make sure he saw a general practitioner, than that he should speak to one of the firm's litigation solicitors about time limits.  By that time, the plaintiff had seen Dr Sutherland, had an X-ray of his wrist, and had lodged his application to the MAIB for scheduled benefits.  On neither version, was any mention made of damages or instituting proceedings.

6. In the circumstances, I accept that an inference should be drawn that Mr Barclay's evidence would not help the plaintiff's case.  This does not mean that I should infer that it would in fact have been damaging: HML v The Queen [2008] HCA 16; 235 CLR 334 per Heydon J at 438 [303]. Because it is reasonable to expect Mr Barclay would be called, and no explanation has been given for not doing so, and because Mr Barclay could have shed light on what was said, I am entitled to more readily draw an inference unfavourable to the plaintiff. I may draw such an inference, but I am not compelled to do so.

7. Accepting that it can be inferred from the letter that the plaintiff agreed to Mr Barclay writing to the MAIB, an inference remains open that the two were at cross-purposes.  It may be that Mr Barclay explained the right to claim common law damages as distinct from receiving scheduled benefits, and said that he would seek the Board's attitude to liability.  From my overall impression of the plaintiff, the subtleties of this distinction might well have been lost on him.  It is quite possible that he left Mr Barclay having agreed that Mr Barclay would write to the Board, but thinking it was about confirming his entitlement to medical expenses.  I am not affirmatively satisfied that the fact, and contents, of Mr Barclay's letter sufficiently establish actual knowledge of the plaintiff of the fact referred to in par (c) of the definition. Objectively, Mr Barclay's letter at that time could be seen as premature in a sense. Although the plaintiff was experiencing ongoing symptoms, he had only had a few days off work. No significant bony injury had been diagnosed, and it would not have been reasonably possible for Mr Barclay to give any advice as to whether s 27 of the Civil Liability Act would preclude an award of damages for non-economic loss. There is no evidence that the plaintiff was aware of s 27 of the Civil Liability Act, or its application to his situation.  Looking objectively at the letter, the "claim" could only have been a conditional one at that time.

8. That leads to the issue of constructive knowledge. I have the unchallenged evidence of the plaintiff about the course of his injuries and treatment. He was not hospitalised, and did not receive any specialist treatment or advice. It was not suggested that he ought to have been aware of s 27 of the Civil Liability Act, or more particularly perhaps, its possible effect at that time.  I do not think the 1986 claim is of any assistance to the defendant.  It involved more overt, less insidious injuries, and occurred before the Civil Liability Act existed.  On that basis, I am not satisfied that the plaintiff ought to have known at a time before 21 May 2006 that his injuries were sufficiently serious to justify the bringing of proceedings.

9. I am not satisfied that the date of discoverability was before 21 May 2006.  It follows that the limitation defence fails, and that the defendant is liable to the plaintiff for damages.

Damages

The plaintiff before the accident

1. The plaintiff completed year 10 in high school.  He described himself as an "average" student but active and happy.  Before starting work at Page Seager, he worked in a car body works business for two months, and before that in a hospital record section for 12 months. At the time of the accident, he was living with his wife of about 11 years, and their two children then aged 10 and 5 years.  The couple separated in late April 2008 and divorced about a year later.  His health was generally good.  He enjoyed spending time with his family; they engaged in ball sports and fishing.  He restored 'hot rod' cars, and raced cars in organised 'drag races', although at the time of the accident he was mainly a spectator at such events.  He enjoyed doing renovations on his house.  He enjoyed a good social life with his family.  That involved going to barbecues, parties, car and other shows, and regattas.  His evidence-in-chief was that he had no real previous problems with any of the areas affected by the collision, but there emerged some evidence about back problems, apparently stemming from the 1986 accident.

An overview of the plaintiff's injuries

1. The plaintiff's injuries, which are the subject of the claim, relate to his low back, neck, left shoulder and left wrist.  The details that appear in the plaintiff's written submissions are:

   ·     soft tissue injuries to the neck, lumbar spine, wrists and left shoulder, with early complaints of pain in the upper back, lower back radiating to the buttocks, left wrist, neck, shoulders, and of sore knees;

   ·     subacromial bursitis of the left shoulder;

   ·     injury to the L5/S1 motion segment manifested by an annular tear in the posterior aspect of the disc, and probable facet joint injury;

   ·     generalised anxiety order with clinically significant depressive features.

2. CT and MRI scans in mid to late 2006 showed a central disc bulge at L5/S1 level with the disc having loss of hydration and a possible annular tear.  There was no obvious neural compression.  In September 2006, a scan of his left shoulder showed thickening of the subacromial bursa with impingement on tendon movement.  For the physical injuries, the plaintiff has had ongoing treatment consisting of, at various times, facet block and medial branch block procedures on his lumbar spine, an injection of steroid in the shoulder, medications, hydrotherapy, gymnasium exercises, physiotherapy and massage, various pain relief strategies and the provision of therapeutic appliances.  By letter of 21 August 2012, the MAIB declined to further fund treatment in the forms of physiotherapy, massage and supervised gym programs "and the like at the Hobart Aquatic Centre".  The plaintiff saw a psychologist, Ms Colhoun, for counselling.  He saw her very frequently in the period from July 2006 to January 2009.  The level decreased to 17 consultations in 2010, six in 2011, and once in each of 2012 and 2013.  He saw a psychiatrist, Dr Davie, between June 2008 and December 2010.  The frequency was twice a month for six months, and about monthly thereafter.

3. The plaintiff's claim for damages includes a claim for economic loss.  The plaintiff was off work for 12 months from August 2006.  When he returned on 24 August 2007, he worked for four hours on Mondays, Wednesdays and Fridays. He says he was not able to continue in his role as a conveyancing clerk.  His employer then found a substantial data entry project for him. On 9 September 2011, when that was effectively completed, his employment was terminated. 

4. Essentially, the defendant does not dispute the fact of the injuries including the psychological harm, and the need for treatment, but says that by about 2010 the plaintiff had very substantially improved beyond his claimed state, and that such improvement has been maintained.  It is therefore necessary to examine in some detail the course of events, and the medical opinions expressed in the period since the accident.

The plaintiff after the accident

1. I have already dealt with the aftermath of the accident to an extent.  An additional point which needs to be mentioned is that immediately after the collision, the passenger in the other car became aggressive.  The plaintiff felt threatened, and was apparently apprehensive for a time afterwards, lest the two meet.  The plaintiff's further evidence is as follows.  By June 2006, he still had ongoing problems, mainly with his back and neck.  He was depressed and suffering from poor memory and concentration.  On 12 August 2006 he experienced a sudden and "massive" onset of pain in his low back.  He was on all fours in his son's bedroom putting away some toys.  He described it as feeling "like an elephant or something had just suddenly jumped on" his back.  This caused him to urinate and become nauseous.  He was taken to hospital by ambulance.  Scans were done and he was treated with relaxant medication.  He went home after about eight hours when the pain had subsided, although he said he was still extremely tender.  When asked to describe the comparative pain levels, he said that before this incident his pain generally was about 8 out of 10; after it was at its highest level, and stayed that way for about a week and a half to two weeks.  After that he had no additional symptoms to those which he previously had.

2. The plaintiff said his main problem has been his back. The essential problem is pain. It radiates into his buttocks and down his left leg.  He gets pins and needles in the left foot and "a funny sensation" in the big toe of his left foot.  He said that sitting for extended periods and "sitting at a desk doing computer work, sex, everything, socialising" aggravates his back. Particular movements such as twisting, bumping when in a car, and trying to lift things also aggravate his pain level.  When his pain is bad he takes Panadeine Forte (paracetamol/codeine) and Endone (oxycodone) if particularly bad.  The possibility of a fusion of his spine at the affected level, or disc replacement, has been raised with him, but he thought he was too young and was not convinced of the outcome.  Apparently, he was told that the chances of pain reduction were 50:50 with a possibility of ending up worse, and he was "not prepared to lose the quality of life" he had.  He said that his back seemed to be getting generally worse going into the winter of 2015. 

3. He said his neck still causes a lot of difficulty; he gets pain in the back of the neck.  He finds it hard to get comfortable in bed, watching TV or reading.  Sometimes, when driving, it "hassles" him when he turns his head to look for traffic.  He gets headaches when his neck is painful.  Sometimes, for no apparent reason, his neck becomes stiffer than normal.  He said that it is fine for about half the time; he has other problems in the other half.  He takes Panadeine forte or Nurofen (ibuprofen) for this pain.

4. He still has "issues" with his left shoulder. He said there was an 85 to 95 per cent improvement to what it was in the post-accident period.  He experiences a couple of "issues" a month, but did not explain what the issues were. He said his right shoulder is reasonably good although it clicks sometimes.  It took four years to improve to that point.  As to his left wrist, he experiences prolonged pain for two to three days each month, although again there is an 85 to 95 per cent improvement on the post-accident situation.  He has problems with the fingers on the left hand.  He gets pins and needles if reading a book. He still has problems in both knees "to a degree", in that although they largely resolved within seven to eight months of the accident, they ache approximately twice a month in winter time, and both knees sometimes hurt when he kneels.

5. In relation to all symptoms, the plaintiff said that not every day is bad all the time.  He said he has good times, "intermediate bad times", and very bad times; things fluctuate. His mood was significantly affected after the accident.  He became agitated, angry, frustrated and very withdrawn.  His marriage started to deteriorate as his behaviour put a strain on the family. As noted, he and his wife separated in April 2008.  (He is now in a relationship with another woman; they live separately but are engaged to be married.)  The plaintiff said that he has had, and has, a lot of problems with his memory.  He has to concentrate as he finds it hard to "compute" information.  He reads but does not readily comprehend.  He can control his irritability better than he could, but concentration and memory difficulties have been a constant since the accident. 

6. As to his depression, the plaintiff said this came on gradually as he realised his physical symptoms were not improving.  He felt very lonely, sad, withdrawn, frail and vulnerable.  He became anxious very soon after the accident, particularly in public situations.  He now hates driving; he feels vulnerable and anxious.  Generally, he does not enjoy going out in public, mainly it seems, because of the feeling of physical vulnerability.  He feels off-balance when walking.  His alcohol intake increased to quite a high level for a few months in the first year or so after the accident, but he is now a non-drinker.  As with his physical symptoms, the psychological symptoms ebb and flow. 

7. He says his lifestyle has changed.  He does not now enjoy going to motor sports or engaging in fishing.  His "escape" is tinkering with a classic car he bought a few years ago to restore.  That is in his garage at home.  He said that he does some of the work with his son, but spends about two to three hours a day, two to three days a week, doing things on his own; "more playing" than anything, although he has taught himself TIG welding, a sophisticated welding technique. 

8. Before the accident he did many things around the house, including landscaping, renovations which included plumbing and plastering work. Since the accident, he has only done minor maintenance.  Before the accident he enjoyed reading, but is not able to concentrate and finds exercise frustrating.  Before the accident he was a very sound sleeper.  He now finds it very hard to sleep because his mind races, and he finds it hard to get physically comfortable because of his neck and back.  He usually wakes up two to three times during the night in pain because he has bitten his tongue or grinding his teeth. 

9. The plaintiff presently lives with his 14 year old son.  The son helps with a lot of the domestic duties; he usually stacks the firewood and does the gardening.  The son washes his own clothes, and sometimes does the plaintiff's.   He also helps the plaintiff with the shopping.  Rather than buy a large amount of grocery items once a week, the plaintiff shops several times a week as he finds it easier to deal with a smaller number of bags.  He says that without his son, he would not be able to manage the domestic chores. 

10. As to the analgesic medication for back and neck pain, the plaintiff takes the Endone on average at least once a week, and the Panadeine forte between one to eight per day, with the average being four.  He takes an antidepressant, Lexapro (escitalopram), once a day.  He said he was obtaining some benefit from massage, hydrotherapy and supervised gym programs, but stopped doing those things in September 2012 when the MAIB refused to continue to fund them.  He is now on a disability pension and says he cannot afford them.

11. In terms of his employment situation, the plaintiff said that when he went back to work part-time, he was not doing his normal duties.  He had four conveyancing files which he struggled to manage. He found that very embarrassing when compared to his usual 30 to 40.  After three to four weeks he stopped conveyancing work and was allocated a particular task.  The firm was in a transition process from hardcopy deeds and indices to an electronic format.  The plaintiff sorted through the deeds, contacted clients with any queries and was responsible for the conversion of the documents.  He eventually used up his sick pay and leave entitlements.  The firm lent him his full-time salary until 30 June 2007, with repayment and reinstatement of those entitlements at his discretion. 

12. The plaintiff largely completed the task before he was retrenched.  He said he was struggling physically and mentally to do the tasks; "four hours felt like 12 hours".  Some weeks he was not able to complete his 12 hours because of the pain; the 12 hours made him exhausted.  He did not feel he had the capacity to do more.  He remains the subject of a medical certification which limits his work as sedentary work, four hours a day, three days per week. He says he hopes to be able to return to the workforce. 

13. The plaintiff's credibility is a prominent issue.  A good deal of cross-examination was directed to the basis of two aspects of the plaintiff's claims.  One is for motor vehicle expenses for travelling to medical and like appointments.  That covers the period from August 2006 to June 2015.  At all times the plaintiff has been living at Rokeby.  All of the claims are for driving from and to his home.  For most of the relevant time Page Seager was in Macquarie Street, just east of Harrington Street.  In late 2010, the firm moved quite a considerable distance away to a location in Murray Street.  Both the psychologist and the massage therapist who were treating the plaintiff were located in upper Macquarie Street near Antill Street.  The plaintiff's physiotherapy was about 150 metres away from Page Seager.  Until mid-2008 Dr Sutherland was in De Witt Street, Battery Point. 

1. The second claim is for car parking expenses relating to the periods from May 2006 to July 2006, and from September 2007 to July 2009.  All car parking receipts are from the Centrepoint car park in the Hobart CBD.  The basis of the parking claim is the plaintiff's evidence that before the accident he parked in free parking in Battery Point and walked to work.  After the accident, he said he tried to walk from Battery Point to work on one occasion but, "I was just way too slow and I was quite late for work – and I was very sore."  The clear inference is that he was not generally capable of the walk.

2. The documents relating to these claims are the plaintiff's handwritten list of dates, destinations (by service provider) and distances, the plaintiff's diary, showing appointment times, and parking receipts from the car park.  By a comparison with the document, and through clarification by the plaintiff through questioning, it quickly became apparent that:

   ·     many of the travel claims related to times when the plaintiff was at work;

   ·     for at least the physiotherapist, and before the Page Seager move, the plaintiff would have walked;

   ·     the appointment times were within such close proximity that the plaintiff could not have, as claimed, returned home and then left for the next one.

3. The plaintiff explained that the list of travelling was prepared by him in about June 2013 at the request of his lawyers.  In examination-in-chief, he said that the list had been compiled from his diary entries and appointment cards, or "slips".  In cross-examination, he twice confirmed this basis of the compilation of the list.  However, when later asked to explain a particular day, claiming travel to three separate service providers, he agreed that he could not have returned home and back between two of the appointments, and added that one of the providers on occasion cancelled appointments, or that he might have gone there later in the day.  It was put to him that he had claimed three trips and that he was not really sure as to just when he had gone, or whether he had gone at all.  He replied that when he formulated the summary he used the appointment slips "which, quite obviously, wasn't an accurate enough way of recording the claim". When asked about the use of the diary when formulating the list, he said, "No, I just used the – my appointment slips."

4. Other examples were put to him of claims for two or more trips when the appointment times would show the claim to be wrong.  He commented at one point that there was a time when the masseur's mother was in poor health and appointments were cancelled at short notice, but he acknowledged the particular claim was an error.  The plaintiff repeatedly denied deliberately inflating his claim, at times protesting that he was offended by the suggestion.  He said he had once been a meticulous person, but was now not as meticulous as he once was.  Along with a "shocking memory", he attributed this to the accident.  He also said that the compilation of the list was urgent, ultimately making the point that if he was trying to make false claims in the list of travelling expenses, it was blatantly obvious that there were glaring errors. 

5. The cross-examination turned to the question of the plaintiff walking from work to various medical appointments, in the light of his claim for car park expenses, and when it was that the car park receipts showed that his car was in the car park.  This was confined to the period during which Page Seager was in Macquarie Street. The plaintiff agreed that he usually saw Dr Sutherland in the mornings.  He said he could not specifically remember whether this coincided with the mornings he was at work, but it could well have done.  He said he did not remember walking from work to Dr Sutherland's surgery in De Witt Street, Battery Point; if he was at work he used parking meters – presumably near his workplace – and drove to the surgery, or he used the car park if there was no parking meter available.  For the vast majority of the time he would have driven there. 

6. In response to the suggestion he was capable of walking there and back, the plaintiff said it depended - he did not know what his symptoms were on any specific day.  It was pointed out to him that to drive to Battery Point from work, if his car was in the car park, it would involve walking from work to the car park, driving to Battery Point, finding a parking place, then driving back to the car park and then walking back to work.[1]  The plaintiff said, "Yes, unless I'd use a parking meter as well because there was usually parking meters available outside of work."

   [1]   There was no evidence about the distance from Page Seager to the car park.  As a matter of local common knowledge, and without meaning to be definitive, I would say the distance is roughly about one quarter of that from Page Seager to the surgery, making a saving of half the distance by driving.

7. The plaintiff was taken to a specific instance on 9 November 2007.  The car park receipt showed the vehicle being in the car park from 8.27am to 12.28pm.  It was put to him that if the appointment with Dr Sutherland was during those hours, he would have walked.  The plaintiff said, "Well it depends, I may also have got a lift from somebody else using the company car who may have been going that way which was not unusual." He agreed though that in that event he would walk back.  When his diary for 9 November 2007 was shown as revealing a 10am appointment with Dr Sutherland, the plaintiff said he would have walked or got a lift.  The following exchange occurred:

   "And if you got a lift you walked back?.....And which way this confirms how, as I've repeatedly said how I've formulated or how I've got the information to construct this summary. [sic]

   Yes, but you have walked at least one way, haven't you, Mr O'Neill?.....Well I think we've already agreed on that."

8. It was pointed out that he offered the parking receipts on the basis that he had walked once from Battery Point to Page Seager, and was so sore that he could not manage again and did not park in Battery Point.  He denied that this was false.  He denied that he was capable of walking from Battery Point to work at all times, but agreed that his doctors had advised him to walk for therapy.  He said he had, but that it was "recreational".  He said he did not specifically recall walking to Dr Sutherland's, but it was quite possible.  He was taken to further specific instances on 7 and 21 December 2007, on which days the car was in the car park from about 8.25am to 12.40pm.  On each of those days the appointment with Dr Sutherland was at 10am.  When it was suggested to the plaintiff that he walked he said, "Well unless I've used the company car or got a lift with somebody."  He went on to explain, "Well, if I've walked, got a lift or used the company car I don't know, because I could have also had a lift in the company car if someone else was going down that way."  When pressed, he conceded it was a possibility that he walked, adding that he may have also got a lift or may have driven the company car.

9. On the general issue of walking, the plaintiff agreed that he had found that it did give him relief from pain.  Counsel put to him that "specifically in 2007 and 2008" he was finding that to be the case.  The plaintiff said that it depended on his symptoms on the day, "the milder the symptoms the more relief I got from the pain, yet if my pain levels were higher walking actually made pain worse".  As to this, the plaintiff was taken to a diary entry of 1 February 2007.  There is a note of "neck still playing up – can't seem to get any relief – very frustrated and feeling overwhelmed with everything".  The next day there is a note of feeling better after having spoken with a psychologist.

10. For the next day there is a note of neck pain increasing and causing bad headaches.  On the next day, the plaintiff has noted there is no change, but "Walked approx 1.5klm to try and relax."  The questioning continued:

    "So the situation is that when things are bad for you, when things were bad for you in 2007 you were walking for relief, weren't you?.....Yes, well there is also two types of walking, there's walking to walk to a destination or then there is just dawdling around to – in a bit of a mindless state as well.

    And what were you doing then?.....I would've – I would've – like I don't remember the specific day but I remember in the past that I've just – literally just gone walking, dawdling around on the flat because around our area it's quite flat.

    Of course if you're able to measure it at one and a half kilometres it's hardly a dawdle around, is it, it's a pretty specific walk you've been on?.....Well – and that's an estimate too, it could've even been a kilometre. I think you've proven earlier my estimate of distance isn't too good."

11. There is a note in the plaintiff's diary for 11 January 2008, in which he said that he only gets some relief by walking around.  He was asked whether walking helped when his pain was bad:

    "Well it depends, many times I haven't been able to sleep, one of which was last night, and I got out of bed and I was walking around the lounge room, I actually went and walked around the yard."

    And it helped you?.....Like having a cigarette.  Well it was just to sort of try and free myself up a little bit."

12. When being asked about a description of a similar event on 12 January 2008 where the plaintiff had noted "Only seem to be comfortable on feet walking around", he was asked whether walking helped.  The plaintiff said, "Yes, but I can't walk 24/7."  In the course of cross-examination on this aspect, the plaintiff was asked about supervised gymnasium training at the Hobart Aquatic Centre.  He said that a personal trainer taught him exercises to assist with increasing core body strength.  He did those exercises, learnt them and knows how to do them, adding that it was because he was taught "how to do use various machines up there etc".  He said he found this beneficial and agreed that it had improved him "to a degree".  It was put to the plaintiff that it had reduced his pain.  He replied, "I wouldn't say it reduced it significantly at all".  When asked to stay with the question, whether it reduced his pain, the plaintiff said, "… it's very hard to measure going back so many years. If it did reduce my pain I would not say it was to a massive degree. It certainly assisted in my symptoms."  He agreed that the exercises gave him a better posture but said he had not maintained that posture to date because he could not afford to go to a gym. 

13. Another topic of cross-examination was the cause of the plaintiff's depression.  He agreed that in mid-April 2008, he had discovered his wife had been having an affair.  It had a devastating effect on him.  When it was suggested that he went into deep depression about it, he said that he went deep into the depression that he was already in.  He agreed that it made things worse but did not agree that the event was the start of his depression.  He agreed that just after he discovered the infidelity, he saw Dr Sutherland and reported vomiting, diarrhoea and insomnia.  He said that he had not experienced vomiting and diarrhoea before this time, although he retched at times, adding that vomiting was a condition he still had issues with.  He said he did not remember whether his back pain flared up at about this time, but agreed there was a deterioration in his physical condition. He said he later discovered that his wife had been "losing money" on her credit card and that she was generally lying to him a lot.  At about the same time, he noted in his diary that he was having anxiety attacks due to his wife's behaviour. 

14. As to the plaintiff's condition before the accident, it will be recalled that the plaintiff's evidence-in-chief was that he only suffered facial injuries and knee laceration in the 1986 accident.  It was put to him that as at the end of 1990 he had back problems for some four years following the 1986 accident.  He denied that was so.  Counsel tendered a copy of a letter from Dr Boxhall, a general practitioner, to Page Seager dated 13 December 1990, in which the doctor stated that the plaintiff had suffered back pain for some four years since a motor vehicle accident.  He agreed though that in the mid-1990s, he had mentioned some back pain to Dr Beattie, another general practitioner, although he had no real recollection of the circumstances.  He said his complaint then was really one of suffering dizziness "and just feeling sort of run down, aches and pains, those sorts of things".

15. The plaintiff was cross-examined about his present ability to do a number of things. A summary is as follows.

    ·     He agreed that in July 2006 he brought sand to his home using his utility vehicle, shovelled it into a wheelbarrow and transferred it to a drainage pit.  He did the same thing with a load of gravel about a week later.  He said that the utility would have been less than half full, and that there would have been five barrow "loads" but that he put reduced amounts in the wheelbarrow each time.

    ·     He agreed that "to a degree", he has mowed his lawns from the time of the accident to the present, explaining that he does not do the lawns as frequently, and now might do the front lawn on one occasion, the back lawn at another time.  He "does his best to tend to a flower garden". 

    ·     He agreed that he had been to car shows, "but only local ones". 

    ·     He agreed that in January 2007 he had spent a day cleaning out the garage and the house, replying that it was in conjunction with his children, "and not the whole day".  When taken to a diary note, "Spent day cleaning out garage and the house", and upon counsel pointing out that there was nothing about children, the plaintiff said, "Correct, but it was school holidays."  He said it would not have been a solid day clearing and disposing of things; that it no doubt would have been done just at his own pace.

    ·     He agreed that he had taken his children fishing off the rocks.  It was put to him that he had taken his son fishing and that he had "cast a rod", to which he replied, "Not my large surf rod any more because I can't use that because that aggravates my back."  The question was repeated and the plaintiff said he had cast a small rod, saying that he had "not particularly" understood the question when it was first asked.  When he was challenged about qualifying his answers, he said that he was misinterpreting the questions.

    ·     He agreed that he had been to two barbecues that he could remember, had "attended bowling" when asked if he had been ten pin bowling since the accident, had stacked firewood, kicked a ball with his children, spent all day on his feet doing odd jobs around the house, and completed a computer course in office programs in July 2009.

    ·     He agreed that before the present restoration work on a vehicle, he had done some work on another car he owned at the time of the accident, and had disposed of it.  He fixed some wiring which he found "good mental exercise", and apparently fixed a dent on the bonnet and a broken headlight.

    ·     He said he could not do any ordinary household chores, but immediately qualified that by saying that this depended on what the chores were. Vacuuming caused pain.  He cannot clean the shower, but can do the weekly shopping "in sections" with the assistance of his son.

16. He was questioned about his improvement over time.  He agreed that by August 2012 he had cut back considerably on the treatment he was receiving, adding that it was because nothing much was changing for him.  He agreed that since about the end of 2011, he had generally improved, but quarrelled with the description of a "considerable" improvement.  He said his symptoms fluctuate. He said that the symptoms were constant in 2008 to 2009, and that he had obviously improved since that time following the separation from his wife.  His mood improved after the property dispute was settled, and his present relationship is a good, stable and happy one.  He said he tries to be more physically active but is still socially withdrawn, although not as anxious.  In response to the suggestion that he was not depressed, he said, "I have my moments, it's work in progress." 

17. The defendant tendered some surveillance footage taken over three days in early September 2006, and over four days in mid to late June 2015.  All footage shows the plaintiff getting into and out of his utility, and walking to and from various premises.  Some of the June 2015 footage shows the plaintiff at a waste disposal plant.  It shows him taking various items from the rear of the utility and throwing it onto a waste pile.  It was put to him that this was something he could not have done in 2006 after the accident.  He said, "Well those items …", and was interrupted.  The question was repeated, and he agreed that he could not have done that "directly" after the accident in 2006.  Shortly after that questioning, he disagreed with the proposition that he had improved since 2010, but did not fully embrace the converse; that he was the same as he was in 2010.  He said his condition fluctuated, but his memory and sitting tolerances are worse.

The plaintiff's medical evidence

1. Dr Paul Thompson is a clinical assistant to an eminent neurosurgeon, and has worked as his surgical assistant.  Dr Thompson first saw the plaintiff in April 2007 at the request of Dr Sutherland.  On physical examination, the plaintiff demonstrated normal flexion to ankle level, and normal lateral flexion and rotation, but extension was limited by pain.  Neurological examination of the lower limbs was normal and there was no clinical sensory disturbance detected in those limbs.  Dr Thompson concluded that the plaintiff had probably sustained an injury to the L5/S1 motion segment manifested by a disc tear and possible facet joint injury.  After consultation with the neurosurgeon, he referred the plaintiff to Dr Robert Paton, a pain specialist, for bilateral facet joint blocks at L5/4 and L5/S1 levels.  These were done in July 2007, and January and February 2008 (Dr Paton's evidence is that facet blocks were done first and medial branch blocks were done on the last two occasions). 

2. Dr Thompson says that the plaintiff reported some improvement when reviewed by him in August 2007 and again in April 2008, and notes that there was reasonable progress until early February 2009, when the plaintiff had a sudden onset of pain after twisting.  An MRI scan on 12 February 2009 showed a small central disc bulge at the L2/3 level.  Consistent with the earlier scan, there was a loss of decrease in posterior disc height at the L5/S1 level associated with a possible central posterior annular tear, but without neural compression.  Surgery was discussed but the plaintiff said he wanted to continue with conservative management.

3. Dr Thompson continued regular reviews of the plaintiff.  In March 2013, he noted that the plaintiff's symptoms through the course of 2006 to 2008 had improved following the facet blocks, and he believed were largely stabilised.  He last saw the plaintiff on 16 March 2015.  The symptoms were largely unchanged.  Physical examination showed flexion to mid-shin level involving bilateral lower lumbar back pain.  He had 10 degrees of extension past the mid-line. Lateral flexion and rotation are normal. Straight leg raised bilaterally was limited to 80 degrees by hamstring tightness, and neurological examination of the lower limbs was normal.  Dr Thompson believes that the plaintiff's complaints are genuine, have not been exaggerated and are a direct consequence of the accident. The complaints have been consistent and the physical examination has remained largely unchanged. Dr Thompson feels that the plaintiff has had significant emotional issues as a consequence of his ongoing chronic pain processes. 

4. In Dr Thompson's opinion, the plaintiff's capacity for work has been significantly affected in that he has a limited ability to sit for longer periods, particularly more than one to two hours, a reduced capacity to lift and bend, and he should not be in a position requiring lifting of more than 15 to 20kg unaided.  He should not perform duties that involve repetitive twisting and bending from the waist level.  The prognosis is that the plaintiff's condition is likely to continue, most probably for the remainder of his life.  As natural degenerative processes occur, some worsening of pain levels can be expected.  Dr Thompson's opinion is that the episode on 12 August 2006 was a direct consequence of the injury sustained on 8 April 2006. At this point I would add an observation that a much later MRI scan in March 2014, showed mild broad based disc protrusions at L2/L3, L3/L4, L4/L5, as well as L5/S1. The posterior peripheral annular tear is reported, but there is no compromise of the spinal canal. The spinal nerve roots exit freely at all levels. There are mild degenerative osteoarthritic changes present in the L5/S1 and L4/L5 facet joints although the paravertebral soft tissue structures "have a satisfactory appearance".

1. In evidence, Dr Thompson described an annular tear as a manifestation of internal disruption; the paste like inner part of the disc is damaged.  Typical symptoms are pain on axial loading and anything where the weight if consistently forward of the hips.  Degeneration extends to the inner part, and this type of spine is likely to suffer exacerbations for relatively minor things.  Some letters from Dr Thompson to Dr Sutherland in 2008 were tendered in cross-examination. On 7 July 2008 Dr Thompson noted that the plaintiff seemed to be progressing quite reasonably, with good improvement over the last two to three months.  He reported that the plaintiff said he felt there had been improvement in the pain in his low back and left leg.  He stated that no further investigation was indicated at that stage. He was to review the plaintiff in November. On 24 November 2008, Dr Thompson reported "good progression over 2008", with the plaintiff being certainly more comfortable and in less pain. In the letter, Dr Thompson advised continuation of physiotherapy and gym exercise programs, and suggested an increase in working hours to four hours per day, four days per week, with slow increases from that.  In evidence, Dr Thompson agreed that in in December 2010, he formed the view that the plaintiff was certainly improving with time, that his range of movement was much improved, and his analgesic use had diminished significantly. 

2. Dr Paton gave evidence. He said he first saw the plaintiff on 9 July 2007.  The plaintiff's complaints and Dr Paton's examination suggested that a significant amount of the pain was coming from posterior elements, from the region of facet joints rather than the disc itself.  Dr Paton explained the facet joint block procedure done on 24 July 2007 as placing a needle into the L5/S1 facet joint and injecting an anaesthetic.  As to the medial branch procedures done in January and February 2008, he explained these as anaesthetising the nerve supply to the facet joint rather than the joint itself. As the plaintiff said that the pain relief has lasted only for the day of the procedure, the second medial branch block was done using a different anaesthetic.  In October 2008 Dr Paton reported to the plaintiff's solicitors that he would consider further anaesthetic injections if required, but that the need for a denervation procedure was unlikely.  He said the plaintiff should continue with a low impact exercise program such as walking.  He thought that the plaintiff was likely to continue to improve, although with possible episodes of more significant low back pain, particularly at times of stress. At that time he believed the plaintiff's working hours could be extended provided he had regular breaks from the sitting position. He thought that in the longer term there may be further degeneration in the affected disc, "It may become narrowed and less flexible, but this should not result in an escalation of pain as the segment would become more stable."

3. In evidence, Dr Paton said that he thought the incident at home in August 2006 involved a minor activity and was unlikely to have occurred in the absence of damage to the disc caused in the accident.  He said that disc injury and disruption to the facet joints pain often go hand in hand.  In cross- examination, Dr Paton agreed that on 2 September 2008 he recommended that the plaintiff consider a denervation procedure, but said that as the plaintiff was doing reasonably well at that time, it was not then indicated.  His view at the time was that the plaintiff was going along reasonably well and would continue to improve.  Dr Paton was asked about the significance of the plaintiff shovelling sand and gravel into and out of a wheelbarrow and moving the loads around, at a time two to three months after the accident.  He agreed that it would suggest recovery was underway, but said that would involve the disc, and not necessarily the facet joints.  He would have expected the disc to have recovered over three to six months, and would promote light physical exercise after a three month period.  In fact, he encouraged the plaintiff to undertake light physical exercise, including swimming. 

4. Mr John Fourez is a consultant neuropsychologist.  He saw the plaintiff at the request of the plaintiff's treating psychologist. The purpose was to perform an investigation of the plaintiff's neuropsychological functions.  This was done in May 2007.  Mr Fourez concluded that the plaintiff's complaints consisted of multiple physical and pain symptoms, as well as day-to-day cognitive deterioration and attendant psychological symptoms of anxiety.  Test results were not suggestive of intellectual deficits, psychomotor retardation, or loss of organisational capacity, but there was clear evidence of anxiety when confronted with more challenging tasks, and he had problems keeping his concentration focussed.  The plaintiff retained sufficient working memory capacity to process a normal amount of information, but only when he was able to muster his concentration.  Mr Fourez explained this as an inability to stay on task, and said that there were times when the plaintiff clearly became distracted and did not perform as well as he normally would as if he were paying attention.  Mr Fourez said that his actual observations of the plaintiff were those typically related to anxiety; the plaintiff had sweaty palms, he got flustered and red in the face. At times Mr Fourez had to stop the assessment to attempt to settle the plaintiff down. 

5. Mr Fourez said that his understanding was that the plaintiff was a very accurate and meticulous sort of person.  After the accident the plaintiff reported having great difficulty coping with the fact that he was not able to organise things properly and achieve his usual standards.  This fuelled his psychological and emotional difficulties.  After the accident he seemed unable to do his job with the degree of reliability that he had previously.  While primary memory functions were reasonably well retained, Mr Fourez felt the reliability of the plaintiff's memory had been negatively affected.  This was a matter of poor initial processing and registration, rather than one of storage or forgetting.  Mr Fourez saw the plaintiff as a well motivated individual whose basic personality structure rendered him susceptible to self-criticism when he was not able to indulge his usual standards. 

6. Mr Fourez last saw the plaintiff in January 2012. He brought an end to his treatment as he did not feel he was making progress. He considered that unless physical incapacity and psychopathological symptoms resolved, there was nothing further he could do for cognitive problems.  He thought there was a link between cognitive problems and the plaintiff's pain and mood, in that the cognitive process was mirrored by fluctuations in those things. At the time of cessation of the treatment he considered the prognosis to be not very good. Barriers to a return to employment included pain, psychopathology, cognitive problems and lack of confidence.

7. In evidence, Mr Fourez confirmed his view that the cognitive inefficiencies were due to a mixture of pain, depression and anxiety, and agreed that with a significant improvement in anxiety, social circumstances and pain levels, a corresponding improvement in cognitive functioning would be expected.  Mr Fourez  was cross-examined about a note of a consultation he had with the plaintiff on 24 January 2012. He confirmed the plaintiff made a comment about waiting until the MAIB settled the claim before looking for work.  Mr Fourez noted that the plaintiff suddenly realised how he (Mr Fourez) had taken it, and clarified that he meant merely that while he was in rehabilitation with multiple appointments, and the possibility of surgery, it would make it difficult to obtain and hold down employment. 

8. Dr Sutherland, the plaintiff's general practitioner, gave evidence.  In a report of January 2013, Dr Sutherland referred to the initial consultation and the number of investigative procedures which had been carried out to May 2011. He noted that in June 2006 the plaintiff reported anxiety, especially when approaching the site of the accident, along with irritability and tearfulness. Dr Sutherland referred the plaintiff to Ms Colhoun the psychologist. He referred to the diagnosis of soft tissue injuries to the neck, lumbar spine, wrist and left shoulder, and noted that prognosis is uncertain.  He also said the plaintiff has poor endurance for work and has to avoid prolonged sitting or standing, as well as long distance driving.  In May 2014 he recorded the plaintiff as suffering from an anxiety disorder and chronic low back pain, with a highly probable interplay between these conditions, although he professed to not being an expert in chronic pain.  In a report of early July 2015, he said he remained of the opinion that the plaintiff's back symptoms were a direct consequence of the motor vehicle accident, and that there had been little if any change in the psychological state through the whole period.  He said the prognosis was uncertain, but that the plaintiff would still benefit from occasional psychological counselling, massage therapy, physiotherapy and a gymnasium program.

9. In evidence, Dr Sutherland said that the plaintiff's predominant complaints in the previous two years had been his psychological state and his lower back.  The plaintiff reported to him that the back pain fluctuates; sometimes he has good days, but on many days he suffers, and on some days to the point of taking narcotic pain killers.  The plaintiff has reported no improvement in the period since 2013. Physical examination shows some restrictions on movement and these findings have been consistent since 2012. As to the psychological symptoms, the plaintiff consistently complained of anxiety and insomnia.  The severity of these things also tends to fluctuate.  With the medication, these symptoms are reasonably controlled.  The situation has remained the same over the last two years.  The situation with the left shoulder and neck has also remained constant, in that the severity of symptoms fluctuates. These things are relatively minor compared to the other two major components. Dr Sutherland agreed that he wrote a letter to the MAIB on 30 April 2008 advising that the plaintiff reported considerable pain relief from the facet blocks.  However, he said his recollection was that the improvement was temporary and he had a later note of pain flaring which, he accepted when it was put to him, would have generally coincided with the plaintiff's reported marriage difficulties.

The defendant's medical evidence

1. Dr David Gorman is a consultant physician and pain management specialist.  He examined the plaintiff in May 2008.  For that examination he had scans of the cervical and lumbosacral spine, the MRI scan from November 2006, and a bone scan from May 2007.  In a report following that examination, Dr Gorman said that the plaintiff's major disability was psychological, with ongoing symptoms from what has been described as either a generalised anxiety disorder or post-traumatic stress disorder. The main physical complaints were of low back and buttock pain, with some numbness in the left foot, but the plaintiff was then not significantly troubled by any problems with his wrists, shoulders or knees.  Dr Gorman's view was that the plaintiff had developed a significant generalised anxiety disorder.  He believed that the plaintiff did sustain a disc injury in the accident, but there were no definite nerve root signs and he thought that the problem had resolved significantly.  He found no evidence of facet problems, and believed the prognosis to be good.  Generally, he urged continuing psychological support and encouragement to return to work with a gradual increase in hours. 

2. Dr Gorman's second examination was in early August 2013.  By the time of that examination, he had reports from various treating medical practitioners and health professionals, along with more recent CT and MRI scans.  Dr Gorman reported that while the plaintiff focuses on the physical symptoms, physical findings were relatively mild.  The plaintiff had an excellent range of movement in the lumbar spine, and no nerve compression or irritation, nor any significant loss of disc height of the L5/S1 level.  Dr Gorman acknowledged the existence of subacromial bursitis in the left shoulder, but said it was likely to be unrelated to the accident. Dr Gorman believed that the plaintiff's continuing disability was a combination of physical and psychological problems. Referring to "a great deal of physiotherapy and psychological therapy" that had been provided, Dr Gorman did not believe that further therapy would be of benefit.  Overall, he said he did not believe the physical complaints, "as they continue", are consistent with having been caused by the accident. 

3. He believed the plaintiff had suffered possible lumbar disc damage at the time of the motor vehicle accident, giving some minimal ongoing lumbar spinal discomfort, worsened by inactivity and the plaintiff's psychological state, with what Dr Gorman thought to be probable post-traumatic stress disorder with anxiety and depression.  He said the plaintiff's injuries had stabilised, and the plaintiff needed to maintain an exercise program to ensure that he did not deteriorate further.  In Dr Gorman's view, there was no indication on clinical examination or on investigations that suggest the plaintiff has a physical injury which would prevent him working in a sedentary occupation, but deferred to a consultant psychiatrist to determine whether psychologically the plaintiff could return to work. 

4. In his evidence-in-chief, he agreed with Dr Paton's proposition that as the disc narrowed and became less flexible, it would become more stable.  He said that a degenerative disc does not steadily progress in its symptoms; as the disc degenerates and beds down, it is going to move less and therefore not be nearly so symptomatic.  He was asked to comment on the surveillance footage of June 2015, and said that it confirmed his findings on physical examination. Cross-examination revealed Dr Gorman's essential view that the plaintiff had degenerative disease in his lumbar spine. This condition was aggravated by the motor vehicle accident in which the plaintiff suffered a tear of the L5/S1 disc, with the August 2006 incident at home constituting another aggravation by a further tear.[2] 

   [2]   Dr Gorman was reluctant to concede that the injury sustained in the 2006 accident was a prelude to, or provided the setting for, the August 2006 aggravation. The evidence of Drs Thompson and Paton was that it did. Their evidence seemed more compelling to me, but in any event the issue does not seem to have any real significance. On the plaintiff's own evidence, the additional symptoms caused by this incident settled after about two weeks, although generally, I think it can be said that the state of the disc was a little worse after this incident.

5. Dr Gorman said he would hesitate to diagnose things such as major depression or generalised anxiety syndrome.  However, he said that in his discipline, psychological behavioural factors are recognised as having a role to play in pain.  He said that in 2008, the plaintiff's overwhelming presentation was of someone with severe psychological problems, not physical ones. He agreed that in 2013, the plaintiff had improved psychologically, and agreed that the present problems are partly physical and partly psychiatric.  He said it was difficult to tease apart the two things, and that they interact.  He maintained that the plaintiff's principal limitation is psychological, and said he believed that the plaintiff could do full hours as a clerk in a law office.  He accepted, however, that in order to assess the plaintiff's work capacity one would "definitely" need the opinion of a psychiatrist. 

6. The defendant called a consultant psychiatrist, Dr Ian Sale.  He saw the plaintiff at the request of the defendant's solicitors in September 2006, June 2008 and September 2013.  For the last review, Dr Sale had reports from Dr Davie, Dr Paton, Ms Colhoun, Mr Fourez, and Drs Thompson, Sutherland and Gorman. In his report dated 6 September 2013, Dr Sale noted the initial and provisional diagnosis of generalised anxiety, and that in 2008 the plaintiff's symptoms remained much the same.  He noted that at that time there had been some concerns about the plaintiff's cognitive function, but an assessment by Mr Fourez substantially ruled out the possibility of head injury.  Dr Sale added, "Another recent development at that stage involved his personal life, the break-up in his domestic relationship occurring during early 2008."

7. In the report of 6 September 2013, Dr Sale makes the following comments:

   ·     The plaintiff developed marked anxiety symptoms following a rear-end vehicle accident.  He also experienced some increased recall of a far more serious accident several years earlier.  Other than anxiety and other psychological symptoms, there are widespread complaints of pain, with lower back problems being the most prominent.

   ·     He noted his disagreement with the psychologist's early diagnosis of a post-traumatic stress disorder, on the basis that the accident itself was relatively minor.  The plaintiff's main cause for apprehension seemed to have been the conduct of the occupants of the other vehicle, the plaintiff then experiencing concern that he may further encounter them. 

   ·     Problems with cognition became prominent leading to a referral to Mr Fourez.  He considered it unlikely that there had been any acquired brain injury, and that the problems with cognition likely reflected the combined effects of psychological symptoms and pain.  It is now known, but probably was not at the time, that the plaintiff had also started drinking heavily, and this directly, in combination with medications, would also have had a deleterious effect on his cognitive prowess. 

   ·     In 2008, the plaintiff's marriage broke-up and his psychological health deteriorated markedly, prompting referral to Dr Davie, and a consideration of hospital admission.  Dr Sale said, "The break-up of the marriage has been attributed by the treating psychologist to the effects of the incident.  This may be the case, but without information from the former Mrs O'Neill, this remains speculative."  His opinion was that the plaintiff suffered a generalised anxiety disorder.  In 2008 the plaintiff's situation worsened, but it was related to family problems.  Dr Davie reached a view that the level of symptomology was sufficient to warrant a diagnosis of major depression.

   ·     As to the plaintiff's psychological function, although he is preoccupied by his cognitive inefficiencies, the testing conducted by Mr Fourez suggested that the plaintiff's cognition is reasonably intact.  The plaintiff is able to manage quite complex tasks, eg, keeping the travel record that forms part of his claim[3]. 

   [3]   Dr Sale also relied on the fact that the plaintiff helped assemble an extensive model railway network for his father.  With some personal knowledge of the subject, Dr Sale explained that this required quite a deal of cognitive skill to put together. Although Dr Sale's report says the plaintiff had helped his father, in evidence he said his impression was that it was the father who had helped the plaintiff. The plaintiff said in evidence that it was his father's project, that his father gave him "menial stuff to do", and he "just sort of moved things around … more hanging around than building it".

8. Dr Sale concludes this part of his report by saying that overall, he believes that the plaintiff is capable of working in clerical administrative areas.  "I would not regard his psychological difficulties as being sufficient to warrant him being a disability pensioner.  I would assume that that decision was made on the basis of other difficulties." 

1. The plaintiff makes a claim in respect of a loss of capacity to earn, which incapacity commenced from effectively since shortly after the accident. It is said that the incapacity will continue to be productive of loss until his retirement age of 67.  I am satisfied that working to that age was the plaintiff's intention.  As to past loss, I was given calculations that show what the plaintiff would have earned if he had worked throughout the period as a conveyancing clerk, and what he in fact earned between the accident and his redundancy. Because of the "light duties" he was doing, his rate of pay stayed the same throughout the relevant period, while that of the other conveyancing clerks increased.[5] Adjusted to allow for the time since trial, the net loss is about $383,000. The most up-to-date net weekly wage for a conveyancing clerk is $995.27. That weekly sum, to the age of 67, discounted at 5% in accordance with s 28A of the Civil Liability Act, gives an amount of about $645,000.  (The multiplier is 648.14 in accordance with the agreed actuarial tables.)

   [5]   According to Mr Shelley, there were three conveyancing clerks employed at the time, each working for a different commercial partner.  Each was paid at a slightly different rate which depended on the view of the particular partner.  At the time of the accident, the plaintiff was the lowest paid.  However, the very limited documentation which relates to the period casts some doubt on that suggestion.  The plaintiff's PAYG summary for FYE 2006 shows the same gross amount as the annualised amount evident from the pay slip of an unidentified clerk for the last fortnight in that financial year.  On the basis of Mr Shelley's evidence, the amount which it is said the plaintiff would have earned is an over-estimation, although by an unquantifiable but apparently modest amount. I bear that in mind, but it should also be borne in mind that the compensation is for the loss of capacity to earn, and there is nothing to suggest his capacity was less than the other clerks.  The plaintiff's pay could have changed at some time with a change of supervising partner, or of firm policy. 

2. As a matter of principle, the valuation of of a loss of capacity to earn does not depend on calculating income from the particular career which is no longer possible, but in calculating the damage to a capacity to carry on various careers.  The inquiry is an imprecise and indeterminate one to be carried out within very broad parameters: State of New South Wales v Moss [2000] NSWCA 133; 54 NSWLR 536 per Heydon JA at 553 [71]-[72]. I accept that the plaintiff's capacity to earn by way of physical labour is very limited. Although the plaintiff has some other skills, the focus in this case is on his capacity to earn in a clerical or administrative role, and the valuation exercise is best based accordingly.

3. The defendant argues that the plaintiff's loss reduced from September 2008, and says "it is reasonable to find that had he accepted his doctors' recommendations he would have been back working full-time by say mid-2009". As to the future aspect, the defendant says that the plaintiff might have a flare-up of back pain and need some time off, but the evidence does not show that this would exceed sick leave entitlements. 

4. Of course, before being made redundant, the plaintiff was working for four hours on three days a week, and according to his evidence, Dr Sutherland continues to "certify" him as fit for no more than that. The evidence shows that in October to November 2008 both Drs Paton and Thompson were of the view that the plaintiff's working hours could then be extended from 12 hours; that is, from four hours for three days each. Dr Paton did not specify a number of hours, but Dr Thompson specifically mentioned to Dr Sutherland four hours for four days.  The plaintiff's evidence was that up until he was retrenched in September 2011, he was struggling physically and mentally.  There were quite a few weeks when he thought he did not complete the 12 hours because of back pain.  He said he did not feel he had the capacity to increase his hours because he did not think he was physically or mentally able to.  Working for four hours made him "exhausted".  The only reference I am able to find of the plaintiff's work situation with a doctor is in a report of Dr Thompson dated 16 March 2013.  Dr Thompson told the plaintiff's solicitors that on review in November 2008, the plaintiff was working four hours for three days a week but found that at the end of his hours, "he was uncomfortable". I note that in that report of March 2013, Dr Thompson suggested that a return to work was possible, initially on a part-time basis, and then dependent upon the outcome, a possible increase of hours.

5. Mr Shelley, of Page Seager, did not mention in his evidence any apparent difficulties suffered by the plaintiff in performing the tasks which were allocated to him in substitution for his role as a conveyancing clerk.  He said that when the plaintiff returned to work, it was on a program arranged by the MAIB, and he was doing light duties for the 12 hours.  He said they were trying to find things to keep the plaintiff occupied to bring him back into the workplace.  The plaintiff was asked to maintain the business name and company register for a time, and was then engaged in the process of transferring the entire wills register to an electronic database. When asked about the plaintiff's modified role in the firm, he said:

   "… it wasn't seen as an ongoing role, we were trying to find small projects to bring Craig back on a return to work program and keep him involved and active at work. There wasn't an endless supply of these projects so we were continuing to look for these small jobs to do and ultimately we ran out of those small jobs, which unfortunately led to the redundancy in 2011."[6]

   [6]   I note, however, that by letter of 7 September 2011, Page Seager's manager wrote to the plaintiff telling him that things had reached a point where the available work was limited to one-off projects only, and that this had come about by the fact of his ongoing health issue limiting his "capabilities and reliability".

6. The plaintiff said in evidence that he would "love to" get back into the workforce but said he thought it would be difficult.  It will be recalled that Mr Fourez mentioned in his evidence a comment made by the plaintiff that he would not look for work until his claim was settled.  When the plaintiff was asked about this, he said that he had been looking for work for quite some time. The cross-examiner did not pursue it.  The matter was not the subject of any questions in evidence-in-chief or re-examination.  The extent and timing of these efforts, and what types of position they relate to, remain unexplained. 

7. I think the starting point has to be the physical limitations as described by Drs Thompson and Sutherland. The plaintiff has an injured back. That interacts with his anxious and vulnerable personality. I am satisfied that the injury has created limitations on what the plaintiff can do in terms of lifting and bending, and on sedentary work.  Any sedentary occupation cannot be purely static, and needs to enable regular movement and change of posture. I take into account his age and educational background.  He is at a disadvantage in the labour market were all else to be equal.  I find that he has suffered a loss of capacity to earn.  That loss was productive of financial loss in the past, and will be in the future. In assessing the value of the loss, and when looking at his capacity to do clerical or similar work, I take into account those things that the plaintiff says he is able to do. For instance, he has taught himself TIG welding, something which undoubtedly requires close concentration as he in fact admitted.  He is able to "tinker" on a car for two to three days a week, although spread over a full week.  I take the view that he tended to downplay the nature and extent of this activity.  I am not satisfied that he does as little as he makes out. 

8. The claimed net loss on an annual basis from the accident to date is as follows:

   Projected Earnings       Actual Earnings             Net Loss

   FYE 2007                   $38,899.00                 $7,413.52                $31,485.48

   FYE 2008                   $39,494.00               $11,126.00                $28,368.00

   FYE 2009                   $43,621.50               $15,017.00                $28,604.50

   FYE 2010                   $45,194.50               $16,476.00                $28,718.50

   FYE 2011                   $47,573.50               $16,057.00                $31,516.50

   FYE 2012                   $47,573.50                 $3,429.00                $44,144.50

   FYE 2013                   $49,373.00  Nil  $49,373.00

   FYE 2014                   $50,693.00  Nil  $50,693.00

   FYE 2015                   $51,549.00  Nil  $51,549.00

   FYE 2016 (to date)      $38,815.53  Nil  $38,815.53

   $383,268.01

9. The last financial year in which the plaintiff earned any income was the year ended 2012.  He earned nothing after 9 September 2012 when he was retrenched.  The claim so framed is a simple arithmetic one and assumes a total incapacity to work after that date.  It also assumes that his earning capacity was limited to 12 hours per week for the whole of the period from when he returned to work on 24 August 2007 until 9 September 2012. I am not satisfied that this assumption has been established as a fact. As a fundamental 'bottom line', there is no justification in any of the medical evidence to make a finding other than that the plaintiff had, and has, the capacity to work for four hours on three days a week. On the whole of the evidence, I find that at all times since his return to work, the plaintiff was at least capable of remunerative work for 12 hours a week.

10. Further, I find that the plaintiff's capacity to work and to earn increased in the period from August 2007 to September 2011 when he was retrenched, and has increased since.  It is not possible to be precise about particular points along the upward curve of improvement. That makes it more convenient to approach the matter in terms of blocks of time using a broad approach, bearing in mind that some divisions of time may operate in the plaintiff's favour and some in the defendant's favour. I am satisfied that allowance should be made for the plaintiff's personality and that the improvement curve should be viewed as a gradual one. In my view, the plaintiff's capacity to earn in the period to date increased from that represented by the 12 hour week in 2007, to a capacity to work remuneratively for a little in excess of 20 hours per week. Taking all matters into account, I find that by June 2014, the plaintiff had a retained earning capacity in the order of 60 per cent. 

11. As to quantification, it is probably more convenient to approach this in terms of hours which the plaintiff was capable of working in the time he was employed, and of a percentage of retained earning capacity after 2011 when he was not.  First, I think it is fair to allow the total of the amounts claimed to the financial year ended 2009; a total of $88,437.98.  I note that it was not until the end of 2008 that Drs Thompson and Paton recommended an increase in working hours.  Next, doing the best I can, I think it fair to assess the claim on the capacity to work 16 hours per week in the financial year ended 2010, and 18.75 hours (or one-half of the working week) for the next year to the financial year ended 2011.  In the next three years that should be increased to 20 hours (five four hour days or 53.33 per cent of the working week), and, as I have said, my view is that by the commencement of the 2014/2015 financial year, the unexercised capacity to earn had increased to 60 per cent.

12. The table set out above is reproduced below, but with the second column being the adjusted figure representing what the plaintiff earned or was capable of earning as I have detailed.  The third column is the adjusted difference representing the actual net loss.  At the risk of overly complicating things, during the time of employment I have taken the actual earnings, divided them by by 52 (weeks) and then divided the result by 12 (hours) to arrive at a net hourly rate. I have then multiplied that figure by the number of hours capable of being worked, and then annualised that figure.  That assumes, in the plaintiff's favour, that the 'light duties' rate at which he was actually being paid would have applied. In the years of unemployment starting with the 2012/2013 financial year, I have just taken the percentage of the total net annual salary claimed.

    Projected Earnings     Actual/Notional Earnings     Difference

    FYE 2007                   $38,899.00  $7,413.52                $31,485.48

    FYE 2008                   $39,494.00                   $11,126.00                $28,368.00

    FYE 2009                   $43,621.50                   $15,017.00                $28,604.50

    FYE 2010                   $45,194.50                   $21,968.00                $23,226.50

    FYE 2011                   $47,573.50                   $25,089.06                $22,484.44

    FYE 2012                   $47,573.50                   $26, 208.19[7]               $21,365.31

    FYE 2013                   $49,373.00                  $26,332.25                $23,040.75

    FYE 2014                   $50,693.00                  $27,036.30                $23,656.70

    FYE 2015                   $51,549.00                  $30,929.40                $20,619.60

    FYE 2016 (to date)      $38,815.53                  $23,289.18                $15,526.35

    $238,377.63

    [7]   I have used a combined approach to this year. The plaintiff earned $3,429 net in the 10 weeks before he was retrenched.  Assuming a 20 hour week he would have earned $5,715. Taking a figure representing 42 weeks of the claimed projected earnings, and applying the reduction of 53.33 per cent gives $20,493.19; a total of $26,208.19. 

13. I have adopted an arithmetical approach, but with a broad assessment as to the timing of improvement. I need to be satisfied that the end result is a fair value of the loss of capacity to earn to date. There is sufficient justification for moderating the final figure in the table. There is the issue, although not significant, of the possible disparity between the plaintiff's pre-accident pay rate and that of fellow clerks used as a comparison, as discussed in the footnote to par [107]. There is also the assumption about the plaintiff's continuing pay rate referred to in the last paragraph. It may have been that with an increase in hours, the nature of his work changed, and his rate increased. I would allow $235,000. I do not consider it appropriate to discount this figure for past loss for contingencies, notwithstanding the period of time between the accident and trial. There is nothing to suggest that the employment might not have been available during the period. There might be some justification for a discount on the basis that the plaintiff's degenerative back condition (which was undisputed), and his vulnerable personality might have seen him out of work for a period beyond his sick pay or other entitlements. However, any such risk would be offset by the period of time for which the plaintiff is out of his money, and "in practice justice is usually done if the plaintiff is awarded the aggregate of the actual money amounts that would have been earned, ignoring the counterbalancing factors of adverse contingencies and the diminished value of money": H Luntz, Assessment of Damages for Personal Injury and Death, 4^th ed, (2002) at 319 [5.2.8] and the cases cited at footnote 101. 

Future loss

1. This is to be assessed on the basis of a loss of the capacity to the extent of 40 per cent.  I think it reasonable to assess this on the basis of potential earnings as a conveyancing clerk.  Forty per cent of $995.20 is $398.11 which, multiplied by 648.14, gives a figure of $258,031.01. There was no evidence or discussion in this case about the appropriate figure by which the claim for future loss should be discounted to allow for the "usual" adverse contingencies such as mortality, sickness, accident, underemployment and unemployment. The figure conventionally adopted in this State is 15 per cent. However, as demonstrated by Evans J in McLennan v Luttrell [2006] TASSC 44 at [36]-[43], the discount for major contingencies other than unemployment is minimal. At 386-387 [6.4.14], Professor Luntz concludes that 5.5 per cent is a reasonable allowance in the average case of a person in regular employment.

2. In Partridge v Hobart City Council (2012) 22 Tas R 29, the Full Court (Crawford CJ, Blow J (as he then was) and Wood J) said at 58 [182] that it may be that the customary discount of 15 per cent is too high. Beyond that observation nothing was said. These are all general statements, and the particular circumstances of each case need to be looked at. In the present case, the plaintiff's work was not demanding but there is the undisputed degenerative state of his spine. This relates to the level affected in the accident, but in 2009 a small central disc bulge was detected three levels above. The plaintiff is a chronic smoker. The evidence was of a significant reduction in life expectancy, but at the least there is a chance of serious illness within his projected working life. His anxious and vulnerable personality would exacerbate any future physical or emotional difficulties. Because of those things, a discount figure of 15 per cent is appropriate. That gives a figure of $219,326 to the nearest dollar, and I award that amount.

Loss of superannuation contributions

1. Section 25 of the Civil Liability Act provides that the maximum amount of damages that may be awarded for economic loss due to the loss of employer superannuation contributions is the relevant percentage of damages payable for the deprivation or impairment of the earning capacity on which the entitlement to those contributions is based.  The relevant percentage is the percentage of earnings that is the minimum percentage required by law to be paid as employer superannuation contributions.  The parties are agreed that the correct approach is that taken by the New South Wales Court of Appeal in Najdovski v Crnoljlovic [2008] NSWCA 175 (per Allsop P and Basten JA, Windeyer JA dissenting). The relevant percentage is 9 per cent of gross ordinary time earnings, but because damages are assessed by reference net of tax, the calculation is done on the basis of 11 per cent of net earnings. Accordingly, the allowance I make is $49,975.86.

Future treatment

1. There are four components of this head of damage.  In the order in which they are set out in the particulars of claim, there are claims for future expenses for medication, surgery, rehabilitation, psychological treatment and general practitioner visits. There is an issue about the plaintiff's entitlement to claim for some of the items referred to in the plaintiff's closing submissions, and which were not particularised in the most recent particulars of claim dated 14 July 2015.  The claims are for episodic hydrotherapy, anaesthetic (facet block) injections, and reviews by Dr Thompson.

2. The defendant submitted in closing that the claims should not be entertained because they were not set out in the particulars, and so she was not facing them.  No basis for the submission was outlined, nor any authority cited.  The plaintiff did not seek to respond to the point.  I later sought written submissions.  The defendant points out that, due to the state of the pleadings on liability, she went into evidence first.  The submission is that in that case, it was essential that the defendant knew the full extent of the damages claimed, and no amendment to the particulars should be allowed, as she was prejudiced.  It is said that in any event, the evidence in support of the claims is so vague that it militates against amendment.  The plaintiff says that each of the three matters was alluded to in proofs of expert evidence delivered before trial.  Episodic hydrotherapy was mentioned in Dr Thompson's evidence without objection.  The other two matters were not mentioned.  In any case, The plaintiff now seeks leave to amend the particulars.  Although the claims are not very large, even taken at their highest, I am unfortunately required to decide this issue.

1. The starting point is the issue of what it is that needs to be pleaded or particularised, and the characterisation of claims for future medical and treatment expenses.  Subject to any rules of court, the law, as I see it, is that a plaintiff need only plead or specify 'special damage' as distinct from general damage. Generally, as to pleadings in respect of general and special damage see Luntz (above) at 68-70 [1.6.1]-[1.6.10], and McGregor on Damages, 19^th ed, Street and Maxwell, 2014 at 1935-1946, [49-007] to [49-023]. In the pleading context, general damage is the loss which the law presumes to be the nature or probable consequence of the wrong.  All damage which up to the time of the hearing is not yet crystallised in actual disbursement is still prospective in general damages: Shearman v Folland [1950] 2 KB 43 at 51[8]. 'Special damage' means not only expenses actually incurred but extends to things which are unusual or peculiar to a particular plaintiff and which may not be the natural and probable consequence of the wrong. On that basis notice is required.

   [8]   Future attendant care expenses were said to be general damage.

2. This category came to be extended to any out of pocket expenses or loss of earnings incurred before trial, and which were capable of substantially exact calculation. They were said to be special in the sense that fairness required them to be pleaded: Perestrello e Companhia Limitada v United Paint Co Limited [1969] 1 WLR 570 at 579; Griffiths v Kerkemeyer (1977) 139 CLR 161, per Stephen J at 179. The absence of a strict requirement to plead matters of general damage is not to say that it is not highly desirable, for a number of reasons, for a plaintiff to identify heads of general damage, and to provide particulars of the bases of calculation. More recently, considerations of fairness and the facilitation of settlement have led to rules of practice in various jurisdictions which deal with the provision of particulars in personal injury cases.

3. In this State, r 253A of the Supreme Court Rules 2000 is the only rule which specifically deals with personal injuries claims. It provides that, within 50 days after the close of pleadings or within such other times the parties may agree or the Court orders, the plaintiff is to advise the defendant in writing of a number of things. They are:

   ·     the nature of the plaintiff's injuries and of any secondary illnesses suffered;

   ·     the name of each hospital attended and the name and address of each medical practitioner who has treated the plaintiff for the injuries, other than as part of hospital treatment;

   ·     any expenses incurred as a result of the injuries;

   ·     the nature of employment or self-employment that the plaintiff claims he or she would have been likely to engage in had it not been for the injuries, the estimated gross annual income for each such category of employment and whether the claim is that the injuries impact totally or partially on that capacity.

4. The rule does not require particularisation of all general damage reasonably capable of quantification or estimation; it merely extends the ambit of particulars that a plaintiff is required to furnish: Dare v Pulham (1982) 148 CLR 658 at 665. Of course, a judge may order such particulars within the case management regime, but that was not done in this case. It follows that the mere failure to particularise these claims does not of necessity mean they are excluded from consideration. It follows that there is no need to amend the particulars. It leads, though, to the question of whether procedural fairness compels me to ignore these claims. In this case, I do not think it does. It is correct that the future needs for the relevant services was alluded to in 'proofs of evidence' which were in fact reports of various doctors, and which were tendered without objection to the relevant part. The cost of hydrotherapy is contained in an exhibit tendered by consent and which formed part of a two volume exhibit book, from which I infer the defendant was aware of it before trial. The cost of facet block injections is derived from the actual costs paid by the MAIB as evidenced by a list of payments by way of scheduled benefits. Next, the defendant acknowledged in closing submissions that the cost of a review by Dr Thompson had been agreed between the parties. Overall, I am not persuaded that in the circumstances the plaintiff's (unexplained) failure to formally particularise these claims means that they should be ignored.

Medication

1. The claims are for the cost of the continuing use of Panadeine Forte, Endone and Lexapro. Respectively, the agreed costs of these medications are $20.50 for 120, $7.39 for 20, and $14.50 for 28.  The plaintiff said that he takes between 1 and 8 Panadeine Forte a day, or 4 on average, at least 1 Endone a week depending on the symptoms, and 1 Lexapro tablet a day.

2. As to the Panadeine Forte, Dr Sutherland's prescriptions cite 1 to 2 tablets 4 times a day when necessary for severe pain.  The plaintiff did not claim to be in severe pain for a fair part of every day. On the whole of the evidence, I fail to see the need for the use of this medication at the plaintiff's stated level.  Doing the best I can, I think it reasonable to allow the cost of an average consumption of 8 per week over the balance of the plaintiff's life.  As the plaintiff is very close to 48, the multiplier is 893.6, and the resultant figure is $1,272.49.

3. As to the Endone, Dr Sutherland refers to the occasional need for this medication. On 10 April 2015 he noted that the plaintiff had needed Endone "on a few occasions" since the last visit about a month before.  Given its nature, the need for the use of this drug would only arise when the pain level escalated above severe.  I have already mentioned the plaintiff's evidence as to the level of pain he experiences that gives rise to the use of the medication.  Common sense suggests a guarded approach to the use of narcotics, although I do not suggest that one a week is excessive.  On the whole of the evidence and attempting to average the consumption, I think it fair to allow the cost of one tablet a fortnight for the remainder of the plaintiff's life. That comes to $164.87.

4. As to the Lexapro, Dr Sutherland referred to its continuing beneficial effect.  Dr Thompson agreed with the present need for this medication.  Dr Sale agreed that its use is reasonable and is likely to be needed for the next five years. He said that any prediction beyond five years is widely speculative in psychiatry, although agreed that it would possibly be needed for life. I am barely persuaded that the use of this medication has been necessitated by the 2006 accident and its consequences.  I have regard to Dr Sale's evidence in this respect.  I think it fair to allow the full cost of the medication for five years, and then to allow for a 10 per cent possibility that the plaintiff will require the medication from age 53 for the balance of his life. The five year figure is $837.80 to which should be added $250, being approximately 10 per cent of the deferred future cost of the medication; that is, the total cost from the age of 53.

5. The total in respect of all medication is therefore $2,525.16.  The defendant argues that any calculations based on the life expectancy tables should be discounted to take into account the fact that the plaintiff is a chronic smoker.  Dr Sutherland agreed that for a smoker of the plaintiff's appetite, there would be a significant reduction in life expectancy, but as to exactly how much he could not comment.  I think that balanced against this possibility is a degree of possibility of an increased need for medication at some point in the future.  I will discount the total by 10 per cent and allow the sum of $2,272.64.

Surgery/other procedures

1. The present cost of radiological investigations and a discogram associated with an anterior fusion at the L5/S1 level, and the cost of that surgery itself, amount to $25,000.  The claim is put on the basis that the plaintiff may require surgery. Dr Thompson's evidence is that as natural degenerative processes occur, he would expect some worsening of pain levels. If this were the case, the plaintiff "may need to consider his surgical options and … the most likely procedure necessary would be anterior fusion at the L5/S1 level". The defendant says there is no chance that the plaintiff will have surgery. He has not undergone the denervation suggested by Dr Paton and agreed to by Dr Thompson.  According to Dr Thompson, he has "consistently" refused to entertain a fusion.  As alluded to earlier, in evidence the plaintiff said:

   "… the outcome is fifty/fifty as to whether it'd reduce my pain or not and in fact I could actually end up worse and I’m not prepared to lose what quality of life I have at present."

2. On all of the evidence, I am not persuaded that the possibility of surgery can properly be regarded as anything other than speculative, and no value should be ascribed to it.  The next claim is for further facet block injections "if required".  In October 2008, Dr Paton said that he hoped and expected the plaintiff should be able to return to work in a full-time capacity if certain things were put in place.  It was in that context, that he said if there was an increase in levels of low back pain discomfort with an escalation in work hours, then further intervention of a non-surgical nature should be looked at.  For the cost of the procedure, the plaintiff refers to the list of scheduled benefits, and asserts that the last procedure performed by Dr Paton was on 11 March 2008 at a cost of about $1,600.  I am prepared to make an allowance for the possibility of a procedure in the future, and would allow $400.

Rehabilitation

1. The components of "rehabilitation" are physiotherapy, a gymnasium program, remedial massage and hydrotherapy.  As to physiotherapy and a gym program, Dr Sutherland said in July 2015 that these would help to maintain core muscle strength, and he would consider recommencing these treatments if funding became available. Dr Paton recommended a low impact exercise program supplemented with a gym program not under instruction, although he said that in October 2008.  He said nothing in his evidence about future rehabilitation measures.  In March 2013, Dr Thompson said he had recommended continuation with core muscle stabilisation and strengthening under the guidance of a physiotherapist.  I think it is reasonable to make some allowance for physiotherapy so that the plaintiff can restart his back maintenance. I will allow an initial consultation and five subsequent visits, a sum of $482.  For the same reason I think it is reasonable to allow 12 months' gym membership. Beyond that, I am not persuaded that gym membership is a reasonable requirement, as distinct from what is desirable or ideal.  I allow $1,665.60, making a total for these items of $2,147.60

2. Dr Sutherland says massage has been beneficial in the past, and would consider recommencing the treatment if it were funded.  In March 2013 Dr Thompson said that symptomatic control had necessitated episodic hydrotherapy and remedial massage as required, although he would agree that they were not curative.  However, he felt they were an important part of the overall treatment in the reduction of symptoms.  A claim is made for a monthly massage for the balance of the plaintiff's life, at $80 a time.  The claims for massage and hydrotherapy have to be looked at together.  Precisely what is involved in hydrotherapy is unexplained, but the cost of a group session is $42, while an individual session is $79.  There is no evidence to support individualised treatment.  All in all, I think it fair to make allowance for a massage every two months, and a group hydrotherapy session every three months.  Using the life expectancy multiplier, that gives figures of $8,248.62 and $2,165.26 respectively. Those figures have to be discounted for the possibility of earlier death because of smoking.  Doing the best I can, five per cent is a fair figure.  I also think they should be discounted because of the real chance that towards the end of his life the plaintiff will not use these services or will have them otherwise provided.  I think a combined 20 per cent discount is appropriate.  That gives a total of about $8,331, and I will allow that amount.

Psychological treatment

1. One session of psychological counselling is $261.90.  The plaintiff claims $3,200 "on a 'broad brush' basis for future psychological treatment".  In May 2014 Dr Sutherland said that the plaintiff "at times might benefit from brief interventions by a psychologist".  In July 2015 he said that the plaintiff would benefit from occasional psychological counselling.  In his September 2013 report, Dr Sale responded to a question as to what further treatment would he recommend from a psychological point of view.  He responded by saying that the antidepressant can be useful treatment in ameliorating the effect of a chronic anxiety disorder, and that it would be reasonable for the plaintiff to remain under Dr Sutherland's care.  He added that at times, there may also be a need for psychological counselling, that there should be a brief intervention around 6 to 8 sessions.  In evidence he said that he could not rule out the need for psychological intervention so there should be a contingency in respect of which he suggested 6 to 8 sessions. 

2. On balance, on the basis of Dr Sale's evidence, the accident and its consequences have caused a greater level of anxiety in the past than the plaintiff might otherwise have experienced, and rendered him more vulnerable.  That vulnerability has to be viewed in light of his obsessive and hyper-vigilant nature.  I am satisfied that psychological counselling may be required n the future. There can be no certainty that the need will arise or if it does, as to the timing of it and the extent of any treatment required. Using Dr Sale's estimate of the number of sessions possibly required, and taking a necessarily broad approach, I would allow $500. 

Medical practitioner reviews

1. The defendant does not quarrel with the proposition that there should be an allowance for four visits a year to Dr Sutherland.  The cost of a visit is $75.  Using the life expectancy multiplier of 893.6 and discounting by 5 per cent to allow for possible earlier death due to heavy smoking, gives a figure of approximately $4,898 and I would allow that amount.  The plaintiff also claims four reviews by Dr Thompson on a 6 to 12 monthly basis.  The agreed rate for a review is $134.  I think it is reasonable to allow an annual review.  That figure, using the multiplier of 893.6 and discounted by 5 per cent gives $2,187.60 which I allow. 

Domestic assistance

1. The plaintiff claims two hours a week at $30 per hour.  In evidence, he said that if his son was not able to help him around the house, he would need "probably two or three hours a week".  None of the doctors called by the plaintiff addressed this issue. Dr Sutherland's continuing certificates that he provides to the MAIB have provision for certification that the person is wholly disabled from carrying out their normal household duties, and a recommendation the patient receive assistance with particular duties. At least in those dated 15 May 2015 and 18 June 2015, Dr Sutherland has left the section blank.  In cross-examination, Dr Gorman agreed that the plaintiff may need some assistance with the more vigorous activities at home, as well as the shopping.  That is the medical evidence at its highest.  I am not persuaded that it is appropriate to make any allowance under this head.  First, apart from the lack of evidence of need from the plaintiff's doctors, this follows on from my views about the plaintiff's level of disability.  I also take into account the extent of his other activities; in particular, his work on the cars and his TIG welding. I take into account the adaptations he has made, the ability to further adapt, and the gratuitous assistance he receives and is likely to receive. 

Future travelling expenses

1. First, I should record here that the plaintiff abandoned his claims for past travelling and parking expenses.  As to future travelling, it is 33 kilometres from the plaintiff's home to the city and return.  The established cost of car travel is about 70 cents per kilometre.  I have regard to what I have said about general practitioner visits, specialist reviews, physiotherapy and gymnasium exercise.  Generally, I think there will be more travelling in the next, say, 10 years, than thereafter.  On a very broad estimate based on four trips a year over the plaintiff's life and discounted by a factor of five per cent for early death, a fair allowance is $1,500.

Miscellaneous expenses

1. There is a claim for the cost of a recliner armchair in the sum of $1,095.  That was purchased in June 2008.  There is also a claim, (although not referred to in the written closing submissions), for $849.50 being one-half the cost of purchasing a new bed in January 2008.  The other half of the cost was contributed by the MAIB.  The bed was purchased in consultation with a rehabilitation provider.  The plaintiff's old bed was very old, uncomfortable and did not appear to be supporting his back correctly.  The chair was bought because his normal lounge suite caused too much pain when he was sitting.  Given the period in which these items were purchased, I think it fair to allow the claims in full.  Lastly, there is a claim for $338.40 for back and shoulder imaging in January 2008 and January 2014, about which there does not seem to be an issue.  The total allowed is therefore $2,282.90.

Pain and suffering; loss of amenities

1. I refer to the things I said in relation to the plaintiff's credibility and the findings I made in that section.  I also refer to my comments in relation to loss of earning capacity.  I accept that the plaintiff has a back injury of some severity, and that he suffers fluctuating pain and discomfort.  On occasions it can be severe.  He underwent extensive treatment.  I accept that the plaintiff went through a difficult period physically and emotionally, the features of which are attributable to the accident, given the background of his vulnerable personality. There is a need for ongoing analgesic use, a more immediate need for some rehabilitation, and an ongoing need for medical supervision and assistance.  As I have stated, he also sustained minor injuries to his neck, left shoulder and wrist which caused pain and discomfort for a time, but the symptoms are now of nuisance value only.

2. There was no debate about whether, as a matter of principle, the fact of a marriage break-up can be taken into account as not too remote a consequence, assuming that I find to be due to the injuries and their consequences on the plaintiff's mood.  There seem to be cases decided each way: Luntz at 206 [2.7.6]. The plaintiff and his wife did not engage in any sexual activities for about 18 months to 2 years before separation.  I accept his evidence as to his irritable mood.  I accept that the break-up was attributable to the injuries and their consequences, but in any event, as the plaintiff accepts, he had recovered from this significant set back by the end of 2008 after psychiatric treatment.  I allow $60,000 under this head.

Outcome

1. I have assessed damages as follows:

Loss of earning capacity            Past loss            Future loss	$235,000.00 $219,326.00	$454,326.00
Loss of superannuation benefits	$49,975.86
Future treatment	$15,838.84
Future travelling	$1,500.00
Miscellaneous expenses	$2,282.90
Pain and suffering; loss of amenities	$60,000.00
$583,923.60

1. There will be judgment for the plaintiff against the defendant for $583,923.60