Parrish v Olympic Roadways Pty Ltd and Broome

[2018] NSWDC 258

District Court

New South Wales

Medium Neutral Citation:

Parrish v Olympic Roadways Pty Ltd & Broome [2018] NSWDC 258

Hearing dates:

11, 12, 13 and 14 September 2017; 7 and 12 September 2018

Date of orders:

20 September 2018

Decision date:

20 September 2018

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

1. The plaintiff’s damages are provisionally assessed in the interim sum of $3,032,245.96;

 

2. That interim sum is to be adjusted for the correct amounts to be allowed for Fox v Wood damages and out-of-pocket expenses, and to allow for the adjustment required by s 151Z(2) of the Workers Compensation Act 1987, after the parties have had the opportunity to consider the effect of the findings of fact identified in these reasons;

 3. The proceedings are listed for mention at 10.00am on 21 September 2018 for the purpose of the parties bringing in short minutes dealing with the required adjustments that reflect the findings of fact, at which time final judgment and ancillary orders will be entered, or alternatively, to set a timetable for those matters to be further argued for resolution.

Catchwords:

TORTS – negligence – motor vehicle accident – liability admitted; DAMAGES – sustained physical injuries in distressing circumstances leading to police officer developing post-traumatic stress disorder and inability to work – assessment of claimed heads of damage

Legislation Cited:

Civil Liability Act 2002, s 5D, s 5E
Evidence Act 1995, s 60
Motor Accidents Compensation Act 1999, s 83, s 126, s 136, s 141B
Uniform Civil Procedure Rules 2005, r 31.27(1)(c); Sch 7 cl 5(1)(c); s 31.28
Workers Compensation Act 1987, s 151L, s 151Z

Cases Cited:

Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538
Alcan Gove Pty Ltd v Zabic [2015] HCA 33; (2015) 257 CLR 1
Azar v Kathirgamalingan [2012] NSWCA 429; (2012) 62 MVR 462
Boral Bricks Pty Ltd v Cosmidis [2013] NSWCA 443
Bourhill v Young [1943] AC 92
Chappel v Hart [1998] HCA 55; 195 CLR 232
Coles Supermarkets Australia Pty Limited v Haleluka [2012] NSWCA 343
Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320
Coote v Kelly [2013] NSWCA 357
Cupac v Cannone [2015] NSWCA 114
Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588
Dulieu v White [1901] 2 KB 669
Fox v Wood [1981] HCA 41; (1981) 148 CLR 438
Glen v Sullivan [2015] NSWCA 191
Kempsey District Hospital v Thackham (1995) 36 NSWLR 492
Larson v Commissioner of Police [2004] NSWCA 126
Majkic v Bonnano [2008] NSWCA 253
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638
Manly Municipal Council v Skene [2002] NSWCA 385
Mason v Demasi [2009] NSWCA 227
Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383
New South Wales v Fahy [2007] HCA 20; (2007) 81 ALJR 1021
Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164
Redbro Investments Pty Ltd v Ceva Logistics (Australia) Pty Ltd [2015] NSWCA 73
Sampco Pty Ltd v Wurth [2015] NSWCA 117
Smith v Leech Brain & Co Ltd [1962] 2 QB 405
South Western Sydney Local Health District v Sorbello [2017] NSWCA 201
Waterways Authority v Fitzgibbon [2005] HCA 57
Watts v Rake [1960] HCA 58; (1960) 108 CLR 158
Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485

Category:

Principal judgment

Parties:

Barry Robert Parrish (Plaintiff)
Olympic Roadways Pty Ltd (First defendant)
Rodney Broome (Second defendant)

Representation:

Counsel:
Mr D Higgs SC with Mr D-L Del Monte (Plaintiff)
Ms OJ Dinkha (on 7 & 12 September 2018 – Plaintiff)
Mr J Turnbull SC with Mr J Sleight (Defendants)

  Solicitors:
WD Hunt & Associates (Plaintiff)
Holman Webb Lawyers (Defendants)

File Number(s):

2014/127938

Publication restriction:

None

Judgment

Table of Contents

Nature of case	[1] – [3]
Issues	[4] – [13]
Evidence overview	[14] – [15]
Legal principles to be applied to the issues	[16] – [19]
Facts not in dispute	[20] – [52]
Approach to analysis of the medical evidence	[53] – [62]
Credibility and reliability of testimony	[63] – [69]
Findings on other relevant matters of fact	[70] – [230]
(1) Plaintiff’s background	[71] – [78]
(2) Previous health, injury and medical records history	[79] – [89]
(3) Post-accident medical treatment and reviews	[90] – [93]
(4) Evaluation of the medical evidence	[94] – [154]
(5) Injuries sustained in the subject accident	[155] – [176]
(6) Treatment	[177] – [190]
(7) Disabilities that remain	[191] – [209]
(8) Work effects	[210] – [217]
(9) Domestic effects	[218] – [228]
(10) Mitigation	[229]
(11) Plaintiff’s most likely circumstances but for the accident	[230]
Assessment of damages	[231] – [313]
Actuarial factors	[232]
Non-economic loss	[233] – [240]
Past economic loss	[241] – [249]
Past loss of superannuation	[250]
Fox v Wood	[251] – [260]
Future economic loss	[261] – [271]
Future loss of superannuation	[272]
Past domestic assistance	[273] – [288]
Future domestic assistance	[289] – [299]
Future out-of-pocket expenses	[300] – [305]
Past out-of-pocket expenses	[306] – [311]
Summary of provisional damages assessment	[312] – [313]
Application of s 151Z of the Workers’ Compensation Act 1987	[314]
Costs	[315]
Interim orders	[316]

Nature of case

1. At about 3.30am on Wednesday 24 May 2006, the plaintiff, Mr Barry Parrish, a Sergeant of police, incurred physical and psychological injuries in the course of his official duties when he attended the scene of a traffic incident, where a table-top truck had become jammed up against a safety guardrail at the northern exit of the Hume Highway, about 2kms south of Bargo, NSW.

2. In the course of carrying out his duties at the scene of that incident, the plaintiff was injured in a subsequent and horrifying motor vehicle accident that was caused by the admitted negligence of the first defendant, Olympic Roadways Pty Ltd, the owner of the Double-B articulated semi-trailer vehicle at fault, and Mr Rodney Broome, the second defendant, the driver at fault.

3. The provisions of the Motor Accidents Compensation Act 1999 (the “MAC Act”), the Civil Liability Act 2002 (the “CL Act”), and the Workers’ Compensation Act 1987 (the “WC Act”), apply to these proceedings, in which the plaintiff claims compensatory damages in relation to the above events.

Issues

4. The issues calling for decision in these proceedings concern the determination of factual questions as to the particular identification of the extent of the plaintiff’s injuries, the extent and the relevant cause or causes of his ongoing disabilities, and the consequential assessment of the plaintiff’s entitlement to damages that flow from those matters.

5. The identification and resolution of those particular matters is required because of an argument advanced on behalf of the defendants that some significant aspects of the plaintiff’s injuries, and some of his disabilities, are not related to the subject accident, but are instead due to some earlier and later incidents that arose in the course of his work as a police officer. The defendants therefore contended that there were no significant physical injuries occasioned to the plaintiff as a result of the subject accident: MFI “4”, par 11. For the reasons that will be made plain, I have not accepted that submission.

6. The determination of those matters is not only relevant to the assessment of damages, but the additional relevance is the way in which s 151Z of the WC Act should be applied to the plaintiff’s damages assessment: Kempsey District Hospital v Thackham (1995) 36 NSWLR 492.

7. In contrast to the defendants’ arguments summarised at paragraph [5] above, the plaintiff’s case is that the subject accident was the materially contributing cause of his physical problems because the subject accident relevantly aggravated, and rendered symptomatic, some underlying physical conditions that did not otherwise interfere with his ability to work as a police officer.

8. The unresolved state of those issues has resulted in a wide disparity between the respective damages submissions of the parties. The plaintiff’s schedule of damages which incorporated detailed calculations on each head of damage, totalled $3,367,197.37, not including the reimbursement of tax paid on weekly workers’ compensation payments and out-of-pocket expenses: MFI “1”. In contrast the defendants’ damages schedule based on a different set of assumptions, amounted to $200,000 plus out-of-pocket expenses in an amount that is dependent upon findings of fact to be made in these proceedings concerning injury and the cause of disability: MFI “2”. The defendants’ alternative position was that if all of the plaintiff’s claimed injuries were accident-related, that sum would rise to $300,000: T166.23.

9. In determining those factual matters, and in determining the ultimate cause of the plaintiff’s post-accident discharge from the Police Force on medical grounds, and the related matter of assessment of damages, it becomes necessary to evaluate the salient details of the plaintiff’s past history of injury as a serving police officer in respect of the periods both before and after the subject accident, and to consider extensive medical records and related opinions for that purpose.

10. The context of those cited arguments is that it is uncontroversial, and well recognised, that police officers, in carrying out their work, become foreseeably exposed to situations that may cause them to suffer physical and psychological injuries when confronted by various circumstances, which include violence, horror, death and destruction. It is also well recognised that as a result, police officers may incur consequential psychological illnesses, including post-traumatic stress disorder (PTSD): New South Wales v Fahy [2007] HCA 20; (2007) 81 ALJR 1021, at [135] – [137].

11. The plaintiff, who in the opinion of his colleagues, was a well-respected and capable police officer, characterised as “a gentle giant” (Exhibit “1”, Tab 7, p 41), was diagnosed with PTSD after the subject accident. That diagnosis led to his discharge from the NSW Police Force.

12. The defendants have pointed to an apparent or argued delay in diagnosis and treatment of that condition, and seek to resist the claim that the plaintiff’s PTSD condition, and some of his claimed disabilities, are due to the subject accident.

13. It is therefore necessary to evaluate the detail of the medical evidence, which is to the effect that the plaintiff’s past trauma exposures had primed him and had predisposed him to developing PTSD in the circumstances of the subject accident. The psychiatric evidence to that effect remained unchallenged.

Evidence overview

14. The plaintiff and his wife, Mrs Karen Parrish gave oral evidence, as did the plaintiff’s treating orthopaedic surgeon, Dr Arash Nabavi-Tabrizi. The remainder of the evidence tendered in the plaintiff’s case consisted of medical reports, medical records and documents relating to the assessment of damages.

15. The defendants called no oral evidence to support the causation issues and arguments raised by the defence. The defendants also tendered voluminous medical reports and related records, not all of which became the subject of submissions. The combined medical records, reports and materials comprising almost two thousand pages, will be analysed and referred to where it becomes relevant to do so.

Legal principles to be applied to the issues

16. In light of the fact that the plaintiff was working as an on duty police officer at the time of his injury, and had obviously been assessed by his employer as being fit to do so, the legal principle for the assessment of damages to be applied in this case, subject to the requirements of s 5D of the CL Act, is that although the plaintiff’s prior work and injury history may have rendered him vulnerable to further injury by the occurrence of supervening events, a tortfeasor, here the present defendants, must take the plaintiff as he is found, including with any underlying pre-disposition to incur further or aggravating injuries: Alcan Gove Pty Ltd v Zabic [2015] HCA 33; (2015) 257 CLR 1, at [44]; Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383, at [18]; Bourhill v Young [1943] AC 92, at pp 109 – 110; Dulieu v White [1901] 2 KB 669, at 679; Smith v Leech Brain & Co Ltd [1962] 2 QB 405, at p 414.

17. In circumstances where the plaintiff must be taken as he is found, if the defendants seek a finding that the plaintiff’s disabilities are due to either underlying or supervening causes that are not accident-related, the defendants must discharge the evidentiary burden of disentangling the detail of the evidence on such matters to support that contention: Watts v Rake [1960] HCA 58; (1960) 108 CLR 158, at [8]; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164, at [4].

18. That principle must be applied in conjunction with the provisions of s 5D and s 5E of the CL Act, which require that the plaintiff must prove his loss: Azar v Kathirgamalingan [2012] NSWCA 429; (2012) 62 MVR 462, at [134]; Glen v Sullivan [2015] NSWCA 191, at [43] – [47].

19. Those principles must also be applied against the background of what would most likely have been the plaintiff’s situation if the accident had not occurred, applying the principle in Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638, at pp 642 – 643; South Western Sydney Local Health District v Sorbello [2017] NSWCA 201, at [58] – [74]. That analysis requires taking into account the possibility that the plaintiff may have suffered some disability from an underlying condition, or a number of conditions, in any event: Chappel v Hart [1998] HCA 55; 195 CLR 232, at [16].

Facts not in dispute

20. When the plaintiff gave his evidence, he repeatedly found the task of attempting to recount some of the factual circumstances of the accident, and related matters, very distressing and upsetting to him: T14.41; T16.35; T56.50. That observation was consistent with the undisputed expert psychiatric observation made of the plaintiff in the clinical setting: Exhibit “B”, Tab 11, p 179. The plaintiff’s distress at the hearing was palpable: T169.11 – T169.13.

21. The following account of the underlying events, and their aftermath and impact on the plaintiff, is largely undisputed, and is distilled from the evidence of the plaintiff and that of Mrs Parrish.

22. In the early hours of the morning on the day in question, the plaintiff and another police officer had been called out to attend the earlier described road traffic incident. The truck in question had become positioned in such a way that a portion of about a metre of the back of the tray-top truck had encroached into the kerbside lane of the northbound lane of the Highway.

23. When the plaintiff and his colleague arrived the scene, he parked his police vehicle, a sedan, at the rear of that truck, in order to render assistance, and to implement any necessary traffic control measures. This included activation of the flashing blue and red strobe lighting, and the merge to the right indicator sign located on the police vehicle, so as to direct any other northbound traffic that might come upon the scene: Exhibit “C”, Tab 2, p 7. Both he and a colleague then alighted from the police vehicle in order to make an assessment of the situation, and to take control of the scene.

24. It seems that the plaintiff had ascertained from the driver of that truck that his vehicle had veered off the road and had driven into collision with a roadside safety railing whilst he was taking a telephone call from a family member: T14.38. The location in which the truck was jammed against the safety guardrail was in a relatively open area off to the side of the expressway: T16.3.

25. On his arrival at the scene, the plaintiff’s assessment was that, for reasons of safety, he needed to summon to the scene from nearby Bowral, another police vehicle variously described in the evidence as a bull wagon, or a caged vehicle. When that other police vehicle arrived, it was strategically located at a point about 100m to the south of the truck’s location in order to provide some warning or indication to other traffic to move to the right when approaching the scene.

26. In those events, the plaintiff was standing on the road near the truck driver and was speaking to him. He was trying to encourage or direct the truck driver to remove himself from where he was standing on the road, as he was considered to be in a position of danger as he stood there, waving a small flashlight at passing traffic: T15.40 – T15.50.

27. In those events, two other trucks approached the scene from the south. One of those vehicles was the defendants’ Double-B articulated vehicle. It had moved to the right, as was directed by police indicator signage, and at that time, it then hit the rear of the trailer of another northbound truck in the adjacent lane. A series of traumatic events then occurred in rapid succession, as described in a police witness statement: Exhibit “C”, Tab 2, par 16 – par 26.

28. The defendants’ truck then collided with the rear of the stationary police bull wagon, which was then catapulted to some considerable airborne height. In those events, the plaintiff shouted out to the truck driver to get out of the way. Unfortunately, the truck driver was not wearing his hearing aid at that time. The airborne police wagon then landed on top of the truck driver whilst he remained standing on the road near the plaintiff. The defendants’ truck then continued moving forward, colliding with another semi-trailer, after it had crossed the path of where the plaintiff and his colleague had been standing, and it then crashed into nearby roadside bushes: T16.5 – T16.31. Fortunately, the other police officers at the scene had managed to jump out of the way of that truck and into the bushes, thus avoiding injury.

29. Unfortunately, in those described events, the driver of the stationary truck was killed. The plaintiff and his colleague almost suffered the same fate. However, due to quick reaction on the plaintiff’s part, he had managed to avoid being struck by the defendants’ truck. He did so by taking what he described as a “massive” dive, also described as a leap, to his left, thus managing to get out of the way of the defendants’ rapidly approaching semi-trailer: T17.1 – T17.35. In those circumstances, the plaintiff had avoided death by a matter of centimetres: Exhibit “C”, Tab 3, p 15, par 10.

30. In the course of that avoiding manoeuvre, the plaintiff forcefully landed flat, and face down, on both knees. At that time, his chest came into contact with the gravel and rock road surface. He had landed some 3 metres away from where he had commenced his avoidance manoeuvre. This suggests that he had either slid or rolled over on the hard surface for part of that distance. In those events, he also “kicked” or arched his head backwards, then jumped up and screamed for help.

31. I infer from the plaintiff’s description that various parts of his body had made forceful contact with the road surface due to the suddenness of the described dive or leap, propelled by the urgency of his need to quickly get out of the way of that fast moving vehicle. Given those dramatic and distressing circumstances, it is unsurprising that the plaintiff sustained multiple soft tissue injuries from those jolting actions. It is also unsurprising that in those circumstances, the plaintiff did not precisely catalogue or record his injuries.

32. In those events, the plaintiff felt pain in his knees and in his whole body. The plaintiff said that he also hurt his lower back at that time because he was wearing his police appointments belt with the required heavy attachments, which were estimated to weigh some 7 – 9 kgs: T49.26 – T49.42.

33. The plaintiff described his ensuing actions, which I interpret to indicate that he had proceeded to place his police duties ahead of his own injury-related needs. This involved him in first checking on the condition of the truck driver who was laying on the road. The plaintiff then ascertained that the truck driver was deceased.

20. The plaintiff then proceeded to take steps to preserve the integrity of the scene for the anticipated arrival of accident investigators. For that purpose, he remained at the scene of that trauma for about 3 hours, which plainly was a prolonged exposure to upsetting circumstances: T18.44. Other police officers in attendance were described as also being in a state of shock at the described events.

21. Thereafter, although the plaintiff was due to finish his shift of duty at 2.00pm that day, his superior officer directed him to take time off for the remainder of his shift: T18.15 – T19.1. It is plain from other evidence that the plaintiff has understated the traumatic nature, for him, of those events.

22. The plaintiff’s actions at the scene resulted in him receiving a formal police Command commendation, which referred to the circumstances of the accident as “the carnage”, and concluded in the following terms:

“Sergeant Barry PARRISH is commended for his professionalism in remaining alert as his actions without doubt saved the lives of the police and tow truck operator. Secondly he should be commended for the leadership exhibited immediately after the collision and pending the arrival of other police and emergency service personnel as his actions averted further life threatening collisions.”

[Exhibit “C”, Tab 4, p 17]

37. The plaintiff’s wife, Mrs Karen Parrish, saw something of the aftermath of the described accident whilst watching a portion of a televised news programme on the day in question. At that time, she had not initially appreciated from viewing that broadcast, that the plaintiff was one of the attending police officers at the scene. However, she soon recognised the images shown of the plaintiff and she observed him to uncharacteristically breakdown emotionally: T71.3 – T71.18; Exhibit “D”, Tab “Accident Details”.

38. That footage, which I have viewed, at one point shows the plaintiff to be in what I interpret as being a distraught and despairing state, crying, and being comforted and supported by another police officer.

39. The damage to the vehicles, as is evident in that footage, and which is also evident from a contemporaneous statement prepared by another police officer who was also in attendance with the plaintiff, indicates that the series of collisions in the accident that occurred near where the plaintiff was located were most likely accompanied by the close proximity of a series of horrendous noises from crushing metal with widespread debris strewn around the site: Exhibit “B”, Tab 5, p 45. It is very likely that these circumstances also formed part of the plaintiff’s traumatic experience at the time.

40. Later that day, when the plaintiff was at home, Mrs Parrish observed him to be withdrawn, crying, uncommunicative, and unable to sleep at all that night: T71.13 – T71.22. She described him as being “broken …[and]… he really hasn’t mended properly”: T71.5. I accept that unchallenged evidence.

41. A statement provided by one of the plaintiff’s work colleagues who had worked with him over the course of 10 years, and who was also at the scene of the subject accident, described the pronounced change in the plaintiff’s mood and demeanour since that accident, describing him as a different man.

42. The evidence of that police officer supports Mrs Parrish’s assessment of the post-accident change in the plaintiff. That officer had encouraged the plaintiff to see a psychologist. The plaintiff said that he had delayed doing so because he was preoccupied with his physical injuries: Exhibit “C”, Tab 3, pp 15 – 16.

43. The accident circumstances have had significantly adverse physical and mental impacts upon the plaintiff. He recalls those unfortunate events on a daily basis. He experiences constant nightmares about those events. These commenced ever since the first night that followed the events. He has also experienced significant personal and professional guilt over the death of the truck driver, in that he blames himself for not having been able to protect him, and he has thoughts that he should have or could have done better at the time, such as by grabbing the truck driver to pull him out of harm’s way: T20.5 – T20.12.

44. Those circumstances led the plaintiff to seek out the widow of the deceased truck driver to apologise to her: T44.50 – T45.4. Whilst this may have helped him to come to terms with the events at that time, his pervading feelings of guilt have not lessened over the course of time. He thinks that by his actions, he had failed in his duty to the deceased truck driver: T20.7 – T20.17. The expert medical evidence refers to this as survivor guilt.

45. As a consequence, the events in question still continue to adversely and intrusively resonate in the plaintiff’s thoughts, and in his nightmares, which are ongoing on a frequent basis, about three to four times per week.

46. In light of those matters it is unsurprising that after the plaintiff was examined by an independent medical practitioner at the request of the NSW Police Force, he was found to be permanently unfit to continue serving as a police officer, and was medically discharged from the service on 7 February 2011 with effect from 17 February 2011: Exhibit “C”, Tabs 6 and 7, pp 18 – 19; Exhibit “D”, Tab 35, p 69.

47. Before the plaintiff’s retirement on medical grounds, an extensive “Pre-Liability Assessment” of his psychological injury was undertaken by a consultant psychologist, Ms Clair Baker, in which interviews were not only conducted with the plaintiff, but also with his colleagues, the Local Area Command Manager, and with the plaintiff’s treating general practitioner: Exhibit “C”, Tab 7, pp 20 – 50.

48. One of the focal points of that assessment was the consideration of the relationship between the subject accident and the plaintiff’s emergent claim of psychological injury.

49. That pre-liability assessment report makes it plain that in October 2006, an external rehabilitation provider had identified the fact that the plaintiff was suffering psychological trauma. The relevance of that fact is that it tends to rebut the suggestion made by the defendants that the plaintiff’s psychological condition did not emerge until 2010. It is also relevant to observe that the plaintiff’s PTSD was first formally identified 3 weeks after the accident, on 16 June 2006, at Campbelltown Hospital: Exhibit “1”, pp 254 – 256. Notwithstanding that October 2006 observation, no further treatment had been provided for that psychological condition at that stage because, at that time, his physical injuries had been an ongoing issue for him, since May 2006: Exhibit “1”, Tab 7, p 31, par 11; p 33; p 40.

50. Although the plaintiff did not seek formal psychological treatment until January 2010, the assessing psychologist nevertheless considered that the longstanding nature of the plaintiff’s trauma presentation, and his exposure to the subject incident which involved a near-death experience for him, has been a major causative factor pertaining to his distress: Exhibit “C”, Tab 7, pp 40, 41, 43.

51. That psychological assessment also considered the fact that the plaintiff has undergone multiple surgical procedures since the subject accident. The assessment was that the plaintiff’s ongoing medical issues of a physical nature were not considered to be a major causative factor for the onset of the plaintiff’s psychological distress, but rather, it was considered that they have served to exacerbate that distress: Exhibit “C”, Tab 7, p 41. In that regard, it is noteworthy that the plaintiff has undergone various forms of surgically invasive procedures on 19 separate occasions since the subject accident.

52. The defendants dispute the relationship between the accident and some of those surgeries. It is for that reason that a detailed factual survey of the plaintiff’s injury and the context of the treatment history is required in this case before findings on matters of injury and disability can be identified.

Approach to analysis of the medical evidence

53. The defendants argued that the details of the plaintiff’s lengthy pre-accident history of injuries and disabilities, as well as the effects of some arguably relevant post-accident incidents, should operate to limit the assessment of the plaintiff’s damages. The defendants raised disputes as to some of the details of the medical evidence, including in relation to the plaintiff’s previous history of injury. Some medical experts commented upon that history, and therefore, those comments require analysis.

54. In respect of the plaintiff’s physical injuries and the related disabilities, my analysis will be guided by the factual evidence of the plaintiff, and the reasoning set out in the medical reports on such matters, as also explained in the oral evidence of Dr Nabavi-Tabrizi.

55. There is no dispute that the plaintiff suffers from PTSD. The origins and the extent of the plaintiff’s psychological problems requires detailed analysis of expert medical reports obtained from a number of consultant psychiatrists who have assessed the plaintiff, either as expert witnesses, or as in one instance, a MAS Medical Assessor.

56. Where the authors of expert medical reports are not called to give explanatory evidence on issues in dispute, the reports tendered in evidence must be analysed according to the persuasiveness of their content and the underlying reasoning for the conclusions stated in those reports. The task of reconciling disputed matters of expert opinion is well-recognised as being a more burdensome exercise where the opinion givers are not called or required to give oral evidence: Cupac v Cannone [2015] NSWCA 114, at [17] – [18]; Manly Municipal Council v Skene [2002] NSWCA 385, at [21] – [22].

57. That position has less application in the case of MAS assessments as the Assessors are not considered to be expert witnesses as they are not compellable to give evidence.

58. Where the rational basis for expert evidence is either absent, or inadequately provided, the matters in dispute must be determined according to the onus of proof on any particular issue: Majkic v Bonnano [2008] NSWCA 253, at [26], following Larson v Commissioner of Police [2004] NSWCA 126, at [48]; s 5D of the CL Act.

59. A significant element of the process by which the analysis of such conflicting medical evidence is guided, is the degree to which the expert opinions relevantly comply with, or fail to comply with, the requirements of UCPR r 31.27(1)(c) and UCPR Sch 7 cl 5(1)(c) when determining which aspects of that evidence should be either accepted or rejected: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, at [59], [86], [87] ; Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588.

60. These are matters that must be wrestled with or grappled with in the course of the required analysis: Redbro Investments Pty Ltd v Ceva Logistics (Australia) Pty Ltd [2015] NSWCA 73, at [53]; Coote v Kelly [2013] NSWCA 357, at [39] following Waterways Authority v Fitzgibbon [2005] HCA 57, at [129] – [130].

61. In those circumstances the required consideration must be undertaken as best as can be achieved, notwithstanding such difficulties or limitations: Cupac v Cannone [2015] NSWCA 114; Manly Municipal Council v Skene [2002] NSWCA 385, at [21] – [22]; Majkic v Bonnano [2008] NSWCA 253, at [26], following Larson v Commissioner of Police [2004] NSWCA 126, at [148].

62. In the required consideration of factual matters, where there is an absence of rational explanation within the expert evidence, some factual matters calling for decision may at times be resolved by applying a commonsense analysis: Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538, at pp 563 – 564 and p 569.

Credibility and reliability of testimony

63. No substantive issues arose concerning the credibility or the reliability of testimony of any of the witnesses called to give oral evidence.

64. However, the defendants challenged the plaintiff’s evidence with the suggestion that although he had been medically discharged from the police force in 2011, he was nevertheless capable of doing other work. The suggestion was that, as he had done many years earlier, he could perform the work of a toll collector, which the plaintiff noted, was now an obsolete position: T56.15 – T56.34. The defendants also suggested to the plaintiff, in general and non-specific terms, that he was physically capable of carrying out household chores.

65. The plaintiff denied each of those suggestions with adequate supporting reasons: T59.31 – T59.36; T60.27 – T60.47; T61.1 – T61.5. I have accepted the reasonableness and the aptness of those denials.

66. I found both the plaintiff and Mrs Parrish to be credible and reliable witnesses. I entirely accept their evidence. There were no challenges of significance made to the expert evidence of his treating orthopaedic surgeon, Dr Nabavi-Tabrizi.

67. The defendants sought, in a limited way, to explore a number of matters in the evidence of the plaintiff. These were: the plaintiff’s history of previous injury and his history of exposure to trauma as a police officer (T40.40 – T41.10; T42.28 – T43.8; T51.32); some past tensions in his life during 2004 and 2005 (T43.33); his history of prior surgical treatment for previous injuries (T43.45 – T44.3); his apparent delay in seeking treatment for his accident-related psychological problems (T45.7); and in relation to his neck problems (T47.48); his return to police duties for a time (T45.32); some of his post-accident medical issues (T46.47 – T47.2); his surgical history (T47.20; T48.10; T51.12), some further injuries sustained in the line of duty after returning to work post-accident (T48.25 – T48.47); and the reasons for his retirement from the police force on medical grounds: T51.45 – T55.41.

68. In my assessment, the plaintiff’s evidence concerning those matters, did not raise any doubts as to the veracity of his evidence, nor did it detract from the consistency or the reliability of his evidence.

69. I accept that the plaintiff gave truthful accounts of his accident-related problems when he provided histories to the various practitioners who examined him. Accordingly, in addition to drawing upon his oral evidence, I consider it appropriate to draw upon the historical reports of those practitioners as evidence on relevant factual matters, particularly on matters of background, injuries, treatment and the plaintiff’s ongoing disabilities: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, at [70]; Ceva Logistics (Australia) Pty Ltd v Redbro Investments Pty Ltd [2013] NSWCA 46, at [142]–[143]; s 60 of the Evidence Act 1995.

Findings on other relevant matters of fact

70. I now turn to my findings of fact on other relevant matters. Unless otherwise qualified, in the following paragraphs, I set out my findings of fact concerning: (1) the plaintiff’s background circumstances; (2) a summary of his pre-accident health and injury history; (3) the post-accident medical treatment and reviews of the plaintiff; (4) my evaluation of the medical evidence as it relates to damages issues; (5) his injuries from the subject accident; (6) the treatment he obtained; (7) the identification of findings as to the plaintiff’s remaining disabilities; (8) work effects; (9) domestic effects; (10) mitigation; and (11), the plaintiff’s most likely circumstances but for the subject accident.

(1) Plaintiff’s background

71. The plaintiff was born in 1965. At the time of the accident he was aged 41 years. At the time of the hearing he was aged 52 years. He is married with an adult daughter from his marriage, and there is another adult daughter from his wife’s first marriage. Both daughters are independent.

72. The plaintiff’s work history commenced at the age of 15 years, when he left school and worked in his father’s panel beating and spray painting business. He qualified as a panel beater in 1984. He continued in that employment for a further 2 years, and then for the next 2 years, he worked as a loss prevention officer for a department store. That work led him to work in the law enforcement profession, initially with the Department of Corrective Services as a prison officer, and then, after obtaining his Higher School Certificate at TAFE in 1990, when aged 25 years, he joined the NSW Police Force, initially as a security officer.

73. In 1992, the plaintiff completed the police training course at the Police Academy. Thereafter he was promoted through the ranks from Probationary Constable to Leading Senior Constable Level 2, and then in September 2004, at age 39 years, he was appointed Acting Sergeant and then Sergeant at the Campbelltown Local Area Command. At various times he also acted in the role of Inspector. At the time of the accident, he was pursuing a course of study for promotion to that role: T83.26 – T83.31.

74. Along that timeline, the plaintiff had undertaken work duties in the Police Dog Unit, he had completed qualifying courses in incident and emergency management, and as a firefighter. In May 2004, the plaintiff obtained police departmental approval to work as a firefighter in employment that was secondary to his primary employment as a police officer. In addition to being a dedicated police officer he was a committed firefighter. The plaintiff was described as having lived and breathed the job of being a police officer: T20.43.

75. Mrs Parrish gave unchallenged evidence of her assessment that the plaintiff was proud to be a police officer, that he intended to work until retirement age (T65.45 – T66.5), that he wanted to remain in the police force for as long as he could possibly do so.

76. Before the subject accident, as foreseeably occurs in the deployment of police officers, the plaintiff had sustained a number of physical injuries in the course of carrying out his duties. In the period leading up to the subject accident, he had also experienced a number of other psychologically stressful and distressing circumstances that had confronted him in the course of having to attend to tragic and unpleasant tasks that were required of him as a matter of duty when carrying out his work as a police officer. As already observed those matters are well recognised as being an unavoidable part of police duties, with potentially damaging effects.

77. That said, before the subject accident on 24 May 2006, I infer from the fact that the plaintiff was assigned to unrestricted duties that he had been assessed and considered by his employer as being physically and psychologically fit for work, in which he was assigned to general duties. There was no evidence that in his pre-accident work, he had any form of physical or psychological impairment that would have prevented him from carrying out his work as a police officer. It was in the course of those duties that he sustained the physical and psychological injuries that are the subject of his claim for damages in these proceedings.

78. In light of the causation issues raised by the defendants, before setting out my findings as to the nature and the extent of the injuries the plaintiff sustained in the subject accident on 24 May 2006, it is relevant to first identify some details of the plaintiff’s pre-accident health and injury history.

(2) Previous health, injury and medical records history

79. As would be expected by the nature of the police work, the plaintiff’s previous history of injury when hurt on duty as a police officer has been extensively documented. Some of that documentation was tendered in the evidence. As is all too common for police officers, when carrying out their duties, and as part of such duties, they place themselves at risk of injury on a daily basis in a variety of foreseeable circumstances. The plaintiff’s work as a police officer was no exception in that regard.

80. In light of the guiding principles identified at paragraph [16] above, it is both relevant and necessary to undertake a factual survey of the plaintiff’s pre-accident history of exposure to psychological trauma, and also his experience of physical injury.

79. The plaintiff’s past history of exposure to distressing and traumatic events that predated the subsequent accident, and which related to his work as a general duties police officer, is summarised as follows

1. The Thredbo land subsidence disaster, which was widely known to have involved death, injury, and the destruction of property;

2. A house fire where he was first on the scene, where he found a number of dead and burnt children;

3. The drowning of a 5 year old child;

4. A murder suicide involving a father who had kidnapped his children and killed them in gruesomely horrific circumstances;

5. A short period of historical stress due to some interpersonal difficulties that had arisen between himself and a supervisor, whom he felt had treated him unfairly. That issue resolved when that supervisor moved on quickly to another location.

82. As was observed in an unchallenged report of a psychiatric evaluation of the plaintiff, he had experienced situational stress from the above events, and the content of those events have to a degree remained as triggers for him, such as smells, that continue to trouble him in the form of intrusive phenomena that he continues to experience, particularly relating to those involving grotesque and traumatic deaths of children. Although each of those events may have led to brief psychological sequelae, none of those events have led to any chronic debilitating psychological sequelae for the plaintiff until the time of the subject motor vehicle accident: Exhibit “B”, Tab 11, p 181.

83. In addition to the above events of a psychological nature, the plaintiff’s pre-accident health records reveal the following history of physical injury and some other sources of stress:

1. On 19 June 1992, whilst a student police officer, the plaintiff fractured a rib during a police football match: Exhibit “1”, p 184;

2. On 6 August 1992, whilst a student police officer, the plaintiff sustained abrasions to his left hand, both knees, bruising and shock when he was in a motor vehicle that collided with a tree: Exhibit “1”, pp 185 – 186;

3. On 1 January 1994, the plaintiff sustained a strained knee when, whilst on duty as a police officer, he attended a brawl. At Campbelltown Hospital a painful left knee was identified, he had pain in the right cheek from being punched, and an injury to the medial side of the right arm was also identified: Exhibit “1”, pp 187 – 188;

4. On 18 February 1994, Dr Peter Giblin, an orthopaedic surgeon, carried out an arthroscopy of the plaintiff’s right knee which found a loose chondral body and some minor early arthritis on the medial side of that knee and mild chondromalacia of the patella: Exhibit “1”, p 190;

5. On 8 April 1995, the plaintiff injured his left shoulder in the course of arresting a violent offender. This resulted in a left shoulder reconstruction that was later carried out by Dr Giblin, and he was certified as being unfit for work between 17 June 1996 and 27 August 1996: Exhibit “1”, p 191;

6. On 4 April 1996, Dr Giblin saw the plaintiff for soreness to both shoulders, and an MRI scan was ordered to better define the problem: Exhibit “1”, p 192;

7. On 25 June 1996, the plaintiff underwent surgical decompression of the left shoulder and excision of the distal clavicle at Bigge Street Private Hospital under the care of Dr Giblin: Exhibit “1”, p 194;

8. On 10 January 1997, the plaintiff presented to Campbelltown Hospital Emergency Department with pain and swelling to the left shoulder: Exhibit “1”, p 195;

9. On 29 November 1997, the plaintiff sustained a fracture of his left thumb during the arrest of a violent offender, and for a limited time, he was assigned to restricted duties: Exhibit “1”, pp 196 – 198;

10. On 13 April 1998, the plaintiff suffered an injury to his left shoulder, left leg and shin, and to the right side of his forehead during the arrest of several offenders during an incident involving violent disorder: Exhibit “1”, p 199;

11. On 12 August 1998, the plaintiff was referred to a police psychologist to assess his ability to manage anger. This step was taken in light of a complaint made against him that was ultimately not sustained. The psychologist considered the plaintiff had no evidence of psychopathology, and it was considered that he did not have an anger management problem. He was assessed as being fit to perform full police duties: Exhibit “1”, pp 200 – 201;

12. On 9 September 1999, the plaintiff injured his right knee whilst arresting and restraining an offender: Exhibit “1”, pp 205 – 206;

13. On 4 April 2000, the plaintiff developed soreness and swelling to both knees whilst undertaking a simulated search of a bulkhead area whilst crawling in a confined space: Exhibit “1”, p 207;

14. On 2 July 2000, the plaintiff sustained bruising to his right abdominal muscles after jumping over a fence and gate in the course of his policing duties. At that time, he was certified unfit until 22 July 2000: Exhibit “1”, p 208;

15. On 16 July 2000, the plaintiff was admitted to Campbelltown Hospital Emergency Department after he experienced a choking episode, breathing difficulty, and an associated 60 second period of loss of consciousness. Neurological examination was suggested. The consultant Accident and Emergency doctor recorded the impression that the plaintiff had suffered a coughing fit which led to a vasovagal event, and therefore, a possible hypoxic event: Exhibit “1”, pp 210 – 211;

16. On 13 October 2000, the plaintiff suffered aggravation discomfort to his left and right shoulders whilst controlling two police dogs on dog squad duties: Exhibit “1”, pp 212 and 216;

17. On 9 June 2001, Dr Giblin carried out a right shoulder decompression procedure on the plaintiff at Sydney South West Private Hospital: Exhibit “1”, p 217;

18. On 30 September 2001, the plaintiff suffered swelling and bruising to both arms, the chest, and a laceration to the ear whilst arresting an offender at a brawl in a car park: Exhibit “1”, p 218;

19. On 21 March 2002, the plaintiff suffered a twisted left knee whilst carrying out an arrest: Exhibit “1”, p 220;

20. On 23 March 2002, the plaintiff presented to the Camden Hospital Emergency Department following an assault upon him by a prisoner, during which the plaintiff was kicked in the face by his barefooted assailant: Exhibit “1”, p 219;

21. On 23 November 2003, the plaintiff suffered a cervical injury. He had hurt his neck whilst wrestling to control some persons who had been fighting: Exhibit “1”, p 132; pp 221 – 222;

22. On 1 December 2003, the plaintiff sustained bruising to his hips from wearing the utility pouches on his appointments belt, which resulted in him having some soreness to his lower back: Exhibit “1”, p 223;

23. On 27 February 2004, the plaintiff sustained injuries comprising a bruised left rib with associated swelling, and injuries to his right eye, shoulder, arm and a knee. These injuries occurred when he was arresting a violent offender: Exhibit “1”, p 225;

24. On 6 May 2004, the plaintiff underwent spirometry or lung capacity tests for an unspecified reason: Exhibit “1”, p 224;

25. On 10 May 2004, the plaintiff underwent repeat spirometry tests for an unspecified reason: Exhibit “1”, p 224;

26. On 11 October 2004, the plaintiff suffered a laceration to his right shin when he ran into contact with a water meter: Exhibit “1”, p 227;

27. On 20 December 2004, the plaintiff was seen by a police doctor for aggravation of his left shoulder, with a history of pain in that region for the previous 2 months: Exhibit “1”, p 224;

28. On an unspecified date, possibly in May 2005 (the record is difficult to interpret) the plaintiff received work-related stress counselling: Exhibit “1”, p 224;

29. On 26 January 2005, the records of the New South Wales Fire Brigade noted the plaintiff was going through a difficult and stressful family situation: Exhibit “1”, p 231;

30. On 11 February 2005, the plaintiff presented to the Camden Hospital Emergency Department complaining of a painful right hand following an injury when a door struck his hand two days earlier: Exhibit “1”, p 228;

31. On 26 February 2005, the plaintiff presented to the Camden Hospital Emergency Department complaining of a painful right hand and elbow, and an abrasion to the chin after an assault upon him: Exhibit “1”, pp 229 – 230;

32. On 1 March 2005, the plaintiff attended the Camden Hospital Emergency Department for a follow-up review of the previous injuries to his right hand and right elbow: Exhibit “1”, pp 232 – 233;

33. On 13 August 2005, the plaintiff sustained a heavy fall on his left and right knees during the foot pursuit of an offender: Exhibit “1”, pp 244 – 245;

34. On 29 September 2005, the police records noted that the plaintiff appeared, whilst on a period of 2 weeks stress leave, to be upset and agitated about the time that was being taken over the completion of some internal affairs investigations in relation to him, and he indicated he would be seeking independent counselling and in those events, the plaintiff complained of a lack of faith in police support in relation to those matters, and the consequential stressful work environment: Exhibit “1”, pp 235 – 244;

35. On 30 November 2005, the plaintiff underwent a knee arthroscopy that was carried out by a Dr Dave at the Macarthur Private Hospital: Exhibit “1”, p 246;

36. On 14 May 2006, the plaintiff presented at the Camden Hospital Emergency Department for treatment of a laceration and some small puncture wounds to the pulp of his right middle finger that had been injured on barbed wire: Exhibit “1”, pp 251 – 252;

84. No cross-examination of substance was directed to the detail of the matters outlined above to suggest that prior to the subject accident, the plaintiff was in any way restricted by any underlying work incapacity, on either physical or psychological grounds.

85. In those circumstances, I infer that those multiple instances of exposure to psychological trauma, or physical injury, as identified in the series of sub-paragraphs of paragraphs [81] and [83] above, either individually or collectively, did not adversely affect the plaintiff’s fitness to continue in his work as a police officer at the time of his injury. If the position was otherwise, it would have been unlikely that the plaintiff would have been permitted to continue working in full and unrestricted police duties at the time of the subject accident.

86. That said, I accept that the nature of the plaintiff’s documented prior physical injuries suggest that he may well have been made vulnerable to further aggravating injuries in those affected areas if he were to sustain further physical injuries in those areas.

87. The unchallenged psychiatric opinion was that the plaintiff was someone who, by reason of his exposure to the described prior incidents that were productive of distress or psychological trauma, was highly vulnerable to the development of a PTSD, and as such, he was primed for the development of that disorder in the course of his work, with the potential that, if this occurred, it may lead him to psychologically decompensate into a distressed and disabled state: Professor Nicholas Glozier; Exhibit “B”, Tab 11, p 185.

88. The evidence does not reasonably permit a precise assessment to be made in percentage terms, of the likelihood or extent of such possibilities, of either aggravation occurring in respect of an underlying condition, or for psychological decompensation to occur, absent the effects of the subject accident. My assessment is that absent additional trauma, the probability of such decompensation occurring was very low: Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638, at pp 642 – 643.

89. In view of the dispute as to the nature and the extent of the injuries the plaintiff sustained in the subject accident, I consider it necessary to review the entire fabric of the medical and allied evidence to identify salient factual features within that body of evidence before making definitive factual findings which identify the plaintiff’s injuries.

(3) Post-accident medical treatment and reviews

90. In view of the defendants’ argument that the plaintiff’s medical retirement from the police force was due to non-accident-related causes, it is necessary to undertake a review of the plaintiff’s post-accident medical and allied attendances and treatments. Those attendances and assessments are summarised, in chronological sequence, as follows.

1. On 28 May 2006, a few days after the accident, the plaintiff first saw his general practitioner, Dr Samir Michael, about the accident. He was prescribed Temazepam tablets, 10mg, to be taken at the dose of 1 – 2 per night as directed. Dr Michael also gave the plaintiff counselling: Exhibit “1”, Tab 6, p 156; Exhibit “B”, p 264;

2. On 16 June 2006, at about 18:25 hours, the plaintiff was seen at Camden Hospital Emergency Department for complaints of pain in the right groin and lower abdomen. The notes recorded that the plaintiff had PTSD secondary to witnessing the accidental death of a man in a crash. The clinical notes refer to the plaintiff having jumped out of the way of a vehicle, which subsequently led to him experiencing groin pain and a diagnosis of an inguinal hernia: Exhibit “1”, pp 254 – 255. Those relatively contemporaneous notes, made 3 weeks after the accident, serve to rebut the defendants’ suggestion that the plaintiff had delayed making a complaint about the psychological effects of the accident. It is doubtful that such a detailed history of the accident would have been taken at that time if there were no evident psychological symptoms in the plaintiff’s presentation. The reference to PTSD suggests there had been a sudden onset of such symptoms from the time of the accident, continuing until the time that note was made: Exhibit “1”, pp 254 – 256;

3. On 22 June 2006, the plaintiff was examined by Dr Edwin Lim, who assessed the plaintiff’s right inguinal hernia and advised the workers’ compensation insurer that this was a work related injury: Exhibit “B”, Tab 15, p 313;

4. On 27 June 2006, Dr Lim repaired the plaintiff’s right inguinal hernia. He removed the surgical sutures on 6 July 2006 and he arranged for a review of the plaintiff on 28 August, 2006: Exhibit “B”, Tab 16, p 314;

5. On 6 July 2006, which was five weeks post-accident, the plaintiff was referred to a rehabilitation consultant for “Hernia and Psychological Trauma”. At that time he was assessed as being totally unfit for work: Exhibit “1”, p 267;

6. On 10 July 2006, Dr Lim wrote to Allianz Workers Compensation Division to report on the result of right inguinal hernia repair that he carried out on 27 June 2006: Exhibit “B”, Tab 16, p 314. He advised the hernia repair had been carried out on 27 June 2006, without complications;

7. On 31 July 2006, Dr Lim reviewed the plaintiff again after the inguinal hernia repair, and he noted that the plaintiff’s residual left groin pain was probably due to adductor tendonitis and left knee pain: Exhibit “1”, p 257;

8. On 31 July 2006, Dr Lim wrote to Dr Nabavi-Tabrizi (Exhibit “B”, Tab 17, p 315) about seeking an opinion on the management of the plaintiff’s groin pain from probable adductor tendonitis and his left knee problems: Exhibit “B”, Tab 17, p 315. Dr Lim considered that the plaintiff’s complaints of left knee and left groin pain were preventing him from returning to work. He considered the left groin pain to probably be due to adductor tendonitis. As a result, he referred the plaintiff to Dr Nabavi-Tabrizi for further opinion and management of these problems;

9. On 1 August 2006, the plaintiff consulted Dr Nabavi-Tabrizi for left hip pain due to impingement pain of adductor origin, and a probable labral tear, as well as left knee pain, which continued after arthroscopy for a meniscal tear and chondromalacia behind the patella: Exhibit “1”, pp 260 – 262;

10. On 11 August 2006, Dr Nabavi-Tabrizi reported that an MRI scan showed adductor tendonitis and tendinosis of the associated tendons (of the plaintiff’s left hip) and a small tear of the gluteus minimus muscle, with complex symptomatology, for which local anaesthetic and steroid injections were planned: Exhibit “1”, p 262;

11. On 1 September 2006, Dr Nabavi-Tabrizi reviewed the plaintiff post-injection of the injured tendon and hip muscles and suggested a review in 6 weeks: Exhibit “1”, p 263;

12. On 12 September 2006, Dr Nabavi-Tabrizi noted the plaintiff had only obtained temporary relief from the injections to the left hip. He suggested surgical exploration and repair: Exhibit “1”, p 264;

13. On 29 September 2006, Dr Nabavi-Tabrizi performed left hip arthroscopy, an open release of the adductor tendon and an open release of the IT Band of the plaintiff’s left hip. Weight bearing with crutches and physiotherapy was recommended: Exhibit “1”, pp 265 – 266;

14. On 18 October 2006, which was about 20 weeks post-accident, Ms Littlejohn, a rehabilitation counsellor, noted the plaintiff had seen a psychologist and was talking to the Police Chaplain, but was receiving no other active counselling: Exhibit “1”, pp 268 – 269;

15. On 18 December 2006, the plaintiff attended Macarthur Health Service with a painful left elbow, tendonitis and a puncture wound to his left forearm after moving some furniture a week earlier: Exhibit “1”, pp 264 – 265 and pp 271 – 272;

16. On 2 January 2007, Dr Nabavi-Tabrizi noted the plaintiff was coping with 4 hours per day of office duties: Exhibit “1”, p 273;

17. On 20 February 2007, Dr Nabavi-Tabrizi reviewed the plaintiff and noted he had done well, and was running 1km per day: Exhibit “1”, p 275;

18. On 28 March 2007, Ms Virginia Littlejohn, a physiotherapist and rehabilitation consultant, noted the plaintiff had a second operation carried out on his left leg, and that he had returned to work on full police duties at Camden Police Station. She obtained the agreement of the Camden Police Local Area Command, a representative of the NSW Force, and a representative of Allianz, the workers’ compensation insurer, to close the plaintiff’s 24 May 2006 injury file, which listed the injuries as “Hernia and Psychological Trauma”. The content of the record relates to post-operative rehabilitation, not psychological assessment or treatment. It is not apparent as to the extent, if any, that the plaintiff’s psychological trauma had been assessed at that time: Exhibit “1”, pp 276 – 277;

19. On 6 September 2007, the records of the plaintiff’s general practitioner refer to the plaintiff having supra pubic symptoms in conjunction with abdominal pain and gastro-intestinal problems. There was no apparent relevance of these matters to the subject accident: Exhibit “1”, p 281;

20. On 13 April 2008, the plaintiff, then in the work role of an Acting Inspector, received a punch to the head and face, and a graze to his left shin, a sore right knee and redness and pain to the neck, which he sustained in the course of arresting two violent offenders: Exhibit “1”, pp 278 – 280;

21. On 14 April 2008, the plaintiff saw his general practitioner for “knee pain”: Exhibit “1”, p 281;

22. On 6 June 2008, Dr Nabavi-Tabrizi noted the plaintiff was complaining of increasing right knee pain which was injured at the same time as he had the hip injury. MRI screening showed unstable Grade III flaps in the right patella: Exhibit “1”, p 282;

23. On 27 June 2008, Dr Nabavi-Tabrizi performed a right knee arthroscopy and chondroplasty procedure on the plaintiff’s patella-femoral joint: Exhibit “1”, pp 283 – 284;

24. On 5 August 2008, Dr Nabavi-Tabrizi noted that 6 weeks post-operatively, the plaintiff still had significant anterior knee pain with a click: Exhibit “1”, p 285;

25. On 18 September 2008, the plaintiff filled out a recurrence of injury form which stated that there was wear and tear and deterioration of the left knee relating back to a heavy fall whilst charging an offender on 14 August 2005. Severe pain and restriction of movement were noted: Exhibit “1”, pp 286 – 287;

26. On 3 October 2008, Dr Nabavi-Tabrizi carried out a left knee arthroscopy and chondroplasty, with an associated autologous chondrocyte implantation: Exhibit “1”, pp 288 – 289;

1. On 14 October 2008, Dr Nabavi-Tabrizi reviewed the plaintiff 2 weeks post-operatively. At that time he planned a second stage tubercle osteotomy and implantation procedure for the left knee: Exhibit “1”, p 290;

2. On 30 October 2008, Dr Nabavi-Tabrizi performed a left knee autologous chondrocyte implantation procedure on the left tibial tubercle with internal fixation and he then referred the plaintiff for rehabilitation: Exhibit “1”, pp 288 – 289 and pp 291 – 292;

3. On 9 December 2008, Dr Nabavi-Tabrizi reviewed the post-operative x-rays of the plaintiff’s left knee which showed a united tubercle osteotomy. A lot of quadriceps wasting was noted to be present, which required rehabilitation: Exhibit “1”, p 293;

4. On 20 January 2009, the plaintiff was noted to be undertaking a home physiotherapy programme to strengthen his leg muscles: Exhibit “1”, p 294;

5. On 27 January 2009, Dr Nabavi-Tabrizi noted the plaintiff had been doing extremely well with his left knee, and noted that he was having a similar problem with the right knee. He suggested a return to work for a period of time “to see how both knees behave and hold up to the insults of police work”: Exhibit “1”, p 295;

6. On 17 February 2009, Dr Nabavi-Tabrizi noted the plaintiff’s left knee was doing very well but the plaintiff was noted to be having increasing problems with his right patello-femoral joint, which he considered would require surgery similar to that which was performed on the left knee: Exhibit “1”, p 296;

7. On 24 June 2009, Dr Nabavi-Tabrizi carried out a right knee arthroscopy, chondroplasty procedure with an associated autologous chondrocyte implantation: Exhibit “1”, p 297;

8. On 24 July 2009, the plaintiff fell and injured his left knee whilst arresting an offender. The left knee was reported to be swollen and sore: Exhibit “1”, pp 298 – 299;

9. On 7 August 2009, Dr Nabavi-Tabrizi performed a planned arthroscopy procedure on the plaintiff’s right knee with chondroplasty as a first stage autologous chondrocyte transplantation harvest: Exhibit “1”, p 301;

10. On 10 August 2009, the plaintiff consulted his general practitioner who noted the plaintiff had knee pain and a soft tissue injury: Exhibit “1”, p 281;

11. On 9 September 2009, Dr Nabavi-Tabrizi carried out a second state chondrocyte implantation procedure on the plaintiff’s right knee: Exhibit “1”, pp 303 – 304;

12. On 11 March 2010, the plaintiff underwent a post-surgical MRI scan of the right knee for investigation of right medial compartment pain and to also review the previous surgical site: Exhibit “1”, pp 305 – 306;

13. On 22 March 2010, the plaintiff consulted his general practitioner who noted the reason for that contact as being for knee pain: Exhibit “1”, p 309;

14. On 30 March 2010, the plaintiff consulted his general practitioner who noted the reason for that contact as being for knee pain: Exhibit “1”, p 307 and p 309;

15. On 6 April 2010, the plaintiff consulted his general practitioner who noted the reason for that contact as being for neck pain. Diagnostic imaging was arranged for the plaintiff’s left shoulder, neck and lumbo-sacral spine: Exhibit “1”, p 309;

16. On 7 April 2010, the plaintiff sustained a back strain, and he was certified as unfit for work from that date until 4 January 2011: Exhibit “1”, pp 312 – 314;

17. On 9 April 2010, the plaintiff consulted his general practitioner who noted the reason for that contact as being for neck pain. A recurring problem of ongoing pain in the left shoulder was also reported at that time: Exhibit “1”, p 309; pp 310 – 311 and pp 315 – 316. There is no suggestion that the subject accident relevantly aggravated the plaintiff’s previous shoulder problems, which of themselves, did not affect his ability to work;

18. On 21 April 2010, Dr Nabavi-Tabrizi carried out a right knee arthroplasty, chondroplasty procedure, with drilling of the lateral femoral condyle, and removal of screws from the right and left tibiae: Exhibit “1”, pp 317 – 318;

19. On 28 April 2010, the plaintiff underwent a CT of his lumbar spine which was reported as showing muscle spasm which was thought to account for loss of lumbar lordosis. Disc bulging at L4/L5 and L5/S1 was also noted: Exhibit “1”, pp 322 – 323;

20. On 7 May 2010, Dr Nabavi-Tabrizi reviewed the plaintiff and noted that he was making good progress following the recent arthroscopy procedure. He noted the plaintiff’s complaints of cervical pain and related upper limb pain, numbness and paraesthesia. He considered those symptoms to be radicular with possible mild rotator cuff problems. MRI of the cervical spine was suggested, along with a proposed review by a nominated spinal surgeon, Dr Darwish: Exhibit “1”, p 319;

21. On 11 May 2010, the plaintiff’s general practitioner certified the plaintiff to be unfit for work until 3 June 2010 on account of pre-existing left shoulder problems: Exhibit “1”, p 328;

22. On 18 May 2010, the plaintiff underwent an investigatory MRI scan of his cervical spine, left shoulder, and lumbar spine. The cervical spine was noted to be of normal appearance but disc narrowing and protrusion was noted at some levels. The lumbar spine was reported to show degenerative changes and some disc bulging and degenerative facet disease. The left shoulder was reported to show minor sub-acromial bursal oedema, tendinosis, a partial tear of the articular surface of the infraspinatus tendon, and features of previous bony decompression procedure: Exhibit “1”, pp 320 – 321;

23. On 24 May 2010, the plaintiff was examined by Dr Balsam Darwish, a neurosurgeon and spinal surgeon, in relation to the history of neck pain. He reviewed the MRI scans. He advised a C5/6 anterior cervical discectomy with decompression of both C6 nerve roots and a cervical fusion: Exhibit “1”, pp 324 – 325;

24. On 4 June 2010, the plaintiff’s general practitioner noted that the plaintiff had cervical spine problems and referred him for specialist review: Exhibit “1”, p 330;

25. On 5 July 2010, Ms Clair Baker, a psychologist, interviewed Dr Michael about the plaintiff’s history of psychological trauma: Exhibit “1”, Tab 6, p 20;

26. On 7 July 2010, Ms Baker prepared a pre-liability report for the workers’ compensation insurer after interviewing the plaintiff, his police colleagues and his general practitioner: Exhibit “1”, Tab 6, pp 20 – 50;

27. On 16 July 2010, the plaintiff’s general practitioner certified the plaintiff to be unfit for work between 21 July 2010 and 21 August 2010 because of PTSD, which at that time was planned to be managed by counselling: Exhibit “1”, p 331;

28. On 20 July 2010, Dr Nabavi-Tabrizi reviewed the plaintiff to discuss the planned cervical fusion proposed by Dr Darwish. He deferred to Dr Darwish’s expertise on that matter: Exhibit “1”, p 326;

29. On 20 August 2010, the plaintiff was admitted to Campbelltown Private Hospital where a C5/6 anterior cervical discectomy and fusion was carried out by Dr Darwish. He was discharged on the following day: Exhibit “1”, p 327 and p 333;

30. On 2 September 2010, the plaintiff was reviewed by Dr Darwish for post-surgical neck pain, which it was noted, was to be expected. An x-ray was ordered, with physiotherapy and medication: Exhibit “1”, p 334;

31. On 1 October 2010, the plaintiff’s treating general practitioner certified him as unfit to work between 4 October 2010 and 4 January 2011 on account of neck problems: Exhibit “1”, p 338;

32. On 15 October 2010, the plaintiff was reviewed by Dr John Crozier, a vascular surgeon for cyanotic discolouration of the right ankle against a history of the accident, weight gain, and bilateral knee surgery. A compression stocking was recommended. Dr Crozier also recommended to the plaintiff that he stop smoking: Exhibit “1”, p 335;

33. On 28 October 2010, the plaintiff was reviewed by Dr Darwish for neck pain radiating to the right shoulder, and the experience of lower back pain in the mornings. Medication was prescribed and a 6 week review was arranged: Exhibit “1”, p 336;

34. On 17 November 2010, the plaintiff underwent a psychological assessment by Ms Madhu Misra, a psychologist at the St John of God Hospital at the referral of Dr Selwyn Smith. The plaintiff’s history was of deteriorating mental health for a considerable period of time since 2006. The focus of that referral was the subject accident. The assessment was of significant PTSD with depression and anxiety associated with work-related traumas experienced over the past 20 years: Exhibit “1”, pp 339 – 342;

35. On 24 November 2010, at the request of the NSW Police Force, the plaintiff was examined by Dr Graham George, a consultant psychiatrist: Exhibit “B”, Tab 12, pp 192 – 198. Dr George reviewed the plaintiff’s prior history of hurt on duty claims including shoulder injuries that resulted in a period of leave for 12 months (at pp 193 – 194), he considered the plaintiff’s presenting complaints, his past psychiatric medical, family, personal and industrial history (at pp 194 – 195), and following a mental examination of the plaintiff, he set out his psychiatric diagnosis and opinion (at pp 196 – 198). He noted the plaintiff’s history of inability to cope with his work as a police officer, and considered that this was directly related to the subject accident, which was a catalyst for the plaintiff’s psychological condition. In essence Dr George was of the opinion that the plaintiff had chronic PTSD, major depression with anxious mood, and alcohol dependence and abuse, probably over a 4 year period, with a decreased level of functioning over that period. He considered those conditions to be the direct result of the subject accident, which he incidentally referred to as being on 23 March 2006. Nothing turns on that misdescription. Dr George considered the plaintiff to be unfit to work as an operational police officer. He also considered that if there was an attempt to assign him to such duties, there would be an “immense risk” of relapse from his current treatment programme. He considered the plaintiff was incapable of returning to work in non-operational duties. He identified his view that the plaintiff was totally and permanently disabled, and he supported the plaintiff’s discharge from the NSW Police Force. He considered that a return to work by the plaintiff would be a source of reaction to most triggers in the work environment, such as police talk about traumatic incidents, briefs, viewing photographs and descriptions of events, being associated with violent people, or being subject to any form of trauma;

36. On 3 December 2010, Dr Nabavi-Tabrizi reviewed the plaintiff for continuing right knee pain, with crepitus, catching, swelling and discomfort. Dr Nabavi-Tabrizi considered nothing else could be offered to the plaintiff other than a knee replacement procedure: Exhibit “1”, p 346;

37. On 25 January 2011, the plaintiff underwent MRI scans of his left shoulder and right knee at the request of Dr Nabavi-Tabrizi. A tiny partial thickness tear was seen in the shoulder, and chondral wear was noted in the knee: Exhibit “1”, pp 347 – 349;

38. On 10 March 2011, Dr Darwish reviewed the plaintiff in light of the MRI findings. He explained to the plaintiff that his neck problems were muscular in nature, and there was no need for further surgery at that time: Exhibit “1”, p 350;

39. On 25 March 2011, Dr Nabavi-Tabrizi reviewed the plaintiff’s MRI scans. He considered that the shoulder scan did not show any significant pathology. The right knee MRI showed a complete loss of cartilage. He recommended a right patella-femoral knee joint replacement: Exhibit “1”, p 351;

40. On 21 April 2011, Dr Nabavi-Tabrizi corresponded with the plaintiff’s general practitioner advising that the planned right knee replacement surgery was booked for 27 April 2011. He noted that the plaintiff suffered from depression and PTSD, and continued to complain of pain in the interscapular region and paraesthesia in both hands, which he thought was most likely due to a minor bilateral carpal tunnel syndrome for which he prescribed Epilim. Weight loss and hydrotherapy were recommended. Exhibit “1”, p 352;

41. On 27 April 2011, Dr Nabavi-Tabrizi carried out a patella-femoral joint replacement procedure on the plaintiff’s right knee: Exhibit “1”, pp 353 – 354;

42. On 28 April 2011, Ms Lisa Steele, a clinical psychologist, wrote to the Treasury Managed Fund to report on a programme of prolonged psychological treatments the plaintiff had attended for his PTSD with co-morbid major depression. That treatment had consisted of some 20 sessions to that time: Exhibit “1”, Tab 7, pp 285 – 287;

43. On 2 June 2011, Dr Darwish reviewed the plaintiff, noting a history of continuing paraesthesia in his hands which had responded well to Epilim. He had normal muscular power and sensation in both hands. On 9 June 2011, Dr Darwish advised the plaintiff’s general practitioner that he would discharge the plaintiff back into his care: Exhibit “1”, p 355;

44. On 20 June 2011, an x-ray of the plaintiff’s right knee showed the knee prosthesis was in a normal position, without evidence of loosening: Exhibit “1”, p 356;

45. On 7 July 2011, Dr Selwyn Smith, a consultant psychiatrist, provided a report to the plaintiff’s solicitor: Exhibit “B”, Tab 9, pp 171A – 171H. Dr Smith saw the plaintiff on 15 July 2010 at the referral of Dr Michael, and on eight further occasions up to 22 June 2011. He perused the plaintiff’s detailed dossier of exposure to distressing and traumatic events during his serve with the NSW Police Force. After taking a history of relevant psychological stressors and physical injuries, he noted (at p 171B), that the plaintiff has experienced heightened levels of anxiety and depression, with accompanying irritability and aggressiveness, with difficulty focussing and concentrating, and with dissociative flashbacks pertaining to his earlier exposure to distressing events. Dr Smith stated (at p 171C), that the plaintiff displayed clinical evidence of PTSD in association with depressive and anxiety symptoms, with secondary alcohol dependence. A programme of attendance for PTSD treatment was commenced but despite this, Dr Smith noted (at p 171C), that the plaintiff continued to be troubled by intrusive memories and flashback episodes, and was significantly handicapped by his orthopaedic injuries. Dr Smith identified the prognosis for recovery to be poor, and he stated (at p 171D), that maintenance and supportive treatment including appropriate pharmacology was required to assist the plaintiff to develop coping strategies for his physical and psychological impairments. Dr Smith’s view was that (at p 171E), it was highly unlikely the plaintiff would reintegrate at work, and it was also highly unlikely that he would have the capacity to engage in alternative employment as he was disabled on psychiatric grounds. At that time, Dr Smith was of the opinion that from a psychiatric point of view, the plaintiff was not in need of domestic assistance, but that need was predominantly related to his physical restrictions;

46. On 5 September 2011, the plaintiff underwent an MRI scan of his left hip which showed trochanteric bursitis, and a slight irregularity of the superior labrum. The latter finding was thought to not exclude degeneration: Exhibit “1”, p 360;

47. On 8 September 2011, Dr Nabavi-Tabrizi saw the plaintiff again in relation to his (left) hip pain. He considered there was evidence of femoral acetabular impingement and arranged for the plaintiff to have a trochanteric bursa steroid injection with local anaesthetic: Exhibit “1”, p 361;

48. On 18 April 2012, the plaintiff underwent a left trochanteric bursal injection under ultrasound guidance, without complication: Exhibit “1”, p 366;

49. On 15 May 2012, Dr Nabavi-Tabrizi reviewed the plaintiff’s right knee replacement 12 months post-surgery. He considered the result to be excellent, but noted the plaintiff reported mild to moderate discomfort. He suggested trying to delay total knee replacement until the plaintiff was older. An arthroscopic examination of the left hip was suggested as the plaintiff no longer responded to bursal injections. A further review was arranged for July 2012: Exhibit “1”, p 367;

50. On 16 July 2012, the plaintiff had a lumbar MRI scan which was interpreted as showing mild left neural exit foraminal stenosis due to facet joint arthropathy and mild disc bulge: Exhibit “1”, p 368;

51. On 18 July 2012, Dr Nabavi-Tabrizi carried out a left hip arthroscopy procedure and a left femoral and acetabular osteoplasty. Arrangements were made for a review in two weeks: Exhibit “1”, pp 369 – 370;

52. On 13 August 2012, Dr Darwish reviewed the plaintiff regarding his lower back pain. He reviewed the MRI scans of the lumbo sacral spine which showed an L5/S1 disc protrusion and L5/S1 foraminal stenosis with potential compression of the L5 nerve root in the foramen. There were no radicular leg symptoms. Physiotherapy and anti-inflammatories were recommended as treatment, with a suggestion for possible treatment by L5/S1 epidural cortisone injection at a later stage: Exhibit “1”, p 371;

53. On 16 August 2012, Dr Nabavi-Tabrizi reviewed the plaintiff four weeks post-hip surgery. An MRI of the pubic symphysis was arranged because of discomfort in that region and adductor symptoms. Dr Lim was asked to review the plaintiff’s hernia repair: Exhibit “1”, p 372;

54. On 22 August 2012, the plaintiff underwent an MRI of the pubic symphysis which revealed chronic osteitis pubis with bony hypertrophy and osteophyte formation. The adductor insertions appeared normal: Exhibit “1”, p 373;

55. On 2 October 2012, Dr Nabavi-Tabrizi reviewed the MRI of the pubic symphysis and arranged to inject that area with steroids and local anaesthetic. The plaintiff also had symptoms of left shoulder pain which suggested subacromial impingement, for which physiotherapy was ordered: Exhibit “1”, p 374;

56. On 12 October 2012, the plaintiff had a CT guided pubic symphysis injection of steroid and local anaesthetic, without complication: Exhibit “1”, p 375;

57. On 8 November 2012, Dr Darwish reviewed the plaintiff concerning his complaints of lower back pain and stiffness. A cortisone injection was recommended but declined. Swimming and weight loss were suggested to the plaintiff, along with a review in six weeks’ time: Exhibit “1”, p 376;

58. On 16 November 2012, Dr Nabavi-Tabrizi noted the plaintiff was finding it difficult to walk around following his pubic symphysis injection which had only afforded him temporary relief. A referral to a Melbourne specialist, a Dr Young was arranged: Exhibit “1”, p 377;

59. On 8 December 2012, the plaintiff experienced an episode of syncope with a short period of unconsciousness for about a minute. Cardiac follow-up was arranged: Exhibit “1”, pp 378 – 382;

60. On 18 December 2012, Dr Darwish reviewed the plaintiff for low back pain and stiffness not relieved by medication. The plaintiff agreed to have an L5/S1 epidural steroid injection for this problem: Exhibit “1”, p 381;

61. On 9 January 2013, Dr Darwish prepared a report at the request of the third party insurer, in which he expressed the opinion that all of the plaintiff’s injuries were related to the accident on 24 May 2006: Exhibit “1” p 385. He noted (at Exhibit “1”, p 382) that those multiple injuries were to both knees, the right shoulder, the neck, and the adductor muscles of the left hip: Exhibit “1”, pp 382 – 385;

62. On 5 April 2013, Dr Nabavi-Tabrizi reviewed the plaintiff for his left-sided adductor pain and his pubic symphysis pain. He was still trying to arrange a tertiary referral to Dr Young in Melbourne: Exhibit “1”, p 386;

63. On 22 July 2013, Dr Darwish viewed the plaintiff’s lower back symptoms of stiffness, which were described as having become worse over the preceding three months. The plaintiff found it difficult to bend over to tie his shoelaces. There were no radicular leg symptoms. A further MRI scan of the lumbar spine was arranged: Exhibit “1”, p 387 and p 390;

64. On 15 August 2013, Dr Darwish reviewed the plaintiff and noted that he continued to complain of lower back pain and pain in the left sacro-iliac region and that this was not benefitted by cortisone injection. Physiotherapy, hydrotherapy and Oxycontin were prescribed: Exhibit “1”, p 391;

233. As was indicated during the course of oral submissions, I consider that the non-economic loss submission by the defendants represents inadequate compensation: T166.25. In my view, the proper amount to be awarded for this head of damage, in fairness to the plaintiff without visiting unfairness on the defendants, is the sum of $340,000.

234. I therefore assess the plaintiff’s damages for non-economic loss in the amount of $340,000.

Past economic loss

241. On behalf of the plaintiff, it was submitted that his damages for past economic loss should be assessed in the sum of $629,512.75. The basis of the calculation was the already identified conservative assumption that the plaintiff’s past economic loss should be assessed on the basis of his level of earnings at the time of his accident without reference to the effects of fluctuating increments in the applicable awards that would have arisen over the course of the 12 years since the accident.

242. On that basis, the plaintiff’s gross rate of earnings at the time, $92,783, equates to $1784.29 per week gross, or $1325.29 per week net.

243. The plaintiff was paid refundable weekly compensation for two periods during which he was off work. The first period was between 26 June 2006 and 12 November 2006, a period of 19 weeks, which at the rate of $1325.29 per week net, results in a calculation of loss of $25,180.51. The second period was in the submitted period from 1 August 2008 to the date of hearing, a period of 475 weeks, which at the same weekly rate, results in a calculation of loss of $629,512.75. The combined total of those losses is the sum of $654,693.26.

244. In contrast, on behalf of the defendants, it was contended that there should be no assessment of damages for past economic loss because, but for the subject accident, the plaintiff’s earnings would have been equal to his actual earnings. In that regard the defendants contend that although the plaintiff has been assessed as being unfit for work on account of his psychological injuries, because he was, it was submitted “unfit for work in any event because of physical injuries” there should be no award of damages for economic loss: MFI “4”, par 70. The defendants called no reliable medical evidence to support that contention. Accordingly, I do not accept that submission.

245. Consistent with my analysis of the medical evidence and the plaintiff’s involuntary retirement for accident-related reasons, I find myself unable to accept the defendants’ cited submission. The plaintiff would not have needed to have involuntary medical retirement imposed upon him but for the effects the accident. I find that the plaintiff should be compensated for the full period of his claim for past economic loss, as submitted, but subject to what now follows.

246. In assessing the plaintiff’s damages for past economic loss, in this case I consider that some measure of discount ought to be applied to the above calculation to reflect the fact that the plaintiff was in an occupation that foreseeably posed some risks to his physical and psychological wellbeing.

247. This is confirmed by the evidence of other historical instances in which he was hurt on duty. This raises the possibility that he might have incurred further or aggravating injuries from other causes that could well arise in the course of fulfilling this police duties if he had worked in the 6 year period from his enforced retirement in 2011, until the hearing of his case: Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638, at pp 642 – 643.

248. To reflect the possible impact of such imponderable factors, I consider it appropriate that the calculation for past economic loss damages should reflect a relatively modest discount component of 5 per cent because discounting past damages involves different considerations compared to future damages. The resultant discounted calculation is $621,958, which I round off to $620,000.

249. I therefore assess the plaintiff’s damages for past economic loss in the amount of $620,000.

Past loss of superannuation

250. The plaintiff’s damages for past loss of employer funded superannuation benefits are assessed at 9 per cent of the amount of $620,000 as assessed for past economic loss, namely $55,800.

Fox v Wood

251. Following the subject injuries, the plaintiff was paid weekly payments of workers’ compensation. Tax was deducted from those payments. The plaintiff is entitled to have the total amount of that deducted tax included in his damages award: Fox v Wood [1981] HCA 41; (1981) 148 CLR 438.

252. The parties have been unable to agree on the amount to be included in the plaintiff’s damages assessment for this head of damage. Those matters were ventilated at further hearings listed on 7 September 2018 and 12 September 2018.

253. The parties were able to reach only limited agreements on Fox v Wood damages on the discrete assumption that the plaintiff’s retirement was on grounds of PTSD alone. That agreement was in the amount of $3151.64: Transcript, 7 September 2018, T4.22.

254. At that time, the parties indicated that due to complications arising from the position taken by Allianz, the workers’ compensation insurer, on this question and on the question of the application of s 151Z of the WC Act, it would be necessary to first make my findings of fact available to enable those consequential matters to be either agreed or to be further litigated for resolution. In cases where s 151Z of the WC Act must be applied, it has been observed that the latter course would be costly and undesirable: Kempsey District Hospital v Thackham (1995) 36 NSWLR 492, at 503F.

255. At a further listing on 12 September 2018, at which time those issues were ventilated, the parties were required to provide the up to date calculations for the plaintiff’s incurred treatment costs, the weekly payments of compensation, and the tax deducted from those weekly payments: MFI “6”.

256. In response, the parties produced a schedule which, amongst other things, on a provisional basis, identified the amounts of tax deducted from weekly payments of compensation in the total sum of $38,314.06: Exhibit “3”.

257. That aggregated sum was based on the assumption that the plaintiff’s weekly payments of compensation related to his PTSD condition ($3151.64), injuries to his left knee, right groin and hip ($24,018.42), and injuries to his right knee ($11,144).

258. That aggregated sum of $38,314.06 did not include any allowance for Fox v Wood damages in relation to payments of weekly compensation for the plaintiff’s neck and back injuries, which I have found to be accident-related aggravations. It therefore remains uncertain as to whether reclaimable tax was deducted from payments made in respect of compensation for neck and back injuries.

259. Accordingly, it is not possible to assess the plaintiff’s total entitlement to Fox v Wood damages until those calculations are modified to reflect my findings of fact on those matters. This means that I am only able to make provisional or interim findings which the parties are required to address with consequential short minutes to be brought to court to reflect those findings.

260. I therefore make an interim assessment of the plaintiff’s Fox v Wood damages in the amount of $38,314.06.

Future economic loss

261. On behalf of the plaintiff, it was submitted that his damages for future loss of earning capacity should be assessed in the amount of $752,799.44.

262. In contrast, and consistent with the defendants’ submissions in respect of past economic loss, the defendants submitted that the plaintiff’s most likely future earning capacity but for the subject accident would equate to his present and actual future earning capacity. For the reasons already identified, I do not accept that submission.

263. The combined and compelling effect of the medical evidence of the consultant psychiatrists, Dr George, Dr Smith, Dr Parmegiani and Professor Glozier (Exhibit “B”, Tab 12, pp 192 – 198; Tab 9, pp 171A – 171H; Tab 9, pp 172 – 177; Tab 1, pp 1 – 8; Tab 13, pp 178 – 191; Tab 8, pp 161 – 171; Tab 2, pp 9 – 13), and the evidence of the physical medicine specialists, Dr Bodel, Dr Higgs, Dr Berry and Dr Lahz (Exhibit “1”, pp 406 – 412; Exhibit “B”, Tab 3, pp 14 – 29; Exhibit “B”, Tab 4, pp 30 – 36; Exhibit “B”, Tab 5, pp 37 – 57), leads me to the overwhelming conclusion that the plaintiff is and will remain incapable of exercising an earning capacity, due to the effects of the subject accident.

264. Not only did that accident cause the plaintiff to suffer PTSD, but the ongoing effects of the plaintiff’s physical injuries exacerbate his problems. All of these matters impact on the plaintiff so as to adversely affect his earning capacity.

265. In my view, the plaintiff has no practical or exercisable residual earning capacity and that position is most unlikely to change for the remainder of his life. His earning capacity has been effectively destroyed by the subject accident, and his damages for future loss of earning capacity must be assessed on that basis, without any practicable residual earning capacity.

266. The quantification of the plaintiff’s future economic loss submission was premised upon assumptions to the effect that the applicable Crown Employees (Police Officers – 2014) Award provided for a Senior Sergeant, 5th Year to be paid $121,323 per annum, and that by the time of the hearing, the plaintiff would have been comfortably within that income bracket.

267. That level of earnings equates to an income of $2333.13 per week gross or $1660.13 per week net.

268. I accept the reasonableness of those assumptions, noting that the plaintiff was aiming for the even higher position of Inspector, and has on occasion since the accident, acted in the Inspector’s role. As a dedicated long-serving police officer, there was a real possibility that he would achieve a higher rank of that nature but for his injuries. Accordingly, I consider that the quantum submission made on behalf of the plaintiff was expressed in conservative terms.

269. The 5 per cent actuarial projection of a net weekly loss of $1660.13 over 14.5 years to age 67 (x 542.3) yields the sum of $900,122. In balancing the factors that underpin that projection, including my assessment of the plaintiff’s most likely circumstances but for his injury, against the plaintiff’s occupational injury history, and his predisposition for potential decompensation in the face of future trauma, I consider that it is appropriate to apply a slightly higher than conventional discount for possible adverse vicissitudes.

270. I assess that discount at 20 per cent. In that regard, the factors to be balanced are, on the one hand, the standard or conventional vicissitudes discount of 15 per cent, aligned with the fact that with advancing seniority, if not likely promotion, and less stressful administrative work, the conventional 15 per cent discount would be sufficient, and on the other hand, the potential for decompensatory exposure of the plaintiff, as a sensitised, predisposed or primed police officer, to direct or indirect trauma, might be a random event which could have severe disabling consequences. In the senior largely administrative role, those severe consequences are in my view much less likely to have arisen for the plaintiff. When that discount of 20 per cent is applied, the projected amount is reduced to $720,097.

271. I therefore assess the plaintiff’s damages for future economic loss in the amount of $720,097.

Future loss of superannuation

272. The plaintiff’s damages for future loss of employer funded superannuation benefits are assessed in the claimed percentage of 13.58 per cent of the amount of damages assessed for future economic loss, $720,097, namely the sum of $97,789.

Past domestic assistance

273. On behalf of the plaintiff, it was submitted that his damages for past gratuitously provided domestic assistance should be assessed in the amount of $329,554.89. That amount relates to care and assistance that has been variously provided to the plaintiff, as calculated in the schedule incorporated in MFI “1”, at the applicable rates as specified by s 141B of the MAC Act.

274. In contrast, the defendants submitted that no damages should be awarded for past domestic assistance. The basis for the defendants’ submission was the factual contention that if the subject accident had created a need for the plaintiff to be given such assistance, any such need would have arisen in any event, due to the plaintiff’s subsequent work related physical injuries.

275. In light of my acceptance of the evidence of Mrs Parrish, as outlined at paragraphs [221] to [222] above, and in light of my assessment of the reasonableness of Ms Kirkham’s estimates, which I also accept as being generally applicable to the plaintiff’s circumstances, the claim for monetary assessment of this head of damage necessarily arises.

276. With few exceptions, the medical witnesses did not attempt to quantify this head of damage: Sampco Pty Ltd v Wurth [2015] NSWCA 117; Boral Bricks Pty Ltd v Cosmidis [2013] NSWCA 443. That said, Professor Glozier was adequately qualified, from his perspective as a psychiatrist, to identify a medical basis for the plaintiff’s need for assistance. I accept his opinion that the plaintiff has such a need. The quantification of that need, in terms of the hours required, is best undertaken by the evidence of Ms Kirkham, an occupational therapist.

277. Dr Lahz (at Exhibit “B”, Tab 5, p 57), has, on an assessed physical basis, cogently and persuasively identified the plaintiff’s need for domestic assistance with elements of personal care and assistance for the household tasks of cleaning, meal preparation, laundry, shopping, transport, maintenance and allied tasks, due to physical and psychological factors.

278. Mrs Parrish’s estimate of the time taken up in her provision of assistance to the plaintiff, to the extent of four to five hours per day, as extracted at paragraph [220] above, which equates to between 28 and 35 hours per week, was not intended to be a precise calculation and I do not regard it to be so.

279. The tasks to which she allocated estimated times broadly add up to about 16 hours per week, which does not include her background activity in which she hovers about the plaintiff when he is in the company of some retired colleagues, ready to intervene if needed, because of his psychological problems, and the potential for his reactions to escalate in his interactions with others. Mrs Parrish’s time estimates must be analysed from several perspectives.

280. First, given my acceptance of Mrs Parrish’s reliability as a witness, her own estimates have significant probative value as she is the provider of those services and she gave her evidence on those matters from a reasonable and reliable vantage point: Coles Supermarkets Australia Pty Limited v Haleluka [2012] NSWCA 343, at [55]. I consider her described estimates, totalling some 16 hours per week as outlined at paragraph [279] above, to be understated in light of Ms Kirkham’s analysis.

281. Secondly, it must be recognised that Mrs Parrish’s figures were only broad estimates, which in my view, precludes making an undiscounted calculation, as was submitted on behalf of the plaintiff, based on Ms Kirkham’s reports dated 3 June 2015 and 4 September 2017: Exhibit “B”, pp 111 – 115 and 149 – 152.

282. Thirdly, I consider that in assessing this head of damage, several other discounting factors need to be taken into account, as follows: (1) there is a need to reflect the possibility that as the plaintiff advances in age, uninjured, he may have needed a measure of personal and domestic assistance in any event, including on an incremental basis, albeit that it appears this possibility may not have arisen for some considerable time: Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638, at pp 642 – 643; (2) some of the assistance given to the plaintiff was not provided in the form of dedicated blocks of time, but rather, the times have been aggregated from randomly occurring events, which makes the estimate vulnerable to an element of unintentional over-estimation; (3) it must be recognised that with ageing, some people, even when uninjured, become less independent and less able to carry out a full range of indoor and outdoor domestic tasks without assistance.

283. It is convenient to address that lastmentioned factor at this point. I consider that the most appropriate way of dealing with it is to identify a reasonable age limit for the projection of the claimed weekly expense involved in the claim for future domestic assistance. Guided by authority, I consider that any projection of such damages should be limited to the plaintiff’s age of 75 years, that is, a further 23 years. This analysis reveals that that the plaintiff’s claim for past gratuitous domestic care and services provided to him is not affected by that discounting factor.

284. Turning then to the other discounting factors, and recognising that the evidence does not permit precision, the threshold question to be addressed in whether the claimed care exceeds the minimum statutory threshold for assessment, namely 6 hours per week for 6 months: s 141B of the MAC Act.

285. In my assessment, the description of the assistance tasks described by Mrs Parrish, which I accept as reasonable and understated, compels me to infer that the minimum statutory threshold has plainly been met in this case. This appears to be so even without attempting to take into account the gratuitous assistance provided to the plaintiff by his neighbour with regard to assistance with gardening: T33.11 – T33.36.

286. It therefore remains to apply a discount to the identified estimate of 16 hours per week. Taking into account those discounting factors, I consider that a rounded down allowance of 2 hours per day, or 14 hours per week is the appropriate means by which to address past gratuitous services whilst being fair to the plaintiff and not unfair to the defendants. The discount is roughly identified as being close enough to 15 per cent.

287. Applying those 14 hours per week after discount, over 414 weeks, in substitution of Ms Kirkham’s tabulation which amounts to $329,554, as calculated in MFI “1”, this head of damage is in my view reasonably valued at about 85 per cent of that amount, namely $280,000 in round figures.

288. I therefore assess the plaintiff’s damages for past gratuitously provided domestic assistance in the amount of $280,000.

Future domestic assistance

289. On behalf of the plaintiff, it was submitted that his damages for future domestic care and assistance should be assessed at $51,393.88 per annum or $988.34 per week, for life, resulting in the undiscounted projected sum as calculated in MFI “1”, of $845,722.54.

290. In contrast to the above submission, on the defendants’ behalf it was submitted that no such damages should be awarded. That submission proceeded upon the alternative bases that there was no future accident-related need for either gratuitous or paid domestic assistance, or alternatively, that any such need, if found, is due to the plaintiff’s subsequent work related physical injuries. I do not accept the defendants’ submissions for the reasons that follow.

291. Professor Glozier, the expert retained by the defendants, expressed the opinion that the plaintiff is unable to live independently, and that from a psychiatric perspective, the care provided by Mrs Parrish was both reasonable and necessary, and will be needed for the foreseeable future: Exhibit “B”, Tab 11, p 187.

292. Whilst Professor Glozier’s estimate of 3 hours per day is not to be regarded as being authoritative for assessment purposes, for reasons already stated, Ms Kirkham’s estimates are reliably relevant because, as an occupational therapist, she is suitably qualified to provide such considered time estimates. She was not required for cross-examination to justify her assessment.

293. Ms Kirkham’s estimates, which have been analysed at paragraph [227] above, amount to 19.55 hours per week.

294. I consider that in order to avoid overcompensation in relation to assistive tasks that will necessarily vary in frequency and time taken, Ms Kirkham’s estimate requires rounding down to 2 hours per day, or 14 hours per week. I find that to be a reasonable basis for assessment in this case.

289. Ms Kirkham identified the rates for future paid domestic assistance as varying between $46 and $55 per hour. I consider it would be unreasonable to quantify this head of damage at the statutory hourly rate based on average weekly earnings because of Mrs Parrish’s own physical issues, she has an inability to provide the full range of assistance that the plaintiff requires. I therefore consider that a hybrid commercial rate, assessed at $45 per hour, would be a reasonable basis for assessment.

290. The future projection period has already been discounted for the possibilities of age related debilitation occurring so as to create a need for domestic assistance in any event, and for the possibility that a future housing downsize might reduce the incidence of need. In my view those factors have been sufficiently accommodated by reducing the overall period for projection from 33 years to 23 years.

291. Given that discount, and at the risk of double discounting, I consider that a further conventional discount of 15 per cent on the projected amount, for possible adverse vicissitudes that might occur over the ensuing 23 years, is an adequate allowance for such factors.

292. The projection of the value of 14 hours of care per week at $45 per hour, or $630 per week, at 5 per cent over 23 years (x 721.2) is $454,356. After discounting 15 per cent for possible adverse vicissitudes, this yields the amount of $386,202, which I round off to $385,000.

293. I therefore assess the plaintiff’s damages for future domestic assistance in the amount of $385,000.

Future out-of-pocket expenses

300. On behalf of the plaintiff, it was submitted that his damages for future out-of-pocket expenses should be assessed in the amount of $235,180.82: MFI “1”. The basis for that assessment was the projection of varying weekly amounts aggregated with some specific lump sum allowances, as follows:

1. GP consultations, monthly, at $100 per consultation, for life, amounting to $19,746.92. This claim was based on the recommendation of Dr Higgs: Exhibit “B”, Tab 3, p 15;

2. Specialist consultations, at a cost of $250 per year, amounting to $4113.94. This claim was based on the recommendation of Dr Higgs: Exhibit “B”, Tab 3, p 15;

3. Total knee replacements, and associated expenses, at a total cost of $70,000. This claim was based on the recommendation of Dr Higgs (Exhibit “B”, Tab 3, p 15), and the recommendation of Dr Lahz: Exhibit “B”, Tab 5, pp 55 – 57;

4. ADAPT program, at a cost of $15,000. This claim was based on the recommendation of Ms Kirkham: Exhibit “B”, Tab 7, p 156;

5. Psychological treatment, at a cost of $370 per consultation, for 12 sessions, amounting to $4440. This claim was based on the recommendation of Dr Parmegiani: Exhibit “B”, Tab 1, p 4;

6. Antidepressant medication, at a cost of $37 per month, for life, amounting to $7306.36. This claim was based on the recommendation of Dr Parmegiani: Exhibit “B”, Tab 1, p 4;

7. Pain medication, claimed as a buffer of $100 per month, for life, amounting to $19,746.92. This was argued to be a reasonable allowance that was not otherwise quantified by medical evidence;

8. Equipment, at a cost of $1996.76 per annum, amounting to $32,858.22. This claim was based on the recommendation of Ms Kirkham: Exhibit “B”, Tab 7, p 155;

9. Podiatrist, at a cost of $60 per month, for life, amounting to $11,848.15. This claim was based on the recommendation of Ms Kirkham: Exhibit “B”, Tab 7, p 156;

10. Occupational therapy assessments and intervention, at a total cost of $1080. This claim was based on the recommendation of Ms Kirkham: Exhibit “B”, Tab 7, p 156;

11. Physiotherapy / hydrotherapy / gymnasium program, at an annual cost of $1000 (conservatively assessed as the average cost of a gymnasium membership per year), amounting to $16,455.77. This claim was based on the recommendation of Ms Kirkham (Exhibit “B”, Tab 7, p 156), and the recommendation of Dr Lahz: Exhibit “B”, Tab 5, p 56;

12. Travel needs, and more particularly, the requirement to travel business class as and when the plaintiff needs to travel, claimed conservatively as a buffer of $2000 per annum, amounting to $32,911.54. This claim was based on the recommendation of Dr Lahz: Exhibit “B”, Tab 5, p 56.

301. Those claimed amounts were submitted to total the sum of $235,180.82: MFI “1”. The correct mathematical total is $235,507.82.

302. In contrast to that submission, on behalf of the defendants, it was submitted that any such damages should be assessed in a much reduced sum, which was not fully developed or calculated in the defendants’ submissions.

303. Although the calculations and projections submitted on behalf of the plaintiff are based on reasoned recommendations extracted from the evidence as cited, I consider that to allow those claims in full, without discount, would be likely to result in overcompensation.

304. This is because treatments are likely to change over time in response to evolving circumstances, and the intensity and timing of treatment is therefore subject to ad hoc variations. Furthermore, the travel claim is necessarily imprecise and not fully explored in the evidence. These factors aggregate to suggest that a pseudo-mathematical approach resembling precision is contraindicated. Instead, guided by the evidence comprising the recommendations, which underpins the cited submissions, I consider it more appropriate to assess a lump sum buffer amount which would serve to meet those sources of future expenditure, but at the same time incorporating a measure of discount to take into account the imponderables that have been identified. I consider the appropriate buffer allowance to be $150,000.

305. I therefore assess the plaintiff’s damages for future out-of-pocket expenses in the buffer amount of $150,000.

Past out-of-pocket expenses

306. The parties have experienced considerable difficulty obtaining what was required from the workers’ compensation insurer for the purpose of seeking to reach an agreement on the amount of the plaintiff’s past out-of-pocket expenses: T132.50 – T133.7.

307. That difficulty continued in its effect at the further listing on 7 September 2018, and it was only partly resolved at the listing on 12 September 2018, because the total amount of claimable out-of-pocket expenses are dependent upon findings of fact to which injuries were related to the subject accident.

308. That difficulty appears to have been founded upon the administrative approach taken by the workers’ compensation insurer in assigning separate file and claim numbers to the plaintiff’s claimed injuries, as follows:

1. Claim number 770519008525, was said to relate to soft tissue injuries to the plaintiff’s left knee, groin and hip, for which medical expenses totalled $102,916.86;

2. Claim number 77051903956, was said to relate to soft tissue injuries to the plaintiff’s right knee, for which medical expenses totalled $138,817.45;

3. Claim number 770519072899, was said to relate to soft tissue injuries to the plaintiff’s neck and back, for which medical expenses totalled $20,568.59;

4. Claim number 770519076463, was said to relate to post-traumatic stress disorder, for which medical expenses totalled $25,589.86.

309. The total of the above amounts is the sum of $287,892.76, to which must be added a further amount of $1993.10 for refundable payments made by Medicare: Exhibit “3”. The plaintiff’s written submissions identify an additional amount of $55,360.04 which must be paid to the compulsory third party insurer pursuant to s 83 of the MAC Act. I therefore provisionally include that amount in the assessment of out-of-pocket expenses pending any adjustments required by the anticipated final agreement by the parties on those matters. This yields a provisional total sum of $345,245.90 for the plaintiff’s out-of-pocket expenses.

310. That provisional assessed sum may need to be adjusted as a consequence of my findings that the plaintiff’s claim of injury to his knees, his groin, his left hip, his neck and his back, and his post-traumatic stress disorder, are all caused by the subject accident irrespective of whether those injuries were fresh injuries, or whether they comprised permanent aggravations which rendered pre-existing underlying pathology symptomatic, or whether in the case of PTSD, it caused debilitating symptoms due to an underlying predisposition in the plaintiff for this to occur.

311. I therefore assess the plaintiff’s damages for past out-of-pocket expenses in the provisional or interim amount of $345,245.90, a figure which is to be updated before the entry of final judgment.

Summary of damages assessment

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

(a) Non economic loss	$340,000
(b) Past economic loss	$620,000
(c) Past loss of superannuation	$55,800
(d) Fox v Wood (interim)	$38,314.06
(e) Future economic loss	$720,097
(f) Future loss of superannuation	$97,789
(g) Past domestic assistance	$280,000
(h) Future domestic assistance	$385,000
(i) Future out-of-pocket expenses	$150,000
(j) Past out-of-pocket expenses (interim)	$345,245.90
Total	$3,032,245.96

313. Before the entry of final judgment the parties should check my mathematical calculations and in particular the past economic loss calculation which may affect the Fox v Wood damages that relate to the precise periods during which the plaintiff received weekly workers’ compensation payments.

Application of s 151Z of the Workers’ Compensation Act 1987

314. Before the entry of a final judgment, it also remains for the parties to identify the practical effect of the application of s 151Z(2) of the WC Act. At the listings on 7 and 12 September 2018, the parties indicated that it was necessary for my findings on the damages issues to be made available in order that they may identify how the provisions of s 151Z(2) of the WC Act affect the final outcome of the proceedings. After considering my reasons for decision the parties should bring to Court short minutes that reflect my findings so that final orders may be made for the entry of judgment in the plaintiff’s favour in a finite amount.

Costs

315. I will hear the parties on the question of costs after they have had the opportunity to consider these reasons for decision.

Interim orders

316. I make the following interim orders:

1. The plaintiff's damages are provisionally assessed in the interim sum of $3,032,245.96;

2. That interim sum is to be adjusted for the correct amounts to be allowed for Fox v Wood damages and out-of-pocket expenses, and to allow for the adjustment required by s 151Z(2) of the Workers Compensation Act 1987, after the parties have had the opportunity to consider the effect of the findings of fact identified in these reasons;

3. The proceedings are listed for mention at 10.00am on 21 September 2018 for the purpose of the parties bringing in short minutes dealing with the required adjustments that reflect the findings of fact, at which time final judgment and ancillary orders will be entered, or alternatively, to set a timetable for those matters to be further argued for resolution.

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Decision last updated: 20 September 2018