Pearce v Burke - [2001] WADC 285

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: PEARCE -v- BURKE [2001] WADC 285

CORAM: O'BRIEN DCJ

HEARD: 17 & 19 JULY 2000, 20-22 NOVEMBER 2001

DELIVERED : 14 DECEMBER 2001

FILE NO/S: CIV 709 of 1999

BETWEEN: THOMAS GERARD PEARCE
Plaintiff
AND
MARY CATERINA BURKE
Defendant

Catchwords:

Personal injuries - Motor vehicle accident - Plaintiff solicitor claimed permanently incapacitated from work - Whether cognitive impairment caused by accident - Turns on own facts

Legislation:

Nil

Result:

Damages awarded

Representation:

Counsel:

Plaintiff: Mr P D Martino (17 & 19 July 2000)
Mr R G Walton (20-22 November 2001)

Defendant: Mr P R Momber

Solicitors:

Plaintiff: Hammond Worthington (17 & 19 July 2000)
Hoffmans (20-22 November 2001)

Defendant: Peter Momber

Case(s) referred to in judgment(s):

Dulieu v White & Sons [1900‑3] All ER Rep 353
March v E & M H Stramare Pty Ltd (1991) 99 ALR 423
Purkess v Crittenden (1965) 114 CLR 164
Watts v Rake (1960) 108 CLR 158

Case(s) also cited:

Chappel v Hart (1998) 195 CLR 232
Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 75 ALJR 164
Parker v Commonwealth (1975) 49 ALJR 221
Thomas v O'Shea (1989) A Tort Rep 80-251

O'BRIEN DCJ: Thomas Gerard Pearce, the plaintiff in this action, was involved in a motor vehicle accident on 12 April 1996. The plaintiff was born on 15 March 1949 and was 47 years old at the time of the accident.
The plaintiff is a legal practitioner by occupation. He was a passenger in the front seat of a car travelling in a southerly direction down Railway Parade in Bayswater heading towards Mount Lawley. The car in which he was travelling was a Toyota sedan about 20 years old. The driver of the Toyota approached a "T" intersection, intending to turn right into Grand Promenade. The green turning arrow was on. As the Toyota commenced the right hand turn, a car driven by the defendant came through the intersection and collided with the Toyota on the left hand side just about where the plaintiff was sitting.
The plaintiff claims damages for injuries suffered in the accident, past loss of earnings, loss of future earning capacity and special damages.
The trial commenced in July 2000. It was adjourned after two days to enable to defendant to arrange psychometric testing of the plaintiff. Only the plaintiff gave evidence before the trial recommenced in November 2001. In the meantime, the plaintiff had been reviewed by a number of mental health professionals. In this judgment, reference to the plaintiff's testimony as to his present condition relates to the time he testified in July 2000.

The plaintiff's account of the accident and its effects on him

I set out below the plaintiff's account of the circumstances of the accident and the injuries and other effects he claims resulted from it.
The plaintiff was wearing a seat belt but described it as "loose". On impact, the plaintiff testified that he was thrown forward. He hit his head on the roof of the Toyota. The momentum caused the seat belt to crush against his sternum and ribs. The plaintiff testified that he suffered "extreme pain" across his ribs and sternum.
As he banged his head into the roof of the car the force of the impact travelled down his spine into his vertebrae and the plaintiff claims that this impact displaced three vertebrae in the middle of his back. His knees hit the dashboard. The plaintiff testified that he sat in the Toyota "stunned" and "seeing stars for 15 minutes". He was unable to say whether he "passed out or not".
The police and ambulance attended and, although he was offered a ride in the ambulance, the plaintiff elected to be driven home by the tow truck driver as his home was only a short distance away.
The plaintiff testified that he was feeling very faint and very disoriented and "extremely distressed". There was no other evidence as to the circumstances of the accident.
When he arrived home, the plaintiff took some painkillers. He then telephoned his general practitioner, Dr Buttsworth. Dr Buttsworth came to his house to see him on Sunday, 14 April 1996. On or about 30 April 1996, CAT scans, x-rays and other tests were performed. Dr Buttsworth reported that these revealed no significant injury. Dr Buttsworth has since died and his reports were tendered by consent.
After the accident, the plaintiff testified that he remained under Dr Buttsworth's care and would have seen him "on about 100 occasions or so" including at least 30 home visits. Dr Buttsworth was an alcoholic and he and the plaintiff attended A A meetings together. I therefore infer that their relationship was social as well as professional.
The plaintiff testified that he was suffering "severe difficulties" with his chest, that he suffered from asthma, congestion, and was getting "continual infections". When he examined the plaintiff on 14 April 1996, Dr Buttsworth noted there was tenderness at the 5, 6 and 7 ribs adjacent to the interscapular region, tenderness over the right 5, 6, and 7 intercostal spaces adjacent to his sternum, and his knees were slightly tender over the patellae. The plaintiff was treated by Professor Musk, a respiratory physician, for his chest problems. The plaintiff testified that in the 12 months preceding the trial, he has not had any congestive asthmatic attacks.
Since September 1998, the plaintiff had been treated by Mr Laurie Shortland who is trained in acupuncture and naturopathy. He was given acupuncture, massage and spinal manipulation.
The plaintiff testified that his back is still "sore all over". He now alternates treatment for his back between Mr Shortland who performs spinal manipulations and Mr Kevin Cannon, who is a remedial masseur. The plaintiff claimed that he required another 18 months of treatment.
The plaintiff testified that as a result of his knees hitting the dashboard, he could hardly walk and was stiff and sore. There was no bleeding and no abrasions. Dr Buttsworth noted that the plaintiff’s knees were slightly tender over the patella. He was referred to Dr Janes, an orthopaedic surgeon in February 1997 because of the problems he was having with his knees. His left knee has now "settled down" and "is probably okay". The plaintiff underwent further tests and radiography and was also injected with Kenacort and Marcaine for pain. He had an arthroscopy on his right knee and testified that he needs a replacement of his right knee.
The plaintiff claimed that because he was taking anti‑inflammatory medication, that he developed "colonic problems". He underwent a colonoscopy which did not reveal any abnormality.
The plaintiff testified that his head injury was the "most horrific thing". He testified that he did not know if there was bruising to his head. The report of Dr Buttsworth of his examination of the plaintiff on 14 April 1996 specifically notes that there was no bruising to the vertex of the head.
The plaintiff testified that for the first two years after his accident the medical practitioners were experimenting with drugs for depression. The plaintiff testified that he thought he was seeing and hearing things. He was unable to read, could not retain information and kept forgetting things. He experienced "weird, disconnected, vivid dream nightmares", sleep disturbance and paranoia. At one stage, he felt suicidal. He has been under the care of Professor German, a psychiatrist, since about April 1997 for problems he claims are associated with the accident.
The plaintiff testified that he still has a lot of difficulty with reading and writing, and still takes medication for depression.
After the accident, the plaintiff testified that he became "a hermit" and had confined himself to the house. He said that he would "pile up about 20 plates of food and sit there and eat and watch TV". He said that 10 minutes after watching a video he was unable to recall its content.
He is now attempting to lose weight so that he can undergo a knee replacement. He is able to swim and perform leg exercises in the water but still walks with "a rolling gait because of that knee".
The plaintiff has not practised law since the accident. His practising certificate has lapsed. Mr Black, a solicitor by whom the plaintiff had been employed previously, offered the plaintiff some pro bono work in 1997 but the plaintiff was unable to perform this. He testified that he had "no way of prioritising things, planning, sorting out …". He found that he was very slow and unable to function. He could not sustain concentration. Although the plaintiff gave no evidence that he suffered from headaches, he complained of such to various medical practitioners.
Prior to the accident, the plaintiff's intention was to set up a small legal practice and work until he was 70 years of age. He had no intention of going into a big partnership or going back to corporate work. He wanted to have a small, quiet practice which he could handle. He said he was not "an ambitious man".
Since the accident, the plaintiff has been receiving payments from a disability insurance policy with National Mutual.

The plaintiff's background

At the time of the accident, the plaintiff was a practising lawyer. He graduated from the University of Melbourne in 1973 with degrees in law and arts. Before taking his articles of clerkship, the plaintiff was employed with Alcoa as a legal officer for about 2‑1/2 years. Thereafter, he completed his articles and was admitted to practice in Victoria on 2 August 1976. The plaintiff then worked as a locum solicitor with two legal firms in Victoria until about the end of 1977. In 1978, the plaintiff commenced a Master of Laws which he did not complete. He took up creative writing and travelled for a couple of years.
In 1981, the plaintiff was involved in a car accident in England and suffered a head injury and loss of consciousness. He received a damages award of 100,000 pounds. The plaintiff came to Perth in March 1982 to recuperate. He remained in Perth. In Perth, the plaintiff was an employed solicitor with legal firms until about early 1985. He then travelled overseas for a period of time. Whilst in London he was assaulted. His injuries necessitated a splenectomy. He returned to Australia and was admitted to practise in Western Australia on 2 July 1985. He then worked for solicitors Mr Black and Ms Watson. In 1986 he worked for the Citizens Advice Bureau. At the beginning of 1988 through to mid‑1990, the plaintiff practised law on his own account. In mid‑1990, he stopped practising as he testified he was "burnt out", "overweight", and "stressed out".
The plaintiff was also drinking alcohol to excess. He received treatment for his alcoholism from Dr Buttsworth and also from Professor German. By then he had a 25 year history of alcohol abuse. The plaintiff attended Alcoholics Anonymous meetings and also underwent a treatment course at Holyoake. Thereafter, he became a facilitator at Holyoake and worked in that capacity from 1991 to 1992.
The plaintiff was suspended from legal practice by the Barristers Board (as it then was) in 1991 for a period of nine months. It seems that he made application to have his practising certificate renewed in or about 1993 but the Barristers Board declined to do so.
In mid‑1992, the plaintiff recommenced work with Mr Black as a law clerk. He remained in that position until around the middle of 1994. On 12 June 1995, he regained his practising certificate and practised on his own account until his accident in 1996.
He testified that just prior to his accident, he was in good health. He weighed about 86 to 88 kilograms, he was swimming and walking regularly and was not drinking alcohol. He described himself as being in "top shape", "the best shape I've been in for 20 years, probably".
In early 1996, the plaintiff suffered from attacks of bronchial asthma. He was treated by Dr Buttsworth with steroids, penicillin and "puffers". This condition had cleared up prior to the accident.

Evidence of the plaintiff's ability to cope with legal work before and after the accident

Mr Black testified on behalf of the plaintiff as to his ability as a legal practitioner before and after the accident. He had known the plaintiff all his adult life. Mr Black said that he was an excellent student, was extremely well read, and had a singular fluency in language and a special capacity for clear thinking. Initially, he employed the plaintiff as a law clerk on an hourly basis. After the plaintiff was admitted to practice, Mr Black engaged the plaintiff to perform legal work in the area of commercial litigation and, in particular, in the areas of equitable remedies. He testified that the plaintiff was very efficient and quick. After the suspension had been served but before the plaintiff regained his practice certificate, Mr Black employed him as a law clerk. After the plaintiff regained his practice certificate, Mr Black re‑employed him as a solicitor. When the plaintiff set up his own practice, Mr Black referred work to him on the basis of an hourly contractor.
After the accident he said that the plaintiff approached him for work but he declined to provide any as he noticed some "serious changes in his capacity". When he referred the pro bono case to the plaintiff, he said that he had the opportunity of assessing his performance over a period of six months or so. He was concerned at the significant delay in performing the work and the speed and accuracy of his work. Now he would not be prepared to give the plaintiff any work at all. He said the plaintiff had a very short attention span and memory failure.
Mr Donnelly, a former client of the plaintiff's, testified that the plaintiff did some legal work for him in 1994 when he was employed with Mr Black. This took about 90 hours over 18 months or so. He was impressed by the plaintiff's grasp of the law and his ability to act as a "devil's advocate". Mr Donnelly had several actions where he was representing himself and the plaintiff assisted him to prepare his cases.
Mr Donnelly found the plaintiff to be very slow when he assisted him in the pro bono matter in 1997. He said that the plaintiff forgot things that they had spoken about previously; would go over the "same thing two or three times"; and on occasions cancel appointments, saying that he was too ill. In the end result, he had to seek the services of another solicitor.
Professor German said that the plaintiff's cognitive health was intact when he regained his practice certificate in 1995. He was obsessive about exercising and his weight was appropriate for his build. When he saw the plaintiff in April 1997, he was overweight, sombre, very slow in his speech, tearful and he "felt that his state of health had collapsed complexly around him".
Dr Purdie took over as the plaintiff's general practitioner in March 1998. She has seen him on a three weekly basis since then. The frequency of consultations is due mainly to the plaintiff's stress and anxiety about his medical condition. Dr Purdie described the plaintiff's inability to focus and to stay on the point of a conversation. She said a 15 minute consultation would end up taking 30 minutes. She said that the plaintiff seemed unable to grasp the concept of a low fat diet in that he did not seem to understand that such a diet meant cutting out off high fat foods. (Given the plaintiff's objectively assessed superior intelligence, I do not find this to be in any way illustrative of any cognitive deficits). Dr Purdie could not see the plaintiff's condition improving over time and considered that he is unfit to work as a solicitor.

The issues

The plaintiff claims damages for injury to his head, knees, chest and his back. Further, he claims that the accident caused cognitive impairment which has resulted in him being unable to work as a solicitor and which will permanently incapacitate him from so doing. The cognitive impairment is said to have been largely caused by brain damage sustained in the accident in the form of concussion which in turn resulted in a post‑concussive syndrome. Other contributors to cognitive impairment are said to be chronic obstructive pulmonary disease (asthma) and sleep apnoea. These conditions are also claimed to have resulted from the accident.
The sleep apnoea is said to have either been caused or exacerbated by weight gain after the accident in turn caused by immobility because of the plaintiff's knee problems and asthma.

The mental consequences of the accident

The plaintiff's case is that the accident caused brain injury, which, superimposed on his pre‑existing condition, accounts for the cognitive deficits. However, the plaintiff's case does not rest solely on this basis. If the plaintiff cannot prove that there was a brain injury suffered in the accident, the plaintiff claims that the anxiety and stress suffered in the accident coupled with his sleep apnoea and asthma and pre‑existing brain injury caused by alcohol caused his cognitive defects.
The plaintiff's case rests substantially on the opinions of Professor German. Professor German had been treating the plaintiff over a period of nine years. He had seen the plaintiff 35 times. He considered that he was able to "develop a longitudinal perspective on [the plaintiff's] personality ... health, the relationship of his health to events and how his present state had developed". Other witnesses as to the plaintiff's psychiatric or psychological condition did not have that degree of contact with the plaintiff. A treating doctor is more likely to accept a patient's subjective complaints than is a medical expert who is to provide an objective medico‑legal opinion. Nonetheless, Professor German’s observations and opinion as to the plaintiff's condition must be given considerable weight.

Depression

There does not seem to be any dispute that the plaintiff suffered from depression after the accident. Professor German is of the view that the plaintiff's depression predated his accident and was a result of steroid medication, which was prescribed for his asthma. Further, soon after seeing the plaintiff in April 1997, the plaintiff's depression had lifted. By September 1997, Professor German considered that his "original post‑concussional effects had settled".
When examined by Professor German in January 1998, the plaintiff showed no evidence of depression and Professor German was unable to fault his memory or concentration. He stated that the plaintiff had "showed evidence of a complete recovery from his depression/post‑concussional syndrome". He believed that at least 50 per cent of that combined syndrome was triggered by the use of steroids prescribed for his asthma. He said that the plaintiff frankly informed him of steady progress and complete recovery.
Professor German stated that the plaintiff's memory impairment and concentration difficulties with headaches and lassitude are characteristic of the post‑concussional syndrome. The flashbacks and hyperventilation were more consistent with anxiety. The anxiety and panic was depressive in origin but exacerbated by the accident.
Professor German testified that severe depression is frequently complicated by cyclo motor retardation which implies slowness in a variety of psychological and motor functions.
Professor German considered that the plaintiff's post‑accident depression was triggered by a variety of factors. The prominent factors were the effects of steroid use, the shock experienced in the accident and the recurrence of his asthma, which impeded his ability to exercise.
By September 1997 the depression had lifted, the plaintiff was ebullient and eager to get back into his legal practice and the retardation appeared largely to have lifted.

Did the plaintiff suffer concussion as a result of the accident?

Although the plaintiff was unable to recall in evidence whether he lost consciousness, it would appear that his account to medical practitioners is that he did not. Dr Buttsworth did not record any symptoms consistent with a diagnosis of concussion and he specifically noted that there was no bruising to the vertex of the head.

Professor German adopts the definition of concussion as a clinical syndrome characterised by immediate and transient impairment of neural function, such as alteration of consciousness, disturbances of vision, equilibrium etc. due to mechanical forces. He testified that the dizziness, seeing "stars" and feeling dazed for a time are consistent with concussion. He referred to medical research on brain injury resulting from "whip lash" injuries where there was no physical impact to the head. He testified that the effects of concussion could disappear and reappear.
Professor German's initial report on 14 January 1998 stated that after April 1997 the plaintiff's depression had cleared and that he could not fault his memory or concentration and that the plaintiff had shown evidence of a complete recovery from his depression/post‑concussional syndrome. The plaintiff reported that he was feeling much better mentally, was no longer depressed, was sleeping well on most nights, concentrating better and reading very well.
On 20 July 1998 the plaintiff was referred to Professor German because he had suffered a blackout. Professor German thought at first that the plaintiff might have started drinking again. However, over the next couple of consultations, he was rambling and on occasion appeared confused. He did not smell of alcohol and blood testing on one occasion was negative for alcohol. Professor German moved to the view that heavy drinking could not explain the plaintiff's symptoms.
By October 1998, Professor German had received a report from Mr Black. Mr Black was known to and respected by Professor German. This report outlined the difficulties Mr Black observed in relation to the plaintiff's legal work. It was the most compelling factor which influenced Professor German to revise his opinion about the plaintiff's recovery and he moved to the view that the plaintiff had frontal lobe damage caused by the accident.
Professor German was reinforced in his opinion by the results of the testing done by psychologist, Dr Haywood. Dr Haywood saw the plaintiff twice, on 31 May and 1 June 2000 (shortly before he testified at this trial).
Her tests revealed that the plaintiff's current level of intellectual function placed him in the superior range. His speed of information processing was lowered as was his manual motor dexterity. He was slow to form a plan or strategy to complete a task and "this can result in inefficient verbal memory and new learning". In summary, Dr Haywood reported on 5 June as follows:
"Mr Pearce's current level of intelligence is in the superior range. However, he experienced relative difficulty on some tests in the battery. His speed of information processing is slowed as is his manual motor dexterity. He is slow to form a plan or strategy to complete a task, and this can result in inefficient verbal memory and new learning. His recall is susceptible to interference effects and he has difficulty maintaining a conceptual plan, which becomes worse as the task progresses i.e. he has a tendency to lose track of what he is doing and is probably vulnerable to the effects of distractions in the every day environment."
She noted that these findings were very similar to those documented in the literature on the effects of chronic obstructive pulmonary disease and obstructive sleep apnoea. She was of the view that it is also possible that the effects of post concussional disorder are contributing to his performance, however, "any remaining cognitive deficits related to this are probably obscured by the overall effect of slowing". There were many explanations for this including sleep apnoea, asthma, alcoholism and a deceleration injury.
When Ms Coxon, a psychologist, assessed the plaintiff over four occasions between August and October 2000, she found that he suffered moderate anxiety and a moderate level of depression and satisfied the criteria for post‑traumatic stress disorder in the moderate to severe range. She considered that these effects were consistent with and related to the injuries the plaintiff received in the accident.
Mr Jackson, a psychologist, engaged by the plaintiff's income insurer, reviewed the plaintiff in January 2001. His testing revealed that the plaintiff's verbal, perceptual and working memory skills generally were within that high average to superior range and were not significantly different from his estimated level of pre‑morbid intelligence. His processing speed was significantly lower that his other intellectual skills, being within the low average range. There was some variability in his information processing speed with his score from the low average range to the high average range. His ability to learn and remember new information generally was within the high average to superior range. On more complex tasks he did experience difficulty initially taking the information in but with subsequent repetition quickly improved. He did not demonstrate any significant language impairment. His planning and organisation of information was within the high average range to superior range; abstract and logical thinking was within the high average range; there was no evidence of a significant disorder of control on formal testing; testing revealed significant mood related difficulties.
Mr Jackson was of the ultimate view that from a purely neuropsychological point of view, the plaintiff does have the intellectual and executive capacities to work as a solicitor, although his work would be slower than in the past.
Mr Jackson did not testify. His conclusions were reviewed by Dr Haywood and Ms Coxon, who did not agree with his finding as to lack of impairment in executive function. Basically, this was because his testing scores were the same as theirs.
Overall, Professor German was of the view that the plaintiff had suffered diffused brain damage from his drinking and that the impact to his head in the accident shook up the entire brain and produced a "subthreshhold effect" so that the combination led to "unexpected cognitive compromise". This opinion differs from that he expressed in 1993 to the effect that the plaintiff had not suffered brain damage as a result of his drinking. The plaintiff had been a heavy drinker and had suffered blackouts as a result, had already been head injured in the 1981 accident and had "preceding symptoms of substance" which meant that he had pre‑existing brain damage. Professor German testified that given that he had pre‑existing comprise of his higher-level brain functions, "it takes very little to tip them over into a state where they no longer can support these functions".
Dr Mustac, a psychiatrist, Dr Gubbay, a neurologist, and Mr Hunt, a neuropsychologist, who were witnesses for the defendant, were of the view that the plaintiff did not suffer concussion in the accident. Factors bearing on their opinions included the impact to the head in the accident as described by the plaintiff (including the lack of physical signs to the head), the facts that he did not lose consciousness, he was not hospitalised, he was able to recall the accident in detail, there was no retrograde amnesia and x‑rays and a CT scan taken shortly after the accident did not reveal any brain injury.
When Dr Gubbay saw the plaintiff on 29 March 2000, the plaintiff presented with clear recollections of his problems and the accident, and was able to speak fluently and in an organised fashion. On that day, Dr Gubbay was of the view that the plaintiff had no obvious impairment of memory or of his intellectual functions. Dr Gubbay was of the opinion that the plaintiff's residual headaches "appear to be accident related and caused by the stress of the accident rather than due in to any injury to his brain". This view is confirmed by the opinion of Dr Kermode, a neurologist, whose report dated 25 June 1998, was tendered on behalf of the plaintiff. Dr Kermode considered the plaintiff's headaches were tension produced and excluded "structural cause".
Dr Gubbay considered that the plaintiff did not have concussion as he could remember all the details of the accident quite clearly. There was no retrograde amnesia and he assumed that any brain injury was "quite trivial" and had no after effect. In a later report dated 12 July 2000 and after reviewing a report from neurologist, Dr Susan Ho, dated 17 March 2000, Dr Gubbay agreed that frontal lobe damage from the accident is "almost impossible" given that the plaintiff did not lose consciousness and was "certainly not concussed". He opined that it is "highly unlikely that the blow to [the] head would have resulted in any cognitive impairment because [the plaintiff] was not even concussed and had no other collateral evidence of brain injury after the accident".
Dr Mustac was of the view that a period of post‑traumatic amnesia of a week would be required to cause any significant head injury. He stated that epidemiological research indicates that the period of post‑traumatic amnesia is directly related to the severity of the head injury. In this case, there was no loss of consciousness and no period of post‑traumatic amnesia and he agreed with Dr Gubbay that the head injury was not significant.
Mr Hunt is an experienced neuropsychologist who works regularly with head injured people. He was of the view that on the basis of the information supplied to him, the plaintiff did not sustain "a head injury of sufficient intensity to result in any persisting demonstrable neuropsychological impairment". He did not have the opportunity of testing the plaintiff because any result would be affected by the previous testing. However, he reviewed Dr Haywood's test results and commented that chronic alcoholism, psychological factors, sleep apnoea and asthma could influence her results. He testified that it did not make neuropsychological sense that even if there were subtle changes in cognition in terms of attention concentration or the speed of information processing, that they would be evident four years after the accident, based on the sort of head injury suffered. None of the indicators, such as loss of consciousness, post‑traumatic amnesia and lack of neurological signs and symptoms at the time of the accident, support the plaintiff having long‑term neuropsychological impairment. Ultimately, Mr Hunt was of the view that it would be speculative to attribute the results of neuropsychological testing to the accident four years previously when the plaintiff had a number of health conditions, which could have impacted on those results.
There is evidence, particularly from Professor Musk, to the effect that asthma can cause cognitive impairment. There is evidence from Dr Stewart Cullen, consultant physician in sleep medicine, that the plaintiff suffers from sleep apnoea. This can produce fatigue, lethargy and difficulty working and neuropsychological functions can be affected to varying degrees. Dr Cullen was of the view that the sleep apnoea caused a 3 per cent to 5 per cent impairment of the plaintiff's intellectual performance.

Findings as to head injury

The bulk of the medical evidence supports a finding that the plaintiff did not suffer brain injury (concussion) in the accident. I have outlined those opinions above. The bases of the opinions relate essentially to the plaintiff's account of the physical impact, the findings of Dr Buttsworth on examination shortly after the accident and the results of the x‑rays and CT scan taken within a month of the accident which revealed no significant injury. Professor German did not examine the plaintiff until nearly a year after the accident. He was of the view that the plaintiff's depression and post‑concussive syndrome had resolved by September 1997. By January 1998, Professor German had certified the plaintiff as "currently not incapacitated and [he] may return to full time work as a solicitor". At that stage, he "suspected" that the plaintiff's asthmatic problems were preventing him from returning to work.
Further, the plaintiff has been diagnosed with chronic obstructive pulmonary disease (by Professor Musk in January 1998) and moderate sleep apnoea (by Dr Cullen in or around July 2000). He is also a long term alcoholic. There is evidence that each of these conditions is a potential contributor to compromised cognitive functioning. I, therefore, rule out accident related brain injury as a cause of the plaintiff's mental symptoms.

What is the cause of the plaintiff's cognitive impairment?

The plaintiff claims that his asthma was exacerbated by the accident. It appears that following the accident, his asthma did worsen. However, it does not necessarily follow that the accident was responsible for this. The plaintiff had suffered from asthma as a child until he was about 12 years old. He told Professor Musk that he could not recall suffering from any asthma at all from about the age of 14 years until after the accident. It would appear that he did not tell Professor Musk of his attacks just preceding the accident. Professor Musk was of the view, absent this knowledge, that although he did "not understand the mechanism by which the injury may have aggravated his pre‑existing asthma to the extent, it appears to have done, the history and clinical findings are consistent with this being so". When supplied with the information about the pre‑accident asthma attack, Professor Musk revised his opinion and expressed the view that the accident did not aggravate his pre‑exiting asthma. He testified that it is "possible" that the accident and stress contributed to the recurrence of his asthma but said there was no definitive research to support this and he noted that it is a constitutional and lifetime disease.
I am not satisfied that the accident was a contributor to the asthma recurring.
Dr Stewart Cullen diagnosed the plaintiff with obstructive sleep apnoea in mid‑2000. He stated that there is no question that weight gain makes this condition worse. If the plaintiff gained weight after the accident, it is likely that the accident contributed to his sleep apnoea in the range of 5 per cent to 10 per cent. This is because of weight gain caused by immobility, which, in turn, was caused by the exacerbation of the plaintiff's degenerative knee symptoms. His opinion implies that the weight gain was accident related. However, he stated that it would be difficult to be confident what weight gain after a two to three year period is still related to the accident. Dr Cullen stated "it is possible that the effect of the accident on his sleep apnoea could have lasted for 3‑4 years but the effect and the confidence of the causatative association would decline with time".
I find that it is more probable than not that the plaintiff experienced a decline in his mobility because of knee injury caused in the accident. However, it is more likely that his continuing weight gain was caused by his admitted eating habits and later inability to follow medical advice regarding a low fat diet. The evidence does not enable me to make a finding about the extent to which the plaintiff's immobility contributed to his weight gain. There was no evidence as to whether the plaintiff had suffered from sleep apnoea prior to the accident. I am not satisfied that the accident was either a direct or indirect cause of the sleep apnoea.

Some observations about the plaintiff's credibility

There was a deal of evidence relating to the issue of malingering on the part of the plaintiff. Dr Mustac formed the view that the plaintiff was exaggerating his symptoms when he saw him in May 2000 because of a combination of factors. One included the administration of the Test of Memory Malingering ("TOMM"). His results differed from those recorded by Dr Haywood who conducted the same test in mid‑2000. These results did not point to malingering. Mr Hunt, Mr Jackson, Dr Haywood and Professor German did not believe that the plaintiff was malingering. However, ultimately, this is a matter for my decision. I do not propose to discuss the differences in opinion relating to the TOMM as there are other matters relevant to the plaintiff's credibility which I find more compelling.
The plaintiff testified that he was not sure whether he passed out or not after the accident. However, all medical witnesses relate his history that he did not lose consciousness. In this regard, it seems odd that five years after the event, the plaintiff purports not to be sure of his state of consciousness. According to Dr Buttsworth's earliest report, the plaintiff told him that he saw stars for five minutes. In his evidence he said it was for 15 minutes. He did not inform Professor Musk that shortly before his accident he had suffered the first recurrence of his asthma in decades, the attack being serious enough to cause him to take time off work. I cannot accept that such a significant matter could have been forgotten even if the plaintiff suffers from all the mental deficits he says he does. He also claimed to suffer from "congestive heart failure" but not one of the medical witnesses confirmed this other than mentioning that the plaintiff claimed this to be the case. The plaintiff told each of Mr Jackson and Mr Hunt early this year that he had just been diagnosed with diabetes. There is no medical evidence to this effect, his counsel stated that there was no evidence of it and it is strange that Dr Purdie who sees the plaintiff every three weeks made no mention of it. I consider that the plaintiff's statements relating to congestive heart failure and diabetes are examples of his exaggerating his health problems.
By letter dated 30 July 1996 to Dr Buttsworth, the plaintiff purported to "confirm [his] recent health problems". He outlined a number of effects of the accident, which he believed had "contributed significantly to [his] overall problems". He told Dr Buttsworth that these should be brought to the attention of the insurer. The plaintiff hand wrote the letter and had it typed by secretarial service. It is well constructed and precisely worded.
After reading the report by Professor Hollingworth dated 3 June 1998, the plaintiff wrote to the Medical Board complaining about certain of the matters contained therein. One of his complaints referred to the mention of broken fingers as part of his prior medical history. The plaintiff testified that he did not mention broken fingers to Professor Hollingworth and he was concerned to ensure that the report was accurate. The plaintiff testified that after the complaint to the Medical Board, he reflected on the matter and decided that he would not pursue the complaint. He wrote a letter dated 18 September 1998 requesting that Professor Hollingworth consider amending his reports to set out the "true facts" contained in some correspondence he enclosed (presumably setting out what the plaintiff considered to be the situation). Mr Black’s observations of the plaintiff were from November 1997 until about May 1998. However, they contrast dramatically with the lucid, detailed, well‑constructed letter, which the plaintiff wrote to the Medical Board complaint about Professor Hollingworth's assessment of him in June 1998. Certainly, nothing in that letter reflects any of the difficulties which Mr Black spoke of and, in my view, the letter reflects detailed recall of the circumstances of the consultation and a careful examination of the matters the subject of the complaint.
In his letter to the Medical Board, the plaintiff described himself as being "seriously injured" in the accident and stated that he almost died on a couple of occasions.
The plaintiff also threatened to report Dr Mustac to the Medical Board when he was questioned about his drinking habits.
These matters point to the plaintiff's pre‑occupation with his litigation arising out of the accident. This is understandable to a certain extent and may be explicable given the plaintiff's legal training. However, they do not reveal a person who is prone to rambling and/or thought disorder.

The plaintiff also complained in evidence that his consultation with Professor Hollingworth involved 50 minutes rapid‑fire questions and a "two second look over me". This was disputed by Professor Hollingworth who testified that his review of the plaintiff was in accordance with his usual practice with which patients of less intelligence than the plaintiff had coped. The plaintiff complained to Dr Mustac that he was sick of being harassed when questioned about his drinking habits. These complaints reveal a man who is not prepared to accept any responsibility to his stated symptoms which is not favourable to his position in the litigation.
A surveillance videotape taken on 13 and 14 July 2000 reveals the plaintiff walking apparently without a limp and any obvious difficulty, swimming several laps of a pool without pausing (albeit slowly) and driving a car. Professor Hollingworth was of the view that the swimming was likely to cause pain to a person with the plaintiff's knee condition and that the rate of walking and swimming suggests that his asthma was not, at that time, "a serious problem". The clinical evidence reveals significant degeneration to the plaintiff's knees, particularly his right knee. However, I have grave doubts that the plaintiff experienced the degree and duration of pain which his evidence suggests.
The plaintiff was convicted of his third offence of driving under the influence of alcohol on 28 May 2000. His driver's licence was suspended for life. The surveillance videotape recorded in part on 14 July 2000 shows the plaintiff driving a car to and from his local shops. That was a flagrant breach of an order of the court and prima facie an offence. I have doubts about the plaintiff's overall credibility given that he was apparently prepared to break the law in this way at all, let alone so shortly after his conviction. I reject the suggestion of the plaintiff's counsel that this episode was an illustration of the plaintiff's impaired judgment or "foolish behaviour".
According to the plaintiff, he had two "incidents" involving alcohol since his accident. These were in 1998 and 2000. The former involved a drinking session and an assault on a bar man, and the latter the driving under the influence offence. He explains each on the basis that he was under great stress and the incidents were isolated and not indicative of his general drinking habits. I accept that it is a continuing battle for alcoholics not to drink alcohol. There may well be times of relapse, either for a period of time or on isolated and unrelated occasions. The plaintiff also told Mr Jackson and Dr Mustac that he had not had a drink for "yonks". It is a matter of common sense, supported if necessary by the evidence of Professor German and Dr Mustac, that alcoholics often underestimate their alcohol consumption and can hide their addiction. It is not unreasonable to infer that given the plaintiff was apprehended by the police on two separate occasions, that there were other times when he was drinking when he did not come to the attention of the police.
The plaintiff testified that he started to drink when he was 17 years old. He said that it did not affect him in the early years but admitted that he would wake up feeling "seedy". He said he started drinking spirits when he was in his thirties. The effects included inadequate sleep, fatigue, difficulty in concentration, confusion, difficulty in working, bad dreams. These effects are identical to many of the symptoms the plaintiff now claims are accident related. The point of this analysis is that I consider that the plaintiff has understated his alcohol consumption. The fact that a number of liver function tests was carried out since the accident and resulted in normal readings does not cause me to doubt this finding as those tests are to identify if there is damage to the liver which is only one possible side effect of drinking too much.
In summary, because of the factors mentioned above, I consider that the plaintiff has exaggerated at least some of his symptoms and has sought to overplay the significance of the accident on his physical and mental well‑being.
The evidence both from the plaintiff and a former client, Mr Donnelly, but more importantly from Mr Black, supports a finding that when the plaintiff commenced practice on his own account in 1995, he was not burdened with the cognitive deficits from which he described in evidence.
There is evidence that around the time that he was suspended from practice that he was incapable of conducting a practice even as an employed solicitor. This was attributed to his alcoholism. In support of the plaintiff's application for the renewal of his practising certificate, Professor German reported on 2 March 1993 that the plaintiff had his alcoholism under control but that he would continue to suffer from cyclothymia (mood swings) and manic depression which could be managed under medical supervision. Further, he stated that a CT scan was normal, he could not fault his brain‑related performance and that the plaintiff had not sustained any brain damage from his drinking, nor, as far as he could see, from the 1981 road accident. He testified to the effect at the Barristers Board hearing.
The plaintiff testified that since then he has remained virtually abstinent from alcohol. He returned to practice and the unchallenged evidence including from the plaintiff himself is that he was able to perform satisfactorily in that role. He had practised on his own account for about eight or nine months before taking time off work in March 1996 due to a recurrence of his asthma. The accident happened in April 1996. The medical evidence is scant as to his symptoms and treatment until he started seeing Professor German in April 1997. Professor German originally concentrated on the plaintiff's depression, which he said resolved by September 1997 [at the latest] due to prescribed medication. Professor German revised his opinion as to his diagnosis after receiving the report of Mr Black about the plaintiff's performance as a law clerk on a pro bono matter. Professor German relied also on his own observations of the plaintiff at that time, contrasting them with his observations made in consultation before the accident.
Dr Buttsworth's report dated 14 October 1997 refers to the plaintiff continuing to suffer problems with memory and concentration and "a variety of symptoms from his head injury". These persisted according to Dr Buttsworth's last report dated 2 March 1998. The difficulty with Dr Buttsworth's reports is that he could not be cross‑examined as to whether the symptoms referred to in his reports were objectively observable by him or merely reported to him by the plaintiff. Minimal weight can be attached to them for this reason.
Professor German's report in January 1998 was to the effect that the plaintiff had recovered from his "depression/post‑concussional" syndrome. The plaintiff had, in the meantime, attempted a pro bono case and the evidence is to the effect that he was incapable of performing in a competent way. This assessment was made over a period of some six months. He was reviewed by Professor German again in or around October 1998 when Professor German was of the view that his memory and concentration remained impaired although not as badly as previously. Professor German was significantly influenced by the observations made by Mr Black in revising his opinion as to the cause of the plaintiff's condition.
Professor German reported again on 16 November 1999 to the effect that the plaintiff was depressed but had again been prescribed the steroid for his asthma which Professor German believed partially caused his initial depression. In July 2000, Professor German reported that the plaintiff was unable to keep track of the point of discussion, had become garrulous and rambling, wandered off or could not recall the point of a conversation, an inability to cope with abstract concepts. He stated that the plaintiff had continually perseverated since March 1997.
The plaintiff had a pre‑existing history of depression, anxiety, cyclothymia, manic depression and alcoholism. I have found that he did not suffer brain injury in the accident. The accident caused pain to his knees and chest. The accident also had an emotional effect on the plaintiff in that he thought he was going to die. He had a predisposition to asthma. I find that the plaintiff became pre‑occupied with this litigation. This much is apparent by his follow‑up of medical interviews with correspondence supplementing information reported by him and/or correcting what he considered to be incorrect information in the medical reports and his threats to Professor Hollingworth and Dr Mustac to report them to the Medical Board for perceived wrongs, which I consider he believed would impact adversely on his litigation.
In view of the doubts I have as to the plaintiff's credibility, coupled more particularly with the surveillance videotape evidence (discussed above), I find that the plaintiff has exaggerated his knee symptoms. I have listened to the audiotapes of the plaintiff's interviews with Dr Mustac (about two hours). In my view, his account of his personal and work history and life was generally lucid, if a little prolix, and was otherwise unremarkable. During his first interview in May 2000, he did not sound depressed or unhappy and joked with Dr Mustac from time to time. Therein, he expressed that he had much difficulty in coping with his asthma. He spoke many times of having difficulty in sleeping and resting and that made him feel constantly fatigued and mentally tired. These are complaints which he constantly made to other of his health professionals. His second interview with Dr Mustac was in October 2001, 15 months after he had given evidence at his trial and shortly before his trial recommenced. He sounded flat to me but was still reasonably lucid and still prolix. He terminated the interview when Dr Mustac posed questions relating to his drinking, claiming that he was being harassed and threatened to report Dr Mustac to the Medical Board. In the meantime, he had done a battery of psychological tests administered not only for his trial purposes but also required by his disability income insurer.
The difficult issue to determine is whether the psychological symptoms, particularly the compromise to the plaintiff's executive brain function which is the fundamental reason he cannot work as a solicitor, were caused or exacerbated by the accident and if so, to what extent and for how long. I am prepared to accept Professor German's view that the accident was responsible for around 50 per cent of the depression. This resolved with medication at the latest by September 1997. I accept that the plaintiff suffered pain to his knees which immobilised him to a certain extent. There is no medical diagnosis of any back injury and the symptoms resolved after treatment by Mr Shortland. His asthma (unrelated to the accident) was troubling him and pre‑occupied his thoughts. He had sleep apnoea (unrelated to the accident) and as a result was constantly fatigued. This was all overlaid on the plaintiff's pre‑disposition to mood swings and anxiety. The plaintiff had a significant tax bill (around $85,000 at the end of the 1996 financial year and $140,000 at the end of the 1999 financial year) which had been steadily accumulating for some years. He had a $40,000 debt to the bank and owed other creditors $10,000. His newly established sole practice was interrupted. There was no evidence as to how he coped with the interruption to his practice nor as to how he practically dealt with it and his clients. He admitted to the occasional "bender" resulting on one occasion since the accident in a conviction for driving under the influence of alcohol. On one of these occasions he was also charged with assault but this charge was withdrawn.

Law on causation

It is trite law that negligent defendants must take their victims as they find them. The fact that an injured person was peculiarly susceptible to ensuing complications that would not in a normal person have followed the injuries received, or that the person injured already had a disability which made the injury more disabling does not mean that damages are not to be assessed according to the circumstances of the particular case: Dulieu v White & Sons [1900‑3] All ER Rep 353; Watts v Rake (1960) 108 CLR 158. Although it is material to ascertain the pre‑accident condition of the plaintiff who alleges that his post‑accident ill health is due to the accident, it is for the defendant to prove that before the accident the plaintiff was in a condition that, without the accident, would have led to his post‑accident state of health: Watts v Rake (supra) per Menzies at 164. "If the disabilities of the plaintiff can be disentangled and one or more traced to causes in which the injuries he sustained though the accident played no part, it is the defendant who should be required to do the disentangling and to exclude the operation of the accident as a contributory cause": Watts v Rake (supra) per Dixon CJ at 160; Purkess v Crittenden (1965) 114 CLR 164 at 171‑172.
It is a matter of common sense and experience as to whether the defendant's act can be regarded as a cause of the plaintiff's present condition: March v E & M H Stramare Pty Ltd (1991) 99 ALR 423.
In summary, the plaintiff had pre‑existing depression which was exacerbated following the accident. This exacerbation was, in my view, not because of any brain injury. Professor German's opinion as to the cause of the plaintiff's present symptoms is based firmly, at least in part, on his view that a blow to the head in the accident caused concussion. However, other contributors were the exacerbation of his pre-existing depression, increased anxiety, whilst constitutionally driven, relating to his knees, and asthma.
The plaintiff's depressed condition was due, in my view, to the shock of the accident, the disruption to his new practice, the injury to his knees, his asthma, all of which impacted on his already depressed state and pre‑existing disposition to mood swings and manic depression. I am not satisfied on the balance of probabilities that the plaintiff's so‑called cognitive deficits are caused by the accident. There is little, if any, objective medical evidence until the plaintiff consulted Professor German in April 1997. In January 1998, Professor German considered that the plaintiff had recovered completely from the effects of the accident and was fit to return to work as a solicitor. The neuropsychological testing was not carried out until mid‑2000. I accept the results of Dr Haywood's testing. However, I agree with the view expressed by Mr Hunt that the plaintiff's mental condition as determined by Dr Haywood four years after the accident cannot be related to the head injury suffered in the accident. None of the indicators of long‑term neurological impairment were present. The plaintiff's reported symptoms do not, according to Mr Hunt, "make any sense in relationship to the injury that he sustained". Further, I have significant doubts as to the plaintiff's credibility.
Doing the best that I can with the evidence, I find that the plaintiff should be awarded general damages for pain and suffering caused by injuries to his knees and his chest and for his depression. I find that the plaintiff was incapacitated from working as a solicitor because of his accident related depression until March 1998. The reasons for this date are outlined below. I am not satisfied on the balance of probabilities that any subsequent cognitive deficits were accident related.

General damages

Knees

Dr Janes testified that he did not receive a history from the plaintiff of when the knee pain started after the accident. X‑rays revealed quite advanced degenerative changes and an arthrogram revealed a tear of the posterior horn on the medial meniscus. He said that tears in the cartilage are often caused by trauma and that could be minimal given the plaintiff's age. He said that even kneeling down doing gardening and hyper flexing the knee on arising could cause such a tear. However, he stated that a tear does not necessarily follow if the knee is struck on the dashboard. The degeneration to the knees was well advanced by the time Dr Janes saw the plaintiff some eight months after the accident. However, he said that it is likely that the degenerative condition in the plaintiff's knees was made "more symptomatic that it was before the accident". He based this on the plaintiff's account of leading an active and pain free life before the accident. He also testified that a knee replacement would be inevitable even in the absence of trauma within the five to 10 year range he predicted given the state of the plaintiff's knees on examination. The accident therefore had no bearing on the need for a knee replacement nor did it hasten the need. However, Dr Janes said that given the tear was caused in the accident that an arthroscopy was necessary. I therefore consider that the plaintiff should be awarded special damages for medical expenses associated with the arthroscopy and general damages for pain and suffering. However, in relation to the latter, the award will be relatively modest as I doubt the plaintiff's evidence as to the severity of his symptoms especially given the videotaped evidence.

Back injury

There was no medical evidence relating to the injury the plaintiff claimed he suffered to his back. Indeed, Dr Buttsworth's report of his examination on 14 April 1996 did not even mention a complaint of pain to the back. The plaintiff was treated by Mr Shortland but not until September 1997. Mr Shortland was not qualified to give an opinion as to the cause of the plaintiff's back problems. However, it would seem that relatively shortly after treatment commenced, the plaintiff experienced some relief. I am not satisfied on the balance of probabilities that the plaintiff's back problems were caused or exacerbated by the accident.

Non-pecuniary loss

Award for knee and chest pain and depression

Non‑pecuniary loss is limited by the provisions of s 3C of the Motor Vehicle (Third Party Insurance) Act 1943. The maximum amount that may be awarded is $232,000 (prescribed). Section 3C(2) provides that:
"The amount of damages to be awarded for non‑pecuniary loss is to be a proportion, determined according to the severity of the non‑pecuniary loss, of the maximum amount that may be awarded."
The "maximum amount" to be awarded (namely $232,000) is to be awarded "only in a most extreme case" (s 3C(3)). The court must therefore compare this case with "a most extreme case" and decide what proportion of $232,000 is to be awarded on that basis.
I take, for example, a case of quadriplegia as being a most extreme case. "Non‑pecuniary loss" is defined in s 3C(1). In this case it relevantly means pain and suffering, loss of amenities of life, loss of enjoyment of life, and bodily or mental harm.
I have found that the plaintiff suffered from accident related depression until January 1998 when he was certified free of depression by Professor German. However, it had begun to resolve with medication shortly after Professor German saw the plaintiff in April 1997. The depression clearly was very distressing and impacted severely on the plaintiff's quality and enjoyment of life.
The plaintiff's chest pain was minor. His knee pain was described by Dr Buttsworth at the plaintiff's first consultation with him on 14 April 1996 as "minor tenderness". I accept that there was damage to the plaintiff's right knee but I have considerable doubts as to the nature, extent and duration of the knee pain for reasons expressed above.
Overall, I am of the view that the plaintiff's non‑pecuniary loss should be assessed at 15 per cent of a most extreme case, that is, at $34,800.

The amount of non‑pecuniary loss being greater than Amount B ($11,500) but not more than Amount C ($35,000), must be assessed at the excess of the amount over Amount B (s 3C(5)).
Therefore, the award for non‑pecuniary loss is $23,300.

Pecuniary loss

Loss of earnings

I have found that the plaintiff was incapacitated from working as a solicitor from the date of the accident until the end of September 1997. Professor German opined that from then until he cleared the plaintiff of any ongoing accident related effects in January 1998, that he was capable of working as a solicitor on a part time basis. Thereafter, any incapacity was, in my view, not accident related. However, it would have taken him some time to re‑establish his practice from the time he became fit enough to work. A reasonable amount of time might be in the region of, say, two months. I will therefore compensate the plaintiff for loss of earnings from the date of the accident until the end of March 1998. According to the plaintiff, were it not for the accident he would have continued working as a sole practitioner. Therefore, the loss of earnings relate to the fees he would have rendered from April 1996 until March 1998 inclusive. He had worked as a sole practitioner from early 1988 until mid‑1990 and for some nine months before the accident. Accordingly, there is no income history that can assist me to any great extent in fixing the loss of earnings.
The plaintiff tendered a schedule of "economic loss: alternative 2". In that schedule, the calculation of past loss of earnings is based on earnings of $100,000 gross over the whole period of loss. This figure was arrived at by averaging two known years of the plaintiff's income. The calculation was not disputed by the defendant. The plaintiff has received disability insurance payments since his accident. There is no evidence before me as to whether these payments are to be refunded if damages for past loss of earnings are awarded. In those circumstances, I adopt the view that the tortfeasor should not be relieved of the liability of paying the full calculated amount of loss of past earnings.
Adopting the plaintiff's amounts in the schedule I calculate the loss of earning as follows:
Period  Net weekly earnings
12.4.96 - 31.12.96


38 weeks (rounded up) x        $1,167.15              =   $ 44,351.70
1.1.97 - 30.6.97


26 weeks (rounded up) x        $1,163.29              =   $ 30,245.54
1.7.97 - 31.3.98


38 weeks (rounded up) x        $1,167.15              =   $ 44,351.70
$118,948.94
Plus interest


$118,949 x 3% x 1.96 years (102 weeks)               =   $    6,994.00
TOTAL  $125,943.00

Special damages

Past medical treatment

A schedule of special damages was prepared by the plaintiff's solicitors and tendered together with a bundle of receipts and cheque butts. For example, there are numerous accounts issued by Professor German - some covering the period of the non‑pecuniary loss and others outside the period. However, there is no indication on the schedule as to what specific accounts the plaintiff has paid. Some of the accounts seem to relate to medico‑legal reports. It is very unsatisfactory to tender a schedule without specifying exactly what account the plaintiff has paid. In the circumstances, I cannot determine what accounts within the relevant period the plaintiff has paid and have no alternative but to decline to award damages for past medical expenses.

Past medication expenses

There is evidence from the pharmacist who has supplied the plaintiff with medication since May 1998 that his prescription medications over the year 2000 averaged out at $500. There is no evidence as to his medication expenses from the date of the accident until May 1998. However, I will accept $500 per year as a working figure. I assume that the plaintiff will require medication for his knees but there is no evidence as to the estimated cost of this. I will award a modest global figure for future medication expenses. I award the plaintiff special damages for medication expenses in the sum of $1,000.

Cleaning services

There is no evidence from the plaintiff as to his ability or otherwise to cope with domestic tasks following the accident. He was questioned by Dr Mustac about these and said that he chose to employ someone to clean and garden for him. In those circumstances, I am not prepared to award any special damages for past or future cleaning expenses.
In summary, the damages I award are as follows:
Non‑pecuniary loss                $ 23,300
Loss of past earnings              $125,943
Past medication  $    1,000
TOTAL  $150,243