Ragen v The Nominal Defendant (No 3)

[2007] NSWDC 86

CITATION:	Ragen v The Nominal Defendant (No 3) [2007] NSWDC 86
HEARING DATE(S):	27-28 February and 1-2 March 2007
JUDGMENT DATE:	21 March 2007
JURISDICTION:	Civil Jurisdiction
JUDGMENT OF:	Johnstone DCJ at 1
DECISION:	Judgment for the plaintiff
CATCHWORDS:	TORT (MOTOR ACCIDENT) - Due enquiry and search - Negligence of unidentified driver - No contributory negligence - Case turns on facts, with no matters of principle decided - DAMAGES - Psychiatric condition overlaying physical disabilities - Causation in respect of psychiatric condition - Additional discount for vicissitudes over normal 15%
LEGISLATION CITED:	Motor Accidents Compensation Act 1999: s 34(1), s 124, s 126(2), s 128(3), s 131,
CASES CITED:	Nominal Defendant v Lane [2004] NSWCA 405
PARTIES:	David Harry Ragen (Plaintiff) The Nominal Defendant (Defendant)
FILE NUMBER(S):	2746/03
COUNSEL:	Mr Lidden SC with Mr Khandhar for the plaintiff Mr Elkaim SC for the defendant
SOLICITORS:	Brydens Law Office (Plaintiff) Holman Webb (Defendant)

JUDGMENT
Introduction

1. Mr Ragen was injured in a motor accident when he was driving along the M4 Motorway at about 6.10am on 2 March 2000. He says the accident was caused by the fault of the driver of a motor vehicle the identity of which could not be established, after due enquiry and search, and brought this action for the recovery of damages against the Nominal Defendant: s 34(1) of the Motor Accidents Compensation Act 1999.

2. Mr Ragen alleged that the accident occurred when the unidentified vehicle struck the rear of the car he was driving in lane 3, pushing his car partially into the adjacent lane 2, where he was struck again by a third car travelling in that lane, which in turn forced his car into a fourth car, travelling in front of him in lane 3.

3. The Nominal Defendant denies liability. It says that Mr Ragen’s version of the accident cannot be accepted and he did not prove the accident happened in the way he alleged. Alternatively, it says that the accident arose solely out of Mr Ragen’s negligence and no cause of action arises. Or, it alleges, Mr Ragen was guilty of contributory negligence.

4. The Nominal Defendant also denied that Mr Ragen carried out due enquiry and search to establish the identity of the owner of the unidentified vehicle.

5. The issues for determination as to liability are:

· Did Mr Ragen carry out due enquiry and search?

· Was Mr Ragen injured as a result of negligence on the part of the driver of the unidentified motor

vehicle?

· Was Mr Ragen guilty of any negligence causing or contributing to the accident?

6. Mr Ragen says that as a result of the accident he sustained significant physical injuries and a severe secondary psychological condition. As a result he incurred medical, hospital and other out-of-pocket expenses and will require considerable future medical treatment and medication. He is and has been significantly incapacitated for any form of gainful employment and has lost wages and superannuation he would otherwise have earned; and will lose earnings and superannuation in the future until he turns 65. Finally, he alleges that he has required considerable domestic assistance in the past and will require such assistance for the balance of his life.

7. It was the Nominal Defendant’s case that any injuries received by Mr Ragen were minor and temporary, and that in effect he has a ‘closed-period’ entitlement to damages, ending in about January 2001. His physical injuries had by then resolved and that any psychiatric problems occasioned by the accident had by then abated. Any ongoing psychiatric problems are not causally related to the motor accident on 2 March 2000. Any past care required does not satisfy the requisite threshold: s 128(3) of the Motor Accidents Compensation Act 1999. No future domestic care required is attributable to the accident on 2 March 2000, but even if it were, the need does not does not satisfy the requisite threshold: s 128(3). Recoverable past out-of-pocket expenses are, therefore, limited and no future need has been established. Mr Ragen’s past wage loss should be confined to the ‘closed-period’ and he has not established that he has, by reason of his injuries, sustained any loss of future earning capacity.

8. Mr Ragen is not entitled to recover damages for non-economic loss because he did not establish that the degree of permanent impairment he suffered as a result of the injuries caused by the motor accident was greater than 10%: s 131 of the Motor Accidents Compensation Act 1999.

9. The issues for determination as to damages are:

· The extent of the past out-of-pocket-expenses incurred.

· The extent of any need for future out-of-pocket-expenses.

· The extent of the net earnings lost in the past.

· The extent of any loss of future earning capacity.

· The extent of any future loss of occupational superannuation.

· The amount of the Fox v Wood component.

· The extent of any need for domestic assistance in the past, and

· The extent of any need for domestic assistance in the future.

The motor accident on 2 March 2000

10. Mr Ragen’s case is that he was driving to work from his home at Blaxland along the M4 Motorway towards Sydney when at about 6.10am he was struck in the rear by an unidentified vehicle, resulting in the accident that caused his injuries. At that point the motorway consisted of six lanes, three in each direction, with additional breakdown lanes on either side. He was travelling in the centre lane (lane 3) at about 60kph in a burgundy coloured sedan. It was sunrise, but still not fully light, with some light drizzle. Some cars still had headlights on, including his car. The traffic was fairly heavy, with vehicles in all three lanes, which was variously slowing down, almost stopping at times, and then accelerating forward.

11. Some minutes prior to the collision Mr Ragen noticed a vehicle behaving erratically. It was a ‘run-down Japanese job’, off-white in colour, with only one headlight on. It was weaving in and out of the traffic, and changing lanes. At one stage it came up alongside him, and then it was behind him in lane 3, right behind him, up his ‘backside’. Whenever Mr Ragen decelerated, the front end of the unidentified vehicle disappeared below his windscreen in the rear vision mirror.

12. Just prior to the accident, Mr Ragen was decelerating, in order to keep his distance from the car in front (a white car driven by Mrs Piper). Suddenly, he got a tap. The unidentified vehicle bumped him from behind, pushing his car partially into the middle lane (lane 2), where he was struck in the rear a second time by a car travelling in that lane (a teal-coloured car driven by Mr Lawless). This second impact pushed Mr Ragen’s car up against Mrs Piper’s car in lane 3, striking it somewhere in the rear left quarter.

13. Following these events, the unidentified vehicle decamped, while Mr Ragen, Mr Lawless and Mrs Piper moved across to the left of the road and stopped in the breakdown lane. Here conversations between them ensued, and with RTA officers who arrived shortly thereafter. They exchanged details. Mr Ragen asked if the others had seen the vehicle with one headlight. Mrs Piper confirmed that she had, but had not obtained the registration number. The rear of Mr Ragen’s car was extensively damaged, including the bumper bar and rear left mudguard (Exhibit 3).

14. Following these collisions, Mr Ragen experienced neck pain. However, he continued on to his workplace, and after reporting to his boss and telling him what had happened, he was sent home. Mr Ragen went home, and from there he went to see his GP. Later in the day he went to the Springwood Police Station to formally report the accident. He was told that in the absence of a registration number, nothing could be done.

15. Mr Lawless’ version did not contradict that of Mr Ragen. He was driving in the middle lane (lane 2) when Mr Ragen’s car came from the lane to his right, collided with his front right mudguard, and pushed him a bit to the left. But that was all he saw. He did not see Mr Ragen subsequently hit Mrs Piper. He had not seen the car with one headlight behaving erratically. But he did hear Mr Ragen say to Mrs Piper, after they had all pulled over, that he had been struck by a car with one headlight on, which had pushed him over into lane 2, with which Mrs Piper agreed.

16. Mrs Piper also provided corroborative detail, although there were some discrepancies between her version and that of Mr Ragen. She had been travelling in lane 3, and had also noticed the unidentified white car, with one headlight on, driving erratically. Just before the accident, this car was two or three cars back. She heard a bang and shortly afterwards she was hit from behind, at the back on the left.

17. She was not sure which car hit her, because it happened very quickly. She first said it was the white car that had been travelling erratically, and was definitely not a red car. But in cross-examination she said the car that hit her had both headlights on.

Due enquiry and search

18. The Nominal Defendant submitted that Mr Ragen failed to prove that he had carried out due enquiry and search as required by the Motor Accidents Compensation Act 1999. It said that such enquiries that were made were inadequate and that the advertisements tendered were either too late or insufficiently detailed to elicit any likely response.

19. The evidence establishes that at the scene, after the accident, Mr Ragen made relevant enquiries about the unidentified vehicle to the other drivers involved in the accident who did stop, Mr Lawless and Mrs Piper, as well as the RTA officers who attended the scene, without result.

20. He did not ring the police, because the RTA officers did not propose to do so, and were anxious to get all the drivers to leave and move on. They even levered the left rear mudguard on Mr Ragen’s car to enable him to drive it away. Mr Ragen did, however, report the accident to the police later that day, but was told that without a registration number, nothing could be done.

21. One wonders what else Mr Ragen could have done. To the extent that the advertisement that preceded the institution of proceedings is concerned, it might have been more fulsome, but even if it had been, it is evident that in the circumstances of this case any advertisement was destined to be futile. To the extent that he did not report the accident to the police sooner, that was similarly destined to be futile: Harrison v Nominal Defendant (1975) 7 ALR 680.

22. In my view everything was done that could have been done that was likely to enable the identification of the offending vehicle. I find, therefore, that due enquiry and search was carried out.

Negligence causing injury to Mr Ragen

23. The Nominal Defendant says that Mr Ragen’s version of the accident cannot be accepted. It points to substantial differences between his version and other versions. It says there were too many inconsistencies in the evidence for Mr Ragen’s version to be believed. These included:

· That Mrs Piper said she was hit by a white car, in the rear. Mr Ragen, however, was driving a red car,

and said that he hit her car on the left hand side at the rear.

· That Mr Ragen first said that he got ‘a tap’, which he changed to ‘a solid bump’.

· That it is improbable the impact from Mr Lawless’ car would have pushed Mr Ragen’s car back into

lane 3 onto Mrs Piper’s car.

· The inconsistencies between his version of the events after the collision in the breakdown lane,

including the position of the various cars.

24. Given these matters, it was submitted that Mr Ragen’s version was not to be accepted and that Mrs Piper’s was the reliable version. What is probable is that the unidentified vehicle did not hit Mr Ragen’s vehicle at all. Rather, Mr Ragen was travelling too close to Mrs Piper’s car, and as the traffic slowed he swerved into the left lane to avoid her, where he was struck by Mr Lawless’ car.

25. In my view, however there was no basis for disbelieving Mr Ragen’s version. It is true that there were some inconsistencies, but these were more a product of Mrs Piper’s memory than any fabrication on Mr Ragen’s part. There was substantial corroboration of his version, not the least being the conversation overheard by Mr Lawless between Mrs Piper and Mr Ragen in the breakdown lane after the collisions.

26. It was Mrs Piper’s version that was confused and not entirely reliable. One only has to read her oral evidence and her written statement (Exhibit A) to discern this. She seemed to have no clear idea which car struck hers. The high point of the discrepancies was Mrs Piper’s belief that she was not hit by a red car, but by a white car, being the unidentified vehicle that was travelling erratically. But it is improbable that she was struck by that car when on her own evidence it was two or three cars back just prior to the collision. And finally, there was her evidence, in cross-examination, that the car that hit hers had both headlights on.

27. I am satisfied, therefore, that the events occurred as Mr Ragen described them. I find that the unidentified vehicle struck Mr Ragen’s car from behind whilst they were travelling in lane 3. This forced Mr Ragen’s car left, partially into lane 2 where it was again struck, by Mr Lawless’ car, which in turn forced Mr Ragen’s car back to the right and into Mrs Piper’s car in lane 3. I find that as a result of these various impacts Mr Ragen suffered injuries, principally to his neck and cervical spine.

28. I find that the impact of the unidentified vehicle occurred as a result of negligence on the part of the driver, and the Nominal Defendant is liable to pay damages to Mr Ragen for those injuries and their consequences.

Was Mr Ragen guilty of any negligence?

29. Having regard to the findings I have made, there is in my view no evidence of negligence on Mr Ragen’s part. I am satisfied that he was not driving too fast or too close to Mrs Piper or that he failed to keep a proper lookout. I am satisfied that he did not attempt to change lanes when it was unsafe to do so.

30. I find, therefore, that the accident did not arise solely by reason of Mr Ragen’s negligence, nor was it contributed to by any failure on his part to take reasonable care for his own safety. It follows that Mr Ragen is entitled to damages, and that there should be no reduction of those damages for contributory negligence.

Damages

31. Mr Ragen was born on 20 March 1960. At the time of the accident he was not quite 40. He is now 47. He had been in continuous employment since leaving school, largely in the publishing industry. At the time of his accident he was employed by JSM Platemakers as a typesetter, where he had been since 1993. He was living at Blaxland, with his mother.

32. He had been married, but was separated in about 1992. He has two sons: Aaron (20) and Bradley (18) who currently reside with him at Blaxland.

33. Following the accident on 2 March 2000 he experienced instant neck pain, which persisted. He travelled on to work, where his boss sent him home.

34. After arriving at his home, he then went to see his GP at Blaxland. His usual doctor, Dr Barbara Jackson, was away so he was seen Dr Babbage at about 12.57pm. The doctor noted very restricted neck movement in all directions and diagnosed a whiplash injury. He referred Mr Ragen for urgent physiotherapy to Katherine Greene and prescribed Panadeine forte. Dr Babbage saw him again the next day when he was still very sore. He referred him for x-ray of the cervical and upper thoracic vertebrae. No fractures were revealed, but the x-rays did reveal considerable degeneration.

35. He remained off work and continued under the care of Dr Babbage, who noted steady improvement. He continued to treat him conservatively with physiotherapy and medication, until the end of March, when Dr Jackson returned and took over the management of Mr Ragen.

36. Dr Jackson first examined Mr Ragen on 4 April 2000. She noted that he had felt pain immediately following the accident on 2 March 2000, which had persisted. The pain was in the back of his neck and left shoulder. She noted local tenderness in the right trapezius, cervical spine and upper thoracic spine, with muscle spasm. He had reduced neck rotation and flexion, and reduced flexion and abduction in the left shoulder, where internal rotation was painful. She also noted paraesthesia in the left hand, requiring investigation. She considered that further rehabilitation and pain management were needed.

37. In the succeeding weeks Dr Jackson continued to supervise the management of Mr Ragen. Treatment remained conservative. An MRI was undertaken but this revealed no abnormalities. Katherine Greene continued to administer regular physiotherapy, including ultrasound, soft tissue massage and range of movement exercises, progressing to manual therapy techniques including joint mobilisation, manual cervical traction and various stretching exercises. Despite this regular treatment, he continued to report marked cervical pain, muscle tightness and joint stiffness, together with headaches. Dr Jackson and Katherine Greene agreed that the physiotherapy did not seem to be achieving any results, and Dr Jackson advised that it should be discontinued.

38. In the meantime, Dr Jackson was implementing alternative strategies, including referral of Mr Ragen to an orthopaedic specialist, Dr New; arranging to send him to a pain management centre, Rehab One; and a possible psychological assessment.

39. Then, on Friday 23 June 2000 Mr Ragen became very depressed and contemplated suicide. A friend rang Dr Jackson. She went to Mr Ragen’s home where she found him tearful and despairing as a result of his continuing pain, his inability to return to work and the financial difficulties this was producing. Dr Jackson prescribed medication in the form of Zoloft and set about seeking ways to provide him with appropriate psychiatric management. This included writing to the workers compensation insurer recommending admission to St John of God Hospital for a period of inpatient treatment for ‘stabilisation of his suicidality/depression’: (Exhibit E). For some reason this did not occur.

40. Mr Ragen remained depressed and in pain. In addition to pressing the workers compensation insurer to provide approval for a psychiatric assessment, Dr Jackson recommended pain management treatment by Dr Sundaraj at Nepean Pain Management. Dr Sundaraj then saw Mr Ragen on 18 August 2000.

41. Mr Ragen remained under the care of Dr Sundaraj and his colleagues for some 3 years, until August 2003. An initial assessment revealed a ‘complex’ presentation involving a mixture of physical and psychological problems. On the physical side, Dr Sundaraj concluded that there were previously asymptomatic degenerative cervical changes now causing current pain and disability substantially contributed to by the accident. There was cervical facet joint arthropathy between the C2 and C5 levels. In addition he had significant musculo ligamentous strain affecting various muscle groups in the head and neck region, with radiating pain into the left upper back, shoulder and upper arm. Multiple trigger points were present. On the psychiatric side there was clinical depression and anxiety from a sense of helplessness, and loss of self-esteem. The doctor noted a blunt and flat affect, with dysphoria and dysthymia, ‘and to some extent a degree of somatisation’ was present. He was taking considerable medication, consuming alcohol, smoking up to 30 cigarettes a day and consuming cannabis on a regular basis.

42. In short, he was in a mess. Dr Sundaraj put in place a number of strategies:

· Assessment of his musculo skeletal position by a physiotherapist with a view to a programme of

physical conditioning and exercise.

· A pain behaviour assessment with a view to psychological assessment and counselling.

· Review by an occupational therapist with a view to advice on daily activities, self-care and a return to

work plan.

43. On 5 October 2000 Dr Sundaraj carried out a diagnostic left C2-5 medial branch block under sedation and fluoroscopic guidance at the Westside Private Hospital. Following this procedure Mr Ragen reported pain reduction, but eventually the pain returned. Dr Sundaraj described this as a ‘window of analgesia’.

44. In any event, things improved sufficiently to enable Mr Ragen to return to work on 1 December 2000, nearly 9 months after his accident. According to Dr Jackson’s notes, he had by this time weaned himself off anti-depressants and was coping with driving. He was going to the gym and ‘doing very well’. Also according to her notes, by 10 January 2001 he was back on full duties, coping with work, doing his normal job and driving. He had a full range of neck movement and was just ‘right’. She noted that she was to provide a ‘workcover final certificate’. Mr Ragen did not consult her after that for 3 months.

45. He saw Dr Jackson on 10 April 2001. His pain and depression had returned. He told her he had been involved in a further motor vehicle accident a month earlier, which, she noted had ‘stirred up the neck and shoulder’. She gave him a certificate and he had a week off work.

46. The next visit to Dr Jackson was not until 19 June 2001. He complained of increased neck pain. The doctor queried whether this was due to the effect of the injection wearing off. Nevertheless, she also noted that he had had a long drive on the weekend. There were further visits to Dr Jackson in July, and complaints of severe pain. She sent him back to Dr Sundaraj, who administered a repeat nerve block injection on 30 July 2001, which Mr Ragen said gave him minimal relief, but which Dr Jackson noted caused him to be ‘much improved’.

47. He did not visit Dr Jackson for pain or depression until October 2001. In September he had an argument with his wife, in which she ‘hit back physically’ and kneed him in the left thigh. There were two visits in October in which Dr Jackson noted complaints of pain and depression. There had been another episode at work involving moving boxes of photocopy paper. The doctor suggested the facet joint injection was ‘wearing off’. She gave him a certificate to go off work for a week.

48. The next episode of significance was another motor vehicle accident at about 3.30pm on 16 December 2001. On this occasion he was sitting in his car, and hit by another car doing a U-turn. He experienced a sharp involuntary movement of the neck followed by ‘chronic pain’, which worsened by that evening. He had difficulty sleeping and awoke with ‘new pain present’. He went to see Dr Jackson the next day. She prescribed medication and gave him another certificate to go off work for two weeks.

49. He did not see Dr Jackson about these problems again until March 2002, after he had undergone a further surgical procedure administered by Dr Sundaraj, in the form of ‘radiofrequency medial branch denervation therapy’. According to Dr Jackson’s notes the effects only lasted a few days because by 26 March he was again complaining of pain. Dr Sundaraj suggests that this led to significant and extended pain reduction, and a return to work.

50. In any event, he did return to work again, and did not consult Dr Jackson again (apart from a face rash problem), until 5 November 2002 when he rang her complaining of daily pain, especially with travelling. By 26 November 2002 he had gone off work again and was feeling ‘miserable’. As it eventuated, his psychological problems then returned and he never went back to work. Ultimately, in February 2003 he was retrenched. He has never worked again.

51. It is Mr Ragen’s case that his problems never fully went away, and were in partial remission, principally as a result of the nerve block injections, the beneficial effects of which wore off. His physical condition and his psychiatric reaction thereafter deteriorated to the point where he has been totally and permanently incapacitated, since his retrenchment, and that he has required substantial and constant home care. He alleges that his condition is now permanent, he will never work again and he requires a high level of ongoing care and treatment.

52. Mr Ragen currently lives in a rented house at Blaxland with his two sons, Aaron and Bradley. Prior to the accident and following the breakdown of his marriage, he was living with his elderly mother in her house. His younger son, Bradley, moved in with them in September 2000. At some stage after the accident Mr Ragen and Bradley moved out from his mother’s into their current house. In April 2004 Aaron moved in with them.

53. It seems that Mr Ragen coped adequately with daily living and domestic tasks until 2004. He says, however, that since his retrenchment he has been a virtual cripple and a recluse, incapable of coping without permanent full-time care. Thus, soon after Aaron moved in, he applied for and was granted a carer’s allowance from the government. Mr Ragen also obtained a disability pension after the workers compensation insurer cut off his weekly compensation. Aaron thus became his carer until late 2005, when Bradley took over the role and received the government allowance.

54. Mr Ragen gave evidence to the effect that since his retrenchment, he has done very little. He spends most of his time indoors doing crosswords, watching TV and sleeping. He is withdrawn and moody. He is in constant pain, depressed and has suicidal ideation. He has regular headaches, and nightmares. He experiences panic attacks. He requires constant strong pain-killing medication. He smokes 20 cigarettes a day and uses marijuana when he can afford to. His sons gave evidence of episodes of him withdrawing to his bedroom and curling up on his bed, in a foetal position, sobbing. On one occasion when threatening suicide, he barricaded himself in his room. Bradley had to break in to rescue him. He is incapable of anything but the simplest of tasks. He can’t shave, he can’t do his belt up, he can’t cook, he can’t hang clothes on the line, he can’t clean, he can’t garden, he can’t walk for long distances and has a limp. He is listless and lacks energy, and does no regular exercise. He even has to be encouraged to get out of bed, and to eat proper meals. He has no friends, he never goes out and he has trouble driving other than for short periods.

55. Aaron and Bradley gave extensive evidence as to the level of care they have provided to their father. Aaron even prepared a Daily Diary (Exhibit F) from 16 September to 14 October 2005 of activities he said were undertaken. This document was completely discredited. Aaron conceded in cross-examination that it was blatantly exaggerated, and counsel for Mr Ragen abandoned any reliance on that document or on the testimony of Aaron.

56. Reliance was then placed on Bradley’s evidence to support the case asserted in respect of care and assistance. I will return to this in due course. Suffice it to say that in the result I find Bradley’s evidence on this issue was similarly unreliable.

57. Mr Ragen also gave detailed evidence as to his medication. He has been strongly reliant on his medication, which relates both to his chronic pain and his psychological condition.

The orthopaedic evidence

58. It is not in dispute that Mr Ragen suffered a whiplash type injury as a result of the motor accident on 2 March 2000. This caused musculo-ligamentous injuries to the neck and left shoulder and a severe aggravation of pre-existing but previously asymptomatic cervical spondylosis, a degenerative disease.

59. It is Mr Ragen’s case that his problems never went away, and that the effect of these injuries was ongoing and permanent. It is the defence case that he recovered from the temporary effects of that accident by the time he went back to work in December 2001, and that any subsequent or ongoing problems were new problems resulting from his underlying degenerative condition and his underlying mental condition, triggered by other causes such as subsequent motor vehicle accidents or domestic stresses.

60. There is support for Mr Ragen’s position from Dr Jackson. In her view he sustained a soft tissue strain to the neck with residual chronic pain in the neck, radiating to the left shoulder and arm, and secondary depression. His initial return to work was facilitated by successful nerve root injections which controlled the pain, but which wore off over time. I will return to this notion of remission as a result of the nerve root injections, as it is not supported by the specialist medical opinion, other than perhaps by Dr Sundaraj.

61. Dr Sundaraj does not express any direct view on this causation issue, except inferentially in his assessment of permanent impairment, where he attributes one-third of the impairment to pre-existent neck pathology. It is clear, however, that Dr Sundaraj also thought there were other factors inhibiting recovery: “Unfortunately, with the passage of time, he seems to have developed recurrence of pain. By this time it was evident that part of his overall pain disorder was of a physical nature but there was (sic) significant psychosocial issues including excessive opioid benzodiazapine medications in combination with cannabis intake.”

62. Dr Sundaraj last saw Mr Ragen on 3 March 2004 and reported on 15 April 2004. By this time he had received an MRI carried out on 6 January 2004, which revealed evidence of a small posterior disc bulge at the C3/4 level that ‘appeared to be slightly more prominent as compared to the previous MRI’, but no other abnormality. His impression was that in addition to the ongoing pain disorder, there was a marginal increase in discogenic pain arising around the upper cervical spine. He went on to say: “This would explain the marginal increase in his neck pain and possibly associated headaches. However, it does not explain the increased pain into the entire left upper limb. I can only presume from a clinical impression that this is a non-specific increased pain disorder into the entire left upper limb…The current medico-legal matters would be embellishing the overall pain disorder”. I will return to this MRI and the disc bulge in the context of other expert medical opinions.

63. There is further support for Mr Ragen’s case from the medico-legal experts retained by his solicitors: Dr Conrad and Dr Ellis. The reports of Dr Conrad are somewhat cursory and provide no clear account of the specific aetiology. I agree with the comment of Dr Lim, who said: “I cannot agree with the opinions provided by Dr Conrad… because the opinions did not appear to be based on objective evidence”.

64. The opinion of Dr Ellis suffers from a similar lack of explanation and analysis. In his first report of 28 May 2004 he diagnosed musculo-ligamentous contusion and aggravation of degenerative change in the neck, and to a lesser extent, his back. He went on to say there were secondary effects in the left upper limb, referred pain and neurological deficit. He also found evidence of traumatic capsulitis of the left shoulder. He also stated that “consequent on the neck injury there is a significant posterior bulging of the C6/7 disc with early thecal sac indentation consistent with the injury”. There is a problem with each of these statements.

65. Subsequent investigation has completely eliminated traumatic capsulitis. There was never any tear of the rotator cuff. All the other orthopaedic evidence is to the effect that any capsulitis is age related. Dr Ellis ultimately resiled from his diagnosis of traumatic capsulitis.

66. Dr Cummine is critical of Dr Ellis’ diagnosis, particularly his view that there was no evidence of psychosomatic illness. This aspect of Dr Ellis’ opinion is clearly out-of-step with all other expert medical opinion. Dr Cummine says: “I think it is unlikely that the mild cervical spondylosis exhibited on imaging studies would produce significant and protracted disability. Furthermore, even if that were the case, these changes are not the result of a single traumatic incident, ie the motor vehicle accident of 2.3.00”.

67. Not one of the orthopaedic medico-legal experts ever got the full true history of the subsequent motor vehicle accidents in March 2001 and on 16 December 2001, both of which aggravated Mr Ragen’s neck and shoulder pain. Only Dr Lim got any history of subsequent trauma.

68. Dr Ellis diagnosed neurological deficit. He provided no basis for this finding, which is not supported by any other doctor, apart from Dr Conrad who thought there might be some left-sided radiculopathy. These findings are simply not supported by the radiological investigations. Dr Lim was firmly of the view that there was no objective evidence of radiculopathy. He found there were no radicular symptoms: reflexes were normal, there was no sensory deficit, no motor deficit and no nerve root tension.

69. Finally, there is Dr Ellis’ statement that there was posterior bulging of the C6/7 disc due to the accident. Not even Dr Conrad was prepared to go this far. No other doctor attributes any disc pathology to the accident on 2 March 2000. Dr Lim says: “MRI of the worker’s cervical and upper thoracic spine was performed on 6 January 2004 to investigate the nature of the pain extending from his left neck into the fingers. In particular, Dr Sundaraj…wanted to exclude C7 nerve root impingement. The MRI showed no disc pathology and no nerve root impingement at the C6/7 level…The small posterior disc bulge at C3/4 appeared slightly more prominent but did not appear to be producing any neural impairment”.

70. In the result, in my view, the opinions of Dr Conrad and Dr Ellis are not supported either factually or by sufficiently rigorous analysis and reasoning such as would warrant them being preferred over conflicting expert medical opinion.

71. The Nominal Defendant relied principally on three orthopaedic medico-legal experts on the issue of causation: Dr Cummine, Dr Billett, Dr Isbister and Dr Lim.

72. Dr Cummine was of the opinion that the accident on 2 March 2000 was unlikely to have caused significant particular injuries. Mr Ragen suffered soft tissue injuries to the neck and left shoulder. There may have been a temporary aggravation of symptoms in underlying pre-existing cervical spondylosis. It is unlikely that any continuing or current disabilities now bear any direct relationship to the accident. There appear to be significant psychological issues. The majority of the symptoms of which Mr Ragen complained had a non-organic basis.

73. Dr Billett’s view was that Mr Ragen sustained a soft tissue injury to his neck, with aggravation of the underlying pre-existing degeneration in the discs and facet joints, making them symptomatic. However, the effects of the soft tissue injury and the effects of the aggravation that made the degenerative changes symptomatic resolved. There was no evidence of nerve root irritation. Any pain experienced is due to the underlying degenerative changes in the discs and facet joints.

74. Dr Isbister considered that Mr Ragen suffered a temporary aggravation of age related minor degenerative changes in his cervical spine, which ceased over time. His ongoing symptoms are more related to a chronic pain syndrome, related to progressive degenerative changes.

75. I have left Dr Lim’s report till last.

76. Given the complex orthopaedic picture presented by Mr Ragen, with a mixture of contributory factors, some pre-existing, some post-dating the subject accident, some physical and some psychiatric, Dr Lim’s analysis is reasoned and careful, and is objectively based. It is based more accurately on the proven history and subsequent sequence of events, and accords most closely with the lay evidence and with my assessment of all the evidence. I prefer his opinion to all other medical opinion as to the orthopaedic issues.

77. The opinion of Dr Lim is set out in detail in his report dated 26 August 2006. He largely agrees with Dr Cummine and Dr Billett, and disagrees with Dr Conrad and Dr Ellis. Dr Lim looked at the total clinical picture, both before and after the accident on 2 March 2000. Of all the orthopaedic specialists, he was the only one to get a history of the subsequent accident in which Mr Ragen was further injured by a car doing a U-turn, while he was sitting in a parked car. Dr Lim has this occurring in 2004, when it clearly occurred on 16 December 2001. Nothing turns on the date, apart from the fact it occurred after 2 March 2000.

78. Dr Lim found the presentation of Mr Ragen to be indicative of strong psychological overlay. His abnormal posture and the limited movements of neck and back appeared non-physiological. These inconsistencies in clinical signs were noted within months of the accident on 2 March 2000. Dr Babbage noted them as early as 28 March 2000. Dr Jackson noted the need for psychiatric help very early on. Dr Perla noted inconsistent clinical signs in April 2000. Dr Faiz Noore from the Nepean Pain Management clinic saw Mr Ragen in May 2000, and noted his use of psychological defences such as rationalisation, reaction formation, justification and denial.

79. Dr Lim also contradicts the theory that Mr Ragen’s abatement of symptoms, enabling him to return to work, was an outcome of the nerve block treatment by Dr Sundaraj.

80. Dr Lim considered that various medical conditions were present, but which did not adequately explain Mr Ragen’s reported symptoms and disabilities, namely mild cervical and thoracic spondylosis, and structural impingements of both shoulders with superimposed adhesive capsulitis in the left shoulder. He diagnosed a chronic pain disorder characterised predominantly by neck pain. The neck pain and related neurological symptoms were not explained by medical tests, which consistently revealed no significant pathology. Physical findings were dominated by non-physiological responses to examination.

81. For all these reasons, I prefer Dr Lim’s opinion to all other doctors, and make the following findings as to the orthopaedic aspects of the claim:

82. Mr Ragen suffered a whiplash type injury as a result of the motor accident on 2 March 2000. This caused musculo-ligamentous injuries to the neck and left shoulder and a temporary aggravation of pre-existing mild cervical spondylosis, the effects of which had substantially ceased by 1 December 2000 when he returned to work. I do not accept that these conditions persisted but went into remission as a result of nerve block injections and similar treatment.

83. Mr Ragen did not injure his left shoulder or his back in the accident on 2 March 2004. The minor disc bulge noted in the MRI of 6 January 2004 is unrelated to the accident on 2 March 2000. There is no structural abnormality in the left shoulder.

84. There is no neurological deficit in the neck, shoulder or arms, either by way of any radiculopathy or otherwise. There was no nerve root irritation caused. Any capsulitis, or rotator cuff syndrome, in the left shoulder is unrelated to the accident on 2 March 2000. No further surgery or future treatment of an orthopaedic nature is required.

85. From about October 2001 Mr Ragen developed progressive neck, shoulder and back pain and consequential disabilities, attributable to a chronic pain disorder. There were further minor, but temporary aggravations of the pre-existing cervical, thoracic and lumbar spondylosis occasioned by subsequent motor accidents in March 2001 and on 16 December 2001.

86. His ongoing chronic pain disorder is caused by a combination of contributing factors that are both physical and psychiatric. The physical causes are constitutional, and include the underlying degenerative disorder of his spine, pre-existing and age-related conditions in the left shoulder and arm, and gross physical deconditioning. They comprise a minor component of the causation. The chronic pain disorder is predominantly driven and maintained by psychological factors.

87. Mr Ragen also has unrelated but debilitating osteoarthritic changes in both knees consequent upon sporting injuries from before the accident on 2 March 2000. These affect his mobility, his capacity for work and have been a limiting factor in his rehabilitation.

The psychiatric evidence

88. It is the Nominal Defendant’s case that any psychiatric condition developed by Mr Ragen as a result of his accident on 2 March 2000 was also temporary, the symptoms of which had abated by the end of 2000 coinciding with the abatement of his physical symptoms and return to work. Any subsequent psychiatric condition or symptoms are a result of a pre-existing mental state, which has been exacerbated temporarily from time to time by a number of episodes, both before and after the accident.

89. Only Dr Robertson gave oral psychiatric evidence, in Mr Ragen’s case. The Nominal Defendant relied on written reports from Dr P Snowdon and Dr J Maguire.

90. Dr Snowdon only saw him once, on 2 August 2002, when Mr Ragen denied any psychological issues prior to 2 March 2000, which was of course quite untrue. The doctor felt Mr Ragen had severe secondary depression and had developed an ‘Adjustment Disorder with Depressed Mood’, as a result of his ongoing pain complaints and their effect on his life. He felt that the depression was in excess of what would be expected and that there were some specific phobic elements. There were panic attacks, more related to his depression and suicidality than to anxiety. He also diagnosed Mr Ragen as marijuana dependent. In addition, the doctor reluctantly considered whether Mr Ragen had a personality disorder. He found Mr Ragen to be immature, with particularly low self-esteem, demonstrating marked dependency traits.

91. Nevertheless, Dr Snowdon did not feel that Mr Ragen’s involvement in the Granville train crash pre-disposed him to the psychological symptoms he developed following the car accident.

92. It is not known what Dr Snowdon’s view might have been if he had been given the full true history of suicide attempts and suicidal ideation prior to 2 March 2000. As a result of the incomplete history available to Dr Snowdon, his opinion on causation in respect of a persisting psychiatric condition beyond 2000 and Mr Ragen’s return to work could have no weight.

93. Dr Maguire first saw Mr Ragen on 14 September 2004. He obtained a history that was more accurate and complete than most. He noted Mr Ragen’s past history of recurrent depressive episodes with a number of drug episodes. He said: “With such a history one would not be surprised to find that Mr Ragen developed a range of depressive symptoms in response to his accident related pain and the way it interfered with his ability to work and pursue his pleasurable activities.” Like Dr Snowdon, he diagnosed, an ‘Adjustment Disorder with Depressed Mood’.

94. He went on to say, however: “Mr Ragen’s pre-existing psychological and personality vulnerabilities would have rendered him likely to develop depressive reactions in response to any of life’s stressful events independent of the motor vehicle accident and its consequences”.

95. He then went on to say that the limitations on Mr Ragen’s capacity for work are entirely due to his physical rather than his psychological complaints.

96. Dr Maguire saw Mr Ragen a second time on 6 December 2006. He was also provided with a considerable body of further documentation. He maintained his diagnosis of an ‘Adjustment Disorder with Depressed Mood’ and its origins. In the light of the documentary evidence, however, he did change his view on the impact of the physical symptomatology. He noted the medical opinion as to the prominent role that psychological factors were playing in the clinical picture with regard to Mr Ragen’s complaints of pain and disability, and opined that, depending on the weight of the medical evidence as to any organic pathology, the correct diagnosis was of a ‘Somatoform Disorder’.

97. Thus, even the Nominal Defendant’s psychiatric evidence supports an ongoing psychiatric condition attributable to the accident on 2 March 2003. There was no evidence of an expert medical nature that the psychiatric condition developed by Mr Ragen was temporary, such that his ongoing psychiatric problems were caused by some underlying or pre-existing condition as opposed to the accident.

98. I come, therefore, to the evidence of Dr Robertson. He provided three reports to Mr Ragen’s solicitors in respect of examinations on 30 July 2003, 22 March 2004 and 10 August 2006. There was a fourth consultation but the reports don’t cover that visit. Dr Robertson records a psychiatric history, not complete, but covering the Granville train disaster, episodes of depression following the death of Mr Ragen’s father, and his marriage break-up.

99. Dr Robertson found it difficult to decide whether these episodes were in the nature of a normal reaction, or whether they represented a pathological reaction. In the doctor’s view, the pattern of symptoms and mental state at interview suggested a diagnosis of ‘Major Depression’. The difference between this and an ‘Adjustment Disorder with Depressed Mood’ is one of degree rather than of kind.

100. At the next interview of Mr Ragen on 22 March 2004, Dr Robertson found he had improved, the reduction in depression being attributed to both the reduction in pain levels and use of anti-depressant medication. Dr Robertson then varied the diagnosis to ‘Major Depression in partial remission’. It appears Dr Robertson also saw him in May 2005 and prepared a report dated 15 June 2005, but that report is not in evidence.

101. At the final visit to Dr Robertson on 10 August 2006, the situation had deteriorated, his pain levels having increased. The diagnosis remained unchanged.

102. In the witness box, Dr Robertson was asked to assume a fuller pre-accident history, including the overdoses following a failed romantic relationship, Mr Ragen’s marriage break-up, and an episode of depression following an access visit with his children in 1977. He was then asked to assume post-accident episodes of barricading himself in his bedroom, panic attacks, and episodes of curling up in a ball on his bed in a foetal position. Dr Robertson’s opinion, in light of these additional circumstances, was that Mr Ragen’s condition was in fact worse than he thought. He observed that it was unusual for a patient to underplay post-accident symptoms. Usually it is the reverse, with the pre-accident symptoms being underplayed. But as I have already observed, that is precisely what Mr Ragen did, namely underplay his pre-accident symptoms.

103. In cross-examination an attempt was made to get Dr Robertson to concede that the psychiatric condition brought on by Mr Ragen’s accident on 2 March 2000 was temporary, and abated with the improvement in his physical symptoms. But Dr Robertson’s view was that the depression has been chronic and consistent since the accident. And, even if the neck pain could be cured now, it would not necessarily lead to the depression abating, the condition having persisted this long, it is now embedded. As to any causative relationship with the pre-accident episodes, he was of the view these were ‘situational crises’ with the characteristic of loss, to which he responded, but they were not evidence of prior chronic depression. Mr Ragen was vulnerable, but not clinically depressed, and he continued to work and function normally right up to the accident.

104. For all these reasons, I make the following findings as to the psychiatric aspects of the claim:

105. Although emotionally fragile and susceptible to a psychiatric disorder prior to 2 March 2000, it has not been established that Mr Ragen in fact suffered any chronic psychiatric illness before his accident, although clearly there were episodic instances of psychiatric disturbance associated with his suicidality and this train phobia as a result of the Granville train crash.

106. As a result of the accident on 2 March 2006 and the subsequent pain, the effect on his work and his financial position, he developed a secondary psychiatric disorder that persisted, in varying degrees, and ultimately became chronic. This psychiatric condition is the predominant cause of his ongoing chronic pain disorder, his depression and the associated panic attacks and social withdrawal.

107. The severity and impact of this psychiatric condition is not, however, constant and unremitting. The evidence establishes that it is episodic and fluctuates from time to time according to circumstances and situations.

108. There are further issues, to which I shall come, as to the extent to which it impacts negatively on his earning capacity, the extent to which it affects his activities of daily living, and whether he has genuinely required any significant care or will require any care in the future.

Loss of earnings and reduction in earning capacity

109. It is not disputed that Mr Ragen was incapacitated for work until December 2000 when he returned to work, and that he lost earnings in that period. The Nominal Defendant contends that there was no loss of earnings thereafter and that, as to the future, the most that might be awarded is a small cushion against a minor loss of earning capacity. The findings I have made on the medical evidence, however, support Mr Ragen’s case that apart from the period he did in fact work, he has been totally incapacitated by reason of his chronic pain disorder, and will remain incapacitated for the balance of what would otherwise have been his working life.

110. The Nominal Defendant submits, however, that even if all his problems are to be accepted, he has failed to mitigate his loss, having made no genuine attempts to obtain or attempt suitable employment. Having regard to the totality of the evidence, and the extent of Mr Ragen’s chronic pain disorder, I am satisfied that he has not been capable of any meaningful gainful employment since his retrenchment in February 2002, and the probability is that this will continue into the future for the balance of his working life. Any residual earning capacity will be negligible. I am satisfied that he would otherwise have worked until age 65.

111. The mathematical data in the schedule of damages presented on behalf of Mr Ragen as to nett pre-injury earnings (Exhibit L), namely $800 per week, and the extrapolation of that figure for subsequent years till the present, is not disputed. I am satisfied that these figures appropriately represent the nett earnings Mr Ragen would have received but for his accident.

112. I therefore calculate past wage in accordance with the calculation in Exhibit L in a sum of $235,057. This takes into account what he in fact earned, and the deduction for the first 5 days of lost earnings: s 124 of the Motor Accidents Compensation Act 1999. To this sum must be added $21,155.00 for loss of occupational superannuation (at 9% of the total), and tax on workers compensation (the Fox v Wood component) of $22,649.00. Accordingly, I find past economic loss in a total amount of $278,861.00.

113. Turning to the future, the current comparable figure for loss of earnings is $873.00 nett per week. He would have had a further 18 years of his working life. The multiplier from the appropriate tables is 625. The gross calculation comes to $545,625.00. This amount will require to be adjusted under s 126(2) of the Motor Accidents Compensation Act 1999.

114. I find that the fragility of Mr Ragen’s mental state, and his predisposition to psychiatric illness, were such that the probability of future episodes of incapacity was very high, and that he would from time to time have lost wages on a regular basis. That pattern began to emerge as early as 2001. I also take into account his drug addiction and all his other problems including the capsulitis in the shoulder, the low back problems and the major disability in his knees. . In addition to a high probability of significant periods off work, I also consider it probable that he would not have consistently worked the same high levels of overtime to age 65.

115. The evidence is that his pre-injury earnings consisted of a large component of overtime. It would not be appropriate, therefore, to give full weight to the continuing comparable figure of $873.00 per week continuously through to age 65. There were, in addition, periods of unemployment before the accident, one of which was extended.

116. I come to s 126(2) of the Motor Accidents Compensation Act 1999 which I am required by a line of authority, culminating in Nominal Defendant v Lane [2004] NSWCA 405, to apply in a particular way.

117. For all the reasons set out above, I am satisfied that the following assumptions about Mr Ragen’s future earning capacity accord with his most likely future circumstances, but for his injury: he would have worked till the age of 65 in the same or similar employment, at a similar level of base wage. I am not, however, satisfied that Mr Ragen would have continued to perform the same level of overtime, or that periodically he would not have gone off work and lost significant wages for various reasons including his other disabilities, his drug addiction and due to illness from episodic psychiatric reactions: s 126(1) of the Motor Accidents Compensation Act 1999.

118. The amount of the award of damages for future economic loss that would have been sustained by Mr Ragen would in the ordinary course be adjusted by reference to an 85% possibility that the events concerned might have occurred but for his injury. However, having regard to the additional factors, specific to Mr Ragen, referred to above, I find that the amount of the award should be adjusted by reference only to a 75% possibility: 126(2).

119. I therefore adjust the amount of the award of damages for future economic loss from $545,625.00 down to $409,219.00. To this I add future loss of occupational superannuation at the rate of $102.00 per week, for the same period, similarly adjusted under s 126(2). The calculation is $47,812.00. Accordingly, I find future economic loss in a total amount of $457,031.00.

The need for care in the past and in the future

120. Mr Ragen makes a claim for considerable damages in respect of past domestic assistance and future commercial care.

121. As to past care, the first issue to arise is whether it was in fact provided gratuitously. Clearly not all of the care claimed was gratuitous, in that Mr Ragen’s sons Aaron and Bradley received a fortnightly carer’s pension from the government in respect of the very services for which damages are claimed. In my view, the amount of the pension received would be required to be deducted from any calculation of damages for past domestic care.

122. The claim for past care is based on an alleged need of 21 hours of domestic assistance per week, provided to Mr Ragen by his sons Aaron and Bradley for the past three years, at $20 per hour, which amounts to an award of $65,320.00.

123. It should firstly be noted that this is an adjusted claim, based on the evidence of Bradley. The original claim for considerably more was abandoned when the Daily Diary prepared by Aaron (Exhibit F) was totally discredited in cross-examination.

124. The claim, in broad terms, is based on care provided by Bradley for the following: meals: 1½ hours a day (10½ hours a week), waking Mr Ragen up:

½ an hour a day (3½ hours a week), vacuuming and mopping: 1½ hours a week, washing his clothes: 2 hours a week, massages: ½ an hour a day (3½ hours a week), a total 21 hours a week.

125. In my view this claim is unsupportable. I leave to one side for the moment whether and to what extent Mr Ragen was incapable of doing these things for himself. I also leave to one side the question of what would have been done in any event, and things that were done before the accident in any event, such as massages. Bradley’s estimates on these matters, like those of Aaron, are unreliable. Firstly, his estimates were tainted by exaggeration. It is improbable, for example, that washing his father’s clothes would take 1½ hours a week. Second, the estimates are duplicative, in the sense that times taken for particular tasks were undertaken for the whole family: meals for example. Thirdly, it is improbable that many of the things that it was said Mr Ragen needed, were in fact based on need: did he really require help doing up his belt, for example. Fourthly, there were tasks claimed that Bradley would have done in any event, such as cleaning up after his own friends. And, fifthly, the true situation was that these things were not always done regularly. For example, the daily massages. Bradley was often not there, but was at his girlfriend’s place. Likewise, there was the evidence of Ms Laverack from her visit on 12 August 2006 that the house did not have the appearance of being cleaned on a regular basis. Aaron let the cat out of the bag when he admitted that they had stayed up all night before her visit cleaning the house.

126. The evidence of Mr Ragen himself on the level of care genuinely needed is also unreliable. His evidence was similarly tainted by the adoption of the discredited Daily Diary. There were numerous other examples of him dissembling, such as concealing his past suicide attempts, and exaggerating his problems and their effect on his life.

127. In the result, I am unable to accept the evidence from any of the Ragens as to the true level of care provided, and must look to other evidence to make an assessment of the true level of any need for domestic assistance and care.

128. The first body of evidence relevant to this question is in the medical reports. Overall, this evidence does not support the extent of reclusiveness and need for assistance that Mr Ragen sought to portray. In the early period following the accident, the need appears to have been minimal. For example, Dr Sundaraj recorded that he was managing “with selfcare and simple domestic tasks in and around the house including meal preparation without undue difficulties”. There are other examples of history given which have Mr Ragen engaging in a significant amount of activity: Dr Haynes has him doing housework and gardening. Dr Cummine has him washing dishes, although not bed-making, and showering, but finding shaving an ordeal. Dr Lim records him managing the personal care aspects of daily living independently. Brad only sometimes shaves him. He makes cups of coffee and toast. He can start a fire. He picks up sticks in the back garden. He goes to the supermarket. (According to his mother, he was anxious in supermarkets even before the accident). According to Dr Maguire, Mr Ragen’s anxiety and depression simply does not warrant the provision of domestic assistance.

129. Dr Robertson says that although he lacks energy, he walks daily. He sleeps reasonably well for the most part. His appetite is poor and he has lost weight. He has been on a different antidepressant, Lexapro, and this is controlling his panic attacks considerably better. He can drive a car for short trips. He does crosswords and plays scrabble with friends. He participates in poker games with his sons and their friends.

130. The next body of evidence relevant to this question is in the vocational and domestic assessment reports (in Exhibit 1). These reports have Mr Ragen doing crosswords regularly, and on-line word games, playing scrabble regularly with a friend, doing most of the cooking and washing, watching his son’s soccer games, walking and shopping.

131. I am not persuaded that Mr Ragen’s drug use is not also a negative factor in his motivation to attend to the activities of daily living and his own needs himself. The provision by the government of a carer’s pension has also militated against encouraging him to do things for himself. These factors indicate that need alone has not been the driver of the assistance and care provided to him. He simply does not require a permanent carer.

132. The evidence on this issue that I find the most compelling, and appropriately reflective of the totality of the evidence, is that of Ms Joanne Oates, an Accredited Occupational Therapist, set out in the various Evaluate reports (Exhibit 1).

133. For all these reasons I am satisfied that any genuine need for care and assistance since the accident on 2 March 2000 did not exceed 6 hours a week.

134. I turn then to the future. The evidence established that Aaron and Bradley will not be available for very much longer to provide domestic care and assistance, as each of them has ambitions to obtain gainful full-time employment. To the extent, therefore, that Mr Ragen has a genuine need for future care and assistance, that would need to be provided commercially.

135. The question then arises as to the genuine level of need that Mr Ragen has, for which it is probable he will engage commercial assistance. I turn again for guidance on this issue to the evidence of Ms Oates. In her opinion, Mr Ragen will reasonably require future care and assistance for heavy cleaning and heavy property maintenance, amounting to two hours a week at the rate of $33.66 an hour, or $67.32 a week.

136. For all these reasons, I make the following findings as to the care and assistance component of Mr Ragen’s claim:

137. The level of genuine need for care and assistance has not, at any stage when it has been actually provided, satisfied the relevant statutory threshold in s 128(3) of the Motor Accidents Compensation Act 1999, and to the extent that care and assistance was provided, it was not gratuitous.

138. Mr Ragen is capable of performing the majority of daily tasks of living for himself. There is a minor need for future care and assistance, limited to the heavier types of activity required, to be provided on a commercial basis, of no more than two hours a week.

139. I therefore assess damages for future commercial care on the basis of $67.32 a week for the balance of Mr Ragen’s expected life. The relevant multiplier is 902. The appropriate discount is a rate of 15%. The calculation is $51,614.00.

Out-of pocket expenses

140. There is no dispute as to the mathematical calculation of past out-of-pocket expenses. The findings I have made make them recoverable. I find, therefore, that Mr Ragen has incurred past out-of-pocket expenses as a result of his accident in an amount of $52,222.00.

141. As to the future there is a dispute as to the cost of various medications. The only significant variation is in respect of the drug Lyrica, for which Mr Ragen claims a weekly loss of 28.75. I prefer the evidence from the Nominal Defendant, that the true cost is $ $22.19 a week. Otherwise I find the weekly cost of medication as set out in the schedule of damages (Exhibit L).

142. There was also a dispute as to the likely frequency of Mr Ragen’s future attendance at the GP and the appropriate level of future pain management and psychiatric treatment. The high probability is that he will not seek such treatment.

143. The Nominal Defendant also submitted that a life expectancy of 85 for Mr Ragen was inappropriately optimistic, having regard to all the evidence, in particular his drug dependency.

144. I am not persuaded that the mathematical approach taken on behalf of Mr Ragen in the schedule of damages (Exhibit L) is the correct one. Having regard to the totality of the evidence and the matters discussed above, I consider that a preferable approach is to award a global figure of $60,000.00, calculated by allowing $50,000.00 for future medication and $10,000.00 for future medical treatment.

145. I find, therefore, that Mr Ragen’s reasonable needs for future out-of-pocket expenses in an amount of $60,000.00.

Summary

146. Mr Ragen did carry out due enquiry and search.

147. Mr Ragen was injured as a result of negligence on the part of the driver of the unidentified motor vehicle for which the Nominal Defendant is liable.

148. Mr Ragen was not guilty of any negligence causing or contributing to the accident and is entitled to damages without any reduction.

149. Mr. Ragen is entitled to total damages made up as follows:

Non-economic loss (general damages) Not recoverable

Past out of pocket expenses $ 52,222.00

Future out of pocket expenses $ 60,000.00

Past economic loss $ 278,861.00

Future economic loss $ 457,031.00

Past domestic assistance Nil

Future domestic assistance $ 51,614.00

Total damages $ 899,728.00

150. For these reasons I find for the plaintiff and award total damages of $899,728.00.

151. I reserve the question of any interest on past economic loss.

152. I reserve costs pending argument.

153. The exhibits are to remain in court for 28 days, after which period they may be returned to the parties.