Singler v Ferguson

[2009] NSWDC 88

CITATION:	Singler v Ferguson [2009] NSWDC 88
HEARING DATE(S):	26/05/2008, 25/08/2008-27/08/2008, 03/11/2008-06/11/2008, 01/12/2008
JUDGMENT DATE:	15 May 2009
JURISDICTION:	District Court - Civil
JUDGMENT OF:	Sidis DCJ
DECISION:	1 Verdict and judgment for the defendant. 2 The plaintiff is to pay the defendant’s costs of the proceedings as assessed or agreed. This order is suspended for a period of 5 working days to allow either party within that period to list the matter for further argument. 3 The exhibits will be retained for 28 days. 4 My reasons are published.
CATCHWORDS:	Motor vehicle accident - Liability - Plaintiff's credit - complaints of pain and disability disproportionate to injuries
PARTIES:	Tony Singler (Plaintiff) Jeffrey Ferguson (Defendant)
FILE NUMBER(S):	361/04
COUNSEL:	Mr D. Kennedy (Plaintiff) Mr T. Edwards (Plaintiff) Mr P. Cummings (Defendant)
SOLICITORS:	Bale Boshev Lawyers (Plaintiff) Moray & Agnew (Defendant)

JUDGMENT

1 Mr Tony Singler claimed that he was injured in a motor vehicle accident that was the result of negligence on the part of Mr Jeffrey Ferguson. The accident occurred on 7 April 2003 at the intersection of Maitland Road and Silsoe Street, Mayfield.

2 The issues involved in deciding the claim were:

1 The plaintiff’s credit.
2 Whether the accident was caused by the defendant’s negligence.
3 Whether there was negligence on the part the plaintiff that contributed to the cause of the accident.
4 The extent of the plaintiff’s injuries and disabilities resulting from the accident.
5 The damages, if any, to be awarded in respect of those injuries.

ISSUE 1 – The plaintiff’s credit

3 The defendant put the plaintiff’s credit firmly in issue by alleging serious and fundamental dishonesty in his evidence to the court, doctors and other health care advisers; his apparent disinclination to return to work; inconsistencies between his evidence to this court and that presented to the Family Court; and inconsistencies in his evidence that were designed to indicate that his current heavy use of cannabis was a consequence of the accident.

4 This alleged lack of credit was directed at both the issue of liability and the extent to which the plaintiff was genuinely injured or disabled as a result of the accident. The matters that were of particular concern in dealing with the plaintiff’s credit were as follows.

5 The claimed injuries: The statement of particulars claimed that the plaintiff suffered injuries to his back, neck and both shoulders. The statement set out an extensive list of disabilities affecting the plaintiff’s cervical spine, lumbar spine, left shoulder and arm, right shoulder and arm, head and sexual function as well as psychological disorders.

6 The plaintiff said that he felt no pain at the time of the accident but that when he turned to speak to a police officer at the scene of the accident he felt a spasm on the left hand side from his ear, through his neck and shoulder. One or two nights later he started to suffer from back pain. He claimed that his pain affected him constantly from the date of the accident to the present date.

7 He was treated by his general practitioner and referred to Dr Pacey in May 2003. He received counselling and an extensive period of treatment by Dr Bull, psychologist. He consulted a number of psychiatrists. His medication included Efexor, Levitra, Endone, Oxycontin, Tramal, Valium and Maxalon. He also received hydrotherapy and physiotherapy and used a TENS machine.

8 Notwithstanding this treatment, he complained that he gained no significant relief from his pain and depression and that from the time of the accident to the date of the hearing he suffered from following disabilities:

1 Constant pain in the left shoulder and left side of the neck that was aggravated by any kind of physical activity but particularly lifting.

2 Increased neck pain when using of the left arm and weakness in the left arm. To relieve the pain, the need to carry his left arm bent at the elbow and folded across his body at all times. The level of neck pain varied from significant to excruciating.

3 Restriction in the range of movement of his neck. The plaintiff demonstrated to the court the extent to which he could move his head in various directions before he suffered pain. He was restricted to 30 degrees of rotation to the left before it became too painful to move it further. Looking down and looking up was restricted to 20 to 25 degrees. The restriction on turning his head to the right was less at 40 to 45 degrees. He claimed that he constantly held his head tilted to the left side as was demonstrated during the course of his evidence.

4 Constant low back pain.

5 Difficulty sleeping because of his pain.

6 Difficulty with sexual activity because of his pain.

7 Discomfort when driving to the point where it was necessary to take hourly breaks to relieve pain in his back and shoulder.

8 Psychiatric injury resulting in Major Depressive Disorder and Pain Disorder.

9 Limits on his social life and social isolation resulting from his injuries.

10 As a result of his physical and psychiatric injuries, interference with his capacity to interact with his children. The plaintiff had four children, boys aged 12 and 10 years and twin girls aged 8. He claimed that he has not lifted or played with the twin girls since the date of the accident. Care of the children was divided equally between the plaintiff and his former wife, with each accommodating the children on alternate weeks.

11 Permanent incapacity for any form of employment from the date of the accident.

9 The surveillance material: The materialⁱ recorded on 30 April 2005 indicated that the plaintiff was able to undertake a number of physical activities without apparent discomfort. He was seen to use his left hand or arm on a many occasions to smoke cigarettes, drink from a can, carry a package beneath the arm and assist in opening a car door. Significantly he was seen holding a camera to his eye with both hands while he knelt to the ground to take a succession of photographs of members of a children’s soccer team. On 3 May 2005 the plaintiff turned his head to look over his left shoulder before driving off in his vehicle. He used his left hand to reach for his seat belt.

10 The materialⁱⁱ recorded on 27 July 2006 again appeared to suggest that the plaintiff’s capacity to use his left arm and hand was unrestricted. Activities undertaken on that date included the use of his left hand to hold a can of soft drink, gesticulate, retrieve a mobile telephone from his pocket and hold it to his ear during two telephone conversations, one of significant length, replace the telephone in his pocket, with both hands he rolled a cigarette and assisted his children with their clothing. In addition the plaintiff was seen to move his head to the left and right sides without apparent restriction. The plaintiff did touch his neck on two occasions, once with the right hand and once with the left.

11 The materialⁱⁱⁱ recorded in February 2008 depicted the plaintiff, on 14 February, using his left arm freely. On 15 February 2008 he used his left and right arms interchangeably to perform various activities. On 19 February 2008 the plaintiff was once more observed using his arms interchangeably and without apparent discomfort.

12 The plaintiff’s response to the surveillance material was to suggest that the court draw an inference contrary to the defendant’s interests because material that was recorded on other dates was not put into evidence. This was not a situation where the defendant sought to conceal the missing material. An attempt was made to tender the recording but objection was raised because the surveillance operator who made it was unavailable to answer the plaintiff’s questions. In the circumstances, I did not consider that any significant adverse inference could be drawn.

13 It was also claimed that the material in fact supported the plaintiff because it provided evidence of his devotion to his children, whom at no time was he seen to lift. It was claimed that the recording suggested that he favoured or guarded his left arm, that he lacked energy to engage in physical activity and that he showed little sign of happiness or pleasure.

14 On occasion the surveillance material showed the plaintiff carrying his left arm by the side of his body at a slight angle and in a guarded fashion. On my viewing of the recordings, however, it appeared that at three separate time periods, in 2005, 2006 and 2008, the plaintiff was able to use his left arm normally and without apparent discomfort or disability. At no time was he seen to hold his left arm across his body in the fashion demonstrated continuously to the court. His physical activities included crouching, kneeling to take a succession of photographs and lifting items of furniture. Other activity involved movements of his head and neck without apparent restriction or discomfort. He interacted normally with other parents, his own and other children. He smiled and was animated in the course of lengthy conversations.

15 Questioned concerning the apparent conflict between his capacity as shown on these recordings and that of which he gave evidence, the plaintiff agreed that there were many things that he could do with his left arm and hand. The plaintiff maintained that he held his left arm clutched to his abdomen almost permanently from the time of the accident because allowing the arm to hang down to his side caused a pulling sensation in his neck. Although the plaintiff conceded that he could undertake various activities, he said they caused him pain. Contrary to his original claim of constant unrelenting pain from the time of the accident, the plaintiff stated that the condition of his left arm was improving continuously as a result of stretching and exercise and the weekly or fortnightly administration of acupuncture.

16 The plaintiff denied that there had been any improvement in the restrictions in the range of movement of his neck since the accident. He denied that the surveillance material indicated greater degrees of movement than demonstrated to the court, stating that the camera angles did not allow him to make such a concession. He said his neck pain was worse with cold weather and when travelling or sitting or standing for long periods.

17 The plaintiff was referred to a number of treating doctors and medico-legal experts around the times when surveillance was undertaken. In the first half of 2005 he was seen by Professor Mattick, Professor Oakeshott, Associate Professor Jones, Dr Pacey and Dr Mackie. He reported to each of them that he was suffering disability and pain to significant degrees.

18 Professor Mattick reported^iv that in January 2005 that the plaintiff’s complaints of pain and disability were numerous and included difficulties sitting or standing due to constant and unbearable pain and excruciating pain if he used his arm. In February 2005 Associate Professor Jones described^v the plaintiff’s presentation in the following terms:

He struggled into the office with a sad and grimacing facial expression, apparently holding his left arm by his side grasping the right side of his torso.

The plaintiff walked with a limp. He told Associate Professor Jones that he always walked in that fashion and that he always held his left arm to his side.

19 In April 2005 the plaintiff complained to Dr Pacey^vi of significant left sided neck pain radiating out of the left trapezius area.

20 On 27 April 2005, three days prior to the recordings made on 30 April 2005, the plaintiff was examined by Dr Mackie for the Motor Accidents Authority. She reported^vii very significant pain behaviours that appeared to increase during the examination. Her description of the plaintiff’s presentation included the following:

He was often tearful during the interview and displayed sighing and moaning throughout the examination. He adopted a highly protective posture throughout the interview and examination, holding his left arm close to his body at all times except when specifically requested to move the arm.

…

Examination of the neck revealed marked restriction of movement, greater on the left than the right, but evident in all directions. He had quite marked muscle guarding on the left, but no palpable muscle spasming on movement.

…

Examination of the shoulders revealed bilateral restricted shoulder movement, more significant on the left. Active range of right shoulder was significantly worse when movement was performed bilaterally compared to singly and with encouragement he reached near a full range with minor restriction. There was marked restriction of active movement in the left shoulder.

21 Dr Edwards assessed the plaintiff for the Motor Accidents Authority on 3 May 2005, a few days after surveillance material was recorded on 30 April 2005. He diagnosed^viii Major Depression based on the plaintiff’s report of his pathetic, sad existence, lacking interests, enjoyment, motivation or energy and deriving joy only from his children.

22 The plaintiff’s presentation was reported upon by Dr Stephen in similar fashion at about the time of the recording made on 27 July 2006. In June 2006 Dr Stephen reported^ix that the plaintiff had a pained appearance throughout the examination. The plaintiff told him that his pain was no better or worse than it had been in 2003. He complained of pain in the left side of the neck, left scapula, lower thoracic, thoraco-lumbar and lumbar regions and upper left buttock. He held his arm across his body because it hurt the left side of the neck to allow it to hang down. Dr Stephen could find no objective evidence of any physical abnormality to support the plaintiff’s complaints.

23 Similarly, Professor Mattick in August 2007 reported^x that the plaintiff held his left arm constantly across his chest and abdomen, grimacing in apparent pain and that he claimed total disability because of pain in recreational activities, near total disability in family and home responsibilities, social activities, occupational potential, sexual behaviour and sleeping because of pain, with moderate disability in self care.

24 The Family Court material: On 6 June 2005 the plaintiff swore an affidavit^xi in proceedings involving the custody of his children. He accepted that he swore to the truth of the material contained in the affidavit and he maintained that the material was indeed true. The affidavit stated that the plaintiff’s four children were residing with him in a four bedroomed home at Wallsend that he shared with his brother and his brother’s partner. He stated that he provided them with nutritious meals, encouraged their participation in physical activity, in particular arranging their enrolment in a soccer club and purchased clothing and equipment for that purpose. He stated that he purchased bicycles for the children and that he used an electric scooter to travel with them on a local cycleway. He stated that he was in a satisfying relationship with a woman who had two children and that together with his own children they went camping, caravanning, to Taronga Zoo, to swimming lessons and to soccer and cycling activities. He stated that in addition to his own children he had been entrusted with the care of the children of other persons.

25 The plaintiff agreed that the affidavit painted a glowing picture of his relationship with his children and of his capacity to participate in their lives. He disagreed that the affidavit indicated that he was capable of caring for his children without assistance. This was because it made reference to his sharing his home with his brother who, although this was not explicitly stated in the affidavit, provided him with assistance in the day to day care of the children.

26 He stated in the affidavit that he used cannabis primarily for medicinal purposes to deal with pain and discomfort from the injuries suffered in the accident and that his use of the drug had recently substantially decreased. He referred to his attempted suicide in 2003 and stated that the anti-depressant medication he took following that event ceased 12 months prior to the date of the affidavit. He stated^xii: I am today in a fit and well state of mind …

27 This material was entirely inconsistent with the plaintiff’s claims concerning his psychiatric condition.

28 These claims included psychiatric injury as a result of the accident leading to a Major Depressive Disorder. He said he spent his time in a darkened room with his dog. He stated that he was constantly depressed and that his depression increased when his pain was aggravated. He also related his depression to his inability to return to paid employment and to the constant rejection of his applications for employment that increased his feeling of worthlessness. He stated that he took an anti-depressant medication continuously from the time of an attempted suicide in June 2003.

29 The plaintiff described his daily depression as a constant battle^xiii that affected him 99% of the time. The depression was worse when his pain levels increased and when incidents occurred that involved his children and emphasised the extent of his disability.

30 The MRI: Dr Ghabrial examined the plaintiff in October 2003 and August 2006. He diagnosed a number of injuries affecting the plaintiff’s cervical spine, left shoulder and lumbar spine. He suggested that the plaintiff suffered from prolapsed cervical and lumbar discs. Dr Ghabrial expressed confidence, based on his experience, that these suggested prolapses existed although x-rays and CT scans did not show them. He discounted the value of CT scans and stated that an MRI scan would certainly confirm his confident diagnoses.

31 The plaintiff was present in court when Dr Ghabrial made reference to the value of an MRI. He did not inform the court that an MRI scan was undertaken on 29 September 2008 when he consulted Dr Schwarzer, a specialist in musculo-skeletal injuries.

32 The report^xiv of the MRI was located by the defendant in subpoenaed materials. It did not report disc prolapses. It stated that the study of the plaintiff’s cervical spine was normal and that there was disc degeneration at L5/S1 without neural compromise or other abnormality.

33 For the plaintiff it was argued that there was no evidence that the plaintiff knew of the result of the MRI or of its significance at the time that Dr Ghabrial gave evidence. However, he was not recalled to give this evidence. In my view he must have known that an MRI scan was undertaken. I was left without an explanation for his failure to bring this to the attention of his counsel or the court.

Issue 1 - Findings

34 I find that there were inconsistencies between the plaintiff’s presentation to the court and to medical practitioners and the activities that the plaintiff was capable of undertaking as demonstrated in the surveillance materials.

35 I find that there were inconsistencies between the plaintiff’s evidence to the court and that contained in the affidavit sworn under oath for the purposes of the Family Court proceedings.

36 In the absence of evidence from the plaintiff, I was not satisfied that he was unaware of the result of the MRI scan. I find that he attempted to conceal that result because it did not support his claims of spinal injuries.

37 I find that the plaintiff was not a witness whose evidence could be relied upon unless independently and objectively supported.

ISSUE 2 – The defendant’s negligence

38 The plaintiff said he was driving to work when he drove north on Silsoe Street at about 7.45 am towards the intersection with Maitland Road. He said he was travelling at about 50 kmh and that the traffic control light facing in his direction was green when he entered the intersection. As he entered the intersection the light turned to orange. He was part way into the intersection when the defendant’s vehicle drove in front of him. He applied his brakes but was unable to stop and the car he was driving collided with the driver’s side door of the defendant’s vehicle.

39 The defendant said he was driving east on Maitland Road in a utility used in the course of his employment as a plasterer. He entered Maitland Road at its intersection with Fawcett Street. As he started to travel east towards the traffic light facing him at the Silsoe Street intersection was red. As he approached the intersection, the light changed to green and he proceeded into the intersection. He estimated his speed to be 45 kmh. The plaintiff’s car collided with the driver’s side of his vehicle. He saw the car in his peripheral vision when it was about two metres from the point of collision. Mr Lewis a passenger in the defendant’s vehicle at the time of the collision supported the defendant’s version of the circumstances of the accident.

40 The plaintiff and the defendant agreed that the configuration of the intersection was such that they each had limited opportunity to see the other’s vehicle as it approached the traffic lights.

41 The plaintiff argued that the defendant’s version of the circumstances of the accident should be rejected as implausible and containing multiple significant inconsistencies. It was claimed that the evidence indicated that it was probable that the defendant misjudged the timing of the change in the sequence of the lights from green to red and that he was driving at such speed that he was forced to elect between two alternatives: to continue to drive in the kerbside lane and run into the rear of a van waiting at the red traffic light or to swerve around it and take his chances with the traffic light. The defendant’s motive for denying that he drove through a red light was said to be to avoid conviction on a serious driving charge and the potential loss of his driving licence that was required for his continued employment.

42 The inconsistencies pointed to by the plaintiff related to the speed at which the defendant drove the utility; the point at which the lights were said to have changed from red to green; whether and, if so, when the van waiting at the traffic light started to move; and the terms of conversations alleged between the defendant and plaintiff after the accident.

43 Speed: The plaintiff said that the defendant was driving fast when the collision occurred. The defendant’s evidence was that he turned the corner into Maitland Road at a speed of about 10 kmh. Mr Lewis’ estimate of speed at this point was about 20 kmh. Whatever the speed might have been at this point, it was relatively slow and in my view not significant to the outcome.

44 The defendant said that on entering Maitland Road he accelerated to a speed of between 25 – 35 kmh as he approached the stationary van. Contrary to the plaintiff’s submission that the defendant did not slow down, the defendant repeated a number of times his evidence that he applied his brakes and was slowing his speed but that he increased his speed again when he changed lanes. Mr Lewis said the defendant increased the speed of the utility as he approached the intersection. At the time of the collision the speed was estimated by the defendant to be 45 kmh and by Mr Lewis to be 40 kmh.

45 The change in the lights: The defendant repeated a number of times his evidence that he changed lanes when the traffic control light facing him turned to green. He denied that he drove through a red light. Mr Lewis said on a number of occasions that the light changed to green before the defendant changed lanes. At one point his evidence was:

We overtook that van when the lights changed. When the lights changed, he was stationary like that. He moved off and we went around him like that. ^xv

Mr Lewis subsequently stated that the light changed to green as the lane change was made and that it was red to that point.

46 When the van started to move: The van that was waiting at the traffic lights did not stop after the accident. It was apparently able to drive around the cars after they collided and continue east on Maitland Road. This was claimed to be inconsistent with the evidence of the defendant and Mr Lewis that the van started to move as the defendant drove around it because, it was argued, if moving at that point, it would not have been able to avoid colliding with the vehicles involved in the collision. It was also said to be inconsistent with the plaintiff’s evidence, upon which he was not challenged, that he saw two cars stationary at the lights in the west bound lanes of Maitland Road and the van stationary in the east bound kerbside lane of Maitland Road when he drove through the intersection.

47 The post accident conversations: The plaintiff said that after the accident the defendant asked him if the light was red to which he responded: Yeah mate. You went through a red light.^xvi The defendant’s version of the conversation was that he said to the plaintiff: Mine was not red^xvii and that the plaintiff said that: his light was yellow and that he was running late for work.^xviii Mr Lewis heard the plaintiff say that he was late for work and: This is my brother’s car.^xix Aspects of this conversation were put to the plaintiff, although he was not asked whether he said the light was yellow. He denied that he was late for work. He agreed that the car did not belong to him but to his brother’s wife. The plaintiff stated that after the accident he overheard a conversation between the defendant and Mr Lewis in which they discussed stating that the defendant proceeded with a green light, that it was the word of two of them against the plaintiff and that there were no witnesses. There was no challenge to this part of the plaintiff’s evidence and no evidence to counter it was taken from the defendant or Mr Lewis.

Issue 2 - Findings

48 I regret that I did not see things in the way suggested for the plaintiff.

49 The defendant was driving a four-cylinder four-wheel drive builder’s utility that was carrying tools, equipment and materials. It was not a high-speed vehicle. The speed of the vehicle was modest even at the time of impact. It had increased from 10 to 20 kmh to 40 to 45 kmh over a distance of 60 to 100 metres.

50 The defendant said he slowed the utility as he approached the rear of the van and accelerated again after he moved around the van when the light changed to green. Mr Lewis said nothing of this slowing of the utility but he agreed that the defendant increased his speed when the light turned to green. This evidence suggested that at the time he was approaching the rear of the van the defendant was driving at a speed less than 40 kmh.

51 There was no evidence that at this speed the defendant would be unable to avoid colliding with the van. There was no evidence that he could not stop the utility before reaching the traffic light.

52 The van and the cars travelling west on Maitland Road were stopped at the traffic lights when the light was red. When the traffic lights changed, it was necessary for them to start moving from a stationary position. The plaintiff and the defendant agreed that none of those vehicles was to be seen after the accident, indicating that they moved from their stationary positions at or about the time of the accident. Further, from their positions the drivers of those vehicles were able to see the plaintiff as he went through the intersection. The capacity of the driver of the van to avoid the collision indicated that it moved from its stationary position at a sufficiently slow speed to avoid becoming caught up with the colliding vehicles.

53 Whether the light changed to green before or at the time the defendant changed lanes was of little consequence. Both the defendant and Mr Lewis insisted that the traffic light was green by the time the move was made and before the defendant drove into the intersection.

54 The alleged conversations were directly conflicting and were therefore of little assistance in determining the cause of the collision. It was noted, however, that the car driven by the plaintiff did not belong to him but to his sister-in-law and that the plaintiff, although he denied that he was running late for work, had 15 minutes remaining in which to pick up a colleague from a nearby side street and drive into the centre of Newcastle on busy Maitland Road in order to commence work at 8 am.

55 There was no evidence to suggest that the defendant had a poor driving record, that he engaged in risk taking behaviour while driving or that his licence would have been under threat if convicted of an offence as a result of this accident.

56 It was necessary that the plaintiff persuade me that I should prefer his evidence concerning the circumstances of the accident and the post accident conversations.

57 The result was that I was left with little reason to reject the evidence of the defendant and Mr Lewis. Having regard to my findings regarding the plaintiff’s credit, I was not persuaded to prefer his evidence to that of the defendant.

58 I find that the plaintiff did not establish that the accident was the result of negligence on the part of the defendant. The result is that there will be a verdict for the defendant.

ISSUE 3 – Contributory Negligence

59 In the light of my findings that the plaintiff did not establish that the defendant was negligent, it was not necessary to deal with this issue.

ISSUE 4 – The plaintiff’s injuries and disabilities

60 I proceed to deal with this issue and to provide my assessment of the plaintiff’s damages in the event that this matter proceeds further. The Medical Assessment Service of the Motor Accidents Authority assessed the plaintiff’s whole person impairment at less than 10%. The task of assessing his damages was therefore limited to loss of income earning capacity and out of pocket expenses, past and future. The plaintiff claimed that he was permanently unemployable as a result of his injuries and that he required significant allowances for past and future medical expenses.

The plaintiff’s physical injuries

61 Many of the medical experts reported that they could identify no physical basis for the plaintiff’s complaints of continuing significant pain and disability.

62 Dr Pacey treated the plaintiff from May 2003 until about mid-2005. It was apparent from her reports that she initially treated the plaintiff for a whiplash injury to his neck and that she reassured him from the outset that he would recover fully. On 12 June 2003, four days before his suicide attempt, Dr Pacey reported^xx that he was physically improved and that his psychological outlook was more positive. She noted the set back in his condition as a result of a suicide attempt on 16 June 2003 and pressed for funding for pain management expressing concerns that without it the plaintiff was at risk of developing long term disability. Dr Pacey provided further reports in 2004 indicating that the plaintiff’s condition varied from improvement and greater mobility to complaints of significant pain, distress and difficulty coping. In June 2005 she reported^xxi that notwithstanding the plaintiff’s continuing complaints it was her opinion, at that time, that the plaintiff was not suffering from a physical condition attributable to the accident. She considered that the plaintiff was fit to return to work and she recommended that he gradually return to fulltime employment over a two to three month period. Pointing out that she was not qualified in psychiatry, Dr Pacey suggested the plaintiff’s significant pain and disability following a relatively minor injury was related to a stress response to the accident and other current psychosocial stressors that included his reasonably heavy cannabis use and the breakdown of his marriage.

63 Dr Beiers in June 2006^xxii reported her opinion that the plaintiff suffered a significant soft tissue injury that progressed to a chronic pain state, complicated by a significant depressive illness. She considered that it was unlikely that he would ever be pain free. Dr Newton-John also expressed the opinion^xxiii that the plaintiff suffered from chronic pain and stated that the plaintiff was aware that he would have to live with this condition for the rest of his life.

64 The plaintiff relied on the evidence of Dr Ghabrial and Dr Trevitt to press his claim of significant physical injury.

65 Dr Ghabrial reported^xxiv in October 2003 that the plaintiff had marked restriction in the range of movement of his neck in all directions, tenderness and marked spasm and weakness in the left arm. He noted that the plaintiff walked with a list and limp and that there was tenderness over his spine, marked at L3 – S1. Dr Ghabrial diagnosed a severe soft tissue injury with instability at C2/3 and C3/4. He suggested the possibility of a cervical disc prolapse. He diagnosed a severe soft tissue injury to the left shoulder with secondary impingement and marked limitation consistent with post traumatic adhesive capsulitis. He suggested a possible lower lumbar disc prolapse. After examining the plaintiff again in August 2006, Dr Ghabrial again reported^xxv on restricted movement of the plaintiff’s neck and shoulder. He diagnosis was unchanged.

66 Having examined the MRI scan undertaken in September 2008, Dr Ghabrial acknowledged that his confident diagnosis of prolapse in the cervical spine was not confirmed. In the circumstances he stated^xxvi the most likely diagnosis was of severe soft tissue injury leading to the instability at the C2/3 and C3/4 segments that was indicated on the original x-rays taken in May 2003. He noted that the MRI reported a disc bulge at L5/S1 and lumbo-sacral disc degeneration. He considered that these findings confirmed his diagnosis of disc injury at this level and that degeneration occurred as a result of this injury.

67 Dr Trevitt examined the plaintiff at the request of the defendant in February 2005 and April 2006. His reports^xxvii were not relied upon by the defendant.

68 In February 2005 Dr Trevitt accepted that the plaintiff’s history was consistent with soft tissue injury to the plaintiff’s neck and low back and he described the manner in which the plaintiff behaved during the course of examination that included slow body movements, apparent severe pain indicated by gasps, grunting and signs with all movement.

69 In April 2006 Dr Trevitt noted considerable improvement in the plaintiff’s condition but that he continued to complain of constant pain in the left side of his neck and left shoulder and constant lumbar pain. He noted an increased capacity for movement in the plaintiff’s left arm, although he continued to hold his left arm across his body when inactive. His opinion was that there was evidence of a significant soft tissue injury to the neck and he accepted that the plaintiff’s symptoms of pain were related to soft tissue injuries.

70 Dr Mackie examined the plaintiff for the Motor Accidents Authority in April 2005. She reported^xxviii a whiplash injury and soft tissue injury to the plaintiff’s back with the consequent development of a pain disorder. She noted clinical signs that were inconsistent with traumatic capsulitis or rotator cuff trauma.

71 Aside from Dr Trevitt, the medical experts who examined the plaintiff on behalf of the defendant or the plaintiff’s workers compensation insurer expressed the view that his complaints were out of proportion to the injuries suffered in the accident and that they were not organically based. Those experts included Professor Ehrlich who in June 2006 reported^xxix that he found no clear evidence that the plaintiff sustained an injury that had ongoing ill-effects. Associate Professor Jones examined the plaintiff on a number of occasions between February 2005 and February 2007 and reported^xxx that there was no organic impairment in the plaintiff’s condition.

72 Dr Kafataris examined the plaintiff in July 2005 and March and June 2006. He noted^xxxi a disparity between the likely forces involved in the accident and the level of disability and psychosocial stress with which the plaintiff presented. In 2006 he twice discussed the plaintiff’s condition with his general practitioner, Dr Kinsella, from whom he took a history of a reduction in pain medication so that by June 2006 the plaintiff was receiving treatment only by way of analgesics in significantly reduced quantities.

73 Dr Oakeshott examined the plaintiff in April 2004, February 2005 and January 2007. His reports^xxxii referred to symptoms that were out of proportion to any objective clinical or radiological finding. He considered the symptom magnification to be such that the plaintiff would be unable to drive a car if his neck movements were restricted to the extent claimed on formal examination. He said the plaintiff was completely recovered from any physical injury.

74 Dr Oakeshott disagreed^xxxiii with Dr Ghabrial that the forward flexion of the C2/3 and C3/4 vertebrae shown in x-ray of the plaintiff’s cervical spine taken in May 2003 represented an injury or significant abnormality. He said this was confirmed in the MRI scan of September 2008. Similarly, he rejected Dr Ghabrial’s opinion that the MRI scan of the lumbar spine provided evidence of a disc protrusion. He accepted that the scan indicated lumbo-sacral disc degeneration with diffuse posterior annular bulging without evidence of neural compromise. Such findings, he said, could be found asymptomatically in 60% to 70% of the population and they were not injury related.

75 Dr Stephen in June 2006 reported^xxxiv similarly that, although the plaintiff might have sustained soft tissue injuries to his neck and trunk, there was no evidence of any physical abnormality to support his complaints. He considered the plaintiff to be fully fit for his pre-accident occupation.

The plaintiff’s mental health

76 A similar divergence of views emerged from the medical evidence concerning the plaintiff’s claimed psychiatric injuries. In addition to his claimed of psychiatric injury, the plaintiff blamed the accident for the breakdown in his mental health to the point where he attempted to commit suicide in June 2003 and he blamed it for his use of cannabis in increasing quantities from the time of the accident.

The suicide attempt

77 On 16 June 2003 the plaintiff attempted suicide by hanging. He said this attempt was prompted by the failure of his attempt to return to work that left him feeling shattered and frustrated. His estranged wife was at his home at the time of this suicide attempt and prevented the attempt from succeeding. The plaintiff was taken by ambulance to John Hunter Hospital and from there to James Fletcher Hospital. He was treated by Dr Sandu-Singh, psychiatrist, and referred to a counsellor with Lifeline whom he consulted weekly for a lengthy period. He was prescribed anti-depressant medication that he continued to take until some time in 2004.

78 Dr Pacey referred the plaintiff to Dr Bull for relaxation therapy. He agreed that this was of some assistance. Dr Pacey also referred the plaintiff to Dr Bhandari, psychiatrist. He consulted him on one occasion only.

79 The plaintiff was tested in cross examination about other factors in his life that prompted his suicide attempt. They included a business venture that failed in 1998, the gaoling of a friend for the cultivation of marihuana in which the plaintiff was also involved, the diagnosis of his sister-in-law’s terminal illness, and the breakdown of his relationship with his wife.

80 The plaintiff and his wife separated in August 2002 and it was apparent from the evidence that the conflict between them was continuing at the time of the suicide attempt. He said that Dr Bull was wrong when he recorded that the plaintiff told him on 5 June 2003 that he attempted suicide three months earlier. He denied that on 17 June 2003 he told a hospital doctor that he had recurrent fleeting suicidal ideas from the time of the separation from his wife. He did not remember telling a doctor that his attempted suicide was the result of his wife’s actions. He denied that he told Dr Bhandari in July 2004 that he had been depressed the whole time following their separation.

81 The plaintiff agreed that on 16 June 2003 he remained hopeful that with counselling he would reconcile with his wife. On 16 June 2003 she came to his house to remove her belongings and they argued. He agreed that this would have distressed him although he could not remember his feelings at that time. He agreed that he was aware that his wife was in the house at the time that he attempted to hang himself.

82 The plaintiff was shown an undated suicide note^xxxv, said to have been written before this attempt. He did not remember writing the note. It was addressed to his children and stated that his decision to suicide was my choice, and one that was made a year ago.

The plaintiff’s use of cannabis

83 Virtually all of the medical experts referred to the plaintiff’s use of cannabis as a feature that was complicating his condition.

84 The plaintiff acknowledged that his addiction to cannabis was long standing and preceded the accident. His addiction lead to drug related convictions in 1990 and 1997. The plaintiff stated that his use of cannabis increased after the accident. He claimed that it helped him to relax and eased his pain. He estimated that his use since the accident increased to 7 grams per week. He either did not remember or he denied the varying levels of use that a number of doctors recorded he reported to them. Those levels varied between 3 to 15 cones per day prior to the accident and 20 to 40 per day since the accident.

85 Although he accepted that there was medical opinion suggesting that cannabis caused lethargy, lack of motivation and depression, the plaintiff denied that it was the cause of his symptoms.

86 He attended Lorna House, a drug and alcohol rehabilitation centre at the Mater Hospital in Newcastle, three or four times in an effort to reduce his reliance on cannabis. He stated that by the date of the hearing he had not succeeded in reducing his intake of the drug but that he intended to continue with rehabilitation in an effort to do so. He was hopeful that successful treatment would enhance his prospects of securing employment.

87 Dr Phillips agreed that fatigue was a criterion for the diagnosis of Major Depressive Disorder and that a side of effect of the consumption of cannabis was lethargy, fatigue and loss of energy. Dr Maguire offered the opinion that, if the addiction to cannabis were overcome, the plaintiff might not be symptom free but he would function at higher levels in all areas.

The nature of the plaintiff’s psychiatric illness

88 Dr Bull appeared to be the only medical practitioner who treated the plaintiff’s psychological condition for any significant period of time. Both Dr Bull and Dr Pacey, shortly before the suicide attempt in June 2003, were optimistic concerning the plaintiff’s prospects of recovery with appropriate treatment. Dr Bull reported^xxxvi on the varying state of the plaintiff’s mental health, noting, in early 2006 that the plaintiff showed improvement both psychologically and in the extent to which he used his left shoulder, in spite of complaints of pain. His diagnosis was of anxiety and depression as a result of marital problems and pain in respect of which he was suffering from an Adjustment Disorder. The last of Dr Bull’s reports^xxxvii was dated October 2006. It noted that the plaintiff had resumed anti-depressant medication after becoming upset by matters surrounding his accommodation arrangements and receipt of a report from a psychologist retained by the defendant suggesting that there was nothing wrong with him.

89 Other practitioners consulted by the plaintiff were Ms Hill^xxxviii, psychologist, who in June 2004 reported that the plaintiff was highly emotionally stressed but that by May 2005 he was more settled, in a satisfying relationship and managing the care of his children.

90 Dr Beiers in April 2006 reported^xxxix on the plaintiff’s far improved mood and his return to some activities as well as his involvement with a new partner. Dr Newton-John reported^xl in January 2006 on the plaintiff’s reduced reliance on pain medication and his more active and social lifestyle that included riding a jet ski and a short motorcycle ride. He reported that the plaintiff’ continued to make good progress into 2007 with a set back in March 2007 when he threatened suicide.

91 Dr Bhandari examined the plaintiff on one occasion only in August 2004. He reported^xli that the plaintiff developed a depressed condition after his wife decided to end their relationship in August 2002 and that this condition deteriorated after the plaintiff became unemployed following the accident. He reported that the plaintiff told him that he felt brighter on occasions, had regained the weight he lost after the accident and hoped the worst was over. The plaintiff was ambivalent about engaging in psychiatric treatment and was unsure why he had been referred for evaluation. He was also unable to pay for private treatment. Dr Bhandari diagnosed an Adjustment Disorder and suggested that a diagnosis of Major Depressive Episode be considered.

92 Dr Edwards reported^xlii in May 2005 to the Motor Accidents Authority that the plaintiff suffered from Major Depression and that he lived a pathetic, sad existence with no interests, no enjoyment or motivation and only limited joy derived from his children.

93 In contrast Dr Samuels reported^xliii in September 2006 to the Motor Accidents Authority that surveillance material that he viewed indicated that the plaintiff’s body movements were freer and his level of social activity was greater than claimed. He concluded that the plaintiff suffered no psychiatric injury as a result of the accident. He stated that the plaintiff displayed some features of an Adjustment Disorder with Depressed Mood and Chronic Pain Disorder with associated psychological factors but these were related to other background factors that pre-dated the accident such as his matrimonial problems and cannabis abuse. Dr Samuels suggested these factors increased the plaintiff’s vulnerability to psychiatric problems and made it difficult to attribute his presentation solely to a relatively minor motor vehicle accident.

94 A Review Panel was convened by the Motor Accidents Authority in attempt to determine which of these views should be accepted. Drs Lewin, Parmegiani and Apler comprised the panel. They reported^xliv in March 2007 their diagnosis of a partially treated Adjustment Disorder that was related to the accident. They noted that some of the plaintiff’s psychiatric symptoms, such sedation, lethargy, reduced interest and emotional lability including tearfulness, could be explained on the basis of his daily use of cannabis but they were not satisfied that this explained the entirety of his clinical presentation. Some of the symptoms, they concluded, could reasonably be explained on the basis of an underlying organic condition.

95 The plaintiff relied upon Dr Phillips, psychiatrist, for support for the proposition that the plaintiff’s apparently unsupported levels of pain were the result of a psychiatric injury suffered in the accident.

96 The plaintiff also relied on Dr Trevitt’s conclusion reached in February 2005 that there was little positive evidence of orthopaedic complaint but, on the basis that the plaintiff presented as a person with gross and extreme emotional decompensation, he was suffering from a chronic pain syndrome. Dr Trevitt defined this condition as one in which there was ongoing pain without known organic cause. However, in April 2006 Dr Trevitt described the plaintiff’s general demeanour as very much improved and he declined to comment on his psychological or emotional state.

97 Dr Phillips examined the plaintiff in November 2006. He diagnosed^xlv Major Depressive Disorder and Pain Disorder. In arriving at these diagnoses, he accepted that medical opinion in the documents provided to him indicated that the level of physical symptoms of which the plaintiff complained was not adequately explained. He also accepted the plaintiff’s report of an evolving psychological condition from the time of the accident and stated that they represented a full hand of depression symptoms.

98 Dr Phillips suggested the plaintiff’s condition was the result of a high level psychological shock experienced by the plaintiff at the time of the accident and that this shock had not been recognised by other medical experts as a separate and discrete injury. Dr Phillips acknowledged the probability that the plaintiff had some pre-existing milder depressive symptoms in the context of the breakdown of his marriage that sensitised him to a severe psychological shock reaction to the accident. This, Dr Phillips said, was the predominant cause of the Major Depressive Disorder. Further, in Dr Phillip’s opinion, the Major Depressive Disorder lowered the threshold at which the plaintiff perceived pain with the result that he developed a secondary Pain Disorder. His opinion was that these two interlocking disorders explained virtually entirely his ongoing level of invalidism.

99 Dr Phillips was able to expand and explain his opinions when he gave evidence to the court. He explained the process of somatisation as the conversion of psychological tension into physical symptoms in a fashion that is beyond conscious awareness. The pathway to a pain disorder, he said, was diagnosable and provable physical problems leading to ongoing pain, discomfort and difficulties for life. The disorder was genuine and arose out of a preoccupation or focus on pain.

100 There were significant difficulties with Dr Phillips’ opinions. He was unaware a number of features of the evidence concerning the plaintiff’s condition. His description of the plaintiff’s presentation contrasted starkly with the plaintiff’s appearance in the surveillance materials. The plaintiff presented to Dr Phillips as despondent, distant and flat so that it was difficult to establish a rapport. He was focussed on his symptoms so that he presented as a person in pain, with his arm held across his lower chest. He became uncomfortable and stood several times during the consultation to relieve physical discomfort. Dr Phillips understood from what he was told by the plaintiff that he was suffering from a physical condition brought about by a shift in his cervical vertebrae sufficient to induce pain and a collapse of the C5 vertebra.

101 Dr Phillips understood that the plaintiff’s depressive symptoms existed in a continuous state from the time of the accident, although with variations in the intensity of his symptoms. He was provided with no information that suggested, as did the evidence before the court, the existence of symptoms prior to the accident and the abatement of symptoms for a significant period after the accident.

102 Dr Phillips was apparently unaware that, although the plaintiff denied it, Dr Bull recorded that he told him that he threatened suicide in March 2003, one month prior to the accident. This was in reaction to the breakdown of his marriage. The problems generated by this event in his life continued after the accident and the conflict between the plaintiff and his wife escalated to the point where his continued breaches of apprehended violence orders resulted in a period of imprisonment.

103 Dr Phillips agreed that there was clear inconsistency between the material contained in the Family Court affidavit and the material with which he was provided. He was not told about the more active and social lifestyle reported by Dr Newton-John in January 2006. He said this was also inconsistent with information provided by the plaintiff.

104 Dr Phillips was not correct in suggesting that other medical practitioners had not addressed the question of whether the plaintiff suffered psychological shock as a result of the accident. Dr Maguire considered it but noted that there was nothing in the history to suggest post traumatic stress disorder or other similar disorder from any psychological shock that the plaintiff might have suffered at the time of the accident. On inquiry by Professor Mattick, the plaintiff denied symptoms of post traumatic stress disorder.

105 It was argued for the plaintiff that Dr Phillips’ diagnosis of Major Depressive Disorder was consistent with those of Dr Sandhu-Singh, who treated the plaintiff after the suicide attempt and of Dr Bhandari. Neither of these psychiatrists proposed a diagnosis of Major Depressive Disorder. The term used by Dr Sandhu-Singh was depressive episode and, by Dr Bhandari, Major Depressive Episode. The only other psychiatrist who diagnosed Major Depressive Disorder was Dr Edwards to whom the plaintiff presented on 3 May 2005 as pathetic, sad and with no interests, motivation or joy. This presentation was entirely inconsistent with the plaintiff’s appearance on the surveillance material recorded only a few days earlier.

Issue 4 – Findings

106 I have already referred to the evidence that indicated that the plaintiff overstated his condition and that he was dishonest in his presentation to the court and to medical practitioners. This made it particularly difficult to undertake the task of determining the true extent of his injuries and disabilities.

Physical Injuries

107 The MRI resolved the question of whether there was a prolapsed disc in the cervical spine, leaving for determination the question of whether I accepted the diagnoses made by Dr Ghabrial of severe soft tissue injuries in the neck and shoulder, post traumatic adhesive capsulitis and traumatic injury leading to disc degeneration in the sacro-lumbar area.

108 The diagnosis of post traumatic adhesive capsulitis of the left shoulder was rejected. Dr Ghabrial explained that this condition was the result of adhesion of tissue in the shoulder region so that it was not possible to move it. He said it was a condition that normally improved with time but which, if not resolved within 18 to 24 months, required active treatment with manipulation under anaesthetic.

109 None of the many other medical practitioners consulted by the plaintiff diagnosed this condition. Dr Pacey, a respected rehabilitation practitioner, did not refer to it. No practitioner recommended the treatment suggested by Dr Ghabrial. Dr Mackie specifically rejected the diagnosis because of inconsistent clinical signs. Surveillance material disclosed that the plaintiff was able to move his left shoulder to a considerable greater degree than demonstrated to Dr Ghabrial.

110 I accepted that the evidence supported a diagnosis of soft tissue injury to the cervical spine and that the surveillance material indicated that the plaintiff continued with some guarding in the positioning of his left arm. I was not persuaded that this injury and subsequent disability was of the severity diagnosed by Dr Ghabrial. Dr Pacey described the injury as relatively minor and expected a full recovery. A number of medical experts concluded that the plaintiff was fully recovered.

111 I preferred the opinions of Dr Oakeshott in relation to the lumbar spine. There was no independent evidence that the plaintiff complained of significant back pain at the time of treatment by Dr Pacey. Treatment at that time was concentrated on the plaintiff’s neck and shoulder pain. I therefore was not persuaded that the plaintiff suffered traumatic injury to the Lumbar Spine that resulted in the development of degeneration as shown in the MRI scan.

112 I rejected as contrived and exaggerated the plaintiff’s evidence of continuing severe physical symptoms. I find that he was substantially recovered at the latest by the end of 2006.

Mental Health

113 There were clearly a number of factors involved in the suicide attempt, the most significant of which was the conflict arising from the breakdown of the plaintiff’s marriage. I was satisfied that the plaintiff at the time of this attempt was suffering pain as a result of soft tissue injuries suffered in the accident. It was not possible therefore to exclude the probability that, added to the plaintiff’s already disturbed psychological condition, it was a factor that contributed to his decision to attempt to take his life. This finding was of little consequence to the assessment of his damages.

114 I find that the plaintiff’s addiction to cannabis preceded the accident and that it continued after the accident. Dr Maguire accepted that it was reasonable for a person to use cannabis for relaxation and pain relief. However, I find that in this case the use was to meet a pre-existing addiction rather than a need generated by the consequences of the plaintiff’s injuries. I therefore rejected the claim that the plaintiff’s increased reliance on cannabis was a consequence of the accident.

115 For reasons already noted, I rejected the diagnoses put forward by Dr Phillips. I accepted that it was reasonable and probable, as suggested by Dr Phillips, that at the time of the accident the plaintiff’s matrimonial situation lead to his suffering from a pre-accident psychological condition that rendered him vulnerable to an exacerbation of his symptoms.

116 After the matrimonial conflict was resolved, the evidence of the surveillance materials, the Family Court affidavit, the plaintiff’s presentation to Ms Hill, Dr Vickery, Dr Bull and Dr Maguire in 2005 indicated that his psychological symptoms settled. Dr Beiers and Dr Newton-John also reported improvements in the plaintiff’s psychological outlook in the first half of 2006. Professor Mattick in February 2006 reported a marked improvement in his mood. By June 2006, the plaintiff reported^xlvi to Dr Maguire that his emotional state was a thousand times better than the depths I was at. Dr Maguire and Dr Pacey agreed that by December 2005 the plaintiff was fit to return to work. He discontinued anti-depressant medication between 2004 and 2006. Dr Maguire considered the plaintiff’s presentation to him in June 2006 to be consistent with that demonstrated in the surveillance material recorded in April 2005.

117 I accepted the diagnosis of Adjustment Disorder put forward by a number of the experts. I find that the plaintiff substantially recovered from this disorder by the end of 2006.

118 Somatisation, conversion and pain disorders were put forward by the plaintiff as alternatives to the claim of actual physical symptoms and I was reminded that Dr Maguire agreed that he would not argue against a psychologically based pain disorder. A finding that the plaintiff suffered from any of these disorders must necessarily be based upon evidence of a genuine and continuing perception of pain that limited the plaintiff physically and psychologically to the extent that he claimed.

119 The surveillance material recorded in 2005, 2006 and 2008 indicated that the plaintiff suffered little, if any, physical incapacity and that he was capable of social interaction with adults and children in an active and apparently normal manner. These materials lead me to a finding that the plaintiff was not genuine in his complaints of high levels of perceived pain.

120 Although there was evidence that the plaintiff was affected from time to time by setbacks in his life, I rejected as contrived his evidence of continuing severe psychological symptoms.

121 The suggestion that I should be influenced by a finding in favour of the plaintiff by the Compensation Court was rejected. I did not know the nature of the evidence presented to that Court or the terms of its decision.

ISSUE 5 – Assessment

The plaintiff’s employment

122 At the time of the accident the plaintiff was employed as a warranty clerk with Regal Motors. In early June 2003 his general practitioner verified that he was fit to return to part-time work.

123 Upon his return to work his manager made an upsetting remark that questioned the injuries he claimed to have suffered. Further the plaintiff was provided with tasks that he regarded as demeaning having regard to the level of responsibility he exercised prior to the accident. He worked for four hours on Monday and Wednesday of the week of his return. On Friday he attended work but was in such pain that he was sent home.

124 This evidence was inconsistent with the record made by Dr Pacey on 12 June 2003 that the return to work had caused pain to flare up but the plaintiff coped and was happy to be back at work.

125 The plaintiff was referred to a rehabilitation provider, A W Workwise, for assistance in finding suitable employment. His experience with A W Workwise was such that he had: … nothing good to say about them^xlvii. A W Workwise organised a work trial for the plaintiff with Bunnings. The plaintiff claimed this was poorly organised, there was no prospect of a job at the end of the work trial and again he was offered work that was demeaning. He was not prepared to do … that particular work^xlviii

126 The plaintiff organised for himself an interview with another motor vehicle company, was offered a position and was ready to start but he failed the medical examination and the offer was withdrawn. Two other opportunities did not result in employment. In one case this was because the requirement was that the plaintiff work full time, which he could not do.

127 In April 2006 the plaintiff started work on an unpaid basis with a volunteer centre in Newcastle. He worked four hours a day on Monday, Wednesday and Friday of each week. He tried, but was unable to maintain, work on three consecutive days because of pain in his neck and shoulder. He held the position of personal assistant to the program manager, involving desk and computer work. It suited him because he was able to move and stretch as required. He agreed that he possessed good computer skills.

128 The plaintiff said that he coped with this work on most days but that there were many days when he was unable to work because of his condition and others when his pain levels caused him to leave early.

129 Ms Roddenby, the program manager at the Volunteer Centre, said that the plaintiff was referred to the Centre by the pain management clinic. His computer and administrative skills were such that he was allocated a position as her personal assistant. She confirmed that the plaintiff initially worked on three consecutive days and that, after he complained of increased pain, it was arranged that he would work on Monday, Wednesday and Friday of each week.

130 She described the plaintiff as … certainly not a happy man^xlix. He was at times depressed and sullen. He grimaced and appeared to be in pain the whole time. He appeared to be very restricted in his movements and unable to move his neck. His left arm was held close to his body and often supported by his right arm. There were times when he did not attend or left early because of complaints of pain. For a few months in 2007 he did not attend at all.

131 Ms Roddenby agreed that there were lighter moments at the Centre in which the plaintiff participated, that he was well respected and that he worked and fitted in well with others working there. She agreed that he possessed particular skills in administration and computer work and that he picked things up quickly. He was initially supervised but subsequently worked in an unsupervised capacity. She said he had some issues with concentration, which she associated with increased levels of pain or with his mood. These issues did not affect his ability to perform his work.

132 The plaintiff was reported as having told a number of medical experts that his condition did not affect his capacity to concentrate.

133 The plaintiff undertook another short period of employment with Alto Motors in Newcastle in September 2007, organised through another rehabilitation provider, Health and Safety Solutions. The work was of an administrative nature. The plaintiff initially said he left this position after two days, then after one day and then after one and one half weeks of working four hours for three days a week. There was no explanation for the failure of this trial to result in employment, although there was reference in the medical reports to the plaintiff’s reporting that, once more, the work was not sufficiently challenging. One is left to speculate whether this work trial was undertaken at the time in 2007 when the plaintiff did not attend at the Volunteer Centre.

134 The plaintiff claimed to have applied unsuccessfully for many positions. He received some job offers but they were for full time employment that he was unable to perform. He expressed a very strong wish to return to paid employment.

135 Medical opinion concerning the plaintiff’s income earning capacity was divided.

136 In February 2006, Ms Hill agreed with Dr Edwards that it was unlikely that the plaintiff would return to work in the foreseeable future because of his major depression in the context of chronic pain. Dr Phillips concluded that the psychological disorders that he diagnosed rendered the plaintiff unemployable on the open labour market

137 Dr Kafataris^l in June 2006 considered that there was no physical reason why the plaintiff should not work full time in a wide variety of duties. He reported that Dr Kinsella agreed that the plaintiff was capable of working 20 hours per week over five days. Dr Kafataris expected that the plaintiff would progress from this point to full time work.

Issue 5 - Findings

138 I concluded that there was no evidence that the plaintiff suffered from physical or psychological injuries to the extent that he was currently unable to resume the type of administrative work he was performing at the time of the accident. His administrative and computer skills were considered by Ms Roddenby to be of significant value to the Volunteer Centre.

139 On the basis of the report of Dr Kafataris, with whom the plaintiff’s general practitioner apparently agreed, I find that the plaintiff was capable of working for 20 hours per week by June 2006.

140 I find that the plaintiff ought reasonably to have been capable of progressing to full time employment by 1 January 2007.

141 I acknowledge that after an extended period of recovery and receipt of workers compensation benefits, the plaintiff was likely to have difficulty in securing permanent full time employment. I therefore assessed his income loss on the basis of the figures provided in the Damages Schedule as follows:

1 His full loss to 30 June 2006

2 50% of his loss to 31 December 2006

3 33% of his loss to 30 June 2007.

142 I find that from 1 July 2007 the plaintiff suffered no loss of income earning capacity as a result of the accident.

143 Superannuation benefits and the Fox v Wood component would be allowed on the loss incurred to 30 June 2007.

Out of Pocket Expenses

144 There was no evidence to support the claim for out of pocket expenses beyond the end of 2006.

ORDERS

1 Verdict and judgment for the defendant.

2 The plaintiff is to pay the defendant’s costs of the proceedings as assessed or agreed. This order is suspended for a period of 5 working days to allow either party within that period to list the matter for further argument.

3 The exhibits will be retained for 28 days.

4 My reasons are published.

________________________________________________________________________________________

Exhibit 27

Exhibit 24

Exhibit 25

Exhibit 14(a)

Exhibit 9(a)

Exhibit 21

Exhibit 12

Exhibit 7

Exhibit 19

Exhibit 14(g)

Exhibit 3

Exhibit 3, pp 52

D1.35.20

Exhibit 28

D9.8.32

D1.13.22

D8.9.41

D8.10.4

D9.6.33

Exhibit B2

Exhibit 21

Exhibit 4

Exhibit D

Exhibit V(1)

Exhibit V(3)

Exhibit V(4)

Exhibits RR(1) and RR(2)

Exhibit 12

Exhibit 8

Exhibits 9(a) – 9(f)

Exhibits 10(a) – 10(c)

Exhibits 15(a) – 15(d)

Exhibit 29

Exhibit 19

Exhibit 2

Exhibits L(1) - L(10) and 6(a) – 6(d)

Exhibit 10

Exhibits K(1) – K(4)

Exhibit G

Exhibits C(1) – C(2)

Exhibit N

Exhibit Y

Exhibit 18

Exhibit Z

Exhibits W(1) and W(2)

Exhibit 13(e)

D1.24.46

D4.31.20

D6.8.43

Exhibit 10(b)