Smith v Alone - [2016] NSWDC 265

District Court

New South Wales

Amendment notes

Medium Neutral Citation: Smith v Alone [2016] NSWDC 265
Hearing dates: 29, 30, 31 August and 2 September 2016
Date of orders: 25 October 2016
Decision date: 25 October 2016
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Judgment for the plaintiff.
(2) Liberty to the parties to bring in short minutes of order reflecting the mathematically agreed calculation of damages.
(3) Defendant pay plaintiff’s costs.
(4) Liberty to apply in relation to costs.
(5) Exhibits retained for 28 days.

Catchwords: TORT – personal injury – assessment of damages – contributory negligence agreed at 60% – past and future economic loss – whether higher than usual percentage of vicissitudes appropriate – past and future home care – no issue of principle
Legislation Cited: Civil Liability Act 2005 (NSW)
Motor Accidents Compensation Act 1999 (NSW), ss 126, 131, 141A and 141B
Cases Cited: Australia and New Zealand Banking Group Ltd v Haq [2016] NSWCA 93
Boral Bricks Pty Ltd v Cosmidis [2013] NSWCA 443
Coles Supermarkets Australia Pty Ltd v Meneghello [2013] NSWCA 264
Dang v Chea (2013) 63 MVR 240
FAI Allianz Insurance Ltd v Lang [2004] NSWCA 413
General Motors-Holden Pty Ltd v Moularas (1964) 111 CLR 234; [1965] ALR 646
Hill v Forrester (2010) 79 NSWLR 470
King v Western Sydney Local Health Network [2011] NSWSC 1025
Kwong v Abdulwahab [2016] NSWCA 107
Mahony v Watson [2003] NSWCA 259
Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Mead v Kearney [2012] NSWCA 215
Metaxoulis v McDonald's Australia Ltd [2015] NSWCA 95
Mitchell v Cullingral Pty Ltd [2012] NSWCA 389
Nominal Defendant v Livaja [2011] NSWCA 121
Patrech v State of New South Wales [2009] NSWCA 118
Purkess v Crittenden (1965) 114 CLR 164
Ridolfi v Hammond [2012] NSWCA 3
Schultz v McCormack [2015] NSWCA 330
State of New South Wales v Maxwell [2007] NSWCA 53
Taupau v HVAC Constructions (Qld) Pty Ltd [2012] NSWCA 293
The Nominal Defendant v Kostic [2007] NSWCA 14
Vosebe Pty Ltd v Bakavgas; Vosebe Pty Ltd v Vapore [2009] NSWCA 117
Watts v Rake (1960) 108 CLR 158
Woolage v NSW [2001] NSWCA 256
Wynn v New South Wales Insurance Ministerial Corporation (NSW Court of Appeal, 11 August 1994)
Texts Cited: Graycar R, “Damaged Awards: The Vicissitudes of Life as a Woman” (1995) 3 TLJ 160
Category: Principal judgment
Parties: Plaintiff: Jeffrey Warren Smith
Defendant: Sales Kupu Alone
Representation:
Counsel:
Plaintiff: Mr S McCarthy
Defendant: Mr R O’Keefe
Solicitors:
Plaintiff: AC Lawyers
Defendant: Moray & Agnew

File Number(s): 2014/24132
Publication restriction: None

Judgment

Introduction

The plaintiff, Mr Jeffrey Warren Smith, brings proceedings for damages for personal injury when he was struck by the defendant’s motor vehicle on 17 November 2011.
Liability has been admitted and contributory negligence by the plaintiff (who was affected by alcohol at the time of the accident) agreed at 60%. The remaining issue is the assessment of damages. The following should be noted:

The plaintiff is not entitled to damages for non-economic loss (s 131 Motor Accidents Compensation Act 1999 (NSW) (“the Act”)) as the extent of his injuries has not been assessed as sufficient to pass the threshold.

Past out of pocket expenses are agreed in the sum of $29,323.75.

As to past and future economic loss, the defendant concedes that the plaintiff is permanently unfit for work as an installer of air-conditioning and ducting, and for other heavy manual labour of the kind that he performed prior to the accident.

The factual issues to be resolved

The parties were not able to agree as to the issues for determination, so I will set out what their differing views are.
The plaintiff’s statement of issues identified eleven issues as follows:

With respect to past economic loss, has the plaintiff been totally incapacitated since the date of accident to the date of trial and, if not, to what extent did he retain earning capacity?

Given almost five years have elapsed since the accident, what weekly net wage figure should be the measure of the plaintiffs past loss?

As to future economic loss, given the plaintiffs injuries, both physical and psychiatric, and given his education and training, is the plaintiff totally incapacitated for all forms of work in the future?

If the answer to 3 above is no, what percentage of earning capacity has the plaintiff retained?

Given that almost five years have elapsed between the accident and trial and given the vagaries of the future, what weekly wage figure should the Court adopt as a yardstick for the plaintiffs future loss?

Does the plaintiff exceed the threshold pursuant to s 141B Motor Accidents Compensation Act 1999 (NSW)?

If the answer to 6 above is yes, how many hours of gratuitous domestic assistance has the plaintiff needed and received since the accident and as a consequence of the accident?

Is the plaintiff entitled to an award with respect to future commercial care?

If the answer to 8 above is yes:

How many hours per week should be awarded to the plaintiff?

What hourly rate should the Court apply?

Over what period should the award apply?

Is the plaintiff entitled to an award to represent losses of future out of pocket expenses including aids and equipment?

If the answer to 10 above is yes, what amount should the Court so award?

Under the heading “Factual issues to be resolved”, the defendant set out a series of issues which I distil as follows:

The nature and extent of the plaintiff’s injuries;

Whether the plaintiff has sustained a permanent injury to his back as a consequence of altered gait;

The nature and extent of injuries to the plaintiff’s neck, ankle and left knee;

The correct approach to the rehabilitation evidence given by Dr Zeman as opposed to the orthopaedic expertise of Dr Walker, the plaintiff’s treating doctor;

The reconciliation of disparities between the evidence of the plaintiff and his sisters with contemporaneous records as to:

The plaintiff’s state of health before the accident, including problems with alcohol and a diagnosis of depression.

The plaintiff’s pre-accident and post-accident capacity for work, including his criminal record and periods of unemployment over the pre-accident period.

Whether the matters raised in (a) and (b) require a higher than usual deduction for vicissitudes.

The plaintiff’s residual work capacity and whether the motor vehicle accident has caused the plaintiff a total loss of earning capacity as claimed.

The plaintiff’s pre-accident and post-accident home care situation and whether his post-accident home care requirements exceed the threshold.

The circumstances of the plaintiff’s accident

The plaintiff and a work mate went to several hotels on the night of the accident. While the precise amount the plaintiff consumed is unknown, he was well affected by alcohol. The plaintiff’s accident occurred on the Moore-Oxley bypass at Campbelltown, after he stepped off a traffic island in the middle of the road directly into the path of the defendant’s vehicle, which was travelling in the southbound lane. He was struck with force by the defendant’s vehicle. He was conveyed to hospital by ambulance.
While the plaintiff now has very little recollection of how the accident happened, he did not disagree with the contents of the police record of interview at the hospital:

“Q. Then the question that was asked of you: "Where were you drinking that night? What were your movements for the night?" and the answer that you gave was, "My friend Billy and I left from here. I had one full strength long neck about 3pm‑ish when I came home from work. Billy and I walked to the Campbelltown RSL Club. At the RSL Club I went in and had a few beers. I had four or five schooners of full strength VB. I don't remember leaving the RSL Club and going next door, but Billy told me we then went to CCs and I had about five or six more drinks. I don't remember that, though. I didn't have any dinner that night. I don't remember after the RSL Club, though". The question was, "What do you think your level of intoxication was that night?" "I have no idea, I can't remember. I'm not sure if it's because of the accident or the alcohol". Do you remember giving those answers to the police officer?
A. Yes. I vaguely remember, but, yeah.
Q. The fact is that you had gone out and you had been drinking and consumed a substantial amount of beer on that night; do you agree?
A. Yeah.
Q. You accept that you were probably intoxicated on that night when the accident happened?
A. Yes.” ( T 89 – 90)

The plaintiff’s injuries were the subject of a series of medical complications which extended the period of his medical treatment well beyond the general parameters for recovery. This is a significant issue in relation to his claims for home care and for economic loss, but not for general damages, as assessment of the plaintiff’s non-economic loss is agreed not to pass the threshold.

The plaintiff’s evidence

The plaintiff attended high school to school certificate level and then, between 1987 and 1990, completed an apprenticeship in sheet metal working. Although this apprenticeship was mostly practical work, he also attended some college classes.
The plaintiff carried out farm work in the country town of Trangie and farms in that area between 1996 and 2005, during which time he was in a relationship with a young woman and became the father of two children. During this period, he worked on farms and heavy labouring jobs, but was not in continuous employment. His farm employment was influenced by seasonal factors as well as by the drought (T 122). His evidence was that, while he was living in the country, he supplemented his income with a second job as an air conditioner repairer but, judging by his tax returns for the latter part of this period, this kind of work appears to have been within modest financial parameters, in that there is no reference to it on his tax returns.
Although Mr McCarthy submitted that the plaintiff had “worked for most of his career in air conditioning maintenance where he has applied his skills as a sheet metal worker” and that he has been fully employed since leaving Trangie in about 2005 - 6 (written submissions, paragraph 4), this does not appear to be consistent with the plaintiff’s description of his work prior to 2005. However, the plaintiff certainly did carry out this kind of work after he moved to Sydney in about 2005 - 2006. The plaintiff said that this was very physically demanding work:

“Q. What physical role did you play in installing those units?
A. Well, we installed the whole lot, so we were in the roof, on the roof, up and down the floors.
Q. What were you actually doing? Not all of us here have had experience in installing air conditioning, so just try and paint a picture of what you were actually doing with your hands?
A. You're up, you work on the ladder ‑ like, 80% of the day you're up on the ladder, like, just installing the air conditioning and ducting the roof, the sheet metal ducting, lifting it over your head and screwing it all together and just ‑ then putting that together and cutting through your ceilings and onto the roof and ‑ yeah.
Q. How would you describe that work, in terms of it being light, medium or heavy?
A. It's very heavy work. Just our toolboxes are, like, 20 or 30 kilos just in tools you've got to cart around with you.
Q. Your tool box is 20 or 30 kilos, is it?
A. Yes.
Q. How much of the day have you got to carry that around with you?
A. All day, and a ladder.
Q. You've got to carry the ladder as well?
A. Yeah.
Q. What percentage of the day are you on your feet?
A. 100% of the day.
Q. Did you ever have any difficulties or problems from a physical point of view, doing that work?
A. No.
Q. Did you ever have any problems from an emotional point of view, doing that work?
A. No.
Q. Did you enjoy that work?
A. Yes, very much.” (T 25)

The plaintiff had been employed for about five weeks at Complete Air Conditioning at the time of the accident, after a period of unemployment of several months (since 27 June 2011).
He described his pay and work at Sea-Air as follows:

Q. What was the base wage?
A. At Sea‑Air I think it was $35 an hour.
Q. Do you remember what it was per year but, the annual wage?
A. 72,800.
Q. And on top of that was there overtime?
A. Yes.
Q. How much overtime was available?
A. As much as you wanted. I was doing most days an extra two hours every day and maybe four on Saturday, so a good ten hours a week.
Q. Was overtime paid at a higher rate?
A. Yes.
Q. What rate was overtime paid at?
A. 52.
Q. Do you know how much you were, on average, clearing in your hand every week at Sea‑Air?
A. At Sea‑Air, no. On an average, I would say 1500 ‑ 1200, 1500. “ (T 23 – 24)

In the course of describing his work history in examination in chief, the plaintiff acknowledged that, prior to the accident, he had been charged with traffic offences involving alcohol, but said that these convictions had never stopped him working:

“Q. Were you physically strong before this accident?
A. Yes.
Q. You lost your driver's licence for a while, didn't you?
A. Yes.
Q. For a period of three years. What period did that cover?
A. 2010 to 2013.
Q. When you didn't have your licence did that ever stop you working?
A. No.
Q. How did you get about?
A. On the tram.” (T 44)

The plaintiff’s claim for damages is based on a regular work history and that he enjoyed excellent health. As Mr McCarthy put his client’s position in his written submissions, while his drinking had been referred to by medical practitioners, the plaintiff’s work life was unaffected, as the plaintiff “has not so much as stubbed his toe in 25 years” as a result of any drinking or other health problem (plaintiff’s written submissions, paragraph 47).
The plaintiff in examination in chief was asked about criminal offences other than drink driving charges:

“Q. Before we move onto the Sea‑Air do you recall there being some other incidents with the law over the course of your life?
A. Sorry, can you repeat that.
Q. Do you recall any other incidents with the law involving being charged by police over the course of your life?
A. Had a cannabis possession once in the 90s. I think that's pretty much it.” (T 19)

He recalled other criminal proceedings as follows:

“Q. What other trouble have you had, if any, where the law has got involved? You told us about the drink/drives, you've told us about a possession. You've told us about the assault that you spent 14 days in gaol for in 1997. What other matters have you had where the police been involved?
A. There was another assault charge.
Q. Anything else?
A. I got a 400 hour community service order once. Can't remember what the charge was exactly for, probably the assault charge. There was a charge where I was charged with a weapon but I think that charge was dropped or downgraded on ‑ it was the weapon was as in a motor vehicle but I'm not sure, yeah. I can't remember, your Honour. It was in the early 90s, I think.” (T 20)

He also related an occasion when he had hit his brother-in-law and had been charged:

“Q. What happened?
A. We just got into an altercation one night at home. It was just the one punch thrown and I give him a black eye and, yeah, the police were called and I was charged.
Q. Were you drinking at the time?
A. Yes.
Q. All the offences you've told the Court about how many of them involved alcohol?
A. All of them.
Q. You hit your brother‑in‑law, apart from the black eye was he injured?
A. No.
Q. You two made up after that?
A. Yeah, we were mates again the next day. Just, yeah, heated argument at the time and yeah.” (T 20)

The plaintiff was put on a bond, but breached the bond on a later alcohol-related occasion, when he “threw some chips” at a taxi driver and was sentenced to three months imprisonment (T 21). This event occurred after the plaintiff’s accident.
The plaintiff acknowledged having to serve a six-month term of imprisonment in the second half of 2010. He also acknowledged having to complete a three-month term of imprisonment following the accident (for the taxi driver incident), but spent most of this time in hospital due to medical complications. He said that he had learned his lesson as to the relationship between drinking and violence-related offences from each of these occasions and was now careful about what he drank.
Counsel for the plaintiff noted in his submissions, in support of this evidence, that the plaintiff’s general practitioner’s records showed that he had cut down on his drinking shortly before the accident. The plaintiff’s evidence in response to Mr McCarthy’s questions in examination in chief were:

“Q. Before we just move on to the accident, you've told her Honour about these incidents involving all the trouble you've gotten into in your life, and you've also told her Honour that these incidents have all revolved around you consuming alcohol. Have you taken any measure to reduce the amount of alcohol you consume?
A. Yes, your Honour.
Q. What are those measures?
A. I've went to see a psychologist and got prescribed some medication to try and stop drinking.
Q. I'll stop you there. When was that?
A. I think that was in ‑ after I got released ‑ I think it was in 2012, maybe. I'm not 100% sure.” (T 22)

The plaintiff identified this general practitioner as Dr Michael. He said that he had cut down his drinking to a few drinks on the weekend and tried to have 3 to 4 alcohol-free days during the week. He told the court he had also successfully lost weight, as he had a longstanding blood pressure problem and was at risk for diabetes. Dr Michael is the general practitioner who has been prescribing Endep to him.
This brings me to a description of the plaintiff’s injury and treatment. He remembered little from this period in hospital but described in detail the lengthy period of rehabilitation. The precise nature of his ongoing problems is set out in careful detail by Dr Walker, and I have set out the relevant extracts from his reports on this topic below.
The plaintiff’s recovery from his injuries was slow and full of complications. He suffered from constant pain in the leg, and was unable to weight bear for what appears to have been a period of almost three years by reason of the initial non-union and then slow union of his distal fibula. This required the placement of a device called an “external fixateur” (sometimes spelled as “fixator” in the medical reports), which was not only painful and unsightly, but significantly hampered his ability to mobilise.
An additional complicating factor was the series of infections which prolonged the plaintiff’s treatment, in addition to the failure of his fracture to unite. Further, he had the anxiety of being told by Dr Walker (see Dr Walker’s report of 2 December 2013) that if his leg fracture did not unite, the worst case scenario would be that he might be looking at a possible amputation.
As a result, the plaintiff underwent a series of surgical procedures of a painful and frightening nature, which impaired significantly on his ability to care for himself and to return to work.
By 30 April 2015, Dr Walker was able to note that following the latest surgery the plaintiff’s fracture was healing and should continue to heal, but even that this stage the plaintiff was using a walking stick 60% of the time. Dr Walker estimated that union following the 2014 operation would take about 12 to 18 months.
The plaintiff’s evidence was that he was, and remains, on constant medication and is still effectively unable to look after himself. For the first twelve months after his accident, he lived with his sister Rebecca, and received frequent home care visits from his other sister Tammy. Rebecca, her family and Tammy effectively had to do everything for him. After he moved to his own accommodation, a home unit in Campbelltown, they continued to visit him on a regular basis and continued to have to do everything for him. He has now moved into a property which was owned by a deceased member of the family, where he lives alone, and his sisters continue to come to his home three to four times a week to do everything for him, including grocery shopping, cooking, vacuuming, cleaning and other household tasks. He feels embarrassed about this and, if he was awarded a sum which enabled him to hire commercial cleaners, he would do so.

The plaintiff described his current state of health, medication and future plans as follows:

“Q. Would you like to be working?
A. I would love to be working.
Q. Have you made any attempt to get work since the accident?
A. No. I wouldn't be able to work.
Q. Is there anything you can think of that you could do?
A. I can't do much, unless ‑ I can't hardly even get out of bed unless I'm taking OxyContin.
Q. OxyContin: first of all, how often do you take it?
A. Twice a day.
Q. And how often do you purchase it?
A. Once a fortnight.” (T 37)

In addition to the physical pain from which the plaintiff suffers, he is depressed and “down a lot” (T 37). The plaintiff described himself (and his sisters confirmed) prior to the accident as being a happy and well-adjusted person. In the words of his sister Ms Jackson, he was a “pretty happy go lucky type of guy” and a person of “good character” (T 178). However, he has suffered significant changes in temperament following the accident:

“Q. From an emotional point of view, Mr Smith, are you able to detect any changes between the sort of bloke you used to be and who you are now?
A. Yes.
Q. What's the nature of those changes?
A. I don't feel as happy and that, like, I'm down a lot. Like, this last weekend, just when me nephews played in the semi‑final football, usually I will be kicking a ball around with them and stuff, but I can't do that. That makes me a bit upset, you know, stuff like that; little stuff that I can't do anymore that I would like to do.” (T 37)

In addition, he had trouble remembering things. He needed constant reminders from his sisters and was concerned about his ability to cook for himself in such circumstances.
As to his pre-accident mental wellbeing, the plaintiff acknowledged that he had been prescribed a drug called Pristiq prior to the accident, but said that he had never filled the prescription and never taken an antidepressant drug in his life (T 24). By comparison, he is now dependent upon strong pain medication such as Endep, uses a walking stick when not at home, and is rarely pain-free.
As to homecare, the plaintiff told the court that, prior to the accident, he performed his own housework when he lived alone and that, apart from a four month period when he lived with his sister (February – July 2011), when he formed part of a household, he did all his own housework without assistance. He still “can’t do anything around his house because of pain” (plaintiff’s written submissions, paragraph 4).
The plaintiff’s lengthy and complicated recovery from his injuries is a significant issue in relation to past economic loss and past home care, and a number of admissions were made in relation to these issues on behalf of the defendant. The principal issue of contention was the degree to which these problems were now present, and whether future claims for economic loss and home care should be assessed upon the same basis.

The plaintiff’s evidence in cross-examination

The issues upon which the plaintiff were cross-examined may be summarised as follows:

Whether the plaintiff’s prior work history was as stated;

Whether the plaintiff’s criminal record (including loss of driver’s licence) was as stated;

The plaintiff’s pre-accident accommodation and home care circumstances;

Whether the plaintiff was in fact unable to care for himself in the home and incapable of performing activities which would enable him to find work.

The defendant’s case is that the plaintiff’s evidence as to his pre-accident health and working history and current asserted disabilities is unsatisfactory and unreliable, and that the history set out in contemporaneous tax returns and medical reports (such as those of hospital, prison and medical officers), where inconsistent with the plaintiff’s evidence, should be preferred (written submissions, paragraphs 23-28).

The plaintiff’s prior work history

The evidence in relation to the plaintiff’s employment history consists of:

The plaintiff’s evidence as to his working history and that of his sisters, which is that he was consistently in employment.

A statement to Corrections Health Service (Exhibit 1, p. 38) that his occupation while he was living in Dubbo was “farm manager”. Certain of the plaintiff’s tax returns for the period 2001 to 2012 have also been tendered (Exhibit 3).

Information about the plaintiff’s payment for the six months in 2010 that he was in prison.

Payslips for the period from mid-February 2011 to 27 June 2011 and from October 2011 to November 2011 (Exhibit D). For the first of these periods at Sea-Air (20 weeks), the plaintiff’s net earnings were $22,540, less $7884.25 tax, plus $2,003 superannuation (which Mr O’Keefe notes in his written submissions is a weekly average of $1127). For the plaintiff’s second period of employment at Complete Air Conditioning (12 October 2011 to 23 November 2011), his pay varied between $ and $1157.70 net per week up until 9 November 2011 (a further payment on 23 November 2011 is made after the accident but appears to include other items). For the intervening periods in 2011 (January to mid-February and27 June to October 2011) the plaintiff was unemployed.

The evidence of Mr Kohlenberg, who worked for the same employer as the plaintiff for the period mid-February 2011 to 27 June 2011.

The plaintiff’s work history may be very generally summarised as follows:

From the time the plaintiff left school until approximately 2005, he was working in the country in rural occupations. He received income of $62,400 for farm work in 2001 and a similar salary for similar work in 2002. He could not recall if he filed any tax returns for 2003, 2004, 2007 or 2008. His tax returns from 2001 onwards have been prepared by an accountant in 2013 (T 88) after he suffered the accident the subject of these proceedings (T 119).

He was unemployed during the 2005 financial year and received “Government allowances” of $12,806 for this period.

In about 2005 to 2006 he came to Sydney but no tax returns are available for 2006 or 2007. He agreed in cross-examination that he could have been unemployed for parts of the time during these years.

In 2008, he earned $47,879 as an air conditioning installation technician. He earned slightly more in 2009, and again in 2010 ($50,612). He was an independent contractor at this time, and made a tax deduction claim for car expenses, although for most of his working life (including this period of time) he had been disqualified from driving by reason of drink-driving convictions.

His earning capacity was disrupted in the last six months of 2010 due to his imprisonment for six months. His taxable income of $33,339 for the financial year before the accident included payments from Newstart for the period 20 December 2010 (the date of his release from gaol) to 25 February 2011.

He returned to work, for Sea-air, in mid-February 2011, but ceased employment there on 27 June 2011, when they could not offer full time work, according to evidence of Mr Kohlenberg. He was then unemployed until 12 October 2011. It was about five weeks after he was employed by Complete Air Conditioning that he was injured. I also note that he was paid a lump sum by Complete Air Conditioning after the accident which appears unrelated to his weekly earnings.

In cross-examination, the plaintiff acknowledged that he had not been continuously employed in the five years before the accident:

“Q. You've had long periods of unemployment haven't you prior to the motor vehicle accident?
A. No, I was constantly employed for the five years prior, prior to the accident, maybe a couple of short terms unemployment.
Q. What do you call a short term period of unemployment Mr Smith?
A. Well I was at Gaff Air for three years, I was, maybe without a job in between there, in between jobs there for maybe three to six months, like I'm only guessing, I can't remember exact days, but over the last five years before prior to the accident I was, I would have been unemployed maybe six months out of that or it could be a bit longer, I'm not 100% sure, yeah.
Q. Do you accept that you weren't in continuous employment in the five years before the accident?
A. Yeah.” (T 86)

The plaintiff’s employer is noted in his 2001 and 2002 returns as Mr Percy, the owner of a cotton farm. There is no reference to air conditioning work (Exhibit 3). He agreed he only received Newstart for the 2005 financial year and could not explain why there were no tax returns prepared for 2003 and 2004, or for 2006 and 2007:

“Q. Are you able to offer any explanation why your lawyers didn't provide the insurance company with any tax returns for 2006 or 2007?
A. Maybe I haven't done them. I'm not sure.
Q. Is it possible that in 2006 and 2007 you were also unemployed?
A. After Graham Percy lost his cotton farm the bloke I was working for and there was a period there, there was a drought and there was a time there the work was quiet in the country yeah. It could've been. There was times where they would work for maybe half of the year and it was patchy through that time, so yeah.” (T 122)

The plaintiff’s income tax return for 2008 (which he agreed was not prepared until 2012, and in fact gave his 2012 Campbelltown address: T 122,124 - 5) identifies him as an air conditioner installer with a taxable income of $47,879 (T 123), and refers to deductions for motor vehicle expenses, although the plaintiff was a disqualified driver. The plaintiff said that his “girlfriend” drove him and denied driving while disqualified (T 124).
In 2010 the plaintiff’s employment was as follows:

“Q. In 2010 if you could go to page 47, do you have page 47?
A. Yeah.
Q. You see there it says you worked for Westgate Irrigation and earned $2,286?
A. Yeah.
Q. Do you know what that was for?
A. Yep.
Q. What was that work?
A. I was irrigating.
Q. I take it, was that done in Sydney?
A. No.
Q. Where was that work?
A. My dad was sick at the time and I needed three weeks off so I done some work while I was down there in Hillston.
Q. Whereabouts?
A. Hillston.
Q. Do you see the next entry down,"$5,224 Australian Government allowances"?
A. Yep.
Q. Do you accept that you were receiving unemployment benefits for a period of time?
A. Yep.
Q. Are you able to say for how many weeks you were unemployed?
A. No, I'm not 100% sure, I can't ‑ I'm not sure.
Q. Could it have been as long as four or five months?
A. Yep.
Q. Then do you see on the next number down "$43,102"?
A. Yep.
Q. That was income that you earned in your business with Mark, is that right?
A. Yep.
Q. As a subcontractor?
A. Yep.
Q. Your earnings in that year were $50,612 before tax, do you agree?
A. Yep.” (T 124 – 5)

I deduce from the above that the plaintiff’s employment in air conditioning installation was following a pattern, over these years, of being work for only part of the time. For other periods he was either unemployed or, on occasion, doing labouring work for a few weeks. This is not a pattern of regular employment in this industry over his adult life as claimed.
The plaintiff’s fellow employee, Mr Kohlenberg, who worked with the plaintiff for the period February to June 2011, gave evidence that the plaintiff was a hard and reliable worker, who left that place of employment only because he could not be offered full time permanent work. I accept that evidence. The plaintiff was physically fit and capable of hard work. His problem is that, at regular intervals, he had problems arising from his drinking which resulted in criminal charges and this was disrupting his working life on an increasingly frequent basis as he grew older, in part because the penalties imposed included first lengthy driving disqualifications and then two periods of imprisonment.
Although the plaintiff claimed in examination in chief he did not drink in the same pattern as he had before he went to jail in 2010, the clinical records from jail assessments in 2010 and 2011 (Exhibit 1) demonstrate to the contrary. As I note in my discussion of Dr Westmore’s report, these records show that the plaintiff was admitted to Emergency as a result of a suicide attempt, that he complained of depression and was assessed as unfit for work by Centrelink and that doctors were concerned about the amount of alcohol he was drinking as well as by his failure to take medication for cholesterol problems.
The next basis for challenge of the plaintiff’s evidence is the nature and extent of his criminal record. Mr McCarthy submitted (written submissions, paragraph 11) that the plaintiff’s criminal record was not serious, that there were what he called “no gotcha denials” of the plaintiff’s criminal record and that these offences were irrelevant to his work capacity.
Mr O’Keefe submitted that the plaintiff’s criminal conduct is greater than admitted and that this, and the alcohol-related problems which generated it, put him at inevitable risk of “significant and disabling injury or arrest and conviction for offences that would have resulted in terms of imprisonment” (written submissions, paragraphs 40-41).

The plaintiff’s criminal record

Some of the plaintiff’s criminal record, notably his early offences, is indeed irrelevant. I propose, however, to set out his criminal record in the following categories:

Offences from 1987 to 1994;

Criminal record between 1995 to 2000;

Criminal record between 2001 to 2005;

Criminal record from 2005 onwards.

(a) Offences from 1987 to 1994

The plaintiff, as a young man, committed offences of peripheral relevance at best. However, these offences include two mid-range PCAs (in 1991 and 1992) and offences of violence in which the plaintiff acknowledged alcohol was involved.
One of these was of some substance. On 27 December 1993, the plaintiff was charged with attempted murder, although a plea of guilty was later accepted for the alternate charge of “use offensive weapon with intent to commit indictable offence”. The plaintiff was sentenced to 400 hours community service. I accept the plaintiff’s explanation that he was charged overzealously and that the latter offence is a more realistic description of these events:

“Q. Yes, did you drive your car at somebody?
A. Yeah, well that's what they said. There was a fight going in with my brother‑in‑law and that down the bottom corner, we lived in Dunedoo, a country town, and so I've jumped in the ute and drove down towards them but I wasn't driving the vehicle at anybody. The same police officer in that town, because the population was 800 people, and I think four people got charged with attempted murder within six months.”
Q. Is this the same brother‑in‑law as before?
A. No.
Q. It's the other brother‑in‑law, is it?
A. Yes.” (T 73).

The “other brother-in-law” referred to is his sister Rebecca’s husband. Although I inquired, when the plaintiff’s other sister Tammy gave evidence, if this brother-in-law was her partner, she denied this. I assume it must have been a brother of the plaintiff’s partner at the time.
The circumstances in which the plaintiff “jumped in the ute” are relevant. The plaintiff was convicted on 7 November 1992 and 8 August 1993 of driving while disqualified and the disqualification period was extended on 10 August 1993 to two years from 25 November 1993.
The plaintiff was also convicted of stealing and of possessing and administering a prohibited drug. The plaintiff explained that his mother had just died (T 75) and this would have been a time of family turmoil. I regard these offences as irrelevant.

(b) The plaintiff’s criminal record between 1995 to 2000

The plaintiff was involved in a series of assault offences in 1995, 1997, 1998 and 2000, one of which was a conviction for assaulting police in circumstances involving his de facto. The plaintiff says, and I accept, that alcohol was a feature in these events and that he was ‘young and stupid” at the time:

“Q. You were gaoled for 14 days because of that, were you?
A. Yes.
Q. You assaulted a police officer?
A. Yes.
Q. And you were drunk, were you, at the time?
A. Yes, like I pushed him as an assault, I didn't‑‑
Q. You resisted arrest?
A. Yeah.
Q. You were sentenced to 14 days. Where did you go to gaol, do you remember?
A. Bathurst.
Q. Was that a sobering experience for you? Were you starting to get concerned about your behaviour and getting drunk and getting in trouble with police?
A. No, not really, I was young and stupid.” (T 76)

The plaintiff’s recollection was so vague that in most cases he could not remember whom he had assaulted, or why (see for example T 76-77).
I note in relation to the common assault charge of 20 September 2000 that he was sentenced to imprisonment of 4 months which was suspended upon his entering into a s 12 bond.
If this were all, these convictions would be of little or no relevance. As part of a larger pattern of alcohol induced violence, they assume a greater importance. Offences of seriousness begin to feature in the plaintiff’s convictions from 2001 onwards.

(c) Criminal record between 2001 to 2005

The plaintiff was convicted of a third PCA offence in 2001, as well as conviction for driving while the plaintiff’s licence was suspended. He was disqualified for a period of 12 months but was convicted again on 26 March 2002, with a result that his disqualification period was extended to 13 June 2005.
Between 2003 and 2005, the plaintiff was convicted of contravening an apprehended violence order (resulting in a s 12 bond for 9 months), as well as driving while disqualified, which resulted in his period of disqualification being extended to 13 June 2007. The plaintiff explained:

“Q. It is the case that you were the subject of an apprehended violence order by your former partner, this is the mother of your children?
A. Yeah, it may have been yeah, I'm not‑‑
Q. You breached that order is that right?
A. Not that I'm aware of, no.
Q. According to this you contravened an apprehended domestic violence order, so an order must have been made which you then contravened, does that bring it back?
A. No, it doesn't sorry, but, yeah, obviously it happened but, I certainly never put a hand on my, I certainly didn't assault my ex‑wife, yeah there's a lot of it, I watched me mother get, have domestic violence against her all her life and I'll actually step in if I see a man hurting a woman, so, I've never put a hand on her and I know it might have been, there might have been raised voices and spitting up, but it wasn't, no violence involved against a woman.
Q. This is a nine month suspended sentence, that's not something you give a, that a magistrate gives for angry words?
A. Yeah.
Q. You've got no recollection of these events?
A. No. I can chase a phone number down if youse want to speak to her or any of the past girlfriends I've had.” (T 79)

I note the plaintiff’s explanation for the charge of assaulting police came when a police officer intervened in a discussion the plaintiff was having with his girlfriend, where he had put his hands on either side of the wall against which the girlfriend was standing. Although the plaintiff clearly had good intentions as a result of his early life experiences, it would appear that when he had been drinking, he was not able to control his conduct towards family members, as this is one of several examples.
On 7 February 2005 he was charged with the offence of driving with high-range PCA resulting in a community service order for 250 hours.
The plaintiff was charged with other assaults, but could not recall the events in question:

“Q. Do you remember being charged about a year later, on 7 February 2004 at Camden, for assault occasioning actual bodily harm?
A. What date, sorry?
Q. February 2004, in Camden?
A. Yep.
Q. What happened there?
A. I said yes, because it's there in front of you. I don't remember.
Q. You can't remember?
A. No.
Q. You didn't seem to have any trouble remembering the earlier drink driving events?
A. Yeah. There's a lot of assault charges on my record, I can't‑‑

Q. Why is it that some of these ones that are later seem to be causing you difficulty in terms of remembering?
A. I can't answer that, I'm sorry.
Q. Could it be you just don't wish to tell the Court?
A. No, not at all. I've got nothing to hide.”

The plaintiff agreed he continued to drive while disqualified over this period:

“Q. Do you remember a year later, in February 2005, out at Narromine, or Burke, you were using an unregistered vehicle and driving while disqualified?
A. Yep.
Q. Again in February 2005, you're now over 30, aren't you, you're 32?
A. Yes.
Q. Six years before the motor accident where you broke your leg?
A. Yeah.
Q. You're still driving while disqualified?
A. Yep.
Q. You were happy to drive an uninsured motor vehicle? You have to answer yes or no?
A. Yeah, I said yes.” (T 80)

(d) Criminal record from 2005 onwards

At about the time the plaintiff came to Sydney, for the period from February 2005 to March 2008, there is a gap in his criminal record. In March 2008, he was charged on two occasions with common assault (although one of these charges was dismissed and no evidence proffered).
On the occasion of the second of these assault charges, he also pleaded guilty to a charge of possess prohibited drug and drive with middle-range PCA. He was sentenced to 3 months imprisonment and lodged a severity appeal.
According to the Criminal History entry of 19 November 2009, the conviction was confirmed and his sentence commenced on 21 June 2010 to conclude on 20 September 2010. He was disqualified for a further 3 years commencing 18 November 2009 and concluding on 17 November 2012.
Unfortunately, the plaintiff continued to have difficulties, in that he was charged on 13 January 2010 with fraudulent misappropriation in relation to the sum of $2,000 and driving while suspended. He appealed these offences and there was some moderation in the sentence, but the disqualification period was extended from 18 November 2012 to 17 November 2014.
On 3 March 2012, a date after the plaintiff’s accident, the plaintiff was charged with offences arising from the circumstances in which he said he threw some cold chips at a taxi driver and refused to pay the taxi fare. The criminal record shows that he was charged with assault; he appears to have refused to pay the taxi fare. He was sentenced to imprisonment for 3 months commencing 20 October 2012 and concluding 19 January 2013.
Since 2012 the plaintiff has not committed any criminal offences.
Mr McCarthy submitted that a criminal record of this kind was not one that would concern the court, as far worse criminal records were seen in this court’s criminal jurisdiction. Mr O’Keefe describes the plaintiff’s criminal record as “significant” (written submissions, paragraph 29) and one which should be taken into account when determining the percentage of vicissitudes.

The plaintiff’s accommodation prior to the accident

The plaintiff was also cross-examined about his accommodation prior to the accident, which consisted of sharing a house with approximately six other persons. He tidied up after himself and shared the use of a bathroom and kitchen. He had no need to make any home repairs, carry out gardening tasks or attend to heavier household tasks such as spring cleaning. There is no evidence he owned any household appliance such as a vacuum cleaner.
The plaintiff appears to have lived on his own since the end of his de facto relationship, the date of which is unclear, but which appears to have been prior to 2015. Apart from the four months he lived with his sister (when his housework appears to have been done for him) he appears to have lived in this way, whether alone or in shared accommodation for a considerable part of his adult life.
The provisions for the plaintiff’s past and future home care are set out in more detail below.

The plaintiff’s pre-accident medical problems

The documents contained in Exhibit 1 show that the plaintiff had not only a longstanding and ongoing dependence upon alcohol which had begun to impact upon him physically but had developed a depressive anxiety condition which was diagnosed in about January 2010. This condition was ongoing and remained untreated at the date of the accident, in part because the plaintiff refused or failed to take medication prescribed. The plaintiff said (at T 116-117):

“Q. Sir, you had no intention of changing your drinking habits at all prior to your motor vehicle accident, did you?
A. I had intentions. I was trying.
Q. How is it that you can sit there on your oath and say you were trying when you didn't even take the Campral medication that had been prescribed for you?
A. Yeah, I understand that, yep.
Q. It doesn't sound like you were trying particularly hard, does it?
A. No.
Q. It doesn't sound like you were trying at all, does it?
A. It doesn't look that way.”

This included an admission to hospital in January 2010 in relation to suicide ideation where he left a suicide note (Exhibit 1, p 52). In February 2010 psychologist Jan Roberts prepared a report for the plaintiff’s general practitioner following a referral to her for psychological counselling, describing his condition as one of “depression and anxiety”, saying:

“Mr Smith lost his driver’s licence in November 2009 for driving under the influence of alcohol. He lost his licence three times in three years when he was 20 and twice in the last 18 years. He says he has been a heavy drinker from his youth. He says he wants to see a psychiatrist to obtain medication to help him stop drinking. He also admitted it was unlikely he would ever be able to stop drinking, given his long history. Mr Smith has his own air-conditioning installation business but without a driver’s licence he cannot work and faces losing his business.
Mr Smith was depressed about his prospects in court. He believes he will lose his driver’s licence for 8 years and may go to gaol… He sees his future as lost without his driver’s licence…
Mr Smith seemed well aware of his poor prospects in finding employment without a driver’s licence. Mr Smith also seemed aware that he was not likely to give up drinking…” (Exhibit 1, p. 61).

In June 2010 the plaintiff described a suicide attempt to the prison authorities that followed a fight with his “wife”, but the date of this is uncertain (Exhibit 1, p. 78). The plaintiff’s doctor notes a diagnosis of the plaintiff as still having “depressive anxiety disorder” on 27 July 2011 (Exhibit 1, p. 1).

Assessing the evidence of the plaintiff

Counsel for both parties paint starkly different pictures, in their submissions, as to the plaintiff’s work history, lifestyle and health prior to the accident. Mr McCarthy submits that the defendant’s submissions completely distort the plaintiff’s evidence by overemphasising the plaintiff’s asserted alcohol problems and criminal record, adding, in his oral submissions, that his client considered that he had been unfairly treated in this regard, in that he should be regarded a witness of credit who honestly admitted to having problems with alcohol and alcohol-related criminal offences, which he considers have now been taken out of proportion.
The correct approach for a first instance judge to take when determining issues of credit of a plaintiff in personal injury proceedings has been the subject of a series of observations by the New South Wales Court of Appeal. First of all, the trial judge must engage with the cases presented by each party, as opposed to merely stating that there is no evidence, or not setting out the evidence. Secondly, the trial judge must look at all of the evidence, rather than dismiss it on the basis of preferring the opponent’s case.
In The Nominal Defendant v Kostic [2007] NSWCA 14 the New South Wales Court of Appeal allowed an appeal from an assessment of damages because of the inadequacy of the approach of the trial judge to the determination of the disputed issues of fact. The evidence before the trial judge consisted of seven days of trial evidence and “very many” (at [81]) medical reports. It is worth noting that the manner in which those medical reports had been put together by the plaintiff for the Court of Appeal was so inadequate that the plaintiff was ordered to bear the costs of putting this material together, from which I infer that the trial judge was similarly disadvantaged, but this was not referred to as an extenuating circumstance.
I also note that, while the Court of Appeal was critical of the way in which the trial judge had approached the analysis of these very many medical reports and the seven days of oral evidence, the Court of Appeal did not suggest that the trial judge disregarded the parties’ submissions on the topics the subject of the disputed evidence, from which I infer that the generalised method of analysis used by the trial judge must have followed similarly generalised submissions of the parties.
I raised these issues with Mr McCarthy because the circumstances of this case – an assessment of damages following a motor vehicle accident where the factual issues are the subject of extensive evidence – are very similar to The Nominal Defendant v Kostic. It is essential that I deal with these issues in the manner in which the Court of Appeal has directed trial judges to adopt, namely a careful and objective analysis of the contemporaneous documents as well as the oral evidence, rather than accept submissions that there is “no evidence” or dismiss the defendant’s submissions based on that contemporaneous evidence as irrelevant and instead accept the plaintiff as a witness of credit.
While the plaintiff is certainly entitled to make submissions that there is no evidence, or that to pay attention to the defendant’s submissions is to place too much emphasis on irrelevancies, or that the defendant’s claims are unfair, I must still approach the factual issues by dealing with the submissions made by both parties and, in particular, in light of contemporaneous material such as hospital, medical and parole records for the plaintiff. This means I must engage with the defendant’s submissions, especially Mr O’Keefe’s careful written submissions, by analysing them and not simply dismiss them.
As to the importance of analysis of submissions, the absence of reference to the submissions of counsel in The Nominal Defendant v Kostic is compelling when compared to Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 at [118] – [123], where the relevant extracts from counsels’ submissions are set out in detail and were matters clearly put to the trial judge. In Mitchell v Cullingral Pty Ltd, the Court explained the trial judge’s duty as follows:

“A trial judge has a duty to refer to material evidence and make findings about material issues in the case: Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 at [130] (Hayne J). The absence of such findings and the absence of reference to such evidence can properly be taken as showing that the trial judge has erroneously overlooked or discarded it: ibid; Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443-444 (Meagher JA); Whalan v Kogarah Municipal Council [2007] NSWCA 5 at [40] (Mason P, Ipp JA and Tobias JA); Najdovski v Crnojlovic [2008] NSWCA 175; (2008) 72 NSWLR 728 at [21] (Basten JA, Allsop P agreeing); Sangha v Baxter [2007] NSWCA 264 at [22] (Ipp JA, Campbell JA agreeing); Nominal Defendant v Kostic [2007] NSWCA 14 at [59] (Ipp JA, Hodgson JA and Campbell JA agreeing). Another way in which this has been put is that the judge must engage with, or grapple or wrestle with, the cases presented by each party: Whalan at [40]; Kostic at [2]. This is not adequately done by setting out the evidence adduced by one side, setting out the evidence on the other side, and saying that the judge prefers one body of evidence to another: Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; (2006) 66 NSWLR 186 at [28] (Ipp JA, Mason P and Tobias JA agreeing); Kostic at [58].”

I am nevertheless conscious that the impact of the plaintiff’s alcohol intake and criminal record must be treated with caution. The real question is the plaintiff’s work capacity, as the Court of Appeal pointed out in Mahony v Watson [2003] NSWCA 259 at [53], rejecting a finding of failure to mitigate in relation to a plaintiff who had high-range PCA convictions both before and after the compensable accident which had resulted in loss of his licence, and continued to drink alcohol while taking strong pain medication (at [44]).
The material tendered by the defendant not only relates to the plaintiff’s criminal record but also contains information about other relevant issues such as his literacy and his drinking habits. The plaintiff’s injuries and disabilities must be viewed in the context of these records, in part because these are records of what he said and did which were prepared by appropriately qualified observers and in part because of the effluxion of time.
The defendant, in making submissions that I should approach the fact-finding task in this manner, referred me to King v Western Sydney Local Health Network [2011] NSWSC 1025 at [16] to [19].
Taken as a whole, the evidence I have set out above demonstrates that the plaintiff has overstated his working history while minimising his alcohol intake, criminal record and pre-accident depression problems. I accept that some of this may be due to the events in question having happened long ago, or the distress of his accident and injury, or to the difficulties of the court process. However, I cannot accept the plaintiff as a reliable historian or a witness of credit where he has consistently minimised evidence which would reduce his claim for damages.
Accordingly, where there is conflict between the plaintiff’s evidence and the matters set out in contemporaneous records, I propose to prefer those contemporaneous records as being. The same is the case in relation to the evidence of the plaintiff’s sisters who, while doing their best to give their evidence honestly, have given evidence which is factually inconsistent with those contemporaneous records and also with the medical and occupational therapy assessments (as is set out in more detail below).
Taking those contemporaneous records into account, I am satisfied that the plaintiff has had a longstanding dependence upon alcohol which has directly contributed to his pattern of criminal behaviour, and that both of these factors have played an important role in relation to the depressive anxiety condition which he was diagnosed as suffering from in January 2010. While he did attend a drug and alcohol counsellor on 20 October 2011, rather than pursue the advice or treatment offered to him over a long period (see Exhibit 1, pp 4 and 120), he continued to consume alcohol. Alcohol also played a part in the accident the subject of these proceedings, in circumstances where there is an agreement that his contributory negligence was 60%.
This history is relevant the plaintiff’s physical and mental capacity for work, which must be taken into account as to vicissitudes. If the plaintiff’s lifestyle had continued in this way, there would not only be the risk of some other significantly disabling injury of the kind the subject of these proceedings, but also of arrest or conviction for periods of imprisonment which would have severely impacted on his future employability. The plaintiff himself was aware of the poor prospects he had of finding employment without a driver’s licence and of the difficulty he would have giving up drinking, and said as much to the psychologist Jan Roberts (Exhibit 1, p 61).
Nevertheless, the plaintiff’s injuries were not only serious but were substantially complicated by the lengthy period of convalescence caused by the failure of the fracture to unite and a series of infections. I now set out the medical evidence in relation to the plaintiff’s injuries and ongoing disabilities.

The plaintiff’s injuries and disabilities

The plaintiff’s injuries and disabilities are set out in the statement of particulars filed in these proceedings filed on 24 January 2014. these have been summarised by counsel for the plaintiff in paragraph 7 of his written submissions as follows:

Comminuted compound fracture of the left tibia and fibula (Dr Endrey-Walder, Exhibit B 1.1-2 and Exhibit B 2.1);

“Potentially catastrophic injury to the occipital condyle which resulted in pontile bleeding” (Dr Endrey-Walder, Exhibit B 1.1-7);

Back pain due to “abnormal ambulation” (Dr Endrey-Walder, Exhibit B 1.1-7);

Significant wasting of the quadriceps muscle (Dr Endrey-Walder, Exhibit B 1.3-5);

Marked patello-femoral arthritis (Dr Endrey-Walder, Exhibit B 1.3-5);

Significant reduction of range of movement of left ankle (Dr Endrey-Walder, Exhibit B 1.3-5);

Possible facet joint inflammation of the lumbar area secondary to reliance on crutches/walking stick/limping (Dr Endrey-Walder, Exhibit B 1.3-5);

Injured nerves and tendons as well as skin grafting (Dr Barold, Exhibit B 1.4-2);

Closed head injury with loss of consciousness (Dr Barold, Exhibit B 1.4-8);

Mechanical strain injury to the neck and lumbar spine (Dr Barold, Exhibit B 1.4-8);

Injury to left knee and ankle (Dr Barold, Exhibit B 1.4-8);

Post traumatic degenerative change in left knee and ankle (Dr Barold, Exhibit B 1.4-9);

Secondary straining to lumbar spine due to altered gait (Dr Barold, Exhibit B 1.4-9);

Unsightly scarring (Dr Barold, Exhibit B 1.4-12) and see also Exhibit E;

Memory difficulties “probably multi-determined in their aetiology” (Dr Westmore, Exhibit B 1.7-6);

Adjustment disorder with predominantly depressed mood (Dr Westmore, Exhibit B 1.7-6);

Significant antalgic gait with external rotation of the left leg with walking (Dr Walker, Exhibit B 2.17-1);

Whiplash injury to the cervical spine (Dr R Abraszko, neurosurgeon, Exhibit B 2.18-2);

Musculoskeletal injuries to thoracic and lumbar spine (Dr R Abraszko, neurosurgeon, Exhibit B 2.18-2);

Headaches (Dr R Abraszko, neurosurgeon, Exhibit B 2.18-2);

Successive infections in the course of his fracture healing (Dr Chin, Exhibit B 2.26-1).

Some of the items referred to in the statement of particulars are not referred to in this list. I particularly note the following:

Osteomyelitis and associated MRSA infection;

Paraesthesia in left foot;

Constant pain even when at rest and related claims (including inability to undertake “many domestic tasks without excess pain or at all”);

Difficulty sleeping;

A range of anxiety and depression related problems including interference with sexual relations, reduced enjoyment of usual social relationships, intrusive and traumatic thoughts and dreams regarding the accident; and

Necessity to take medication.

I have paid close attention to the list provided by counsel for the plaintiff and I have also factored in the list of injuries and disabilities in the statement of particulars where appropriate. I have paid particular regard to the reports of Dr Walker.
The defendant lists the plaintiff’s current disabilities as being the following:

A left occipital condyle fracture clinically united;

Left tibia and fibula fracture complicated by non-union and local infection now resolved;

Disuse atrophy of the muscles of the left leg; and

Traumatic brain injury of mild degree (now recovered).

It is not in dispute that the plaintiff suffered significant injuries, the seriousness of which was compounded by the lengthy period of time over which the plaintiff required treatment. After the plaintiff’s final surgery, his fracture line was still “healing”, according to Dr Walker (Exhibit B, tab 2). While the parties were not able to agree upon the nature and extent of the plaintiff’s disabilities other than the plaintiff’s leg injury, the other medical issues in dispute are essentially whether the plaintiff has sustained a permanent injury to his back as a consequence of altered gait and neck, ankle and left knee problems as well as the plaintiff’s head injury and asserted related memory loss.

Counsel for the plaintiff submits, and I accept, that there was a period of three years from the date of the accident during which time the plaintiff could not walk independently and was either in a wheelchair, on crutches or requiring the use of a crutch. I accept that he was in severe pain for the whole of this period.
The plaintiff’s surgery history may be summarised as follows:

17 to 28 November 2011: Following the accident, the plaintiff underwent surgery on 17 November 2011 by Dr Chin and was discharged from Liverpool Hospital in a wheelchair.

29 June 2012: The plaintiff underwent an exchange of the left tibial nail and iliac crest bone graft. Broken screws were removed from the pre-existing excisions in the course of this surgery.

17 July to 27 August 2012: The plaintiff was admitted to Liverpool Hospital for further surgery by Dr Chin. This was complicated by an infection requiring intravenous antibiotics on during August and September 2012.

8 February 2013: The plaintiff was admitted to Liverpool Hospital for further surgery, being the removal of the eye nail. He underwent a left tibial osteotomy and insertion of a TSF frame. He was referred to Dr Walker, his treating orthopaedic doctor but his previous treating surgeon, Dr Chin, in February 2013 because of the infection and the failure of the fracture to unite.

2 June to 2 July 2013: The plaintiff was admitted to Liverpool Hospital for surgery under Dr Walker on 6 June, which consisted of removal of the intramedullary rod left tibia, a tibial ostectomy, insertion of antibiotic cemented beads and application of external fixation to the left tibia (see Dr Walker’s report of 30 April 2015 in Exhibit B). During this time he was also examined by Dr Ng, an infectious diseases consultant.

2 August 2013: The plaintiff was admitted again to Liverpool Hospital in relation to problems with non-union of his left tibia.

22 August 2013: The plaintiff underwent bone grafting (posterior iliac crest) at Liverpool Hospital under Dr Walker. This included adjustment of the external fixation. He attended Dr Walker’s rooms to have the sutures removed on 13 September 2013 and was advised that he would have to remain in the external fixation frame for at least another six months;

6 March 2014: The plaintiff’s frame was removed and the plaintiff was placed in a CAM boot. On 11 April 2014, after review by Dr Walker, the plaintiff was advised that further surgery would be required, as a CT scan confirmed that a fracture was still not yet united. He was also suffering from a staph infection, one of several infections he had during his treatment.

3 July 2014: The plaintiff underwent further surgery in Liverpool Hospital where a plate was fixed to the left tibia and a bone graft was placed on the posterior iliac crest. The plaintiff was discharged on 8 July 2014.

According to Dr Walker’s two letters of 23 August 2016, this 2014 surgery was the end of the plaintiff’s surgical treatment. I note, however, that Mr McCarthy’s submissions identify 10 April 2015 as the last of his multiple surgeries (written submissions, paragraph 59). I accept Mr McCarthy’s statement that the plaintiff’s fracture line was still healing after the surgery of 3 July 2014, but there is no evidence that he underwent further surgery on 10 April 2015.
The periods of time during which the plaintiff was in hospital were as follows:

17 - 28 November 2011.

28 June - 27 August 2012.

8 February 2013 and following.

2 June 2013 - 2 July 2013.

2 August and again for one week later in August 2013.

2 - 8 July 2014.

These periods are of relevance to the claim for past home care, as no allowance should be made for this while the plaintiff is in hospital: Hill v Forrester (2010) 79 NSWLR 470.

The plaintiff’s medical evidence

The extensive amount of surgery that the plaintiff underwent has resulted in a large number of medical records and reports being tendered, although many of these were not referred to. This is a not uncommon situation in personal injury proceedings, as the New South Wales Court of Appeal has noted in many of its judgments (see, for example, Mahony v Watson at [18]).
Treating doctors’ reports differ from medico-legal reports in that they are prepared for the benefit of other medical specialists and may be written informally or even hurriedly, or in circumstances of emergency, or on the assumption that the recipient has an understanding of medical issues not referred to in the report but which are necessary in order to interpret the report’s contents. The correct method of analysis of the reports of treating doctors (and the differing approach where the report is a medico-legal report) was explained by the Court of Appeal in Patrech v State of New South Wales [2009] NSWCA 118 as follows:

“[88] In my opinion, the above analysis demonstrates that the “consistent picture” that his Honour concluded emerged from the medical reports, that the 2001 court case (and no earlier incident or experience) caused the breakdown in the appellant’s health, is not supported by the medical evidence. It is apparent that in reaching his conclusion his Honour failed to have regard to the purposes for which the particular reports were prepared. The purposes of the reports were various. Apart from the report of Mr Bayliss dated 13 April 2006, which was in response to a request for a report from the appellant’s solicitors, none of these medical practitioners provided medical reports for the purposes of the appellant’s negligence proceedings against the police service. There were also reports between the referring doctor and the treating specialist. Other reports were to the police services’ Health and Workplace Services and to the Workers Compensation Section for the purpose of assessing the appellant’s condition for discharge. Again, others were to State Super, to determine the appellant’s superannuation status.
[89] A trial judge is required to analyse the evidence. That analysis can only be properly undertaken if the evidence, in this case the medical evidence, is considered in its proper context. The trial judge’s assessment of the medical evidence may have been unassailable had the medical reports been medico-legal reports, including medico-legal reports of treating doctors, prepared for the purposes of trial or prepared for the purposes of similar or associated proceedings, such as workers’ compensation proceedings.

While treating doctors are treating the injury, medico-legal reports are focussed upon court proceedings, which may result in the medical practitioner going beyond the medical issues and expressing views which are, for example, irrelevant to the issues or outside their area of expertise. In Coles Supermarkets Australia Pty Ltd v Meneghello [2013] NSWCA 264, injuries considered comparatively minor by treating doctors were viewed as more serious in certain medico-legal reports which dealt with issues going beyond objective assessment (at [76]), many of which were accordingly given no weight.

The evidence of Dr Walker

Dr Walker, the orthopaedic surgeon who took over the plaintiff’s case in February 2013 from Dr Chin because of ongoing problems with his tibia, provided both treating and medico-legal reports summarising the plaintiff’s treatment from that time onwards.
In his letter of 15 February 2013 to Dr Ray Chin (who sent the plaintiff to him for a second opinion) he set out the circumstances of the accident and his treatment, noting that his healing was complicated by an infection requiring intravenous antibiotics, and went on to say:

“His ongoing symptoms include anterior knee pain as well as pain in the tibia with weight bearing. He does also have a background constant pain in the leg. He has had no recent episodes of erythema or discharge to suggest ongoing infection.
On examination today his previous wounds are well healed. There is clinical evidence of infection. He is tender at the fracture site as well as over his fibula fracture site. He is neurovascularly intact. His overall alignment is satisfactory.
His recent plain radiographs show evidence of a previous segmental tibial fracture. The overall alignment is excellent. There is an intramedullary nail in place with no evidence of hardware failure. The fibula has not united and the distal tibial fracture has not united. There is minimal callus around the tibial site suggesting an atrophic non union.
Jeffrey has a non union of his distal tibia. It does not appear to be infected. His fibula has also not united.
Given the timeframe and the appearance of his e-rays I doubt his tibia will heal with further time. No doubt it is reasonable for some of his symptoms. The weight bearing pain he has in the tibia is most likely coming from his non union. His anterior knee pain may be associated with his intramedullary nail.”
(Exhibit B)

Dr Walker went on to describe the surgery alternatives; his next three reports (Exhibit B) set out briefly what occurred.
In his letter of 2 December 2013 to the solicitors for “Cbus Claims Services”, Dr Walker provides a summary of these reports, adding:

“He remains in his external fixator and he is weight bearing as tolerated. On his latest review his tibial fracture had not united and there were only early signs of union. He remains in his external fixator for an indefinite period of time. He is weight bearing as tolerated in the frame…
With regards to his treatment it is outlined above. As noted he remains in an external fixator and is unable to work at this point in time. He has ongoing pain in the left tibia as well as pain in the ankle and knee. He has a degree of stiffness in his ankle and knee. His ability to mobilise is significantly hampered by the fact that he has an external fixator on. This external fixator has been on for six months. The external fixator makes it difficult for him to mobilise. He would not be able to currently work as an air conditioner installer while he has an external fixator in place….
While he is in the frame he is obviously significantly hampered with regards to his ability to work and overall mobility. When the frame is removed and the tibial fracture has united I suspect he will still have difficulties working as an air conditioner installer. He is likely to have ongoing pain in his tibia to some degree with stiffness in his knee and ankle. Working on building sites and uneven surfaces will be difficult. Working up ladders and in confined spaces will also be difficult. I suspect kneeling will prove very difficult if not impossible for him.
With regard to complicating factors: his two complicating factors have been infection and failure of the fracture to heal. These two complications have prolonged his treatment and prevented any return to work. The fact the fracture in not united is the current complicating factor that is prolonging his treatment.
When his fracture has eventually united the limitations placed on him will be largely depending [sic] on his symptoms. Patients who have had a prolonged period of time treatment [sic] often have difficulties with standing and walking for long periods. They also have difficulties lifting heavy objects. As outlined above kneeling is likely to be difficult for him.
…
His short and long term prognosis is guarded given the fact that his fracture has not united. In the worst case scenario if his fracture were never to united he would be looking at a possible amputation.
I suspect it will be difficult for Mr Smith to ever return to work as an air conditioner installer. His treatment has been prolonged in terms of his tibial fracture and this lengthy period of time will make it difficult to return to previous activities. In particular he will have difficulty with lifting items that are heavier than 10 – 20 kgs. He will have difficulty on uneven surfaces at building sites. I suspect he will have difficulty in confined spaces and kneeling as well as climbing ladders.
Given his other previous jobs including sheet metal working, welding and maintenance worker I suspect he will struggle with most of these labour intensive jobs. His most likely forms of employment in the future will be non labour intensive jobs including roles in a supervisory role [sic] and desk type jobs” (Exhibit B)

Unfortunately for the plaintiff, his fracture did not unite. On 6 July 2014, Dr Walker wrote to the plaintiff’s general practitioner advising that surgery, as opposed to conservative treatment, was therefore necessary.
In his report dated 30 April 2015, Dr Walker notes that following this surgery, the plaintiff’s fracture “is healing and should continue to heal”. His ongoing symptoms included significant back pain and pain in his left leg with stiffness in his ankle and subtalar joint. He was able to weight-bear but used a walking stick 60% of the time. Dr Walker went on to note that the plaintiff’s level of permanent disability would not be able to be assessed until his fracture had united, which would be between 12 to 18 months following his last operation in 2014. He did not require any further medical treatment but “improvement with time” and accordingly there were no referrals or medical treatment at that stage.
In his most recent report of 23 August 2016, Dr Walker notes that it had been 12 months since he had last reviewed the plaintiff. He did not see what he called “any dramatic improvement” in his symptoms, and that the plaintiff still had significant ongoing back, left knee, left tibial and left ankle pain, using a crutch for most activities outside the house, adding:

“I have reviewed his knee, ankle and subtalar joint range of motion.
His left knee has patellofemoral crepitus with a range of motion from 0 to 110 degrees.
His left ankle is stiff with dorsiflexion to 5 degrees and plantarflexion to 20 degrees.
His left subtalar joint has 0 degrees of eversion and 10 degrees of inversion.
His left calf is 1 cm smaller than his right calf musculature.
These equate to mild patellofemoral pain, mild ankle stiffness and mild hindfoot stiffness.
He walks with a significant antalgic gait with external rotation of the left leg with walking. He uses a Canadian crutch most of the time in his right arm.
His ongoing back, knee, tibia and ankle pain are directly related to his initially tibial fracture and the lengthy time required to get his tibia to unite. He had long period of relative immobilisation of the ankle (often in a boot or external fixature) and prolonged period on crutches and non weight bearing. These have contributed to knee, ankle and hindfoot pain and stiffness as well as ongoing back problems.
He has not improved in the last twelve months and is unlikely to ever improve significantly. This is with regards to pain and function, including his gait.
He will not return to his pre injury duties. He will not return to any meaningful manual type work. He will have difficulties negotiating uneven work sites, eg building sites. He will not be able to lift confidently and routinely any significant weight.
His only real work prospects are likely to be desk type jobs for which he has limited education and training. Given significant ongoing pain issues, I suspect even these duties would be difficult on any long term basis.
I do not see any real prospects of him returning to the work force.”

While other doctors expressed views (many in medico-legal reports) as to the plaintiff’s injuries and disabilities, Dr Walker’s reports present a thorough and objective analysis of the plaintiff’s disabilities and should be regarded as the most reliable source for accurate information as to the plaintiff’s disabilities.
Dr Walker was cross-examined in relation to these reports, but he essentially repeated these opinions in his answers.

The plaintiff’s medico-legal reports

Mr McCarthy particularly draws my attention to the following extracts from medical reports which are relevant to the plaintiff’s earning capacity:

Dr Endrey-Walder

Dr Endrey-Walder opines (Exhibit A):

“Mr Smith has, of course, had no remunerable work from the day of the accident, and he is certainly to be considered today as totally unfit for any kind of physical activity, whether remunerable or related to his domestic chores, which necessitates him being on his feet for more than a few minutes at a time. He is severely restricted in his ambulation even on flat ground, has great difficulty on uneven ground, cannot climb stairs or inclines without a walking stick, has no capacity for squatting or kneeling on the left knee. He has only ever earned his living as a sheet metal worker and has no experience in work situations that are sedentary/clerical in nature. Given the ongoing medication with narcotic analgesics one would not seriously expect him to be able to undergo vocational rehabilitation at this time”.

Subsequent to Dr Endrey-Walder expressing these views on 28 October 2014, he prepared an updating report in which he referred to reports of Dr Walker and noted that the plaintiff’s tibial fracture was at last healed and “solid” but that he now had significant wasting, patella-femoral arthritis and continued to rely on the Canadian crutch whenever he was out of his home. Dr Endrey-Walder noted that this would hopefully be no longer necessary by the end of the year (i.e. the end of 2015). This appears to be the general view in relation to the plaintiff’s use of a crutch, and is a helpful observation.
However, Dr Endrey-Walder’s other observations were of limited utility. He concurred with Ms Patterson’s view that there should be a pain management programme, but did not expose his reasons for doing so. As Ms Patterson made some admissions in court in relation to the contents of that document, this endorsement is not of much assistance. He also made a whole person impairment finding, which is irrelevant, as the plaintiff is not entitled to non-economic loss.
Dr Endrey-Walder’s report and evidence in court really add nothing to Dr Walker’s reports. As the treating doctor and the author of a series of careful reports over a period of some years, Dr Walker’s evidence is to be preferred.

Dr Barold

Mr McCarthy also asked me to note the following extract from the report of Dr Barold, a rehabilitation specialist, who made the following observations about the impact of the plaintiff’s disabilities on his capacity to work:

“With regard to his physical injuries, I consider Mr Smith to be unfit to return to his pre-injury work duties as an air conditioning mechanic and it is in fact difficult to determine as to whether he will ever be able to return to any form of employment in an open and competitive labour market. For the present he should avoid activities which involve prolonged static posturing or forward flexing, repetitive or sustained neck and back flexion and extension, bending, stooping, kneeling and squatting. He should limit the lifting of weights to less than 5kg to waist level only and should sit and stand and take rests as required”.

Dr Barold’s estimates as to the amount of home care the plaintiff would require were essentially abandoned by the parties in favour of Ms Patterson’s report, and the findings as to the plaintiff’s unfitness for his former employment which are set out above are accepted by the defendant. His report was of little assistance.

Dr Westmore

Dr Westmore is a highly skilled psychiatrist who is frequently called upon to provide medico-legal reports to the court. His perspective was as follows:

“At the time I assessed Mr Smith, I thought his capacity to return to work, from a psychiatric perspective, was moderately impaired as per the current guidelines … should he experience a premature decline in his physical health, such as the onset of early arthritis, then that in turn will obviously impact adversely on his mental state”.

Dr Westmore’s report is relevant to the plaintiff’s claims of depression and other non-physical difficulties and is set out in more detail below.

I have, however, treated the plaintiff’s occupational therapist’s report (particularly in relation to future care issues) with some caution, for the following reasons. First, while reports from occupational therapists are of assistance, it is certainly not the case that no home care award can be made unless such a report is served. The touchstone is always reasonableness, and the evidence of the plaintiff and those members of his family who performed these services is the starting point.
In Schultz v McCormack [2015] NSWCA 330 (albeit in the context of the Civil Liability Act 2005 (NSW)), McColl JA did not accept a submission that the plaintiff had to lead what was called “objective evidence” to support a claim that there was or would be a reasonable need for the gratuitous attendant services to be provided, that had arisen solely because of the injury to which the damages related, and that it would not have been provided to the appellant but for the injury. Her Honour noted at [129] that the trial judge had had the opportunity to observe the plaintiff and her husband in the witness box giving evidence in relation to these issues.
Second, the occupational therapist did not have the benefit of observing just what assistance the plaintiff had over this period from his sisters; she did not meet Tammy at all and Rebecca left before she asked the plaintiff to demonstrate his ability to perform tasks (T 215 – 216). She accepted what the plaintiff and his sisters said without question (T 216) even though, as Ms Jackson acknowledged (T 205 – 207) she had photographed the plaintiff performing a series of tasks that Ms Jackson told the court (and also Ms Patterson) the plaintiff was unable to perform. She failed to pick up indications that the plaintiff was more mobile than he was telling her, such as the kind of car he was driving (she did not, in fact, even ask if he drove: T 231, which I consider a significant oversight) and the presence of a treadmill (T 217). She failed to inquire about his ability to use equipment such as a smartphone to pay his bills (T 232) although she acknowledged that this was significant information.
Third, Ms Patterson made a series of concessions in relation to inaccuracies and overstatements for her past and future home care assessments in this regard. She based her estimates on the plaintiff living half the week with his sister and the other half with a girlfriend, which was completely inaccurate, and may explain the large sums accorded to gardening and related work that the plaintiff never performed in his share accommodation (T 217 – 8). Even when she made inquiries of her own, these were at times unrelated to the plaintiff’s actual needs; for example she acknowledged that some of her estimates (such as mowing costs) were not locally based (T 229) or from mowing companies such as Jim’s Mowing (T 231) and she used skilled carer rates for a person who would perform such simple tasks as unpacking the plaintiff’s grocery shopping (T 230).
At the end of the cross-examination, Ms Patterson agreed:

Q. Do you have any knowledge as to how long it would take for a cleaner to come in and clean once week a three‑bedroom unit or a small three‑bedroom house?
A. Some cleaners send two people along so then that would make it quicker, but no knowledge is that it depends on the amount of cleaning that they're doing but floors and bathrooms probably an hour and a half to two hours (T 233).

Mr McCarthy’s estimate of the number of hours from the date the plaintiff first left hospital (excluding later gaol and hospital time) results in 2,834 hours of service provided by the plaintiff’s sisters and that averaging out the number of hours over the final period to be assessed in her first report (7 August 2014 – 21 May 2015, a period of 41 weeks) results in an average of 13 hours of gratuitous domestic assistance per week.
The plaintiff submits that there is no significant variation in the number of hours required between 21 May 2015 and the date the plaintiff moved in to his current home in Warragamba on 29 June (56 weeks) and this would result in 728 additional hours. The plaintiff’s care from 29 June to the date of the hearing (24 August 2016) is covered by Ms Patterson’s supplementary report as 107 hours (13.3 hours per week), showing the plaintiff still needs the same amount of assistance (or perhaps slightly more) than he did when first released from hospital in 2014. This results in the total of 3,669 hours, totalling $102,732.00.
The defendant has not set out, and the plaintiff has not answered, the detailed reasons identified in the defendant’s schedule of damages as the reasons for the reductions in past home care. However, the defendant has squarely raised these issues, based on concessions made by the plaintiff’s sisters and Ms Patterson in their evidence, and I propose to deal with each of them in turn.

28 November 2011 to 26 January 2011

There is very scant evidence about the plaintiff’s accommodation for much of his adult life. After he moved to Sydney, he appears to have lived in rented accommodation and then moved to the home of his sister Rebecca a few weeks prior to his release from gaol (as an indication of the general lack of information, his sister told the court she did not know where the plaintiff had been living prior to his coming to live in her home). Although the plaintiff was a good cook and was the barbecue cook for family meals, there is little evidence he did housework while he lived there, apart from tidying the room he occupied.
The plaintiff was obliged to leave his sister’s home following charges being laid after he assaulted her husband. For the months prior to the accident the plaintiff was living with about 6 people in a 6-bedroom share or boarding house, in which he shared bathroom and kitchen facilities and there was no shared housework; the only obligation was that he “just cleaned up after yourself [sic]” (T 127). He was not able to drive as his licence was suspended, so his girlfriend drove him around in the car which he owned, for which car expenses he claimed a tax deduction (T 129 – 130).
Mr O’Keefe submits that in these circumstances, Ms Patterson’s assessment should be accepted, but should not include any allowance for cleaning, gardening or outdoor maintenance as these tasks were not performed by the plaintiff at all. As the defendant’s schedule of damages shows, this reduces the hours to 19.13 hours for 8 weeks.
Mr McCarthy relied upon Ms Patterson’s evidence. Ms Patterson was reliant upon the evidence of the plaintiff and his sisters and did not make her own inquiries. She was unaware that the plaintiff had been living in share accommodation (T 217 – 8) where he was essentially only looking after himself. In those circumstances, her estimates were based on wrong information, and the amount to be awarded should be adjusted accordingly.

26 January to 26 April 2012

During this period the plaintiff was living with his sister Rebecca and her family. For the same reasons as set out above, allowances for general cleaning, gardening and outdoor maintenance should not be allowed. I am also troubled by a claim for car washing in circumstances where the plaintiff had a disqualification from driving for a period of many years. I accept the defendant’s estimate of 17.63 hours for 13 weeks.

26 April to 29 June 2012, 3 to 12 July 2012 and 27 August to 21 September 2012

I consider that the same deductions should be made from Ms Patterson’s assessment, for the same reasons. Accordingly, I allow 12.13 hours for 9.1 weeks for the first period, 18.13 hours for 2 weeks for the second period and 17.65 hours for 4 weeks for the third period. It is unclear to me if the plaintiff is claiming for having moved once (namely into his sister’s home and then in about May 2013, into a home unit). I propose to err on the side of caution and to allow for eight hours of moving on two occasions; I see that the defendant has allowed for this in any event.

Home care after the plaintiff was released from prison on 23 December 2012

The plaintiff was released from prison on 23 December 2012 and returned to live with his sister and her family. Again, I propose to accept the defendant’s assessment of past care and allow 10.13 hours for 19 weeks.
The plaintiff then moved into a home unit on 7 May 2013. This home unit did not have a garden or lawn or require household maintenance beyond cleaning, and these items should not be allowed. Nor am I prepared to make an allowance for car cleaning. The plaintiff was still disqualified from driving.
The plaintiff had an external fixateur from 2 July 2013 until its removal in March 2014 and required further surgery in March 2014. The defendant concedes that the plaintiff had a high need for assistance and I accept the defendant’s estimates for the whole of this period.

Home care from March 2015

This brings me to the defendant’s cut-off period of March 2015, this being the time from which Mr McCarthy submits that any reasonable need for assistance falls below the intensity threshold of s 141A, namely 6 hours per week. The plaintiff continues to claim the same rate for the period after the removal of the fixateur as for before.
I am satisfied by the reports of Dr Walker that the plaintiff’s fracture was still healing for a period of up to 18 months after his 3 July 2014 surgery. In practical terms, that takes the plaintiff up to the end of 2015, at which time it was hoped that the plaintiff would no longer need crutch. In this respect, I do not accept the defendant’s submissions that no allowance should be made.
However, once the plaintiff’s fracture united and he had no real need of his crutch (according to Dr Zeman, whose evidence I accept on this point), the situation changed. The plaintiff was able to move around more freely and to perform a number of household tasks of the kind shown in Ms Patterson’s photographs. I note Mr McCarthy’s submission that these were taken on a “good day”, but I prefer the submissions of the defendant that the plaintiff’s state of recovery meant that he dropped below the threshold, although I consider that the plaintiff’s drop below the threshold did not occur until the end of 2015.
In practical terms, that is a matter of approximately 8 months before these proceedings. The process of dropping below the threshold would have been a gradual one, with good days and bad days. A degree of flexibility is required in this regard. It is not possible to pinpoint when the plaintiff sufficiently recovered so as to fall below the threshold, and his sisters would have continued to provide the same care notwithstanding. Accordingly, I propose to continue the allowance of 8 hours of assistance per week up until the date of the hearing.
As is noted in the final orders, the parties have liberty to bring in short minutes of order reflecting the mathematically agreed sum for all these heads of damages.

Future home care

The same concept of reasonableness must be applied to claims for future assistance as to past assistance: Dang v Chea (2013) 63 MVR 240 at [38]-[41].
As counsel for the defendant notes in his written submissions at paragraph 100, there is no evidence that family members fail or refuse to continue to provide assistance for the plaintiff in the future.
The plaintiff, however, expressed embarrassment and concern that his sisters spent so much of their time looking after his domestic needs. He said at T 53:

“Q. How do you feel about the fact that your family members and friends are taking all this time out of their life to help you?
A. I appreciate it ‑ I don't really. I don't like it. Not much I can do about it. Like it's pretty much they're obligated, I suppose.”

The plaintiff also said that if he had the money available to him he would replace the service of his sisters with commercial cleaners and gardeners:

“Q. Well if you had the money would you replace their services with people who do it for pay?
A. Yeah, more than likely, yes.
Q. You're already hiring a gardener, a lawnmower guy, would you intend to keep paying him if you had the money?
A. Yes.” (T 53)

The kind of assistance the plaintiff required in the past and future is set out in the report of Dr Barold, who noted the plaintiff was unsuitable to undertake the following domestic activities following the accident:

Loading and emptying the washing machine;

Ironing;

Cleaning windows or the shower;

Moving furniture, vacuuming, sweeping and mopping;

Carrying shopping;

Gardening and mowing.

However, the parties relied upon the report of Ms Patterson who stated as follows in relation to the plaintiff’s future needs:

“11.3 FUTURE CARE RECOMMENDATIONS
My future care recommendations have been formulated based on Mr Smith’s need for care, rather than any situation that he may find himself in.
It is not reasonable to expect friends to provide the care Mr Smith needs as a result of his injuries and impairments.
Recommendations are also based on the expectation that Mr Smith will have been provided with the equipment and therapy recommendations outlined further in his report. Although these have been recommended to increase his participation in previous roles, his performance will still be limited by on-going upper limb, lower limb and back pain, and reduced functional abilities.
For those reasons, equipment and services may increase his independence with some tasks but he will continue to require commercial services to facilitate and encourage his participation in pre-injury tasks.
RECOMMENDATIONS
From 21 May 2015 onwards: It is estimated that Mr Smith is currently provided with approximately 13.0 hours per week of gratuitous assistance provided predominantly by his sister.
In my opinion, Mr Smith requires provision of 15.0 hours per week of commercial care to replace pre-injury contribution to domestic, garden and home maintenance tasks.
Recommendations are based on the assumption that Mr Smith will have received the therapy, services and equipment recommended throughout this report.

Commercial Services

Provider

Tasks/Est. Hrs

Av. Hourly Rate

Est. Av. Cost Per Annum

Shopping

Personal Care Attendant

Assistance to complete grocery shopping tasks including unpacking items – Total – 1.5 hrs/wk

$43.25

$3,382.58

Car Maintenance

Cleaning car interiors and exteriors, take car for servicing – Total 0.5 hr/wk

$1,127.53

Transportation and Community Access

Assistance to attend community to run physically demanding errands, including paying bills at post office, assistance to attend medical appointments and record important information – Total – 3 hrs/wk

$6,765.17

Domestic Services

Domestic Assistant

Cleaning tasks sweeping, mopping and vacuuming floors, dusting, wiping cupboards and benches, cleaning out fridge, oven, stove and microwave, clean surfaces, clean windows (3 hrs/wk); Assistance with meal preparation (3.5 hrs/wk;) [sic] Assistance with laundry, ironing, bedding changes (2.5 hrs/wk) – Total 9 hrs/wk

$42.38

$19,887.24

Garden Maintenance

Commercial Gardener

Gardening service to maintain front and back gardens including cutting hedges, pruning plants, removing weeds and sweeping leaves – Total – 0.5 hr/wk

$50.00

$2,607.00

Indoor and Outdoor Maintenance

Paid Trades and Handyman

Assistance with home maintenance including changing light bulbs, moving furniture, sweeping footpath, removing cobwebs – Total – 0.5 hr/wk

$55.00

$2,867.70

TOTAL YEARLY COSTS:

$36,637.22 p.a.

”

I am satisfied that the plaintiff is able to drive to the shopping centre and to carry out small grocery shopping tasks; he does not need assistance in unpacking items of this kind. Nor does he need transportation and community access or garden maintenance.
The figures for the amount of housework done for the plaintiff in the future are excessive. In her evidence, Ms Smith said that she could clean the house within 3 hours and Ms Patterson gave an even lower figure.
The question in those circumstances is whether or not the s 141B threshold can be met. To summarise these issues:

Ms Patterson’s evidence was that if commercial assistance was required, the plaintiff’s three-bedroom home could be commercially cleaned in its entirety in 1.5 to 2 hours per week. I am satisfied, from the material set out in Ms Patterson’s report, that the plaintiff is in fact capable of doing a number of tasks himself and any need for commercial help would be for only a small portion of this time.

One of the reasons given by the plaintiff’s sisters for the amount of assistance required by the plaintiff (and the plaintiff himself gave this evidence) was that the plaintiff’s memory had been affected by the accident, and that for this reason, as well as by reason of his ongoing psychiatric problems, he required a degree of motivation and reminding to perform tasks as he might otherwise forget, for example, to complete a cooking task, and was often depressed and in bed. There is no medical evidence that the plaintiff suffers from any loss of memory problems referrable to the accident and, as I have already noted, I am satisfied that the plaintiff’s depression was a pre-existing condition.

This is not a case where the plaintiff is unable to drive his motor vehicle or unable to get around his home without a crutch. His shopping is done by his sisters, who can obtain a store discount, and this is likely to continue for this reason. His problems with cooking can be remedied by equipment such as a kitchen stool to sit on and a longhandled device to pick up items he drops. I am satisfied that he needs no assistance in these areas.

I am satisfied that the plaintiff requires, at best, assistance with the cleaning of his home in the form of performance of the more difficult tasks, and that this assistance would amount to around one to two hours per week. Given the evidence of the plaintiff’s sisters who presently provide care and they intend to continue to do so in the future, I am satisfied that this allowance for gratuitous care could not meet the ongoing threshold for such care to be compensable (Australia and New Zealand Banking Group Ltd v Haq [2016] NSWCA 93 at [47]-[53]), and there is unlikely to be a need for commercial assistance in the future.
There are three other reasons for my determination. The first is that there was a great deal of exaggeration in the amounts claimed on the plaintiff’s behalf. The concessions made by Ms Patterson were significant. Where claims of vacuuming the plaintiff’s house three or four times a week are made, or inaccurate information about the plaintiff’s ability to drive are provided to an expert of the kind Ms Patterson is, it should not be left to the court to try to ascertain how much of the care claim is left after the inflated or inaccurate claims are taken out. I have not accepted the plaintiff or his sisters as reliable witnesses, and the level of exaggeration about home needs is such that I prefer to err on the side of caution.
Secondly, Ms Patterson’s style of presentation of report is that she sets out financial amounts for retention of commercial advice, rather than considering simple and obvious solutions. For example, Ms Patterson proposed six 1.5 hour sessions at $175 per hour for an occupational therapist to provide advice about equipment, retraining, home safety, manual handling and memory techniques. It would have been preferable if Ms Patterson had set out, in her report, the kind of information the plaintiff needed so that I could determine why it was necessary for him to be given all this training and advice, and why it would take ten hours to impart it. The equipment in question consists of items like a kitchen stool and vacuum and the “home safety” issues are unexplained. That sort of assistance should not be necessary for a person with the plaintiff’s level of disability.

The third is that, in Metaxoulis v McDonald's Australia Ltd [2015] NSWCA 95 the Court of Appeal stated:

“[81] The appellant’s written submission proposed an allowance of $26 per hour for two hours per week for the remainder of the appellant’s life expectancy, being 44.4 years. If that calculation were accepted, there must be a significant reduction for vicissitudes, both to take account of normal ageing processes and to take account of the significant likelihood that the appellant would have required domestic assistance at an earlier stage because of his existing injury. The adjustment is appropriately undertaken by way of a proportionate reduction in accordance with the principles identified in Malec v JC Hutton Pty Ltd. The appellant’s calculation produced a figure of $49,111; a reduction of 40% would produce an allowance, in round terms, of $30,000. That is an appropriate figure in the circumstances.”

No such adjustment was made here. Mr McCarthy seemed to consider that it was only appropriate to do so where the plaintiff was at an age where such issues were likely to arise. However, as the length of working life set out in the above extract from this decision shows, such a deduction may be relevant even to persons of the plaintiff’s age. Were such a deduction to be made, it would bring the plaintiff even further below the threshold.
While I do not propose to make an allowance for future home care, I note the defendant has conceded a sum to purchase home aids to enable the plaintiff to perform tasks in the home. (I note there has also been a concession about the plaintiff needing to undergo a pain management course in order to come to terms with his dependence on Endone, which I have factored into future medical expenses.)

Equipment

There is no separate heading for equipment in the plaintiff’s schedule. All that was claimed was future commercial assistance.
The following equipment was recommended by Ms Patterson:

Equipment item

RRP

Replacement Period (Yrs)

Annual Labour Cost

Annual Cost

Accommodation

Toilet surround

$83.90

5

-

$16.78

Shower stool

$79.90

5

-

$15.98

Physical Functioning

Bed rail

$41.90

5

-

$8.38

Posture Support Pillow

$20.00

2

-

$10.00

Height adjustable chair (e.g. Hilite chair)

$604.90

10

-

$60.49

Handybar

$80.05

7

-

$11.44

Activities of Daily Living

Long-handled reacher

$47.90

3

-

$15.97

Sock aid

$32.90

3

-

$10.97

Long-handled shoe horn

$8.70

3

-

$2.90

Instrumental Activities of Daily Living

Kitchen stool

$257.50

5

-

$51.50

Lightweight vacuum (e.g. Ergo Rapido Electrolux)

$219.00

3

-

$73.00

Long-handled dustpan (e.g. Kmart Long Handled Pan and Broom)

$10.00

2

-

$5.00

Raised garden beds (x 2) (e.g. Bunnings: Birdies Garden Bed)

$139.00

5

-

$55.60

Garden Stool (e.g. Bunnings: Yardworks Garden Kneeler)

$27.94

2

-

$13.97

TOTAL ANNUAL COST:

$351.98

Additionally, counsel for the defendant suggested that the plaintiff would benefit from obtaining a dryer, which is not included in this schedule. He also suggested a dishwasher. There is no information available to me as to the cost in question.
Further, rather than the cheap lightweight vacuum Ms Patterson lists, the plaintiff would benefit from a self-propelling vacuum, which would cost considerably more than $219 proposed. The significant advances made with vacuum construction and design may mean that this source of pain-producing housework may in the future be referred to less often in personal injury proceedings.
Obtaining these items would significantly assist the plaintiff. For example, a dryer would make performing laundry tasks easier. The plaintiff would be better able to cook for himself if he had a kitchen stool to sit on and a long-handled dust pan for objects which drop.
Having regard to the concessions made by the defendant in the course of his closing submissions, I propose to award a cushion of $15,000 for these items. This is more than Ms Patterson or the defendant suggested but, having regard to the answers of Ms Patterson in cross-examination, equipment of this kind will enable the plaintiff to do more around the house.

Past and future out of pocket expenses

Past out of pocket expenses are agreed in the sum of $29,323.75 and are rounded up to $29,324.

Future out of pocket expenses

There is only a difference of $10,000 between the parties’ estimates as the plaintiff’s future medical expenses are of narrow compass.
Dr Walker confirmed that the plaintiff has no future requirement for surgery:

“Q. You haven't advised him of any future plans for any more surgery, have you, at this stage?
A. No, I mean I ‑ other than if he was going to have some recurrent state of infection. He's got a plate in there. I don't think he'll require posttraumatic surgery on his knee or his ankle in terms of arthritis, but if he was to get an infection, for example, so a patient could have plates in, they could be going along fine and also have a flare infection ..(not transcribable).. If you have something like that then he would need the plate taken out and may need some ongoing treatment. Other than that I can't anticipate any surgery in the future. (T 152)

Dr Walker also confirmed that the plaintiff has no need for physiotherapy or hydrotherapy:

“Q. Do you believe that there is any improvement to be gained for this man from ongoing physiotherapy and hydrotherapy?
A. I don't think so, after five years, no.” (T 155)

All of the doctors agreed that the plaintiff should not continue to take Oxycontin. Dr Walker referred to it, scathingly, as “hospital grade heroin”:

“I also tell ‑ pretty much every patient who is on OxyContin, short‑term or long‑term, is a bad thing. It's basically heroin. It's hospital grade heroin. It kills more people than, you know, heroin. It's addictive. I don't think it's a long‑term solution to ongoing pain management. If a patient, for example, is on 80 milligrams of ‑ twice a day on OxyContin and you still have terrible pain ‑ it's addictive. It makes them feel terrible. It's not good for their mental health, and so I didn't institute it, and I don't recommend it to patients. There are plenty of my patients on it, and it's not a good thing.
Q. In those circumstances, would you be supportive of Mr Smith participating in a pain management program with a pain specialist with a view to ceasing OxyContin?
A. Yes, definitely but unfortunately the pain management specialist is ongoing narcotic use and so, yeah, I'm actually the right person and I think it has to be with ‑ you have to have the patient on board. If you don't have the patient on board then, you know, it doesn't help. I would say that somebody needs help him get off it, he needs to be shown other ways of managing pain, but I would say that when you've been on it for a long time like he has the number of patients that get off is like ..(not transcribable).. and there's only so much I can do.” (T 151)

Dr Zeman agreed with Dr Walker’s views (at 244):

“A. Yes. That's usually from the experience in the U.S., where it's also referred to as "Hillbilly heroin" and somewhat derogatively. I think fortunately we don't use it as much and we have other medications but it is a narcotic and like any narcotic you can get an addiction to it.” (T 244).

There is little information about what would be involved in terms of any pain management programme for the plaintiff to reduce his OxyContin intake, or as to the cost of any replacement pain medication, if such is required. Ms Patterson, in cross-examination, estimated that the cost would be $8,000 and that is the figure I propose to accept.
There will be expenses in the future of a follow-up nature for the plaintiff’s general practitioner. Dr Walker did not say that follow-up visits with him, or x-rays, were required.
Both parties propose a buffer, but in the absence of more information as to the nature and extent of the costs of such treatment (and despite the fact that the onus lies on the plaintiff), I propose to err on the side of caution and award the buffer sought by the plaintiff of $35,000.

Conclusions as to damages

The parties have liberty to bring in short minutes of order reflecting the mathematically agreed sums for past and future economic loss, past and future superannuation, past and future out of pocket expenses, past home care and equipment. I have also granted liberty to apply in relation to costs.

Orders

Judgment for the plaintiff.
Liberty to the parties to bring in short minutes of order reflecting the mathematically agreed calculation of damages.
Defendant pay plaintiff’s costs.
Liberty to apply in relation to costs.
Exhibits retained for 28 days.

**********

Amendments

01 December 2016 - Typographical error at [278]

Decision last updated: 01 December 2016

Medium Neutral Citation:	Smith v Alone [2016] NSWDC 265
Hearing dates:	29, 30, 31 August and 2 September 2016
Date of orders:	25 October 2016
Decision date:	25 October 2016
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Judgment for the plaintiff. (2) Liberty to the parties to bring in short minutes of order reflecting the mathematically agreed calculation of damages. (3) Defendant pay plaintiff’s costs. (4) Liberty to apply in relation to costs. (5) Exhibits retained for 28 days.
Catchwords:	TORT – personal injury – assessment of damages – contributory negligence agreed at 60% – past and future economic loss – whether higher than usual percentage of vicissitudes appropriate – past and future home care – no issue of principle
Legislation Cited:	Civil Liability Act 2005 (NSW) Motor Accidents Compensation Act 1999 (NSW), ss 126, 131, 141A and 141B
Cases Cited:	Australia and New Zealand Banking Group Ltd v Haq [2016] NSWCA 93 Boral Bricks Pty Ltd v Cosmidis [2013] NSWCA 443 Coles Supermarkets Australia Pty Ltd v Meneghello [2013] NSWCA 264 Dang v Chea (2013) 63 MVR 240 FAI Allianz Insurance Ltd v Lang [2004] NSWCA 413 General Motors-Holden Pty Ltd v Moularas (1964) 111 CLR 234; [1965] ALR 646 Hill v Forrester (2010) 79 NSWLR 470 King v Western Sydney Local Health Network [2011] NSWSC 1025 Kwong v Abdulwahab [2016] NSWCA 107 Mahony v Watson [2003] NSWCA 259 Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Mead v Kearney [2012] NSWCA 215 Metaxoulis v McDonald's Australia Ltd [2015] NSWCA 95 Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 Nominal Defendant v Livaja [2011] NSWCA 121 Patrech v State of New South Wales [2009] NSWCA 118 Purkess v Crittenden (1965) 114 CLR 164 Ridolfi v Hammond [2012] NSWCA 3 Schultz v McCormack [2015] NSWCA 330 State of New South Wales v Maxwell [2007] NSWCA 53 Taupau v HVAC Constructions (Qld) Pty Ltd [2012] NSWCA 293 The Nominal Defendant v Kostic [2007] NSWCA 14 Vosebe Pty Ltd v Bakavgas; Vosebe Pty Ltd v Vapore [2009] NSWCA 117 Watts v Rake (1960) 108 CLR 158 Woolage v NSW [2001] NSWCA 256 Wynn v New South Wales Insurance Ministerial Corporation (NSW Court of Appeal, 11 August 1994)
Texts Cited:	Graycar R, “Damaged Awards: The Vicissitudes of Life as a Woman” (1995) 3 TLJ 160
Category:	Principal judgment
Parties:	Plaintiff: Jeffrey Warren Smith Defendant: Sales Kupu Alone
Representation:	Counsel: Plaintiff: Mr S McCarthy Defendant: Mr R O’Keefe Solicitors: Plaintiff: AC Lawyers Defendant: Moray & Agnew
File Number(s):	2014/24132
Publication restriction:	None

Commercial Services	Provider	Tasks/Est. Hrs	Av. Hourly Rate	Est. Av. Cost Per Annum
Shopping	Personal Care Attendant	Assistance to complete grocery shopping tasks including unpacking items – Total – 1.5 hrs/wk	$43.25	$3,382.58
Car Maintenance		Cleaning car interiors and exteriors, take car for servicing – Total 0.5 hr/wk		$1,127.53
Transportation and Community Access		Assistance to attend community to run physically demanding errands, including paying bills at post office, assistance to attend medical appointments and record important information – Total – 3 hrs/wk		$6,765.17
Domestic Services	Domestic Assistant	Cleaning tasks sweeping, mopping and vacuuming floors, dusting, wiping cupboards and benches, cleaning out fridge, oven, stove and microwave, clean surfaces, clean windows (3 hrs/wk); Assistance with meal preparation (3.5 hrs/wk;) [sic] Assistance with laundry, ironing, bedding changes (2.5 hrs/wk) – Total 9 hrs/wk	$42.38	$19,887.24
Garden Maintenance	Commercial Gardener	Gardening service to maintain front and back gardens including cutting hedges, pruning plants, removing weeds and sweeping leaves – Total – 0.5 hr/wk	$50.00	$2,607.00
Indoor and Outdoor Maintenance	Paid Trades and Handyman	Assistance with home maintenance including changing light bulbs, moving furniture, sweeping footpath, removing cobwebs – Total – 0.5 hr/wk	$55.00	$2,867.70
TOTAL YEARLY COSTS:				$36,637.22 p.a.

Equipment item	RRP	Replacement Period (Yrs)	Annual Labour Cost	Annual Cost
*Accommodation*
Toilet surround	$83.90	5	-	$16.78
Shower stool	$79.90	5	-	$15.98
*Physical Functioning*
Bed rail	$41.90	5	-	$8.38
Posture Support Pillow	$20.00	2	-	$10.00
Height adjustable chair (e.g. Hilite chair)	$604.90	10	-	$60.49
Handybar	$80.05	7	-	$11.44
*Activities of Daily Living*
Long-handled reacher	$47.90	3	-	$15.97
Sock aid	$32.90	3	-	$10.97
Long-handled shoe horn	$8.70	3	-	$2.90
*Instrumental Activities of Daily Living*
Kitchen stool	$257.50	5	-	$51.50
Lightweight vacuum (e.g. Ergo Rapido Electrolux)	$219.00	3	-	$73.00
Long-handled dustpan (e.g. Kmart Long Handled Pan and Broom)	$10.00	2	-	$5.00
Raised garden beds (x 2) (e.g. Bunnings: Birdies Garden Bed)	$139.00	5	-	$55.60
Garden Stool (e.g. Bunnings: Yardworks Garden Kneeler)	$27.94	2	-	$13.97
TOTAL ANNUAL COST:				$351.98