Southern v Townsend - [2000] WADC 233

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: SOUTHERN -v- TOWNSEND [2000] WADC 233

CORAM: COMMISSIONER REYNOLDS

HEARD: 15, 16, 17, 18, 19 MAY 2000

DELIVERED : 22 SEPTEMBER 2000

FILE NO/S: CIV 2469 of 1998

BETWEEN: GARY ALAN SOUTHERN
Plaintiff
AND
TRENTON STUART MARTIN TOWNSEND
Defendant

Catchwords:

Damages - Pedestrian - Liability - Contributory negligence - Foot run over by car - Complex regional pain syndrome - Psychiatric condition - Depression

Legislation:

The Motor Vehicle (Third Party Insurance) Act 1943

Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947

Result:

Plaintiff awarded $290,000

Representation:

Counsel:

Plaintiff: Mr T Lampropoulos
Defendant: Mr G P Bourhill

Solicitors:

Plaintiff: Simon Walters
Defendant: McAuliffe Schwikkard

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

Commissioner of Railways v Ruprecht (1979) 142 CLR 563
Jongen v CSR Ltd & Anor (1992) A Tort Rep 81-192
Malec v Hutton Proprietary Limited (1990) 168 CLR 638
Patallo v Thomas (1984) 1 MVR 359, 360
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 491
Stocks v Baldwin (1996) 24 MVR 415
Walker v McCall (1994) 20 MVR 146

Case(s) also cited:

Nil

COMMISSIONER REYNOLDS:

Introduction

The plaintiff was born on 28 September 1953 and is 46 years of age. On 29 May 1997 he was a pedestrian walking in the yard of Wanneroo Auto's when he was struck by a car driven by the defendant ("the accident"). The plaintiff alleged that the accident was caused by the defendant's negligent manner of driving. The defendant has admitted that he was negligent but has alleged that the negligence of the plaintiff contributed to the accident.
The plaintiff has alleged that he sustained soft tissue injuries to the cervical, thoracic and lumbar spine, left leg and left foot which have produced tenderness and limitation of neck, back and left leg movements, secondary reflex sympathetic dystrophy, postural antaglia, oedema of the left leg, headaches, discomfort, sleep disturbance and psychological symptoms including depression and anxiety. The plaintiff claims damages including damages for loss of enjoyment of life and loss of amenities and past and future economic loss resulting from his accident related injuries and symptoms. The defendant denies that the plaintiff sustained any compensible injury and damage.
Given that the defendant has admitted negligence, the only liability issues are whether the plaintiff is guilty of contributory negligence, and if so, to what extent. The other issues to be determined concern what physical and psychological/psychiatric injuries, if any, have been suffered by the plaintiff as a result of the accident and the appropriate quantum of damages if any.

The plaintiff's pre-accident history

The plaintiff was born in Subiaco and as already mentioned is 46 years of age. He is divorced and has three dependent children aged 17, 16 and 14 years. He completed his primary education at Rivervale and Belmont primary schools. He then attended Belmont High School and left school part way through third year. On leaving school he commenced work in the catering industry as a cook. He successfully completed a three-year apprenticeship as a junior cook. During the apprenticeship the plaintiff studied at a college of catering in Melbourne where he received an award for being the top apprentice. On completion of his apprenticeship he worked in the north of this State for a few months as a chef and then in October 1971 joined the Army and served as a scout.
The plaintiff left the Army in October 1974. During his time in the Army he was very fit and participated in a number of sports. On leaving the Army he worked as a cook. In 1975 he commenced work at a car yard in Perth selling used cars. He has been in the car industry ever since. After working for two years as a sales representative he was then promoted to the position of sales manager. In about 1979 he moved to another dealership and held the position of used car sales manager. He then moved to selling new cars and for some time was a service manager.
During 1978 the plaintiff and others established the Automobile Sales Institute Incorporated to act as the union body for salesmen in the car industry. In the 1980's and 1990's he attended many courses on service and sales in the car industry. He became involved in installing sales and service programmes at two dealerships in Perth. Thereafter he worked at another dealership owned by a person named Brian Gardner where he trained sales people and did consultancy type work. The plaintiff then took a break from the car industry and worked as a publican at the Weir Hotel in Mundaring for about nine months. He then went back to work for Brian Gardner and was involved in designing a new dealership. He then moved to another dealership and sold cars for about 12 months.
In 1984 the plaintiff commenced work at a car dealership owned by a person named Harry Dutton. He remained there for 13 years until 3 February 1997. During his time at this dealership the plaintiff became second-in-charge of the dealership and his duties included selling cars, purchasing and valuing cars, managing and training sales personnel, preparing and monitoring budgets and designing how cars are displayed in the car yard to potential customers. The plaintiff stated that most of the decisions at the Harry Dutton dealership were made by him.
The plaintiff commenced work at Wanneroo Auto's on 7 February 1997. Before starting at Wanneroo Auto's he had received two offers of employment from other car dealerships in Perth but declined because he wanted to run his own dealership. Wanneroo Auto's was owned by Tony Townsend ("Mr Townsend"). The plaintiff and Mr Townsend entered into an arrangement whereby the plaintiff managed Wanneroo Auto's for a period of time within which he could assess the potential of the business and if it met his expectations he could enter into discussions with Mr Townsend to acquire an interest in the business. The plaintiff thought that the business was well located on a busy road, namely Wanneroo Road, and that the size of the yard had the potential to carry a lot of stock. From February to May 1997 the plaintiff managed Wanneroo Auto's and made assessments of all of the staff. With the assistance of others he painted the building of the car yard premises and established garden beds to make the premises more attractive and inviting to potential customers. He applied certain dress standards to sales staff so that they looked professional. The plaintiff gave evidence that he turned the business from losing money to paying all of its bills. He stated that just prior to the accident "I was hopeful that the dealership would pull through but I did not know at that stage". He added that he really wanted to make it work because he wanted his own dealership.

Liability - evidence relating to the accident

The premises of Wanneroo Auto's are situated on the western side of Wanneroo Road. In other words the premises would be on a person's left-hand side when he or she was driving on Wanneroo Road in a northerly direction and away from Perth.
The cars were parked for display in the car yard in three separate rows, all approximately parallel with each other and to Wanneroo Road. The cars were parked in such a way that they all faced Wanneroo Road and pointed back towards Perth at an angle of about 30 to 45 degrees. The row closest to Wanneroo Road consisted of about 15 cars, the middle row of about 12 cars and the back row of about 11 cars. Set out in this way there were two driveways created in the car yard, one between the row of cars closest to Wanneroo Road and the middle row and the other between the middle row and the row at the back of the caryard. The back of the car yard was bordered by a small local road and cars could enter and exit the car yard using this local road via a driveway close to the office premises at the Perth or southern end of the caryard. On entering the caryard from the driveway linking this small local road and the car yard the Perth or southern end of the back and middle rows of cars was on your left-hand side and directly in front of you and about the width of the car yard away was the third or fourth car from the Perth or southern end of the row of cars parked closest to Wanneroo Road.
The plaintiff gave evidence that shortly before the accident he was doing what he referred to as "reconditioning work". This work consisted of inspecting the cars and making a record of any chips, dents, faulty paintwork or other such things that needed to be repaired to better present a car for sale. He said that when he carried out this task he would go around the car to inspect it and then lean on the front guard of the car and write down the details of work that needed to be done.
The plaintiff gave evidence that on the day of the accident he had checked a car for items of reconditioning that needed to be attended to. He then leaned his left side on the right front quarter panel of the car next to the one he had just inspected. He adopted a "half seated" position with his "right foot planted on the ground". He gave evidence that this was a comfortable position for him to make notes on his clipboard. When he had finished making his notes he then pivoted on his right foot and turned it about 180 degrees to his right to move away from the car. He then took a step with his left foot and when he put it on the ground a wheel on the car driven by the defendant ran over it. The plaintiff gave evidence that the wheel also struck the lower part of his left leg. He also believes that the vehicle struck him on his left hip or upper thigh which caused him to twist and also injure his lower back.
The plaintiff gave evidence that at the time of the accident the defendant was reversing a Hyundai Exel ("the Hyundai") in a northerly direction, ie, away from Perth and away from the office building on the premises, down the driveway between the row of cars closest to Wanneroo Road and the middle row of cars. The plaintiff had been leaning/half sitting on the right front quarter panel of a car parked in the middle row of cars. The Hyundai was reversed towards the plaintiff from the plaintiff's right-hand side. The plaintiff gave evidence that the driveway between the two rows of cars was about three car widths wide. He said that it was his intention to walk back to the office building when he stepped out from the parked car. The office building would have been to his right-hand side, ie, south, as he stepped away from the parked car.
It is important to note the plaintiff's evidence that he did not look to his right before he stepped out into the driveway between the two rows of cars. The Hyundai approached him from his right. The plaintiff gave no reason why he did not look to his right. He said during his evidence-in-chief that he did not hear the Hyundai being reversed towards him because of the noise of the heavy traffic on Wanneroo Road. During cross-examination he agreed with the proposition that he would have stepped into the path of the Hyundai.
It was put to the plaintiff during cross-examination that on the day of the accident he was not inspecting cars to take down details of necessary reconditioning work but rather selecting cars one by one and directing salesmen to drive them out of the car yard to the small road at the rear of the car yard where they were photographed for newspaper advertisements. The cars would then be returned to the caryard. The accident occurred on a Thursday. The plaintiff said that he was sure that cars were photographed for advertisements on a Wednesday, Thursday or Friday. Early in the plaintiff's cross-examination he said that he did not remember whether or not the day of the accident was "an 'ad' day". Later during cross-examination the plaintiff said that he can recall doing reconditioning work on the day of the accident. Later he said that it could have been an "ad" day with cars being moved about.
The plaintiff indicated that he was not the only person who organised the movement of cars in and out of the yard to be photographed. In addition to saying that he sometimes organised it, he also said that there were occasions when he gave a list of cars to a salesman for the salesman to organise it. He said that a salesman might have been organising the movement of cars in and out of the car yard on the day of the accident. He did not think that he organised this activity on the day of the accident and could not recall doing so. The plaintiff positively stated that if he was inspecting cars and making notes of reconditioning work then he would not have been directing the movement of cars in and out of the car yard to be photographed. The plaintiff stated in a written notice of the accident for the purpose of workers' compensation dated 5 June 1997 that at the time of the accident he was "checking stock".
The defendant is currently employed as the sales manager at Townsend Auto's. His father, Mr Townsend, is the owner of Townsend Auto's and owned Wanneroo Auto's at the time of the accident. The defendant was 25 years of age and had been working at Wanneroo Auto's for about seven and a half years as at the time of the accident. He gave evidence that when he was employed by Wanneroo Auto's the cars had always been displayed in the car yard in a "three line configuration" as they were on the day of the accident and that he had backed cars down the space between rows of cars about 10 to 15 times per day.
The defendant gave evidence that on the morning of the accident the plaintiff was organising cars to be photographed for advertisements. The defendant referred to the day on which this activity took place as "ad day". He said that cars were moved out of the car yard one by one to the road at the rear of the premises where it was photographed and then driven back to where it had been parked in the car yard. The defendant gave evidence that the cars to be photographed had to be moved in an orderly fashion so as to ensure that the movement of one car did not hinder the movement of another. He said there were three people actually moving the cars and that the plaintiff was coordinating the whole activity.
He gave evidence that the plaintiff would hold a clipboard during these activities and move steadily throughout the car yard, sometimes directing drivers and at other times looking down at his clipboard or inspecting cars.
The defendant gave evidence that the plaintiff directed him to move the Hyundai to be photographed. He reversed the Hyundai out of its position in the front row of vehicles closest to Wanneroo Road and then drove it outside the car yard where it was photographed. He then drove the Hyundai back into the caryard. The defendant gave evidence that the plaintiff would have known what the defendant's movements would have been in the Hyundai because he was organising the activity and because he knew of the configuration of the cars in the caryard at the time. The defendant stated that after the Hyundai was photographed he drove it back into the yard and made a slight turn to the right and stopped before reversing it back in the space between the rows of cars and into its initial position. The configuration of the cars in the caryard did not allow a forward approach to the initial car space. Because the cars were parked at an angle facing Wanneroo Road and pointing back towards Perth the Hyundai had to be reversed back just beyond the space and then driven forward at an angle of about 45 degrees into the space and parked parallel to the other cars in the row.
The defendant gave evidence that he has had about 12 years experience of reversing cars around a car yard. He said that he always tries to reverse down the middle of the space between two rows of cars. He said that in this instance the driveway between the two rows of cars was about four metres wide. He also said that before he commenced to reverse the Hyundai he was a metre or so away from cars in the western row to his right and that during the reversing manoeuvre the Hyundai would not have got any closer than one metre to the cars parked in that row.
The defendant gave evidence that when he drove the Hyundai back into the car yard after it had been photographed and positioned it in readiness to reverse between the two rows of cars he saw the plaintiff at the rear of a car in the middle row of cars in the caryard and well clear of where he had to reverse the Hyundai. The defendant gave evidence that prior to reversing the Hyundai he first checked the right-hand mirror on the side of the Hyundai and then turned his head to the right and again saw the plaintiff in the same position as shortly before and well clear of where he intended to reverse the Hyundai. The defendant said that he also carried out these checks to make sure that the Hyundai was positioned correctly and would not collide with any car on either side when it was reversed. The defendant said that when he observed the plaintiff shortly before commencing to reverse the Hyundai the plaintiff was just standing and certainly not moving behind a car in the middle row of cars and had a clipboard in his hand. He said that the plaintiff did not appear to be writing and that he did not know whether or not the plaintiff was looking at a car. The defendant said that he then "checked my rear vision mirror and saw nothing but road". He then turned to his left and looked over his left shoulder and began to reverse the Hyundai at four to five kilometres per hour and continued to look over his left shoulder as he did so.
The defendant gave evidence that no one came into his field of view as he was reversing. He stated that after he had reversed about eight to 10 metres he felt a slight bump at the right rear tyre and thought that he had run over a hose which was lying on the ground of the car yard. He said that he did not hear anything. The defendant indicated that it was about fifteen seconds between when he had last seen the plaintiff and when he felt the slight bump. He kept reversing the Hyundai for another five metres and stopped the Hyundai in preparation to then drive it forward into the car space where it had been initially parked. At this point the defendant saw the plaintiff standing close to the middle row of cars and about five metres away from the Hyundai. The defendant could not recall what the plaintiff was doing.
The defendant parked the Hyundai and as he started to walk towards the plaintiff the plaintiff said to him, "You run my foot over", to which he responded, "No, you're joking". The plaintiff indicated that he was not joking and the defendant then said, "Sorry mate" to the plaintiff. The defendant says that in response to his apology the plaintiff said, "It was not your fault. If it was, there would be trouble". The defendant gave evidence that at this point he noticed that the plaintiff was hobbling. The defendant gave evidence that the two of them then went and sat down at a table and chairs just outside the car yard office. The defendant stated that when he spoke with the plaintiff at that location the plaintiff told him that he was looking the other way as he approached, that he had walked into the car and that he had not seen the car approach. The defendant gave evidence that the plaintiff also expressed apprehension about taking his shoe off because he was in a great deal of pain, although he did not indicate which part of his foot had been run over.
The defendant reported the accident to police and completed an accident report form on 6 June 1997. This document is Exhibit 7. The report form carries a sketch of the accident scene in which the Hyundai is positioned relative to the three rows of cars in the car yard before the defendant commenced to reverse it. It depicts a person positioned at the front right, ie, driver's side, corner of the third car in the middle row of cars.

In cross-examination it was put to the defendant that this was where he had last seen the plaintiff before he commenced to reverse the Hyundai and not behind a car in the middle row of cars as he had said earlier in his evidence. The defendant said that when the sketch was made he was told by a police officer to draw the plaintiff where he believed the plaintiff would have been for the plaintiff to have been run over. He also said that the position of the plaintiff on the sketch is where he believes the plaintiff was coming through before the accident and that the plaintiff would not have been standing next to the front of the car when he ran over him. He added that he was very certain that the cars in the middle row were no closer than one metre to the Hyundai as he reversed the Hyundai.

Findings in relation to the accident

I prefer and accept the evidence of the defendant to that of the plaintiff on whether or not the accident occurred on an "ad day", what the plaintiff and the defendant were doing on the morning of the accident, the position of the plaintiff immediately before the defendant commenced to reverse the Hyundai and generally in relation to the circumstances of the accident. The defendant gave his evidence on these issues in a clear and forthright manner whereas the plaintiff, on my assessment, was somewhat vague and unclear in his recollection.
This is not a case where I find the plaintiff to be positively untruthful on these issues. His evidence that he did not look to the right before he moved into the driveway between the two rows of cars is obviously to his disadvantage and the fact that he gave it is an indication that he was doing his honest best. I think that the plaintiff genuinely lacks a clear recollection of all of the events leading up to the accident. I also think that he is confused on some points. I accept his evidence that the wheel of the Hyundai ran over his left foot but I do not accept that he was struck on his left hip or upper thigh.
The defendant has admitted in the pleadings that he was negligent. In my view there is good basis for the admission and it was clearly appropriate that he made it. The question is whether the plaintiff is guilty of contributory negligence and if so to what extent. The onus of proving contributory negligence is upon the defendant and the test is whether the plaintiff failed to take reasonable care for his own safety, which depends upon the circumstances of the case. In Commissioner of Railways v Ruprecht (1979) 142 CLR 563 at 570 Mason J noted the difference between negligence and contributory negligence:
"Contributory negligence differs from negligence. There is no duty of care owed to another person (Nance v British Columbia Electric Railway Co Ltd [1951] AC 601 at 611); and contributory negligence involved conduct which exposes the actor to the risk of injury without necessarily exposing others to risk."
The principles governing apportionment of liability are well settled. In Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 491 at 494, the High Court held:
"The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involved a comparison both of the culpability, ie, of the degree of departure from the standard of care of the reasonable man (Pennington v Norris (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] AC 663 at 682; Smith v McIntyre (1958) Tas SR 26 at 42-49 and Broadhurst v Millman [1976] VR 208 at 219 and the cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination."
There is a higher duty of care placed upon a driver of a motor vehicle in comparison with the obligation of a pedestrian to take reasonable care for his or her own safety. There is good reason for this approach. A motorist driving without due care and attention can cause significant injury to a pedestrian whereas a lack of care by a pedestrian is not likely to cause any or any significant injury or damage to others. See Patallo v Thomas (1984) 1 MVR 359, 360; Walker v McCall (1994) 20 MVR 146 at 149 and Stocks v Baldwin (1996) 24 MVR 415 at 418.
It is trite to say that each case must be considered in light of its own particular circumstances. I think it is worthwhile making this comment because many of the authorities involving cars striking or coming into contact with pedestrians involve cars being driven on public roads bordered by footpaths or access ways and where speed is a key factor. This case does not involve a public road and further, accepting the defendant's evidence that he reversed at four to five kilometres per hour, speed is not a key factor. Therefore apportionments in many of the authorities involving public roads and speed do not provide much or any assistance in this particular case.
I propose to carry out a comparative examination of the conduct of each of the plaintiff and the defendant in light of the facts as I find them in this particular case, starting with the defendant.
The defendant failed to keep a proper lookout when he was reversing the Hyundai. As he reversed he kept looking over his left shoulder and by doing so could only see what was behind and to the east, ie, Wanneroo Road side of the Hyundai. He could not have seen and did not see the cars in the middle row of cars immediately to the west, ie. the driver's side of the Hyundai as he approached them when he was reversing the Hyundai. Therefore, if a person stepped or walked out from between cars in the middle row of cars into the space between the two rows of cars in which the Hyundai was being reversed, then the defendant would not have seen such person. The defendant should have checked behind and to his right, ie. to the west, during the reversing manoeuvre. Although the plaintiff moved from behind a car in the middle row of cars and then between two cars before moving into the pathway of the Hyundai, if the defendant had looked behind and to his right as he reversed the Hyundai he would have had no difficulty seeing the plaintiff before he moved into the pathway of the Hyundai. The plaintiff was walking and so part of his body would have been visible to the defendant above the rooftops and bonnets of the cars parked in the middle row of cars. The defendant was travelling at only four to five kilometres per hour and so if he had kept a proper look out to his right and observed the plaintiff he would have been able to stop in a relatively short distance and avoid colliding with the plaintiff.
Although the defendant had twice observed the plaintiff to be stationary behind a car in the middle row of cars before he commenced to reverse the Hyundai, (1) both observations by the defendant of the plaintiff were within a short period of time, (2) although the plaintiff was behind a car he was still only about 10 to 15 metres away from the Hyundai and relatively close to the pathway on which the defendant intended to reverse the Hyundai, (3) the defendant knew that the plaintiff was selecting cars to be taken out of the car yard to be photographed which required the plaintiff to move about the car yard to point out cars to other employees.
I accept that the defendant drove no closer than about one metre to the front of the cars in the middle row of cars. Given that the space between the two rows of cars in which the defendant was reversing the Hyundai was about four metres he could not have been reasonably expected to have kept any greater distance.
The plaintiff alleged and the defendant admitted in the pleadings that the defendant failed to keep any or any proper lookout, failed to keep the Hyundai under any or any proper control, drove the Hyundai at a speed which was excessive in all the circumstances, failed to apply the brakes on the Hyundai in time to avoid the collision and failed to steer or control the Hyundai so as to avoid the collision.
On my view of the evidence the key failure by the defendant was his failure to keep a proper lookout. His speed was not excessive in the circumstances and had he looked properly he could have stopped within a short distance and avoided the collision. He only failed to apply his brakes and to steer or control the Hyundai to avoid a collision with the plaintiff because he did not keep a proper lookout and observe the plaintiff.
The plaintiff's key failure to take reasonable care for his own safety was his failure to look to his right before he moved into the space between the two rows of cars. Had he done so he would have had no difficulty seeing the Hyundai being reversed towards him. The plaintiff was in control of the activity of selecting the cars to be driven out of the car yard and photographed. He selected the Hyundai and instructed the defendant to drive it out of the car yard for it to be photographed. Therefore he would have known where the Hyundai was initially parked in the car yard and so where it would be returned after it was photographed. He also would have known the approximate time that a car would be out of the car yard to be photographed and approximately when it would be returned to its initial parking spot. Therefore he should have looked to see whether the Hyundai was being returned to its initial parking spot before he moved into the space between the two rows of cars. He should have looked in any event and particularly so in this case given that traffic noise from Wanneroo Road, of which the plaintiff would have been aware, would have probably drowned out any engine and/or gearbox noise from the Hyundai when it was being reversed.
Regrettably, despite knowing all of these things, the plaintiff failed to look to his right. If he had properly looked to his right then the parked cars in the middle row of cars would not have obscured his view of the Hyundai as it was being reversed towards him. Further, if he had properly looked to his right before and as he moved between cars in the middle row of cars, then given the slow speed of the Hyundai he could have easily avoided a collision with it. Even if he had looked to his right relatively late he could have avoided the collision by not taking just one extra step.
Balancing all of these conflicting considerations leads me to the view that the apportionment of liability between the plaintiff and the defendant should be 60 per cent - 40 per cent in favour of the plaintiff. The plaintiff is therefore entitled to recover damages for personal injury from the defendant but such damages should be reduced by 40 per cent pursuant to s 4 of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947.

The plaintiff's post accident history

The plaintiff gave evidence that immediately after the accident he was finding it difficult to walk. He drove himself to the surgery of Dr Yeoh, his general practitioner, in Ocean Reef. Dr Yeoh gave the plaintiff a pethidine injection for pain relief. The plaintiff was then driven by a friend to the Joondalup Health Campus for x-rays and further assessment of his left leg and lower back pain. He was admitted as an inpatient for the next two days and during this time he required further pethidine injections for pain relief. The x-rays of his back and left foot showed no fractures.
After the plaintiff was discharged from hospital he continued to consult Dr Yeoh. He returned to work on Monday 2 June 1997 on a part time basis and initially his daily hours of work varied from between two and four hours per day. The plaintiff used a wheelchair to move about the car yard for a few days after he returned to work. Thereafter he moved about the car yard with the aid of crutches in order to carry out his work. He limited his tasks to doing mainly paperwork and some basic inspection of cars. He was unable to get underneath cars to inspect them. He also left it to other employees to test drive the cars. The plaintiff gave evidence that he tried to work as normally as possible and that when he was in too much pain he simply had to lie down and rest to obtain relief which he sometimes had to do for as long as an hour.
The plaintiff gave evidence that after the accident he began to experience a wide variety of symptoms including pain, swelling and a blue colouration of his left foot, shooting pain into his left foot, pain and pinching sensations in his lower back, interrupted sleep, depression, exhaustion, constipation from the medication, loss of appetite, loss of weight, numbness of his left hand due to the use of crutches, blurred vision, bad headaches, poor memory and difficulty concentrating.
The plaintiff commenced physiotherapy treatment on 6 June 1997 on a referral from Dr Yeoh. He attended 19 sessions of physiotherapy treatment from 6 June 1997 to 5 August 1997 inclusive. He gave evidence that having physiotherapy treatment was like going to the torture chamber and caused a lot of pain.
In July 1997 Dr Yeoh formed the opinion that the plaintiff had possibly developed reflex sympathetic dystrophy to his left foot and ankle. Dr Yeoh referred the plaintiff to Dr Cheah, a consultant rheumatologist. Dr Cheah first saw the plaintiff on 4 July 1997. After examining the plaintiff Dr Cheah concluded that he appeared to have developed features of reflex sympathetic dystrophy affecting his left ankle and left foot and additional features of left sided lower lumbar facet and left sacroiliac pain. Dr Cheah commenced the plaintiff on a trial of Voltaren for pain relief. Up until then the plaintiff had been using Panadeine Forte and Temazepam for pain relief. Dr Cheah arranged for a bone scan study of the plaintiff's lower left limb and left foot to be undertaken on 7 July 1997. It confirmed that there was no evidence of a fracture of the left foot. It showed a relative increase in activity in arterial flow in the left forefoot which supported a diagnosis of early sympathetic dystrophy on that side. Towards the end of July 1997 Dr Cheah stopped treating the plaintiff with Voltaren because it had not significantly reduced his lower left limb symptoms and arrangements were made for the plaintiff to see Dr Goucke, a pain management specialist and head of the department of pain management at Sir Charles Gairdner Hospital.
The plaintiff first attended on Dr Goucke on 1 August 1997. Dr Goucke noted on examination that the plaintiff had a swollen, blue ankle and foot. Movement in the foot was quite limited and there was oedema and perhaps some sweating and blue discolouration to the leg. Dr Goucke concluded that the plaintiff obviously had complex regional pain syndrome with probably a significant sympathetic component. Dr Goucke gave evidence that complex regional pain syndrome is the new name for reflex sympathetic dystrophy but added that the two are not identical. He said that complex regional pain syndrome is a broader category which includes what used to be referred to as reflex sympathetic dystrophy. He said that there has been a change in nomenclature because in the original description of reflex sympathetic dystrophy there was a literal interpretation that it always involved the sympathetic nervous system and that it was a reflex in the sense that an injury was responsible for the symptoms. He said that this is not always the case and so the new name of complex regional pain syndrome avoids the use of the words "reflex" and "sympathetic" although they can lie within the broader definition.
Dr Goucke formed the opinion that the plaintiff's best interests would be served by aggressive treatment of his complex regional pain syndrome. He arranged for the plaintiff to be admitted to Sir Charles Gairdner Hospital on 6 August 1997 when a lumbar sympathetic block was performed with local anaesthetic. There was a dramatic response to this in terms of decreased oedema and increased function and Dr Goucke put an epidural catheter in place with a low dose of Bupivacaine and Fentanyl. The plaintiff was admitted to a ward and was treated with aggressive physiotherapy over the next four to five days. He made good progress and was discharged on 12 August 1997.
Dr Goucke reviewed the plaintiff on 29 August 1997 and noted that the plaintiff's progress continued to be good, that he was able to wear a shoe and that he was nearly completely weight bearing. Dr Goucke also noted that the plaintiff had returned to work and that his mood was much improved. He also noted that much of the plaintiff's back pain had settled. Dr Goucke emphasised to the plaintiff the importance of exercise and weight bearing. In a report dated 1 September 1997 Dr Goucke stated that he anticipated that the plaintiff would be able to make a full return to work but possibly not for the next four to six weeks. The plaintiff gave evidence that he returned to work on 13 August 1997, the day after his discharge from Sir Charles Gairdner Hospital, and was working about four hours per day. He gave evidence that he was still under the impression that his foot was going to get better and so he tried to keep a positive attitude. He said that he had good days and bad days. He gave evidence that he kept persevering and doing the best he could and that between August 1997 and Christmas 1997 some of his symptoms may have been improving.
In a report dated 4 September 1997 Dr Goucke reported that he had reviewed the plaintiff that week and was pleased to see that the plaintiff was making reasonable progress. Dr Goucke noted as follows:
"He is back at work virtually full time. He is still using a single elbow crutch as he had some discomfort on full weight bearing on his left leg. Much of his other discomfort had settled. He is able to wear a shoe and sock with ease. He has virtually a normal range of function now in his toes and ankle although from time to time has quite dramatic colour changes still."
Dr Goucke further reviewed the plaintiff on 2 and 16 October 1997. At the first review the plaintiff complained that he was still troubled by pain in his foot on weight bearing. Dr Goucke reviewed some plain films of the plaintiff's ankle and considered them to be quite normal. He noted that there were still a few signs of sympathetic hyperactivity. At the later review Dr Goucke noted the following. He thought that the plaintiff was progressing well. The severe pain over the plaintiff's calcaneum appeared to have settled and he was able to weight bear relatively well. He had given away his walking stick and was able to wear formal shoes. He still had a somewhat unusual gait and was still troubled by some back pain although Dr Goucke was confident that it would settle with ongoing exercise. It was also noted that the plaintiff was back at work nearly full time and using Dr Goucke's words "seemed to be in good form".
When Dr Goucke reviewed the plaintiff on 15 December 1997 he noted that improvement seemed to have come to a bit of a standstill. The plaintiff's leg was reasonable but his low back was an increasing problem. Dr Goucke thought that this was secondary to abnormal posture from his guarding when his leg was so oedematous and painful and expected things to settle pretty quickly. On examination the plaintiff was guarded and limited in moving his back. Dr Goucke arranged for some plain films of the plaintiff's lumbosacral spine and a CT scan and some facet joint injections. At this stage the plaintiff was still at work essentially full time.
The plaintiff gave evidence that just after Christmas 1997 he and his wife decided to separate. They agreed that their children would stay with the plaintiff for four days a week and with his wife for three days a week. The plaintiff gave evidence that his marriage had been drifting apart for approximately two years. He stated that his relationship with his wife suffered as a result of his symptoms and the extra physical and emotional demands forced upon her.

The plaintiff gave evidence that he continued to work after the separation and that his children helped him out at the home. He stated that they were living on pizzas and ready made meals and that he spent a lot of time lying down while his children did most of the housework. He also stated that he was "basically back working at a full 58 hour week". He gave evidence that his pain was getting worse and that he was finding it difficult to speak with his doctors about his level of pain. He also gave evidence that his pain was causing him to make mistakes at work which were in turn making him frustrated. He began to feel more and more depressed. He had been keen to make good the opportunity of getting into his own business and felt that his injuries were taking this opportunity away from him. He felt that his injuries were inhibiting his ability on a daily basis to make the business show its potential. He was frustrated at being sent home early on Wednesdays or Saturdays by Mr Townsend. He stated that he was finding it harder and harder to do things and that he was getting very bad headaches. The pain in his foot was excruciating. His three children were all at high school and he felt that he was putting extra pressure on them by them doing all of the shopping, housework and preparation of meals. He started to receive the family allowance from Social Security for his children which caused him embarrassment and made him feel inadequate.
The plaintiff gave evidence that he felt that all of the pressure, frustration, depression and pain were adding up. Matters came to a head on 28 January 1998 after the plaintiff arrived home from work after working all day from 8 am to 9 pm. The plaintiff attempted to take his own life by overdosing on his medication consisting of Temazepam, Panadeine Forte and Valium. The first he recalls after taking all of the medication is waking up at the Joondalup Hospital in the accident emergency department.
The plaintiff gave evidence that when he woke up at the hospital he was concerned about being late for work and arranged for somebody to pick him up from the hospital and take him to work. Later that day he was persuaded to see Dr Yeoh who in turn arranged for him to see Dr Byrne, a consultant psychiatrist, who admitted him to the psychiatric ward at Sir Charles Gairdner Hospital for inpatient treatment and supervision on the basis that he was a definite suicide risk. The plaintiff was cared for by Dr Byrne. He remained an inpatient from 29 January 1998 until he was discharged on 27 February 1998. Dr Byrne made diagnoses of major depression and chronic pain syndrome secondary to reflex sympathetic dystrophy.
In a report dated 8 June 1998 Dr Byrne stated that the history he obtained from the plaintiff clearly described a progressive decline into clinical depression with development of significant symptoms over at least four months prior to his admission to Sir Charles Gairdner Hospital in January 1998. Dr Byrne stated that it appeared to him that the plaintiff had returned to work prematurely and that he had driven himself very hard to maintain his previous work output despite his injuries. In this context the plaintiff's difficulty in continuing led him to ruminate on being a failure and this was a major factor in his decline in clinical depression. During the plaintiff's stay in hospital he was treated with antidepressant medication and psychotherapy.
There was some useful improvement in the plaintiff's state while he was in hospital and he was referred for follow-up with Dr Yeoh and a clinical psychologist, Mr Semmens. Dr Yeoh referred the plaintiff to Mr O'Connor, a clinical psychologist, for treatment. The plaintiff attended on Mr O'Connor on 9, 16, 19 and 30 March 1998 and 16 April 1998. In a report dated 16 April 1998 Mr O'Connor stated that at the first consultation a standardised measure of depression showed the plaintiff as having severe depression with characteristics such as agitation and a disrupted sleep pattern. The plaintiff described to Mr O'Connor how his pain had affected his mood resulting in chronic anxiety. Mr O'Connor also stated in his report that the plaintiff felt that his future seemed to be hopeless. The plaintiff gave evidence that Mr O'Connor taught him techniques on how to relax and "come to grips with doing nothing". When Mr O'Connor moved premises the plaintiff started to see Mr Semmens. The plaintiff gave evidence that Mr Semmens taught him more relaxation techniques and gammit point therapy which involved tapping on certain points of his body for pain relief which he said did not work very well for him.
In a report dated 20 January 1999 Mr Semmens stated that the plaintiff initially presented as severely depressed with a recent history of active suicidal ideation and an actual suicide attempt. He was also suffering from exceedingly high levels of physiological arousal, including muscle tension and anxiety. Mr Semmens stated that the plaintiff was in the moderate range for depression and that he had been able to gain some effective control over his levels of arousal. Mr Semmens was encouraged that in the couple of weeks before 20 January 1999 he had noticed a positive change in these factors. Mr Semmens stated that the plaintiff had indicated that he had noticed an improvement in his general mood and outlook over the previous two months. Mr Semmens stated that while there may well be some restrictions on the plaintiff's work capacity relating to his level of depression such as cognitive impairment he thought that from a psychological point of view the plaintiff's involvement in a work situation would be a positive factor in assisting him to overcome his depression and anxiety.
The plaintiff has not returned to work since 29 January 1998 save for a work trial at a car yard in Wangarra which lasted for about three or four weeks in or around August 1999. During the work trial the plaintiff initially worked for three hours a day, three days a week and this was increased to five hours a day, three days a week. The plaintiff's duties included answering the telephone and talking to customers and starting the cars in the mornings. He gave evidence that it was very tough work and caused him a lot of pain. He said that he was "basically sitting down, then standing up continuously all day which was difficult for me". He also gave evidence that his pain caused him to become impatient when talking to customers. This work trial proved unsuccessful.
The plaintiff gave evidence that after he was discharged from Sir Charles Gairdner Hospital in February 1998 he decided to "go outside the system" to see what other treatment options were available for his physical injury. He obtained a referral from Dr Yeoh to a chiropractor. He attended two sessions of chiropractic treatment in March 1998 and 15 sessions between 25 June 1998 and 29 August 1998 inclusive. The plaintiff gave evidence that the chiropractor treated him for pain in his shoulders and upper back. He said that he resumed using two crutches instead of one after the chiropractor suggested to him that his shoulder and upper back pain was likely caused by him using only one crutch. The plaintiff gave evidence that he did not think that the chiropractic treatment helped him much. He also gave evidence that his upper back pain resolved about a year after he had finished receiving chiropractic treatment. I am not satisfied that the plaintiff suffered any shoulder or upper back injury from the accident. The plaintiff also attended on an iridologist for treatment but abandoned this after about three months because he felt that it was not giving him any benefit.
While the plaintiff was an inpatient in the psychiatric ward at Sir Charles Gairdner Hospital in February 1998 Dr Goucke arranged for him to be seen by Dr Graziotti, a pain management consultant, for an opinion about ongoing physiotherapy for the plaintiff's leg. In particular Dr Goucke sought Dr Graziotti's opinion on whether or not the plaintiff was a suitable candidate for a trial of spinal cord stimulation. In a report dated 26 February 1998 Dr Graziotti expressed the view that he would be wary of using increased doses of opiates to control pain in the plaintiff's case and that he seemed to be a reasonable candidate for a trial of spinal cord stimulation.
In March 1998 Dr Goucke arranged for a trial of external transcutaneous nerve stimulation. In a report dated 20 July 1998 Dr Goucke stated that the trial of spinal cord stimulation was successful in terms of pain relief and ability for the plaintiff to weight bear on his left side. As at 20 July 1998 Dr Goucke was aware that the plaintiff was continuing to receive psychological counselling from Mr O'Connor. Dr Goucke was awaiting a decision on funding for the implantation of a spinal cord stimulator to continue the plaintiff's pain relief and further rehabilitation. The plaintiff had earlier attended on Mr Slinger, a spinal surgeon, on 24 April 1998 on referral from Dr Yeoh for an opinion on his condition generally and in particular whether he agreed with the implantation of a spinal stimulator. In a report dated 29 June 1998 Mr Slinger stated that consideration may well be required to a dorsal column stimulator and that further opinion should be sought on the matter from Dr Goucke.
On 14 September 1998 Dr Goucke implanted a spinal cord stimulation system into the plaintiff in an attempt to give the plaintiff ongoing pain control for the burning sensation in his left foot secondary to a complex regional pain syndrome. The battery for the stimulator is inserted beneath the skin and in the plaintiff's case is on the right side of his abdominal area. Dr Goucke gave evidence that spinal cord stimulation involves an electrode being placed into the epidural space of the spinal cord. The electrode permits fine electrical stimulation of the spinal cord which masks the pain sensation so that instead of a burning, cramping sensation the patient experiences a warm, pleasant, tingling sensation. The patient can alter the power that the battery will deliver within certain parameters. The system is designed to provide analgesia and the treatment for the limb is movement or exercise. Thus the purpose of the stimulator is to cure some of the symptoms of the problem rather than the problem itself.
In a report dated 2 February 1999 Dr Goucke stated that when he examined the plaintiff on 27 January 1999 the spinal cord stimulator appeared to be working satisfactorily and giving the plaintiff moderate to good analgesia although not complete pain relief for the ongoing pain in the left foot. Dr Goucke noted that the plaintiff still had an abnormal gait which required ongoing exercise with the focus on posture.
The plaintiff attended on Dr Goucke for further review in July 1999. Dr Goucke noted on examination that the plaintiff was able to stand quite straight although somewhat unsteady on his feet. He was reliant on his short elbow crutches for mobility but was weight bearing on his left side. His gait had significantly improved and he was able to mobilise quite quickly using his elbow crutches. There was some discolouration in his foot however the hyperalgesia in that area had decreased and he was able to wear a sock and a loose fitting shoe. Apart from ongoing leg pain the plaintiff remained concerned about back pain which Dr Goucke felt was secondary to his gait disturbance and the left leg complex regional pain syndrome. Dr Goucke felt that from a psychological perspective the plaintiff seemed much more stable and less anxious.
The plaintiff gave evidence that since the insertion of the spinal cord stimulator the pain in his left foot has been reduced by approximately 15 to 20 per cent when sitting and standing and by approximately 40 to 50 per cent when lying down. He gave evidence that he keeps the stimulator on most of the time and that when it is on he can feel vibration within his body. He stated that he would rather experience the vibration than the full extent of the pain.
The plaintiff gave evidence that in about September 1998 he fell on his left wrist. The fall caused a lump to appear on his wrist and Dr Yeoh referred him to Mr Wang, an orthopaedic surgeon, for examination and treatment. When the plaintiff attended on Mr Wang in November 1998 in addition to complaining about the lump on his wrist he also complained that his right knee had been clicking in the previous few weeks with medial sided pain. The plaintiff put this down to having to predominantly weight bear on his right side. On examination Mr Wang noted that the plaintiff had a well preserved range of motion in the right knee but marked tenderness in the medial joint line and a demonstrable click suggestive of a medial meniscus tear.
On 15 December 1998 Mr Wang operated on the plaintiff at St. John of God Hospital and excised a volar ganglion from the left wrist. The surgery was uneventful and on 23 December 1998 Mr Wang noted that the wound had healed very nicely. The plaintiff gave evidence that he has not had any further problems with his wrist.
On 23 March 1999 the plaintiff was admitted to St. John of God Hospital for arthroscopic right knee surgery. During the procedure Mr Wang noted that the plaintiff had significant pathology in the medial compartment of his knee which probably caused the medial sided pain. Mr Wang carried out a number of remedial procedures during the course of the arthroscopic surgery after which he expected the plaintiff's symptoms to improve. On 1 April 1999 Mr Wang noted that the portals from the arthroscopic surgery had healed, that there was minimal swelling in the knee and that the knee had a very good range of motion. The plaintiff gave evidence that he has not had any further "clicking" in his knee although he still experiences some pain and soreness in his right knee. As I understand it the plaintiff has not attended on Mr Wang since 1 April 1999 for any problem in relation to his left wrist or right knee.
In a report dated 22 March 2000 Mr Wang expressed the opinion that the plaintiff had no significant permanent residual disability in his left wrist and a five per cent residual disability in the right knee. He described both the left wrist and right knee injuries as being mild in severity and stated that the plaintiff did not require any further specific treatment for either injury.
The plaintiff gave evidence that in the second half of 1998 he was finding it very difficult to cope with maintaining his house and providing for his children. He stated that he was not able to drive a car and that he was finding it very difficult financially because his workers' compensation payments were late. Because of difficulties in relation to making mortgage payments he decided to sell his house and to that end put it on the market in July 1998. The house was sold on 28 October 1998. After the plaintiff sold his house he took up residence at a friend's house in Currambine as a border. His friend is married and lives with his wife and two children. The plaintiff continues to board at his friend's house and is currently paying $100 per week for which a bedroom and all food is provided. The plaintiff gave evidence that he tries to help out as much as possible by doing some washing and cleaning the shower when he is in it. As I understand it the plaintiff's three children returned to live with their mother when the plaintiff started living with his friend.
In a report dated 20 September 1999 Dr De Felice, a consultant psychiatrist, stated that the plaintiff lives reasonably close to his ex wife, that they are still supportive of each other and that he has frequent contact with their three children. Dr De Felice also stated that the plaintiff had developed another relationship over the last 12 months which the plaintiff had indicated was going reasonably well. The plaintiff gave evidence that he still had this relationship and that he had initially met the lady when he was in Sir Charles Gairdner Hospital in February 1998. The plaintiff gave evidence that they have been unable to have a sexual relationship because of his accident related physical and mental problems.
On 10 March 2000 the plaintiff attended again on Dr Byrne for the first time since he had been discharged from Sir Charles Gairdner Hospital in February 1998. Dr Byrne found that the plaintiff was again suffering from a major depressive syndrome which appeared to him to be more severe than his recollection of the plaintiff's mental state back in January/February 1998. The plaintiff also had continuing chronic pain syndrome. Dr Byrne saw the plaintiff as an outpatient and treated him with supportive counselling and antidepressant medication. He saw the plaintiff again on 14 and 22 March and 18 April 2000. Dr Byrne noted on the last of these occasions that the plaintiff's depression was more severe and was concerned about the plaintiff's capacity for suicide in the short term. On 18 April 2000 the plaintiff agreed with Dr Byrne to be readmitted to Sir Charles Gairdner Hospital and he was still an inpatient at the time of the hearing. He was being treated by Dr Byrne with antidepressant medication, supportive counselling and some occupational therapy intended to distract his focus from his pain and his concerns about his future.
The plaintiff gave evidence that he feels very frustrated and angry at not being able to do anything despite his endeavours. He stated that he feels like his head is trapped in a useless body. His feelings of uselessness are compounded by having to put up with pain all of the time with the stimulator giving more relief at night. He has stated that his concentration and attention span has diminished. His wife and children have now moved 15 kilometres further north resulting in him not seeing his children as often as he used to. He no longer feels comfortable living with his friend and feels that he is imposing.

The nature of the plaintiff's injuries

Complex regional pain syndrome or reflex sympathetic dystrophy

I am satisfied that as a result of the accident the plaintiff has suffered soft tissue injuries to the left lower limb with the subsequent development of complex regional pain syndrome of the type previously known as reflex sympathetic dystrophy involving his left leg. The weight of the evidence from the medical practitioners duly qualified in the areas of physical injury and/or pain management provides overwhelming support for this finding. This diagnosis has been made by Dr Yeoh, Dr Cheah, Dr Goucke, Mr Slinger, Dr Graziotti, Professor Harper, Dr Suthers and Professor Hollingworth the last three all being occupational physicians. Dr Swift, a nuclear physician, who carried out the bone scan expressed the view that the relatively increased activity in the left fore foot would support a diagnosis of early sympathetic dystrophy on that side.
In a report dated 17 September 1999 Mr Edibam, an orthopaedic surgeon, stated that although a diagnosis of a sympathetic dystrophy was made for the plaintiff's left foot and the clinical findings now of cold discoloured foot would point that way, the radiological examination carried out a good six months after the injury failed to show the patchy osteoporosis which accompanies this injury. Given the benefit of the doubt the plaintiff may have developed a sympathetic dystrophy either due to injury or because of refusal to use his left foot to weight bear. In fairness to Mr Edibam it must be noted that he has not stated that the plaintiff did not have complex regional pain syndrome or reflex sympathetic dystrophy.
In light of the early diagnosis of complex regional pain syndrome by Dr Yeoh, Dr Cheah and Dr Goucke relative to the accident and the plaintiff sustaining his injury to the left foot I find that the complex regional pain syndrome developed from the plaintiff's accident related injury to his left foot rather than his refusal to use his left foot to weight bear. It should be noted that even if the complex regional pain syndrome was due to the plaintiff refusing to use his left foot to weight bear it would still be causally linked to the accident because the plaintiff's refusal to use his left foot to weight bear was due to his accident caused foot injury.
The plaintiff's mental injury

I find that the plaintiff's mental health has suffered as a result of the accident. His mental health has varied from time to time since the accident. The plaintiff's attempt to commit suicide in January 1998 was clearly a significant event in relation to his mental health. The plaintiff's admission to the psychiatric ward at Sir Charles Gairdner Hospital in April this year was also another significant event in relation to the plaintiff's mental health. I have heard and/or read a lot of evidence from psychiatrists and psychologists on the state of the plaintiff's mental health at various times and his likely future mental health. In my opinion the key witness in relation to the plaintiff's mental health is Dr Byrne. He is a duly qualified medical practitioner and consultant psychiatrist who has had the advantage over other witnesses of treating the plaintiff in both January/February 1998 and March/April 2000 which as mentioned have been the two most significant periods in the plaintiff's mental health since the accident.
I accept Dr Byrne's diagnosis that in January/February 1998 the plaintiff was suffering from major depression secondary to reflex sympathetic dystrophy. The plaintiff had separated from his wife within a few months of attempting to commit suicide on 28 January 1998. Dr Byrne said that the separation had contributed to the plaintiff becoming depressed. However it is clear from his diagnosis that he thought the separation was only a contributing factor and that the plaintiff would have suffered from major depression but for the separation. I accept Dr Byrne's evidence that the separation does not have much to do with the plaintiff's current mental condition. He said that the plaintiff's current mental condition is very much dominated by his chronic pain syndrome which is the focus of his entire existence. He added that the plaintiff's family situation is relevant in the sense that he has an intense preoccupation to provide for his children.
I have already referred to Mr O'Connor, a clinical psychologist, who treated the plaintiff in March and April 1998 and for some months thereafter and his view that the plaintiff was suffering from severe depression as at 9 March 1998.
Dr Terace, a consultant psychiatrist, saw the plaintiff on 11 May 1998 for the purpose of preparing a medico-legal report. In his report dated 13 May 1998 he expressed the opinion that the plaintiff was understandably distressed because of his accident related injury but that such distress was consistent with the concept of ordinary frustration and emotional upset and did not constitute a psychiatric or psychological disorder. He thought that the plaintiff did experience a significant stress condition after the overdose on 28 January 1998 and during his subsequent admission to Sir Charles Gairdner Hospital even if this significant stress condition was only an adjustment disorder with depressed mood rather than a morbid illness or depression. He attributed the plaintiff's overdose to his pain and disability resulting from his accident caused injury.
Dr Terace stated in his report and gave evidence that as at 11 May 1998 the plaintiff did not have a condition that would satisfy the criteria for a significant stress condition. He thought that the plaintiff was distressed and that such distress was intermittent and understandable and secondary to his accident caused injury.
Dr Terace reviewed the plaintiff on 28 July 1999. He thought that the plaintiff's condition had improved since 13 May 1998. In a report dated 13 July 1999 and at the hearing Dr Terace expressed the opinion that as at 28 July 1999 the plaintiff's condition did not meet the criteria for an adjustment disturbance and was simply equivalent to ordinary frustration and upset within the bounds of normal mental function and normal human experience. Dr Terace thought that any psychiatric condition that the plaintiff may have suffered prior to May 1998 had not returned as at 13 May 1998. He was therefore of the opinion that the plaintiff's case was entirely about the nature of his physical injury.
In a report dated 20 September 1999 Dr De Felice examined the plaintiff and prepared a report. In his report he expressed the opinion that the history given to him by the plaintiff described residual symptoms of major depression occurring in the context of chronic pain and the limitations associated with it. Dr De Felice was of the opinion that the plaintiff's separation may have contributed to his major depression but the principal precipitant to it was the plaintiff's pain, the limitations because of such pain and the lack of progress in his recovery. Dr De Felice stated that the fact that the plaintiff and his wife had been drifting apart for two years before they separated supported the view that the separation was not as distressing, acrimonious and traumatic as it otherwise might have been. He also thought that the fact that the plaintiff and his wife had an ongoing friendship after the separation was a reason to conclude that the separation may only have been a contributing cause and not the main cause to the plaintiff's major depression. Dr De Felice was of the opinion that the plaintiff's pain and attentive limitations were the principal precipitant to the plaintiff's initial psychiatric symptoms. He disagreed with Dr Terace's opinion that the plaintiff did not satisfy the criteria of a major depressive disorder.
Mr Semmens first saw the plaintiff in or about early January 1999 and I have already referred to part of his report dated 20 January 1999. Mr Semmens thought that the plaintiff was severely depressed when he first saw him. He saw the plaintiff on a total of about 20 occasions the last being in March 2000. When he saw the plaintiff in March 2000 he thought that the plaintiff was severely depressed. Dr Byrne was treating the plaintiff in March 2000 and was of the same opinion. Mr Semmens gave evidence that the plaintiff's state of depression fluctuated from mild to moderate to severe during the time that he was seeing the plaintiff. At times the plaintiff appeared to be coping well and was somewhat buoyant and at other times he was very depressed.
Mr Semmens gave evidence that he counselled the plaintiff to appreciate that the way he thought about his circumstances had a great deal to do with his emotional responses to them and that it was not his circumstances per se that directly caused his depressive reactions. This was a philosophical approach designed to make the plaintiff feel extremely sad at worst rather than depressed about his circumstances.
Mr Semmens is of the opinion that the plaintiff's psychological/psychiatric state is related to his physical incapacity and his experience with chronic pain.
I find that the plaintiff's mental state has fluctuated from time to time since the accident. To the extent that Dr Terace's evidence is inconsistent with the evidence of Dr Byrne and Dr De Felice I prefer and accept the evidence of Dr Byrne. In fairness to Dr Terace it should be noted that he saw the plaintiff at different times compared to when each of Dr Byrne and Dr De Felice saw him. This point coupled with the fact that the plaintiff's mental state fluctuated from time to time goes a long way to reconcile the evidence of Dr Terace with the evidence of Dr Byrne and Dr De Felice. However in the final analysis I do not think that it really matters much whether the plaintiff's mental state satisfied the criteria of a depressive disorder or was ordinary frustration, emotional upset and distress. The fact of the matter is that the plaintiff's mental state has been seriously and adversely affected by his accident caused injury.
I also find that while the plaintiff's separation has been a contributing factor in his development of depression and severe depression the main cause for such depression has been the plaintiff's pain, incapacities resulting from the pain and delay in the recovery process.
Low back and neck pain
I note that the plaintiff complained about low back pain when he first saw Dr Yeoh. Thereafter he continued to complain about low back pain from time to time to various medical practitioners including Dr Goucke and Dr Graziotti. Dr Goucke treated the plaintiff with facet joint injections. Dr Graziotti gave evidence that the plaintiff did not have a serious back problem. He expressed the opinion that he had a permanent residual disability relating to his lumbar spine of 10 per cent. Professor Harper put it at 10 to 15 per cent. Both Dr Goucke and Dr Graziotti thought that the plaintiff's back problems related to the way he walked because of pain in his left foot and I find accordingly.
Dr Suthers who saw the plaintiff on 15 January 1999 to prepare a medico-legal report stated in his report of the same date that he could not see the link between low back pain and being run over the foot. The plaintiff complained to Dr Suthers that he had constant low back pain. I find that the evidence of Dr Goucke and Dr Graziotti provides a good explanation. I also note that the plaintiff told his medical practitioner on occasions that he thought his low back pain was related to his gait and his inability to weight bear on his left side.
Professor Hollingworth gave evidence that his examination of the plaintiff on 10 August 1999 revealed no true lumbar tenderness. He gave evidence that he was not impressed that the plaintiff had a major problem with his back. The plaintiff also complained to Professor Hollingworth about neck pain but Professor Hollingworth said and I accept that there was nothing to suggest that the plaintiff had a neck injury in the accident.
The plaintiff complained to Mr Edibam on 17 September 1999 that he had constant low back pain. Mr Edibam could not find any evidence of any low back problem. He was unable to examine the plaintiff's back because the plaintiff was standing with the assistance of a pair of crutches and told Mr Edibam that he could not stand without them. Dr Edibam said that he carried out a limited examination of the plaintiff's back and could not find any evidence of a bony or a significant soft tissue injury.
I accept the plaintiff's evidence that he has low back symptoms. I find that the plaintiff's low back pain is indirectly related to the accident because it has resulted from him favouring his left foot when he stands and walks. In light of the evidence of Dr Graziotti and Professor Hollingworth and to a lesser extent the evidence of Mr Edibam I find that the plaintiff does not have any major problem with his back. I also find that the plaintiff's low back symptoms will improve as his foot pain and gait improves.
Left wrist and right knee injury
I repeat my earlier references to the plaintiff's evidence and the evidence of Mr Wang in relation to the plaintiff's left wrist and right knee injury. I find that the plaintiff's left wrist is no longer a problem. I also find that the plaintiff's right knee problem was caused by the plaintiff putting greater weight on his right side to favour his left side because of his accident caused left foot injury. I accept that the plaintiff suffers from pain in his right knee from time to time but given that he has not returned to see Mr Wang since the arthroscopy I am not satisfied that any pain is more than occasional and minor. I find that what pain the plaintiff does have from time to time in his right knee will improve as his left foot symptoms improve.

The future duration of the plaintiff's injuries and future work capacity

I propose to examine the future duration of all of the plaintiff's injuries and his future work capacity under the one heading because it is clear on the evidence that the plaintiff's mental state is the product of his pain state. Dr Byrne gave evidence that the plaintiff's prognosis for depression is related to his prognosis for pain. He said and I accept that the plaintiff's personality structure is such that he puts high expectations on himself and does not find it easy to accept failure or at least less than satisfactory performance. This together with his pain syndrome makes him vulnerable to episodes of depression in the future.
Dr Byrne gave evidence that there would be a substantial difference to the plaintiff's mental health if his chronic pain syndrome completely disappeared but he added that he would not be confident enough to say that the plaintiff's depression would completely disappear. He said that people who have had an episode of depression in their lives and particularly those who have had more than one such episode are at a substantially greater risk of having future episodes and possibly severe episodes regardless of any other factors in their lives.
Dr Byrne also gave evidence which I accept that the absence of pain would make the treatment of depression more straightforward.
Dr De Felice gave evidence that the plaintiff's progress for his depression is very intimately linked to his leg pain. He said that if the leg pain continued so too would the depression and if the leg pain improved there should be a good expectation of a good response. Dr De Felice also agreed with Dr Byrne that people who have had depressive episodes are much more likely to have further depressive episodes. I understand Dr De Felice to mean that the plaintiff would be vulnerable to future depressive episodes even if his pain syndrome completely resolved.
Dr De Felice thought that if the plaintiff's pain was removed and he did not have the limitations that his pain imposes then he would likely feel a lot better and not so despondent and/or depressed although this would not necessarily be the case. He said that he thought that a large proportion of the plaintiff's current incapacity for work was related to his chronic pain.
I repeat my earlier references to Dr Terace. While his opinion differs to that of Dr Byrne and Dr De Felice on whether or not the plaintiff satisfies the necessary criteria to be diagnosed with a depressive disorder it is clear that Dr Terace is of the opinion that the plaintiff's frustration, emotional upset and distress is related to his physical injury.
Dr Terace said that if depressive illnesses are treated then they usually go into remission but many of them do relapse with the severity of the relapse depending on the circumstances.
I repeat my earlier references to the evidence of Mr Semmens that the plaintiff's psychological/psychiatric state is related to his physical incapacity and his experience with chronic pain. Mr Semmens stated in his report dated 10 May 2000 that if the plaintiff's physical difficulties and pain were resolved then he would expect his psychological/psychiatric state would improve such that he was psychologically fit to work.
It is clear from all of this evidence, which I accept, that the plaintiff's mental health is dependant on his physical health and in particular his chronic pain syndrome and I so find. I therefore turn to examine the evidence on the prognosis for the plaintiff's complex regional pain syndrome.
Dr Goucke gave evidence that he seldom sees patients in their 50's or 60's with complex regional pain syndrome. He said that it is a problem of younger or middle aged people. He gave this opinion based on his experience and literature that complex regional pain syndrome does burn out or settle after about five or six years. He made it clear that although this is the usual scenario it did not necessarily apply in every case. Dr Goucke was of the view that the plaintiff's future work capacity really depended on the outcome of his complex regional pain syndrome and how long it took to settle. He stated that in general his prognosis for the plaintiff was guarded because it is now about three years since the accident and although the plaintiff has had temporary response to appropriate treatment it has not been sustained and he is not back at work.
Dr Goucke said that the chances of the plaintiff getting back to work were virtually nil. This opinion needs to be considered in the context Dr Goucke's evidence as a whole.
Dr Goucke gave evidence that it was "very, very difficult to know what will happen. Very difficult. But looking globally at groups of these kind of patients, they do seem to settle, but we are looking at another two years, three years. It is hard to know so we have to continue to treat their symptoms." Dr Goucke stated in his report dated 7 April 2000 that it was very difficult to give a specific time that the plaintiff's future work capacity had been compromised but he suggested that it would perhaps be two years. He also stated that whether the plaintiff will continue to be affected by his psychological distress and physical problems is virtually impossible to say. Dr Goucke gave evidence that his anticipation that the plaintiff would improve within the next two to three years was based on his understanding that complex regional pain syndrome burns out after five or six years in most cases.
Dr Goucke also gave evidence that if the plaintiff's pain syndrome did burn out after about five years from the date of injury then he may still be left with some dysfunction of the left leg and continue to walk with a limp. He said that failure to properly use the ankle for a long period of time can cause permanent changes resulting in permanent dysfunction. Dr Goucke gave evidence that he did not think that the dysfunction that could result in the plaintiff's case would prevent him from carrying out the duties of a used car sales manager. He added that the plaintiff's work trial was unsuccessful because of pain rather than physical dysfunction.
Dr Goucke gave evidence that different people with different personality types respond differently to ongoing pain. He said that the plaintiff responded with a lot of anxiety and that made things worse. When asked whether complex regional pain syndrome may set off anxiety and then feed off the anxiety it caused he said:
"Yes, and if people are of more of an anxious personality, then that may make this syndrome present, where in other people it may not be present, so it could be both."
Dr Graziotti stated in his report dated 12 April 2000 that the long term prognosis with regard to reflex sympathetic dystrophy is very difficult to predict. He confirmed this view when he gave his evidence. He agreed with the proposition that this pain syndrome lasted for five years on average. He said that only a small number of patients had a long term problem with it. He said that he could only remember one or two of his patients having it long term. One is in his 60's and has had it for 30 years and the other is about 40 and has had it for 20 years. He said that they learn how to cope and get on with their lives. He said that his patient who is about 40 years of age has sympathetic dystrophy of the arm after losing all of his fingers. Dr Graziotti gave evidence that this patient worked and did exactly the same job as the plaintiff's counsel described the plaintiff did prior to the accident. Dr Graziotti said that sympathetic dystrophy is not a life long disability diagnosis. It was not like paraplegia or amputation or anything like that. He said that how well patients do is determined by their level of motivation. He agreed that personality was a relevant factor in a person's level of motivation.
Dr Graziotti stated in his report dated 12 April 2000 that it was unlikely the plaintiff will return to full time work given that there is likely to be exacerbations of his pain which at times may render him incapacitated and therefore an unreliable employee. He added that in the part time scenario or casual employment situation it is likely that the plaintiff would be able to cope in the future with a sedentary type occupation. He also stated that he thought the plaintiff would be back at part time or casual work within one to two years after settlement of his claim.

I think that the most reliable way of assessing the duration of the plaintiff's injuries and his future work capacity is to break up the future into three different time periods. The first period is from the date of hearing to three years thereafter. This equates to a period of six years from the date of the accident which is the outer figure of the range within which pain burns out in most cases of complex regional pain syndrome. I think that the chance of the plaintiff's pain syndrome resolving and him returning to work as a car sales manager within the next three years is small but greater than the chance of it happening within the next two years. The second time period is for the fourth and fifth years after the date of trial. This accommodates Professor Hollingworth's evidence supported to some extent by Dr Suthers' evidence that the plaintiff's complex regional pain syndrome could take up to five or six years from 10 August 1999 to resolve. The third period is from the end of five years after the hearing to the date of the plaintiff's 65th birthday ie. the balance of the plaintiff's working life from the end of the fifth year after the hearing which equates to 18.33 years. I have made my assessment on the basis that the further out from the date of the hearing the greater the chance of the plaintiff's injuries resolving and the greater the chance of him returning to work.
The chance of the plaintiff returning to work in each of the three time periods reflects the chance of both his complex regional pain syndrome and psychological/psychiatric condition resolving such that he could return to work as a car sales manager. It therefore reflects his retained earning capacity.
However one goes about the assessment it must always be appreciated that an assessment such as this is an inexact science. No method of assessment will change that. I think that it is useful where possible when making the assessment to set down some yardsticks themselves by no means certain but consistent with the evidence and the weight of the evidence to enhance the reliability of the assessment and to provide a better understanding of how the amount assessed has been arrived at. In the final analysis the assessment is a matter of judgment based on the evidence and no matter what yardsticks are used it is still necessary to finally settle on a figure which properly reflects all of the circumstances of the particular case.

I assess the chances of the plaintiff's complex regional pain syndrome and psychological/psychiatric condition resolving such that he can return to work as a car sales manager as follows:

Time Period	Chance of Resolution and return to Work	Lost Chance
0 – 3 years	10 per cent	90 per cent
Years 4 and 5	50 per cent	50 per cent
Year 6 to year 18.33	75 per cent	25 per cent
* Time 0 years is date of hearing

Economic loss

It is necessary to determine the appropriate rate of pay to be used to calculate the plaintiff's past and future economic loss. The plaintiff's schedules of past and future economic loss have used a figure of $756.73 net per week based on earnings of $1,329.02 gross per week prior to the accident. The defendant has submitted that the appropriate rate is $590 net per week which the plaintiff agreed he was earning prior to the accident when put to him in cross-examination by counsel for the defendant.

I have taken the following information from the plaintiff's book of taxation returns in evidence:

Financial Year	Gross Income	Tax & Medicare Levy $	Net Income $
1991/92	67783	23615	44168
1992/93	81755	30598	51157
1993/94	76243	27231	49012
1994/95	75235	26304	48931
1995/96	68999	23400	45599
1996/97	71156	24779	46377
Average	73528 pa or 1414 pw	47540 pa or 914 pw

The plaintiff was employed by Harry Dutton from before the 1991/92 financial year and until about February 1997. He was employed by Wanneroo Auto's from 17 February 1997 to 30 June 1997 in the 1996/97 financial year.. His income of $71,156 in 1996/97 was made up of $43,860 standard pay, $10,561 unused leave from Harry Dutton's and $16,735 from Wanneroo Auto's. Including the payment for unused leave distorts the plaintiff's actual weekly payments when working for Harry Dutton in the 1996/97 year. The plaintiff's standard pay actually fell significantly in his last year at Harry Dutton's. The evidence provides no explanation for this but it is of no real consequence.
The plaintiff earned $16,735 gross or $11,800 net from Wanneroo Auto's from 17 February 1997 to 30 June 1997 which equates to $621 net per week. This is more than $590 net per week as agreed by the plaintiff. I think the plaintiff was honestly mistaken when he agreed to earning $590 net per week as at the time of the accident.
Mr Townsend, the proprietor of Wanneroo Auto's, stated in his proof of evidence that he agreed to pay the plaintiff $745 gross per week under the work place agreement. There was also provision for payment of a bonus of 20 per cent after the first three months but it seems from Mr Townsend's proof of evidence that no bonus was paid because the business did not make enough money. Whether or not a bonus was paid I am satisfied that the plaintiff was actually paid more than $745 gross per week because the sum of $16,735 equates to an average of $880.79 per week.
The plaintiff gave evidence that he had the use of two fully maintained cars when he was working at Wanneroo Auto's. There is no issue between the parties that a fully maintained car was worth $10,000 per annum or $192.30 net per week. It is not clear whether the plaintiff actually made use of two cars at any one time. It was submitted by counsel that the plaintiff's wife could have used the second car but there is no evidence of this. The plaintiff was already separated from his wife in January 1998 when he stopped working. I am not satisfied on the evidence before me that the plaintiff was using more than one car immediately before he stopped working for Wanneroo Auto's. I am also not satisfied that he had directed Wanneroo Auto's to make a second car available to any other person including his wife.
The plaintiff also gave evidence that Wanneroo Auto's paid his telephone bill. If a modest allowance of $10 per week was made for this then the plaintiff's effective total net weekly earnings from Wanneroo Auto's amounted to about $823 net per week which actually exceeds the amount of $756.73 net per week used by the plaintiff in his schedules. This can be compared to the plaintiff's average earnings from 1991/92 to 1996/97 of $914.23 net per week.
There is no evidence before me on the financial performance of Wanneroo Auto's in 1996/97 or at all. This is something that I will comment upon later when I consider contingencies.
Richard Cull is a new car sales manager at a large dealership in Perth. He stated in his proof of evidence that the plaintiff taught him about the car industry and that the plaintiff was very well known and established within the industry. He also stated that he earned $106,690 gross in 1997/98 and $109,292 gross in 1998/99.
Norman Parsons is the used car sales manager of a dealership in Mandurah. He stated in his proof of evidence that he worked closely with the plaintiff at Harry Dutton's where the plaintiff was one of his superiors. He also stated that the plaintiff was a good operator and knew everything and everyone in the industry. He stated that he earned $101,366 gross in 1997/98 and $90,493 gross in 1998/99.
In my opinion an earnings figure of $756.73 net per week as used by the plaintiff in his schedules is a reasonable rate to use in the assessment of his past and future economic loss.

Past economic loss

The plaintiff has claimed a loss of $1,816.15 for being absent from work from 29 May 1997 to 16 June 1997 (2.4 weeks at $756.73 net per week). He has also claimed $12,258.86 for only being able to work part time from 16 June 1997 to 28 January 1998 (32.4 weeks at half pay of $378.36 net per week).
I am not satisfied that the plaintiff was absent or only able to work about half his usual hours as claimed. The plaintiff gave evidence that he went back to work on 2 June 1997 on a part time basis. He gave notice of an accident at work to a workers' compensation insurer on 5 June 1997 but I do not know what claim was made on the insurer for the period from 29 May 1997 to 28 January 1998. It is clear from all of the medical reports in evidence that the plaintiff's attendance at work would have been disrupted by having to attend on doctors on many occasions during this period.
The plaintiff gave evidence that he was basically back working a full 58 hour week in about late December 1997/January 1998. He gave evidence about having rests for an hour or so from time to time at work and being sent home early on a Wednesday or Saturday. On 28 January 1998 the plaintiff worked from 8 am to 9 pm.
The plaintiff was hospitalised on 6 August 1997 for about a week when he had a lumbar sympathetic block. Dr Goucke reported on 1 September 1997 that a return to full time work was anticipated but possibly not for the next four to six weeks. Dr Goucke reported on 16 October 1997 that the plaintiff was nearly working full time and on 15 December 1997 that he was essentially working full time.
I am not able to determine from the evidence including the plaintiff's taxation records what amount was paid to the plaintiff by Wanneroo Auto's for the period 29 May 1997 to 28 January 1998 and what proportion of it, if any, was by way of workers' compensation.
Doing the best I can I assess the plaintiff's past economic loss for the period 29 May 1997 to 28 January 1998 in the sum of $5,000.
I find that the combination of the plaintiff's physical and mental injuries has prevented him from returning to work at all since 28 January 1998 other than the unsuccessful work trial. I assess the plaintiff's past economic loss in the sum of $90,807.60 for the period 28 January 1998 to the date of the hearing ($756.73 net per week x 120 weeks).
I assess the plaintiff's total past economic loss in the sum of $95,807.60.

Taxation on workers' compensation payments

There is no issue between the parties that the plaintiff should also be awarded the sum of $25,000 being the amount of taxation paid by the workers' compensation insurer on weekly payments made to the plaintiff.

Interest on past economic loss

Given that the plaintiff received workers' compensation payments prior to the hearing he only claims interest on the amount of tax of $25,000 paid by the workers' compensation insurer. The sum of $1,725 is claimed by way of interest based on a rate of 3 per cent over the whole period and there is no issue with this. I make an assessment in this amount.

Future economic loss

The plaintiff claims future economic loss of $453,660 less an amount for any retained earning capacity. The sum of $453,660 is calculated by applying the multiplier for 19 years of 599.5 to the earnings rate of $756.73 net per week and rounding up the result.
ie. $756.73 x 599.5 = $453,659.63
The plaintiff turned 65 on 28 September 2018 which is 18.33 years from the date of the hearing. The six per cent multiplier for 18.33 years is about 588. I will use 588 as the multiplier. If the plaintiff was totally incapacitated from work for the rest of his working life then his loss would be calculated as follows:
$756.73 net per week x 588 = $444,957.24

If the plaintiff was totally incapacitated from work for the next three years then using the six per cent multiplier his loss would be calculated as follows:
$756.73 net per week x 144 = $108,969.12

If the plaintiff was totally incapacitated from work for the next five years then using the six per cent multiplier his loss would be calculated as follows:
$756.73 net per week x 226 = $171,020.98

I repeat my findings under the heading of Duration of the plaintiff's injuries and future work capacity. Using the calculations I have just set out the total loss of $444,957 before consideration of contingencies can be broken up for the three time periods referred to earlier under that heading as follows:

0-3 years	$108,969
Years 4 and 5	$62,052
Year 6 to year 18.33	$273,936
Total	$444,957

Applying these figures to my findings under the heading of Duration of the plaintiff's injuries and future work capacity produces a gross loss before consideration of contingencies in the sum of $197,582 calculated as follows:

Time Period	Portion of Gross Loss for Period $	Lost Chance %	Total Loss for Period $
0 – 3 years	108.969	90	98,072
Years 4 and 5	62,052	50	31,026
Years 6 to 18.33	273,936	25	68,484
Totals	444,957	197,582

It is now necessary to consider whether there should be any adjustment for contingencies including the usual contingencies. Contingencies may be both positive and negative and it is not always the case that there should be a reduction for contingencies.
The negative contingencies which would require a discount of the gross loss are as follows. There is no evidence before me on the financial position of Wanneroo Auto's at any stage at all. There was no money to pay the plaintiff a bonus after he had been working there for three months. I find that the business was probably just breaking even or thereabouts. I note from Mr Townsend's proof of evidence that despite him spending more time at the business after the plaintiff's accident the business was eventually sold with nothing paid for goodwill. If the plaintiff did not succeed in making the business work and eventually take up an interest in it he may well have become depressed because of a feeling of failure and stopped working for a period of time and possibly taken a rest at least from the car industry. Any alternative employment in another industry may not have generated as much income as he received from employment in the car industry.
Positive contingencies which would require an addition to the gross loss are as follows. If the plaintiff was able to make the business a success he would have probably earned a greater income than $756.73 net per week. Alternatively if he did not make the business a success he may have taken up a position elsewhere in the car industry and been paid more than $756.73 net per week given his long experience and expertise in the industry.
The longer it takes for the plaintiff's physical and mental conditions to resolve such that he could return to work then the longer he would be out of the car industry and the more difficult it would be for him to obtain employment in the car industry. If he is unable to resume work in the car industry he would be forced to take up employment in some other industry and likely for less pay.
In addition to these positive and negative contingencies there are the usual contingencies to take into account. In my opinion all of the contingencies balance out so that there should be no subtraction or addition to the gross loss of $197,582.
I assess the plaintiff's future economic loss in the sum of $197,582.

Superannuation

The plaintiff has claimed for both past and future loss of superannuation payments based on earnings of $1,329.09 gross per week or $69,112.68 per year. I have already set out the gross and net earnings taken from the plaintiff's taxation records. His average gross income from 1991/92 to 1996/97 was $73,528.50. His gross earnings of $16,735 from Wanneroo Auto's for the period 17 February 1997 to 30 June 1997 equates to $45,801.05 gross per year. The value of one fully maintained car and the provision of a telephone would have to be added to this. If the plaintiff succeeded in building up Wanneroo Auto's or worked elsewhere then bearing in mind the incomes of Mr Cull and Mr Parsons he could have earned more than $69,112 per year. I think that it is reasonable to use the figure of $1,329.09 gross per week for assessing loss under this head. The plaintiff has claimed superannuation at a rate of 7.5 per cent of gross salary.
The plaintiff commenced working at Wanneroo Auto's on a six month trial basis in February 1997 with the idea of becoming a proprietor if he thought that the business justified it. In the usual course as a proprietor rather than an employee he would not receive any superannuation payments. There is no evidence before me that he would have set up some sort of structure to acquire an interest in Wanneroo Auto's which would have involved superannuation payments being made to him and so it is not something I need to consider. Therefore the assessment of past and future loss of superannuation in the plaintiff's case is not a straightforward exercise of making calculations as it would be for a person who was and would have always been a paid employee. It is again a matter of assessing chances as per Malec v J C Hutton Pty Ltd (supra).
The plaintiff has claimed past loss of superannuation of $13,815.68 (less 30 per cent as per Jongen v CSR Ltd & Anor (1992) A Tort Rep 81-192) plus interest at 3 per cent resulting in the sum of $10,338.27.
The plaintiff has claimed future loss of superannuation applying a multiplier of 559.3 for 19 years to a weekly contribution of $99.68 (7.5 per cent of $69,112 ÷ 52) which it has calculated to be $59,758.16. This amount should be reduced by 30 per cent as per Jongen v CSR Ltd & Anor (supra) and further again for retained earning capacity. The plaintiff's multiplier is wrong and so too is the calculation of the sum of $59,758.16.
Applying the multiplier of 588 that I used when assessing future economic loss to the weekly contribution figure of $99.68 results in the sum of $58,611.84 which after a reduction of 30 per cent results in the sum of $41,028.28. This sum would need to be further reduced for retained earning capacity and in that regard I repeat my findings under the heading of Duration of the plaintiff's injuries and future working capacity which in broad terms reflects a retained earning capacity over the whole period of 18.33 years of about 55 per cent ($444,956 ÷ $197,582). If $41,028.28 is reduced by 55 per cent the resultant figure is $18,462.72.
Despite the plaintiff's best endeavours in the first three months that he was at Wanneroo Auto's before the accident the business did not do much better than generate sufficient income to pay the bills. Subsequent to the accident the plaintiff continued to work at Wanneroo Auto's and Mr Townsend committed more time to the business but even so it was still eventually sold for a price that did not include any goodwill.
In my opinion but for the accident the chance that the plaintiff would not have taken an interest in Wanneroo Auto's outweighs the chance that he would have. I am also of the opinion that but for the accident there is a chance that the plaintiff would have been distressed if he did not make a success of Wanneroo Auto's and if that happened he would have possibly taken a rest from the car industry or generally or looked for some other form of employment. There is also the chance that he would have sought employment at some other car yard. I am also of the opinion that but for the accident so long as the plaintiff was a member of the workforce the chance that he would have been an employee outweighs the chance that he would have been an owner/employer.
Doing the best I can I assess the plaintiff's loss of past superannuation including interest in the sum of $7,500.
Again doing the best I can I assess the plaintiff's loss of future superannuation in the sum of $15,000.

Past and future gratuitous services

The plaintiff claims past gratuitous services and interest thereon in the sum of $10,775.52 based on an hourly rate of $12. There is no issue with the rate. The claim is based on one hour per day from 29 January 1998 until the date of the hearing (120 weeks).

The plaintiff started boarding with his friend after he sold his house on 28 October 1998. Therefore as at the time of the hearing he had been boarding with his friend for about 19 months or 82 weeks. The board of $100 covers his room, use of the facilities in the house and all food. There is no evidence before me to suggest that the plaintiff pays more than a fit and healthy person would pay in the same circumstances. Indeed on the face of it board of $100 seems very reasonable for what the plaintiff receives. I do not think that any amount can be isolated from the amount of board paid by the plaintiff and made the subject of an award for gratuitous services.
The plaintiff's schedule of travelling expenses shows that he made 191 visits to various medical practitioners between the date of the accident and the hearing. The plaintiff has found it necessary because of his injuries to use the services of someone to drive him to and from these appointments. He visited Dr Yeoh 87 times and travelled a total of 12 kilometres to do so on each occasion. It was necessary to travel between 50 and 60 kilometres return for most of the other appointments. The plaintiff's driver would have had to wait while the plaintiff was seeing the medical practitioner. I do not accept the plaintiff's evidence that his wife spent two hours per day driving him to medical appointments. If one and a half to two hours was allowed as an average time for each visit the cost at $12 per hour would be $3,438 to $4,584.
Doing the best I can I assess past gratuitous services including interest in the sum of $4,000.
The plaintiff claims future gratuitous services in the sum of $26,611.20 based on seven hours per week for the next seven and a half years. The plaintiff gave evidence that he now feels that he is imposing on his friend and wants to find some other accommodation.
I find that for the immediate future at least it would not be reasonable or safe for the plaintiff to drive. As his physical injury and pain improve so too would his mental condition and the chance of him being able to drive. There is no evidence that he will not be able to drive in the medium to long term. The fact that the accelerator and brake pedals in an automatic car are positioned to be operated with the right foot is a positive factor in considering the chance of the plaintiff resuming to drive. So long as the plaintiff cannot drive he will continue to need the services of someone to take him to visit medical practitioners. He will need to continue attending at least on his medical practitioner, a pain specialist and a psychiatrist for some time into the future.
If the plaintiff moves to new accommodation he may well need someone to drive him to the shops or to do his shopping once or twice a week. There is a paucity of evidence in relation to future gratuitous services and in particular his capacity to do work in and about the house. The plaintiff stated that when his children lived with him they lived on pizzas and ready made meals and the children did all of the housework. The plaintiff also gave evidence of neighbours cooking meals for him and the children. I think that all of this was the product of the plaintiff being under pressure at work and working until late afternoon or thereabouts at the car yard and not having time to cook and do his fair share of the housework rather than an inability to do so. I do accept that the plaintiff may need some assistance in the immediate future at least to clean areas inside a house or unit that are difficult to get at.
If the plaintiff needed services of the sort mentioned on an average of three hours per week for the next five years then the appropriate award would be $8,136 (3 hours x $7 per hour x 226). He may continue to need some services beyond the next five years.
Doing the best I can I assess future gratuitous services in the sum of $10,000.

Future medical treatment and pharmaceutical's and stimulator expenses

The plaintiff has claimed the sum of $62,669.44 for future pharmaceutical's and attendances on medical practitioners. In addition to this, the plaintiff's schedule includes a claim for the sum of $39,000 for six battery replacements of his spinal cord stimulator at five yearly intervals over the next 30 years. After the evidence of Dr Goucke at the hearing this claim was amended to one battery replacement.
The plaintiff gave evidence that his current medication consists of Valium, Endone, Efexor, Temazepam, Meleril and Panadeine Forte. The current cost of all of this medication is $102 per week. The defendant does not take issue with the amount of treatment and medication used by the plaintiff at the time of trial. The issue concerns the duration of time that the plaintiff will continue to require such treatment and medication. I repeat all of my comments and findings under the heading of Duration of the plaintiff's injuries and future work capacity.
There is a paucity of evidence on the type and dosage of medication that the plaintiff will likely need in the future. This is understandably so for the future beyond the short term. Dr Goucke stated in his report dated 7 April 2000 that it is likely that ongoing use of Oxycodone tablets at the current level be considered for a 12 to 20 month period together with antidepressants. Oxycodone is an analgesic used in pain medicine. Dr Byrne gave evidence that treatment of the plaintiff's depression included antidepressant medication. About $44 of the weekly cost of $102 for medications is for Endone. I note with interest that Dr Graziotti stated in his report dated 26 February 1998 that the plaintiff had informed him that Endone recently prescribed had not really made a lot of difference to his pain. It was this history together with Dr Graziotti's concern about the use of increasing doses of opiates in the plaintiff's case that formed the basis or part of the basis of Dr Graziotti's opinion that the plaintiff was a reasonable candidate for a trial of spinal cord stimulation. As I understand Dr Graziotti's evidence he thought that one of the advantages of a spinal cord stimulator was that it would at least reduce the required level of prescriptive medication. The plaintiff has claimed $32,472 for future medication expenses based on a cost of $102 per week for the next seven and a half years. I do not accept that there is much chance that the plaintiff will require this level of medication for that long.
Dr Byrne gave evidence that it was very difficult to predict the level of treatment that the plaintiff would need in the future for depression. He said that the plaintiff may need to see him or another psychiatrist ten times a year for the next five years. His current fee is $134 per session. The six per cent multiplier for five years is 226. If an assessment was made for 50 sessions for the next five years at a cost of $134 per session then the result would be $5,824.02 ($25.77 per week x 226). There is a chance that the plaintiff will not require so many treatments. There is also a chance that he may require more. Account should also be made for the chance that the plaintiff will require psychiatric treatment for recurrent episodes of depression after any resolution of his pain syndrome. It also needs to be borne in mind that the plaintiff may require psychological counselling in addition to psychiatric treatment.
Dr Goucke stated in his report dated 7 April 2000 that he recommended that the plaintiff receive ongoing supervision by his family doctor on a monthly basis with reviews by a pain management specialist on perhaps a six monthly basis. Dr Yeoh gave evidence that the plaintiff currently consults him on a fortnightly basis at a cost of $35 per consultation. An assessment for a monthly consultation over the next five years amounts to $1808. There is no evidence of the fee to attend on a pain management specialist but I think it could be reasonably expected to be at least about $150.
Dr Goucke gave evidence that the battery life of a spinal cord stimulator is about five years. He said that the plaintiff would probably need one replacement. Assuming the battery lasts for five years which to some extent is dependant on the level of usage, whether or not the plaintiff needs a replacement depends on if and when the plaintiff's complex regional pain syndrome burns out. I bear in mind the plaintiff's evidence that he has the stimulator on most of the time. The stimulator was implanted in September 1998 and so if the plaintiff's pain syndrome burns out within five or six years of the accident then he would not need another replacement. Of course if the plaintiff's pain syndrome does not resolve within the next three and a half years or so, which is possible, then he will need a replacement.
The current cost of a replacement battery is about $5,000. The current total medical and hospital fees to replace the battery is $1500. I think that $3500 is a reasonable sum to allow for the chance that a battery will need to be replaced.
The current total medical and hospital fees to remove the spinal cord stimulator is $1750. The weight of the evidence is such that the spinal cord stimulator will have to be removed at some stage.
Doing the best I can I assess future medical treatment and pharmaceutical's in the total sum of $20,000.

Past travelling expenses

The parties have agreed past travelling expenses for the plaintiff to get to and from medical appointments in the sum of $1200 and I assess damages under this head in that amount.

General damages

The plaintiff is entitled to general damages for the consequent pain, inconvenience and other matters generally referred to as the loss of amenities. The award of damages for loss of enjoyment of life and amenities comes within the operation of s 3C of the Motor Vehicle (Third Party Insurance) Act 1943 ("the Act").
I repeat all of my comments and findings under the heading of Duration of the plaintiff's injuries and future work capacity for the purpose of assessing damages under this head.
I have already mentioned that the plaintiff was an inpatient at the psychiatric ward of Sir Charles Gairdner Hospital at the time of the hearing. He appeared to be a bit drowsy and unable to concentrate when he gave his evidence. I think that this was probably because of his depression or medication or a combination of the two. I find that the plaintiff did his honest best when he gave his evidence.
I accept that the plaintiff's complaints of pain in his left foot relied on by various medical practitioners to diagnose complex regional pain syndrome were genuine. I accept his evidence that he still suffers from pain in the left foot, leg, hips and lower back. Having said that I should add that I do not think that his physical injuries in their own right justify his complaints on the severity of his pain and the extent of his limitations. This is relevant to my consideration on how long his complex regional pain syndrome will last and what he is capable of doing when he enjoys good mental health.
In my opinion the plaintiff has not sought to mislead medical practitioners and the Court on the severity of his pain and the extent of his limitations. This is a case where the plaintiff's physical injuries have been the main contributor in him developing depression. The mix of this depression with the complex regional pain syndrome which developed from the physical injuries has at present overwhelmed the plaintiff's life and thought processes. This view is supported by the evidence of Dr Byrne. As a result the plaintiff genuinely feels that his pain and physical limitations are so bad. For the plaintiff it is all very real and has seriously affected his life and I must bear that in mind. I am therefore of the opinion that in the plaintiff's case treatment including counselling from Dr Byrne is very important. I am also of the opinion that with a combination of treatment from a pain management specialist and psychiatrist there is good reason for optimism and more so in the medium term and more again in the long term. That the plaintiff has shown himself to be a very capable and motivated individual over such a long period of time and that with treatment he recovered substantially from an episode of severe depression in January/February 1998 provides further support for this view. I think that the legal process contributed to his relapse in March/April/May 2000 and the chance of his mental state improving will increase when his claim is finalised.
Since the accident the plaintiff has suffered from pain. His pain has caused him to be generally depressed and on occasions severely depressed. He was hospitalised for two days after the accident and thereafter in August 1997 and September 1998 for pain management procedures. The second procedure in September 1998 was the implantation of a spinal cord stimulator which is still implanted and will remain so for some time to come. The plaintiff was hospitalised on two further occasions for surgery to his left wrist and right knee for injuries which indirectly related to the accident. In the past and now the plaintiff takes medication for pain relief and treatment of his depression. He was hospitalised in the psychiatric ward at Sir Charles Gairdner Hospital in January/February 1998 after he attempted suicide and in April/May 2000.
The plaintiff has been unable to fully weight bear on his left side for much of the time since the accident. He has used a crutch or crutches for weight support. When he returned to work shortly after the accident he used a wheelchair to move about the car yard. He returned to work on 2 June 1997 after the accident in his pre-accident position as a car sales manager and worked varying hours until 28 January 1998. He has not worked in that capacity or at all since then. The plaintiff wanted to own a car dealership and he had hoped to build up Wanneroo Auto's and take up a proprietary interest in it. His accident related injuries prevented him from pursuing this aim in the way he otherwise would have and reduced the chance of him succeeding with this ambition.
The plaintiff's separation from his wife shortly before Christmas 1997 was not caused entirely by his accident related injuries but they contributed towards it. The plaintiff and his wife have not resumed cohabitation since then but remain friends. The separation ultimately lead to the plaintiff not living with and enjoying the company of his three children.
Since the accident the plaintiff has had to make numerous attendances on medical practitioners and other health professionals. He has used various medications and combinations of medications from time to time for pain relief and to treat his depression. He has had to take sleeping tablets. The weight of bed sheets on his left foot causes pain which makes it difficult to sleep. He has suffered from headaches. He has not been able to have sexual relations.
The plaintiff has not driven a car since at least 28 January 1998 because of his injuries. This has reduced his level of independence.
The combination of pain and depression has reduced his capacity to concentrate and at times made him feel suicidal. I have already mentioned that thankfully he survived an attempt to suicide in January 1998.
Prior to the accident the plaintiff enjoyed good health and he was a keen and regular participant in sporting and recreational activities. He trained four times a week in martial arts. He taught martial arts. He enjoyed fishing and fished every fortnight from the coastal shores north of Perth. Prior to the accident he used to do weight training in a gym in his own house. He also used to play golf on some Sunday mornings. He is currently unable to do any of these things.
The plaintiff's life has been severely affected by his accident related injuries for the last three years and there is a good chance that he will continue to have difficulties over the next three years and a lesser chance that he will continue to have difficulties for some time there after.
The prescribed amount for a most extreme case under the Act is $219,000. I assess general damages in the plaintiff's case at 21 per cent of a most extreme case under the Act which equates to $45,990. An amount in this sum is not reduced at all under the scheme of the Act.

Special damages

The parties have agreed special damages for various doctors appointments and pharmaceutical expenses in the sum of $2,815.40. Exhibit 15 sets out the nature and amount of various expenses already paid out by Wanneroo Auto's workers' compensation insurer in relation to the plaintiff's injuries. Further to this agreement and the exhibit I award special damages in the total sum of $59,541.40 made up as follows:

Various doctors and pharmaceutical expenses	$ 2,815.40
Medicals	$16,691.00
Hospital treatment	$ 5,553.60
Physiotherapy and allied services	$28,494.00
Rehabilitation	$ 5,987.40
Total	$59,541.40

Summary of the plaintiff's loss

1.	Past economic loss	$ 95,807.60
2.	Tax on workers' compensation	$ 25,000.00
3.	Interest on past economic loss	$ 1,725.00
4.	Future economic loss	$197,582.00
5.	Past superannuation	$ 7,500.00
6.	Future superannuation	$ 15,000.00
7.	Past gratuitous services	$ 4,000.00
8.	Future gratuitous services	$ 10,000.00
9.	Special damages (a) various doctors and pharmacy plus (b) medicals (c) hospital treatment (d) physiotherapy and allied services (e) rehabilitation	$ 2,815.40 $ 16,691.00 $ 5,553.60 $ 28,494.00 $ 5,987.40
10.	Travelling expenses	$ 1,200.00
11.	Future medical treatment	$ 20,000.00
12.	General damages	$ 45,990.00
TOTAL	$483,346.00
Less 40% for contributory negligence	$193,338.40
Balance	$290,007.60
The Award	$290,000.00

Conclusion

I award the plaintiff damages in the total sum of $290,000.