Stanton v Insurance Commission of Western Australia

[2020] WADC 10

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   STANTON -v- INSURANCE COMMISSION OF WESTERN AUSTRALIA [2020] WADC 10

CORAM:   VERNON DCJ

HEARD:   5, 6 & 7 NOVEMBER 2018, AND CLOSING SUBMISSIONS ON THE PAPERS FILED 17 DECEMBER 2018, 12 MARCH 2019 & 10 APRIL 2019

DELIVERED          :   24 JANUARY 2020

FILE NO/S:   CIV 184 of 2017

BETWEEN:   JACOB HAABJOERN STANTON

Plaintiff

AND

INSURANCE COMMISSION OF WESTERN AUSTRALIA

Defendant

Catchwords:

Motor vehicle accident - Personal injuries - Assessment of damages - Effect of intervening injury on assessment of loss of income earning capacity - Mitigation of loss - Turns on own facts

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943

Result:

Damages assessed in the amount of $735,234

Representation:

Counsel:

Plaintiff	:	Mr K S Pratt and Mr T Lampropolous SC (written closing submissions)
Defendant	:	Mr D R Clyne

Solicitors:

Plaintiff	:	Stephen Browne Lawyers
Defendant	:	Kott Gunning

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

Adams v Ascot Iron Foundry Pty Ltd (1968) 72 SR (NSW) 120

Baird v Roberts [1977] 2 NSWLR 389

Baker v Willoughby [1970] AC 467

Broome Helicopter Services Pty Ltd v Anderson [2014] WASCA 12

Den Hoedt v Barwick [2006] WASCA 196

Department of Housing and Works v Smith [No 2] [2010] WASCA 25

Faulkner v Keffalinos (1971) 45 ALJR 80

Jongen v CSR Ltd (1992) Aust Torts Reports 61,706

Lowes v Amaca Pty Ltd [2011] WASC 287

McCracken v Melbourne Storm Rugby League Football Club Ltd (2007) Aust Torts Reports 81-925; [2007] NSWCA 353

Medlin v State Government Insurance Commission (1995) 182 CLR 1

Montemaggiori v Wilson [2011] WASCA 177

Pene v Murphy [2004] WASCA 103

Setton v Eves [2006] WASCA 3

State Government Insurance Commission v Oakley (1990) Aust Tort Reports 81-003; (1990) 10 MVR 570

Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402

Van Der Velde v Halloran [2011] WASCA 252

Villasevil v Pickering (2001) 24 WAR 167; [2001] WASCA 143

Wainwright v Barrick Gold of Australia Ltd [2014] WASCA 15

Watts v Rake [1960] HCA 58; (1960) 108 CLR 158

VERNON DCJ:

Introduction

1. The plaintiff, Jacob Haabjorern Stanton, seeks damages for personal injuries suffered on 14 September 2014, when he was knocked from his bicycle by a motorcycle (the accident).

2. The motorcycle driver was not identified, and the plaintiff brings proceedings against the Insurance Commission of Western Australia under s 7(3) of the Motor Vehicle (Third Party Insurance) Act 1943 (the MVA).

3. The defendant admits that the plaintiff suffered injury as a result of the motorcycle driver's negligence.  The only issue for determination is the assessment of damages.

Summary of claim and defence

1. The plaintiff claims that as a result of the accident he:

   (a)suffered injuries to both shoulders, his neck, right hip, right ankle and lower back, and psychological injury;[1]

   (b)continued to suffer pain and restriction of movement in both shoulders, his neck, and adjustment disorder with mixed anxiety and depressed mood;[2] and

   (c)as a result of the injuries to his right and left shoulder, the plaintiff has been, and continues to be, unable to work in his pre‑accident employment as a scaffolder.

   [1] Amended statement of claim par 4.

   [2] Amended statement of claim par 8.

2. The plaintiff claims that his pre-accident occupation as a scaffolder is the only occupation reasonably open to him, given his pre‑accident conditions of attention deficit hyperactivity disorder (ADHD), anxiety, and depression.

3. The defendant accepts that, as a result of the accident, the plaintiff suffered injuries to his right shoulder, neck, right hip, right ankle and lower back, and psychological injury.[3]  The defendant says that the injuries to the plaintiff's lower back, right hip and right ankle were minor and resolved, by and large, within six to eight weeks after the accident, and did not impact on the plaintiff's day to day activities, or stop the plaintiff from returning to some form of paid employment.[4]  The defendant also says that there was a mild aggravation of a pre‑existing psychiatric condition, namely adjustment disorder, which would likely have resulted in the plaintiff being impaired for work for two months.[5]

   [3] Defendant's closing submissions dated 17 December 2018 at par 8.

   [4] Defendant's closing submissions at par 9 and par 80.

   [5] Defendant's closing submissions at par 78.

4. The defendant accepts that the injury to the plaintiff's right shoulder required surgery, which took place on 1 July 2015, and that this prevented the plaintiff from undertaking work as a scaffolder.[6]  However, the defendant says that this injury had resolved, or significantly resolved, by 30 March 2016 and results in no ongoing future loss.[7]

   [6] Defendant's opening submissions dated 31 October 2018 at par 15 and closing submissions at par 3.1, par 83 and par 88.

   [7] Defendant's opening submissions at par 7 and par 21, and closing submissions at par 92.

5. The defendant says that, in any event, in an unrelated accident, on 27 January 2015, the plaintiff broke both his calcaneus (heels), which prevented him from working as a scaffolder for a period which the defendant says was nine months.[8]  The defendant says that the plaintiff is not entitled to be compensated for lost earning capacity during that period.  The plaintiff acknowledges that he did suffer this injury and that during the time he took to recover he was not fit for work as a scaffolder.  The plaintiff says this was a period of four months.[9]  However, the plaintiff says that his claim for past loss of earning capacity should not be reduced as a result.[10]

   [8] Defendant's closing submissions at par 116 and par 117.

   [9] Plaintiff's closing submissions at par 8.

   [10] Plaintiff's closing submissions at par 36.

6. The defendant also accepts that the plaintiff has suffered from an injury to his left shoulder which requires surgical repair, and which has prevented the plaintiff from working as a scaffolder.[11]  However, the defendant denies that this injury was suffered as a consequence of the accident.[12]

   [11] Defendant's opening submissions at par 16 and par 21.

   [12] Defendant's opening submissions at par 16 and closing submissions at par 3.3, par 122.

7. The defendant accepts that the plaintiff is entitled to compensation for past economic loss, however, disputes the basis upon which the plaintiff's claim is calculated.[13]  The defendant says that any injury suffered by the plaintiff as a result of the accident had resolved by 30 March 2016[14] and that only a modest global sum should be allowed thereafter to reflect the plaintiff's reduced ability to compete in the workforce because of the short time the plaintiff was out of the workforce as a result of the right shoulder injury.[15]

   [13] Defendant's closing submissions at par 83.

   [14] Defendant's closing submissions at par 92.

   [15] Defendant's closing submissions at par 127.

8. The defendant further claims that the plaintiff was and is capable of working in other occupations and has failed to mitigate his loss by seeking such work.[16]  The plaintiff concedes that he has not sought work other than in scaffolding since the accident.[17]  However the plaintiff says that the defendant has the onus of proving what work the plaintiff could have undertaken, that the work was available to him, and the likely rates of pay, and the defendant has not discharged that onus.[18]

   [16] Defendant's opening submissions at par 20 and closing submissions at par 130.

   [17] Plaintiff's closing submissions at par 12.

   [18] Plaintiff's closing submissions at par 30 ‑ par 33.

Issues

1. In light of the matters set out in [4] – [11] above, the particular issues to be determined in order to assess the amount of money that properly compensates the plaintiff for his pecuniary and non-pecuniary loss suffered as a result of the accident, including his past and future lost income earning capacity, are as follows:

   (a)When did the plaintiff recover from the right shoulder injury suffered in the accident?

   (b)Did the plaintiff suffer an injury to his left shoulder as a result of the accident?

   (c)If the plaintiff suffered the injury he now complains of to his left shoulder as a result of the accident, which requires surgical repair, will the plaintiff be able to work as a scaffolder after that surgery, and if so, when;

   (d)Is the plaintiff entitled to compensation for past loss of earning capacity during the period he was also incapacitated by the unrelated injury to his heels suffered on 27 January 2015, and, if he is not, how long was the plaintiff incapacitated from working by reason of that injury; and

   (e)Does the plaintiff have capacity to obtain work in employment other than as a scaffolder and, if so;

   (i)What employment does the plaintiff have capacity to obtain?

   (ii)Has the plaintiff failed to mitigate his loss by seeking employment that is within his capacity; and

   (iii)What is the effect of any failure to mitigate on the calculation of damages for the plaintiff's loss of earning capacity both past and future?

Legal issues

General legal principles

1. The assessment of damages for personal injuries is not a science and can only be intuitive, and must be governed by considerations of practical common sense in the context of the facts of the particular case.[19] 

   [19] Montemaggiori v Wilson [2011] WASCA 177 [28].

2. The plaintiff bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation: that is that he has suffered the harm he alleges as a result of the accident.[20]  Causation will be established if the accident materially contributed to the damage suffered, although it is not the sole cause.[21]

   [20] Section 5C(1)(a) Civil Liability Act 2002 (WA), Department of Housing and Works v Smith [No 2][2010] WASCA 25 [92] ‑ [94] (Buss JA), s 5D Civil Liability Act 2002.

   [21] Van Der Velde v Halloran [2011] WASCA 252 [95], s 5C(1)(b) of the Civil Liability Act2002 has no application in this case.

3. It may be inferred from the facts that a plaintiff was in good health before an accident and is in bad health thereafter, that the change is a consequence of the accident, in the absence of evidence that there is some other explanation.[22]

   [22] Watts v Rake [1960] HCA 58; (1960) 108 CLR 158, 164 (Menzies J).

4. The plaintiff bears the overall burden of proving the loss for which compensation is claimed, including loss of earning capacity and the extent to which that loss produces, or might produce, financial loss having regard to the established facts of the past and the probabilities of the future.[23]

   [23] Wainwright v Barrick Gold of Australia Ltd [2014] WASCA 15 [92]; Montemaggiori v Wilson [2011] WASCA 177 [30]; Watts v Rake [1960] HCA 58; (1960) 108 CLR 158, 159 (Dixon CJ).

5. A plaintiff is to be compensated for loss of earning capacity, not actual loss of earnings.[24]  In order to recover damages for loss of earning capacity the plaintiff must establish that:

   (a)the plaintiff's earning capacity has been diminished by reason of the negligence caused injury; and

   (b)the diminution of earning capacity is, or may be, productive of financial loss.[25]

   [24] Medlin v State Government Insurance Commission (1995) 182 CLR 1, 16 (McHugh J).

   [25] Medlin v State Government Insurance Commission (1995) 182 CLR 1, 3 (Deane, Dawson, Toohey & Gaudron JJ).

6. The assessment of damages for future financial loss can only be an estimate of the present value of the loss.[26]

Burden of proof and mitigation of loss

[26] Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402, 413.

1. With respect to the defendant's submission that the plaintiff has acted unreasonably in not securing alternative employment so as to mitigate his financial loss, the plaintiff says that the defendant has not identified occupations which it says the plaintiff would have been able to undertake, relying on Montemaggiori v Wilson[27] and Broome Helicopter Services Pty Ltd v Anderson.[28]  The plaintiff also says that the defendant is required to adduce evidence of the availability of such employment or the likely pay rates, relying on Setton v Eves.[29]

   [27] Montemaggiori v Wilson [2011] WASCA 177 [33].

   [28] Broome Helicopter Services Pty Ltd v Anderson [2014] WASCA 12 [34].

   [29] Setton v Eves [2006] WASCA 3 [27].

2. The defendant did not deal expressly with the issue of the burden of proof in its submissions.  The defendant submits that the court has a broad discretion in assessing damages for lost earning capacity, citing Pene v Murphy where it was said:[30] [31]

   5… The decisions in Bowen v Tutte and Wright v The Shire of Albany are not to be taken as setting out principles invariably applicable to assessments of damages for loss of earning capacity. The first of the cases is authority (inter alia) for the proposition that in the absence of any evidence of the availability of suitable employment for, or earnings which could be derived from it by an injured plaintiff, a trial Judge has a wide range of findings open on the issue of loss of earning capacity and may, in an appropriate case, assess residual earning capacity as a percentage of pre-accident earning capacity. However, the case does not stand for authority that this is required in every assessment of damages for loss of earning capacity.

   6Where it is clear that an injured plaintiff has suffered a loss of earning capacity, such as total loss of capacity to earn in an occupation or profession in which he has previously been employed, the Court should do its best to place a value on that loss, notwithstanding the absence of evidence on the availability of employment within the plaintiff's residual capacity and the amount which could be earned in such employment. These propositions are well established and generally applicable to cases in which the central issue is loss of earning capacity.

   7The decision in Wright v The Shire of Albany is authority for the proposition that in an appropriate case, an award of damages for loss of earning capacity should include within it the contingency of future unemployment.  The case also deals with the appropriate deduction for contingencies in circumstances where an injured plaintiff is at risk of losing his present employment.

   (citations omitted)

   [30] Defendant's closing submissions at par 124.

   [31] Pene v Murphy [2004] WASCA 103 [5], [6] and [7].

3. The burden of proving a plaintiff has failed to mitigate his or her damages rests on the defendant, who not only must show how a plaintiff's claim ought to be mitigated but the extent to which it ought to be mitigated.  If a defendant establishes the plaintiff has failed to mitigate their loss, the court is required to assess the plaintiff's damage on the footing that he or she had taken the hypothetical action and been endowed with its hypothetical benefits.[32]

   [32] Wainwright v Barrick Gold of Australia Ltd [2014] WASCA 15 [100].

4. However, this is subject to the plaintiff satisfying his overall burden of proving the loss for which compensation is claimed, including the quantification in money that should be adopted in the sum awarded.[33]  The court must decide the extent, if any, to which the plaintiff has been rendered less capable of earning income as a result of the accident, by looking at the plaintiff's capacity for work beyond the particular employment in which he or she was engaged at the time of the accident.[34] Where a question arises as to whether a plaintiff could have obtained employment within their post-accident capacity, the plaintiff must prove that such employment is beyond his or her capacity, and that question is not one of mitigation of damages.[35]

   [33] Wainwright v Barrick Gold of Australia Ltd [2014] WASCA 15 [92]; Montemaggiori v Wilson [2011] WASCA 177 [31].

   [34] Wainwright v Barrick Gold of Australia Ltd [2014] WASCA 15 [91] and [92], Medlin v State Government Insurance Commission (1995) 182 CLR 1, 17 (McHugh J).

   [35] Wainwright v Barrick Gold of Australia Ltd [2014] WASCA 15 [92] (Murphy JA).

5. In Montemaggiori v Wilson,[36] a tree lopper ceased work before the accident, but had planned to return when his wife had a baby.  He retained capacity for full-time employment in less physical activities than tree lopping but was not fit to return to work as a tree lopper.  The court found that he had not made any reasonable attempts to obtain employment. The plurality of Buss and Newnes JJA held that:

   31While it is desirable for a plaintiff to call precise evidence of what he or she would have been likely to earn but for the injury, where earning capacity has been unquestionably reduced the failure to call such evidence, particularly in relation to future loss, does not mean that the defendant is not entitled to damages or is entitled only to nominal damages. But where evidence ought to have been available, it is hard for a plaintiff who fails to call evidence, or calls incomplete evidence, to complain of a lower award.

   32Where an injured plaintiff has suffered a loss of earning capacity, such as a total loss of capacity to earn in an occupation in which he has previously been employed, the court should do its best to place a value on that loss, even in the absence of evidence, or where there is uncertainty in the evidence, as to the availability of employment within the plaintiff's residual capacity or the amount which could be earned in such employment.  Thus, for example, in Bowen v Tutte it was held that in the absence of any evidence of the availability of suitable employment for an injured plaintiff, or of earnings which could be derived from such employment, a trial judge may, in an appropriate case, assess the plaintiff's residual earning capacity at a percentage of his or her pre-accident earning capacity. And in Pene v Murphy, it was held that the appellant's loss of earnings should be assessed as a percentage of his pre-accident earning capacity as there were considerable uncertainties associated with his prospects of obtaining work within his residual capacity.  It is the court made clear in that case, such an approach is not appropriate in every case; in the end the question is one of fairness.

   33once the plaintiff has proved that they have lost their pre‑accident earning capacity and have been unable to find alternative employment, or that their condition has prevented them finding alternative employment, an evidentiary burden is cast on the defendant to show what alternative opportunities were open, including the state of the labour market and the likely earnings.

   (citations omitted)

   [36] Montemaggiori v Wilson [2011] WASCA 177 [31] – [32].

6. Buss and Newnes JJA said that, whilst there had been argument on the appeal as to where the burden of proof lay in proving the availability of work within the respondent's retained capacity and the earnings that would be derived from it, it was unnecessary to consider that issue because there was evidence at trial, which established the respondent was able to do work of the kind referred to, and there was unchallenged expert evidence as to the general availability of work of that kind or the rates of remuneration it would produce.[37]

   [37] Montemaggiori v Wilson [2011] WASCA 177 [54].

7. In the same case Murphy JA referred to Baird v Roberts,[38] where it was said that although compensation is given for loss of economic capacity, that loss will often be best quantified by considering what is the relevant result from it; that is in considering the difference between the remuneration which could have been obtained by the plaintiff in exploiting his or her pre-injury income capacity, and that which could be obtained by exploiting his or her reduced capacity after the injury, and that such an approach would afford, prima facie, the most direct assistance in quantifying the compensation where the compensation sought is for the reduction, and not for a complete destruction, of the economic capacity of the plaintiff.[39]

   [38] Baird v Roberts [1977] 2 NSWLR 389, 397 (Mahoney JA, Reynolds & Glass JJA agreeing).

   [39] Montemaggiori v Wilson [2011] WASCA 177 [96].

1. Murphy JA went on to say:[40]

   [40] Montemaggiori v Wilson [2011] WASCA 177 [101] – [103].

   101Where the plaintiff has a residual earning capacity and some occupation other than the one he or she followed prior to the accident, the court has to consider not only what the plaintiff could earn in such an occupation, but the availability of such other work to the plaintiff, having regard to the plaintiff's injuries, circumstances, antecedents and the state of the labour market …

   102In relation to the shifting of an evidentiary onus, the appellant referred to Thomas v O'Shea where Malcolm CJ and Wallace J said:

   'The question remaining is what was the appellant's residual earning capacity, if any. This was clearly a case where, as the learned trial judge found, the appellant had lost the earning capacity he had before the accident. The legal onus of proof of loss of earning capacity rests, of course, on the plaintiff, but once the plaintiff has proved that he has lost his pre‑accident earning capacity and has been unable to find alternative employment, or that his condition has prevented him from finding alternative employment, an evidentiary burden is cast on the defendant to show what alternative employment opportunities were open, including the state of the labour market and the likely earnings …'

   103The appellant played particular reliance in the above passage on the words 'the plaintiff has proved that he has lost his pre‑accident earning capacity and has been unable to find alternative employment' (emphasis added) and submitted, in effect, that there could not be a shift in the evidentiary onus until the plaintiff had proved that he had taken steps, unsuccessfully, to obtain alternative employment, and that without such proof, the plaintiff would be confined to nominal damages. I do not accept that submission. In my view, their Honours were referring to situations which provided examples where the evidentiary onus could shift … I would not see the above passage in Thomas v O'Shea as being prescriptive of the way in which the plaintiff must discharge his or her legal burden. In that regard I would respectfully agree with what was said by Moffitt P in Kealley v Jones concerning Hutley JA's and analogous comments in Linsell v Robson (cited by Malcolm CJ and Wallace J in the passage above):

   'However I do not think that the passage should be construed as meaning that the court has taken on itself to prescribe the means by which losses in future cases must be proved; and as establishing that, in default, no award can be made for the particular head of damage; or, in particular, as establishing that diminution of earning capacity cannot be proved, except by specific evidence of actual monies available to be earned, or that diminution of earning capacity can only be proved by an initial step of proving (by some means) the two sides of the wage equation …

   Because a judge makes such a criticism, it does not mean that a party must be penalised, and given less than ought properly to be inferred from such evidence as there is. It is not the province of this or any court to lay down which of the available classes of evidence it will require in future cases as proof of loss. The assessment of such loss must be made in accordance with all the laws of evidence, including that part which defines the areas of permissible inference. In the end, of course, each case depends on its own facts. It is almost impossible to prescribe in advance how it must be proved.

   The absence of specific evidence of the type referred to may lead to criticism. It may mean that, in an appropriate case, a tribunal of fact may legitimately decline to make some factual inferences. It may mean that a plaintiff, and in some cases a defendant on appeal, will be at a disadvantage in any attack by him upon the quantum of the verdict.

   However, in the absence of such evidence, the trial judge or jury must still determine the sum to be awarded upon such evidence as there is.'

   (citations omitted)

2. In Broome Helicopter Services Pty Ltd v Anderson,[41] the court said:

   [41] Broome Helicopter Services Pty Ltd v Anderson [2014] WASCA 12 [8], [31] and [34].

   8 Although the judge said that the respondent did not contend that she was totally unfit for any form of employment, the respondent's pleaded case was that she was permanently incapacitated from carrying out all forms of employment to which she was suited by education, training and experience.

   and further

   31… the appellant's complaint was based on the respondent's evidence that since the accident she had done some hairdressing on a casual basis when visiting camping sites on trips in the company of her husband. That evidence, it was submitted, revealed that the respondent had a capacity to earn income which the primary judge had failed to take into account.

   …

   34There is no merit in this ground of appeal. … The finding by the primary judge that the respondent was not fit to return to her pre-accident employment was not challenged, and as already noted, the finding that she was not fit to return to her earlier occupation as a hairdresser was also not challenged.  The appellant did not adduce any evidence of other employment opportunities which were reasonably open to the respondent.

   (citations deleted)

3. In Adams v Ascot Iron Foundry Pty Ltd Sugarman JA said:[42]

   In many, if not most cases of damages for personal injuries, damages are awarded in respect of a lost or diminished earning capacity of the plaintiff … If in such a case a question arises of the plaintiff's ability to find [other forms of work he is capable of doing] the problem is not one of mitigation of damages. It is really the plaintiff who is seeking an increase in damages by establishing that he has been unable to obtain, and in the future may not be able to obtain, or may only be able to obtain intermittently, work of the only kind of which he is capable. In this respect the onus of proof in the sense of the onus of satisfying the jury rests upon the plaintiff as part of the general burden that lies upon him of proving the extent of the damage he has suffered by reason of the injury.

   In some cases it is the defendant who seeks to introduce evidence by way of establishing a particular employment…within the capacity of the plaintiff is available to him.… In such cases the defendant is really denying, according to the circumstances that the plaintiff's incapacity is as extensive as he claims or that his loss of earning capacity is aggravated by the impossibility of him obtaining employment within the limited capacity available to him.

   [42] Adams v Ascot Iron Foundry Pty Ltd (1968) 72 SR (NSW) 120, 132 ‑ 133, cited with approval by Ipp JA in McCracken v Melbourne Storm Rugby League Football Club Ltd (2007) Aust Torts Reports 81-925; [2007] NSWCA 353 [71] ‑ [72] (Beazley & Basten JJA agreeing).

4. In Medlin v State Government Insurance Commission, McHugh  J said:[43]

   A further question, and one that can be conveniently considered at this point, is whether, having regard to the loss of earning capacity, the plaintiff failed to mitigate his financial loss by not continuing in employment which would have continued to give him the earnings which he was receiving before the accident. In Adams v Ascot Iron Foundry Pty Ltd, Sugarman JA correctly pointed out that where a question arises as to whether a plaintiff could have obtained employment that was within his pre-accident capacity, the question is not really one of mitigation of damages. The plaintiff must prove that such employment is beyond his or her capacity 'as part of the general burden that lies upon him of proving the extent of damage he has suffered by reason of the injury'. But here the plaintiff has proved a general impairment of earning capacity and the exact degree of the impairment is not a matter for this court to decide. Accordingly, the question that then arises is whether the plaintiff failed in his duty to take steps that could have avoided or reduce the financial loss which he claims flowed from that loss of earning capacity.

   [43] Medlin v State Government Insurance Commission (1995) 182 CLR 1, 21 (McHugh J).

5. On the basis of my consideration of the authorities it is my view that:

   (a)It is for the plaintiff to prove that he has no capacity for his usual pre-accident employment.

   (b)If the plaintiff had a pre‑accident capacity to engage in another occupation, although he was not working in that occupation immediately before the accident, it is for the plaintiff to prove that he does not have capacity to engage in that employment after the accident.

   (c)If the plaintiff is unable to satisfy the court that he does not have capacity to engage in an occupation he had carried out before the accident, it is for the plaintiff to satisfy the court either that he has been unable to find work within that capacity or, alternatively, what income he may have derived from that employment, as part of his obligation to satisfy the court as to the quantification of his lost earning capacity in financial terms.

   (d)If, however, the plaintiff does not do that the court must do what it can to quantify the lost earning capacity, including, if necessary, assessing lost earning capacity on the basis of a percentage of the income being earned in the plaintiff's usual pre-accident occupation.

   (e)If the plaintiff has a residual capacity for work and has not made any, or any reasonable, attempts to find work within that capacity, no onus is placed on the defendant to prove some particular employment is available to the plaintiff and what would be earned from that employment.  The issue for the court is to assess the proper quantification of the plaintiff's loss of earning capacity by reference to the income the plaintiff may have been able to generate had he or she chosen to exploit that residual capacity.

   (f)If the plaintiff is able to satisfy the court that he or she does not have capacity to engage in any pre-accident occupation, or has been unable to find work within that capacity, the burden may shift to the defendant to prove that the plaintiff is fit for some other work and had unreasonably failed to look for that work, which was available to the plaintiff, and also to prove what income might be derived from that work.

Deductions on past loss for contingencies

1. In Montemaggiori v Wilson,[44] Buss and Newnes JJA also considered the issue of whether a discount for contingencies in relation to past loss of earnings was appropriate in circumstances where it is accepted practice not to make such a deduction.[45]  Their Honours held that the deduction for contingencies may be appropriate if some years have passed between the injury and the trial.[46]

Effect of subsequent injury on assessment of lost earning capacity

[44] Montemaggiori v Wilson [2011] WASCA 177.

[45] Montemaggiori v Wilson [2011] WASCA 177 [57] and [58].

[46] Montemaggiori v Wilson [2011] WASCA 177 [57].

1. The defendant, relying on the decision of Windeyer J in Faulkner v Keffalinos,[47] submitted that no allowance should be made for past economic loss for the period that the plaintiff was incapacitated due to the fractures to his heels, which prevented him working as a scaffolder. 

   [47] Defendant's closing submissions at par 91, defendant's supplementary closing submissions dated 10 April 2019 at par 3 and par 4, Faulkner v Keffalinos (1971) 45 ALJR 80, 85.

2. The plaintiff, relying on Baker v Willoughby,[48] submitted that the real question is whether the heel injuries caused the plaintiff to lose any capacity to earn income and that, if the plaintiff was already incapacitated by the shoulder injuries, then the heel injuries have not caused any loss, and there should be no deduction from the damages attributable to the action, rather the effect of the heel injury is addressed by increasing the discount for adverse contingencies.

   [48] Plaintiff's closing submissions at par 36; Baker v Willoughby [1970] AC 467.

3. I accept the defendant's submission.  The question in these proceedings is not what income earning capacity has been lost by the injury to the plaintiff's heels, but what loss in income earning capacity is attributable to the injuries suffered in the accident.  On the authorities, where the plaintiff has, independently, been rendered incapable of earning income, the plaintiff is not entitled to compensation. 

4. The injury to the plaintiff's heels is causally independent of the injuries the plaintiff suffered in the accident. In State Government Insurance Commission v Oakley, Malcolm CJ said:[49]

   Where the further injury results from a subsequent accident which would have occurred had the plaintiff been in normal health and the damage sustained includes no element of aggravation of the earlier injury the subsequent accident and the further injury should be regarded as causally independent of the first.

   [49] State Government Insurance Commission v Oakley (1990) Aust Tort Reports 81-003; (1990) 10 MVR 570, 573.

5. In Faulkner v Keffalinos, Windeyer J said that:[50]

   I appreciate that at first sight it seems unjust that a man who has the misfortune of being hurt in a second accident should not recover all the damages that he might otherwise have recovered for his injury in the first accident.  But this seeming injustice stems it seems to me from a misunderstanding of the nature of damages for diminished earning capacity.  The impairment of a faculty, such as the capacity to earn money, is not like damage to property.  The capacity has no value unless it be exercisable.  It is only while, and for so long as, it can be exercised that an impairment of it can produce a pecuniary loss.  It is for this reason that in assessing damages for the destruction or reduction of earning capacity an allowance must ordinarily be made for the contingency – if in the particular case it is seen as a reasonable possibility – of interruptions of a man's working life by periods of unemployment, sickness or accident.  If in fact any of such things occurs before the assessment has to be made, what would have been allowed for as a possibility has become an actuality: the risk of an interruption of earnings has materialised and a hypothetical deduction to be made in the computation of damages has crystallized.  It is therefore a mistake to think of damages recoverable for the consequences of the first accident as diminished by the second accident.  So far as the damages result from the impairment of earning capacity, the second accident merely supplies a measure of one thing that must be taken into account, namely the risk of an accident.

   [50] Faulkner v Keffalinos (1971) 45 ALJR 80, 85.

6. Immediately before this passage Windeyer J expressly referred to a passage in Baker v Willoughby which concerned the hypothetical situation of an unrelated and transient illness, rather than a subsequent injury, and suggested it should not be taken into account to reduce damages. His Honour said:[51]

   [N]otwithstanding doubts that have been created for me by their Lordships, I have come finally to the conclusion that in this case it was a mistake to disregard sedulously consequences of the second accident.

   [51] Faulkner v Keffalinos (1971) 45 ALJR 80, 85.

7. Windeyer J's reasoning was followed by the New South Wales Court of Appeal in DNM Mining Pty Ltd v Barwick.[52] After a consideration of the relevant authorities, Giles JA held that where the plaintiff had subsequently suffered injuries in a car crash independent of the tortious act, and as a result of those subsequent injuries the plaintiff would have been incapacitated from his pre-accident employment as a miner, his continuing economic loss should not be calculated on the basis that he could work as a miner had it not been for injuries suffered as a result of the tortious act.

   [52] DNM Mining Pty Ltd v Barwick [2004] NSWAC 137 [39] ‑ [47] (Giles JA, Santow & Windeyer JJA agreeing).

8. Accordingly, the plaintiff's loss of earning capacity during the period that he was unable to work as a scaffolder by reason of the subsequent, independent, injury to his heels, cannot be calculated on the basis of what he might have earned as a scaffolder.  If, as is conceded, the injury to the plaintiff's heels resulted in him having no capacity to work for a period of time, he cannot receive any award of damages for loss of earning capacity in that period because the injuries suffered in the accident for which he is to be compensated have not been productive of financial loss.  Rather than dealing with the matter by increasing the discount for adverse contingencies, as the plaintiff suggests,[53] the court must take into account what has actually occurred.

   [53] Plaintiff's closing submissions at par 36.

Credibility

1. The plaintiff was the subject of significant cross‑examination about four specific areas of his evidence, namely:

   (a)ongoing symptoms in his left shoulder after the accident;

   (b)the length of time he was disabled by the injuries to his heels;

   (c)his reasons for not attempting to seek alternative work or to retrain; and

   (d)what alternative work he might have been qualified to perform.

2. The plaintiff appeared defensive and wary under cross‑examination, although this is not unexpected where a person is giving evidence for the first time in support of his own case.  However, in my view, in the areas of cross‑examination concerning his subsequent injury to his heels, his reasons for not attempting to seek alternative work, and his ability to carry out any work other than scaffolding, the plaintiff was more than merely defensive, but was evasive and unresponsive in his answers.  I refer to the specific examples when dealing with the evidence on those topics in these reasons.  As a result, I am not inclined to accept his uncorroborated evidence on those topics.

Evidence and findings

1. There is no dispute, and I find, that the plaintiff is 45 years old, having been born on 12 October 1974.  He was 39 at the time of the accident on 14 September 2014.

2. Immediately prior to the accident the plaintiff was working as a scaffolder.  The plaintiff said that work involved lifting, climbing, working at height, carrying and passing equipment and construction of scaffold tubes.  A large percentage of the job involved overhead work.[54]  This finds support from the evidence of an occupational physician, Dr Philip Carrivick, who said that scaffolding was an arduous occupation that required strength to lift weights above shoulder height.[55]  There does not appear to be any dispute about this and I find accordingly.

Pre-existing depression and ADHD

[54] ts 21.

[55] ts 223.

1. It is not in dispute that prior to 14 September 2014 the plaintiff suffered from depression, anxiety, and ADHD, and I make that finding and findings in accordance with [45] ‑ [47] below.

2. The plaintiff was diagnosed with ADHD in 2009 and was subsequently treated with stimulant medication and cognitive behavioural therapy.[56] 

   [56] ts 44, ts 52, ts 54.

3. The plaintiff said that he had first sought help for depression in 2003.[57]  However, he believed that he had suffered from depression since he was in his teens.[58]  From 2008, the plaintiff received treatment for depression and anxiety from general practitioners at a practice called GP on Beaufort, including Dr Michael Chong, and he saw a psychologist from time to time.[59]

   [57] ts 59.

   [58] ts 60 ‑ ts 61.

   [59] Exhibit 5A, pages 53, 56, 57, 67 plaintiff's book.

4. On 26 April 2014, the plaintiff requested Dr Chong give him a referral to a psychologist, complained of low mood, said that his sleep was variable, and that he often had thoughts of what is the point of life, but had no active suicidal intent or plan.[60]

History of left shoulder pain before the accident

[60] ts 67, exhibit 5A, page 52 plaintiff's book.

1. The plaintiff reported to Dr Chong on 18 July 2011 that he had suffered left shoulder pain for two months after heavy lifting at work.[61]  The plaintiff said in evidence that he was experiencing pain while carrying out work that included heavy lifting and he had put the pain down to that.  However, he said that there had not been any specific incident that caused the pain.[62]  Dr Chong noted in the GP on Beaufort practice notes (GP notes) that there was reduced movement of the left shoulder in all directions due to pain, and he referred the plaintiff for an ultrasound.[63]

   [61] ts 63, exhibit 5A, page 54 plaintiff's book.

   [62] ts 63.

   [63] Exhibit 5A, page 54 plaintiff's book.

1. An ultrasound report dated 19 July 2011 records a finding of moderate subacromial bursitis.[64]

   [64] Exhibit 5A, pages 71, 72 plaintiff's book.

2. The plaintiff had two steroid injections into the subacromial bursa of his left shoulder on 23 July and 13 August 2011, and was prescribed anti‑inflammatories.[65]

   [65] ts 63 ‑ ts 64, exhibit 5A, page 54 plaintiff's book.

3. The plaintiff said that he was still suffering some pain in his left shoulder on 16 September 2011, and agreed that the record in the GP notes of that date was accurate, that his left shoulder was improving and feeling at 80% ‑ 90%.[66]   The plaintiff had a further steroid injection on 29 December 2011.[67]  However he said that he was not referred for an MRI at that time as the GP notes suggested, and there is no evidence an MRI was undertaken.[68]

   [66] ts 65, exhibit 5A, pages 53 ‑ 54 plaintiff's book.

   [67] Exhibit 5A, page 53 plaintiff's book.

   [68] ts 66, exhibit 5A, page 53 plaintiff's book.

4. No further complaints of left shoulder pain are recorded in the GP notes, and there is no evidence of any additional injury to that shoulder, prior to the accident.

5. The plaintiff said he recovered from the pain in his left shoulder and that, in any event, he was able to, and did, work while he was being treated for it.[69]  The plaintiff's evidence that he worked during the period he was suffering left shoulder pain in 2011 finds support in the GP notes which record that on 16 September 2011 the plaintiff told Dr Chong that he could not have time off work.[70]  In addition, the income tax records show that the plaintiff earned income from scaffolding work:

   (a)between 29 March 2011 and 30 June 2011, which overlaps with the complaint of pain in the two months prior to 18 July 2011;[71]

   (b)from 9 December 2011, before seeing the GP on 29 December 2011, which was the last time before the accident that left shoulder pain was complained of;[72] and

   (c)in February to May 2012.[73]

   [69] ts 40, ts 64, ts 65, ts 66.

   [70] Exhibit 5A, page 53 plaintiff's book.

   [71] Exhibit 1 page 364.

   [72] Exhibit 1 page 372.

   [73] Exhibit 1 page 373.

6. On 2 May 2014, the plaintiff underwent a pre-employment health assessment before starting work as a scaffolder with Laing O'Rourke Australia Construction Pty Ltd (Laing O'Rourke).  The notes of that assessment record that the plaintiff's shoulder function was normal.[74]

   [74] Exhibit 12, page 335 plaintiff's book, ts 20, ts 21, ts 22.

7. The plaintiff said that he did not have any further problems with his left shoulder until the accident.[75]  That evidence is corroborated by the evidence of the pre-employment assessment, and the lack of any further complaint in the GP notes after 29 December 2011.  That lack of recorded complaint also supports a finding that, on the balance of probabilities, the plaintiff's recovery from left shoulder pain occurred in early 2012.  The accuracy of the GP notes in this respect was not challenged.

   [75] ts 114.

8. Accordingly, I find that:

   (a)in about May 2011 the plaintiff began to experience pain in his left shoulder while carrying out scaffolding work, although the pain did not start after a specific incident.  This resulted in reduced movement of his left shoulder in all directions due to pain, and the plaintiff was diagnosed with moderate subacromial bursitis in the left shoulder;

   (b)the plaintiff had steroid injections into the subacromial bursa of left shoulder on 23 July and 13 August 2011 and was prescribed anti-inflammatories;

   (c)on 16 September 2011 the pain in the plaintiff's left shoulder was improving and the shoulder was at 80% to 90% of normal function at that time;

   (d)the plaintiff was still suffering some pain in his left shoulder as at 29 December 2011 and had another steroid injection;

   (e)the plaintiff ceased to have pain in his left shoulder sometime in early 2012, and did not suffer any pain in his left shoulder in the period between early 2012 until the accident on 14 September 2014; and

   (f)the pain in the plaintiff's left shoulder between May 2011 and early 2012 did not prevent him from working as a scaffolder.

Other injuries before the accident

1. The plaintiff accepted, and I find, that before the accident he had a history of injuring himself, with 'a lot of broken bones', including injuring his right foot when jumping off a wall in December 2005, fracturing his skull when in his first year of school, fracturing his left ankle a number of times, and fracturing his right ankle.[76]

Injury to the plaintiff's heels

[76] ts 73 ‑ ts 75.

1. On 27 January 2015, the plaintiff jumped off a retaining wall and fractured both heels.[77]  It is not in dispute, as was clear from the evidence, that this subsequent accident was causally independent from of the defendant's negligence, and I find accordingly.

   [77] ts 32 ‑ ts 34, ts 73 ‑ ts 74.

2. The plaintiff said that he was in Sir Charles Gardiner Hospital (SCGH) for a few days after the subsequent accident and was released in a wheelchair.   

3. The plaintiff was treated by an orthopaedic surgeon, Mr Reza Salleh.  Mr Salleh reported on 21 February 2015 that the plaintiff had suffered:

   (a)an undisplaced intra-articular fracture through his left calcaneum, which could be treated conservatively with a cam walker, in which the left heel  would remain non-weight bearing, but which could be removed for showers, sleeping and a range of movement exercises; and

   (b)a displaced intra-articular fracture on the right with a significant depression of the posterior facet of the subtalar joint.  This required surgery which Mr Salleh undertook on the same day, stabilizing the fracture with screws and a lateral buttress plate, and putting the right heel, which was to be non-weight bearing, into a plaster backslab.[78]

   [78] Exhibit 19A.

4. Mr Salleh reported on 11 March 2015 that he had reviewed the plaintiff, had placed his right heel in a full fibreglass cast, and that the right heel was to remain non-weight bearing.[79]

   [79] Exhibit 19B.

5. Mr Salleh again reviewed the plaintiff on 12 May 2015 and reported that the plaintiff could now fully weight bear as tolerated in his usual shoes, and had been given a range of movement exercises.[80]

   [80] Exhibit 19C.

6. On review on 21 July 2015, nearly six months after the injury, Mr Salleh reported that the plaintiff was making good progress as he had much less swelling, but had mild persisting stiffness and tenderness.  Mr Salleh said he planned to reassess the plaintiff in a further three months.[81]

   [81] Exhibit 19D.

7. On 24 July 2015 Dr Chong's notes record that he had a long chat to the plaintiff about 'injury and feet'.  The plaintiff said he could not specifically recall speaking to Dr Chong about his feet but that it did not surprise him that he did.  When asked if that was because his feet were still causing him problems the plaintiff said, 'As I just said to you, I don't specifically remember it'.[82]  Dr Chong said that the plaintiff should have recovered from the injury to his heels by July 2015, but may still have been experiencing pain.[83]

   [82] ts 85, exhibit 5A, page 48.

   [83] ts 131.

8. Mr Salleh last reviewed the plaintiff on 13 October 2015, and said that both fractures had healed in an excellent position and clinically he had much less tenderness, swelling and stiffness.  Mr Salleh said he had advised the plaintiff to 'continue normal activities with no restrictions'.[84]

   [84] Exhibit 19E.

9. The plaintiff said this last review was because he made an appointment to inquire about having the plate removed from his foot.[85]  This is inconsistent with the contents of Mr Salleh's report of 21 July 2015 that he planned to re‑assess the plaintiff in three months: that is in about October 2015.  However, I accept that the plaintiff did discuss the removal of the plate with Mr Salleh at the scheduled review.

   [85] ts 79.

10. The plaintiff said in evidence in chief that his recovery took him about three or four months 'to where he would be running again',[86] and he was in a wheelchair for a month or so and then on crutches 'for a little bit'.[87]  He agreed that during that period he could not have worked as a scaffolder.[88]  The plaintiff said in cross‑examination that he could not remember how long he was in the wheelchair.[89]  He did not accept a suggestion that he had returned the wheelchair on about 8 April 2015.[90]

    [86] ts 34.

    [87] ts 34.

    [88] ts 32 ‑ ts 34, ts 76 ‑ ts 79.

    [89] ts 79.

    [90] ts 79.

11. The plaintiff initially said in cross‑examination that it was possible that he was on crutches for four to six weeks after he stopped using the wheelchair.  However then the following exchange took place:

    Plaintiff: When you say four to six weeks from my crutches where do you get that information from?

    Counsel:Just looking at Mr Salleh's dates.

    Plaintiff: Okay.  So what do his dates say?

    Counsel:Well there were those May dates.

    Plaintiff:Well does he state there when I came off crutches?

    Counsel:Mr Salleh hasn't stated anything.

    Plaintiff: Okay.  Okay.  No worries.  So we actually don't know how long I was on crutches. 

    Counsel:We know when ---?

    Plaintiff: So we don't know how long I was on crutches then?

    Judge:It would help if you didn't debate with Mr Clyne and just answered his questions, Mr Stanton.  What he was asking was what your recollection was of how long you were on crutches.

    Plaintiff:I don't remember.

    Judge:Was it a week?

    Plaintiff:I don't remember.

    Judge:Was it a day?

    Plaintiff:It would have been ---

    Judge:So it's more than a day?

    Plaintiff:Yes.

    Judge:When you say you don't remember---?

    Plaintiff:I don't remember exactly how long it was, is what I am saying. 

    Judge:No?

    Plaintiff:No.

    Judge:But you do remember you were on crutches ---?

    Plaintiff:Of course.

    Judge:---for a period of time?

    Plaintiff:Yes.  Yes.  I do.  But I don't know how long that period was.  Of – yeah.  I was definitely on crutches.  But I don't know how long that period was, that's all I'm saying.

    Judge:All right?

    Plaintiff:And for me to say a week or four weeks or six weeks would be just a guess.  But it was certainly longer than a day.

Findings in relation to the heel injury

1. The facts referred to in [59] ‑ [63] and [65] above are not controversial and I make findings accordingly.

2. I do not accept the plaintiff's evidence that he was unable to say how long he was on crutches after the operation 21 February 2015, beyond being able to recall that it was more than a single day.  I consider that the plaintiff was deliberately evasive and unco-operative in his evidence about this because he was aware the defendant sought to argue that he should not be compensated for the period he was incapacitated by the injury to his heels, and wished to minimise the period of that incapacity.

3. Accordingly, I do not accept the plaintiff's evidence that he was unable to work as a scaffolder for only three or four months as a result of those injuries.

4. Mr Salleh's reports evidence that the plaintiff was unable to weight bear on both heels, and then on his right heel, from 27 January 2015 to 12 May 2015, 4½ months after the accident.  Accordingly, at least at that date the injury to his right heel continued to prevent him from working as a scaffolder.

5. The reference in Dr Salleh's report of 13 October 2015, to the plaintiff 'continuing' normal activities, evidences that the plaintiff had been undergoing normal activities prior to that date, and, accordingly, that at some time before that, the injury to the plaintiff's right heel no longer prevented him from working as a scaffolder.  This is also consistent with the plaintiff's evidence that on this occasion he discussed the removal of the plate in the right heel with Dr Salleh.

6. In light of the report on 21 July 2015, of ongoing mild persisting stiffness and tenderness, and Dr Chong's evidence which I accept that, whilst the plaintiff should have recovered from the injuries by 24 July 2015, he may have complained of some pain on that date, consistent with Mr Salleh's observation, I find it is more probable than not that the plaintiff was still suffering from some symptoms in his heels at least until the end of July 2015, but that these were mild and would not have prevented the plaintiff from returning to work as a scaffolder by the beginning of August 2015, had he been otherwise fit.

7. Accordingly, leaving aside the injuries suffered by the plaintiff in the accident, I find that the plaintiff was incapacitated from working as a scaffolder for a period of six months from 27 January 2015 as a result of the injuries to his right and left heels.

The accident on 14 September 2014

1. The evidence about the accident was that, whilst cycling on a path in Karawara, the plaintiff was struck without warning by a stolen motorcycle[91] and thrown over the handlebars of his bicycle.[92]  The plaintiff said that the motorbike, which was something like a moped, was going flat out, and would not have been doing less than 60km per hour.[93]  He landed on the grass beside the cycle path on his neck first and then falling onto the right side of his body.[94]  The driver of the motorbike drove off.[95]

   [91] ts 68, exhibit 4.

   [92] ts 24 ‑ ts 26.

   [93] ts 26.

   [94] ts 26.

   [95] ts 27.

2. The plaintiff said that after the collision his bicycle was unrideable and he walked to Kensington Police Station, which took him about half an hour.[96]  The police station was closed, however, he spoke to some police in a police car and they told him to file an online report.  He then walked to his home in Como.[97]

   [96] ts 27.

   [97] ts 28 - ts 29.

3. In the online crash report submitted to police on 15 September 2014, the plaintiff described his injury as, 'injury to head, neck, right and left shoulder region, lower back, tailbone, rh hip, rh quad, lh calf'.[98]

   [98] Exhibit 3, page 457 plaintiff's book.

4. In the notice of claim made to the defendant on 22 September 2014, the plaintiff described the accident saying, 'I was catapulted off my bike and thrown a few metres through the air landing awkwardly on my neck and shoulders'.[99]

   [99] Exhibit 2, page 454 plaintiff's book.

5. The facts referred to in [76] ‑ [79] above are not controversial and I make findings accordingly.

Injuries and treatment after the accident

1. The plaintiff said that when he got home after the accident he was starting to feel really painful.  When asked about this pain the plaintiff said:[100]

   From my neck down to my ankles and everywhere in between.  So neck, shoulders, back, hips.  There was more pain on the right side than the left when it comes to hip, legs, ankles and that … I was in pain all over my body, but not my arms, not my arms, really, just from my neck down to my ankles as I was seizing up is what was happening.

   [100] ts 30.

2. The plaintiff rang 000, he said with a view to making a report, and described how he felt.  As a result he was taken to SCGH by ambulance.[101]

   [101] ts 29.

3. The SCGH emergency department notes record that the plaintiff complained of immediate neck, lower back, right hip and right ankle pain.[102]  The discharge summary records that the plaintiff presented with left neck pain, bilateral shoulder pain and right hip pain.[103]  The progress notes refer to pain in the left neck, shoulder blade, legs and sacrum.[104]  The notes also record that on examination the plaintiff had no obvious head injury, a good range of movement in the spine, was moving all four limbs and walking normally.[105]  He was given analgesia and sent home.[106]

   [102] Exhibit 9 pages 200, 204 plaintiff's book.

   [103] Exhibit 9, page 201 plaintiff's book.

   [104] Exhibit 9, page 214 plaintiff's book.

   [105] Exhibit 9, page 200, 204 plaintiff's book; see also exhibit 13, Report of Dr Yin Wee.

   [106] Exhibit 9, page 200, 208 plaintiff's book.

4. On 15 September 2014 the plaintiff saw Dr Michael Chong, and the GP notes record that the plaintiff complained of pain in the head, neck, both shoulders, right hand, hip, lower leg, and that he was generally sore.[107] He was given pain killers and non-steroidal anti‑inflammatories, and referred to physiotherapy.[108]

   [107] Exhibit 5A, page 52 plaintiff's book.

   [108] ts 70, ts 123, Exhibit 5A, page 52 plaintiff's book.

5. The plaintiff said that he was very stiff the following week and had what he described as, 'a blunt all over pain'.[109]

   [109] ts 30.

6. On 3 October 2014, the plaintiff saw Dr Pervan at GP on Beaufort.[110]  The GP notes record that the plaintiff complained of pain in the head, neck, right greater than left shoulder, right arm, right hip, right quad and calf.[111]  The plaintiff said, in evidence, that he was then experiencing pain from his neck to his ankles, through both shoulders, all throughout his back, both sides of his hip in every area, except that the pain in his right leg was greater than his left.[112]  At that time he was having some physiotherapy and taking pain killers and anti‑inflammatories.[113]

   [110] ts 123.

   [111] Exhibit 5A, page 51 plaintiff's book.

   [112] ts 70.

   [113] ts 70, exhibit 5A, page 51 plaintiff's book.

7. On 21 October 2014, the GP notes record that the plaintiff told Dr Pervan that he still had neck and right shoulder pain. On examination he was assessed to have stiffness in his right shoulder with loss of rotation, flex and abduction.[114]

   [114] Exhibit 5A, page 51.

8. On 4 November 2014 the plaintiff was referred for an X-ray of his right shoulder and spine.  On 18 November 2014, the GP notes record that the plaintiff had ongoing right shoulder pain.[115]

   [115] Exhibit 5A, page 51.

9. The plaintiff described himself in the months following the accident as 'seized up' and 'like a tin man' throughout his back, neck, shoulders, lower back and legs.  He said that it took a few months for the stiffness to start to loosen up and the pain to diminish, however the pain in his right shoulder remained.[116]  He was also experiencing some pain in his lower and mid back and neck.[117]

   [116] ts 30 and ts 31.

   [117] ts 32.

10. Mr Anastas, a physiotherapist practising at Beaufort Physiotherapy, gave evidence that he first saw the plaintiff on 1 January 2015, before which date the plaintiff had been seen by a colleague in the same practice.[118]  He said that the treatment was focused on the plaintiff's right shoulder pain, however, the plaintiff was also complaining of neck pain.  He could not recall if the plaintiff complained of any other pain at that time.[119]

    [118] ts 142.

    [119] ts 142.

11. Dr Chong wrote a report dated 27 February 2015 in which he said that on 16 December 2014 he saw the plaintiff who complained of 'ongoing pain in his shoulders despite physiotherapy and the steroid injection'.  Dr Chong went on to say in the report that when he saw the plaintiff again on 20 January 2015 'he continued to complain of his shoulder being sore.  Examination showed a limited range of movement so I suggested and referred him for an injection under ultrasound guidance and for ongoing physiotherapy'.[120]

    [120] Exhibit 6, page 218 plaintiff's book.

12. The plaintiff's evidence was, in effect, that he felt pain in his back, neck and left shoulder until the early months of 2015, however, he said it was possible that he had not complained to Dr Chong about this.[121]

Right shoulder surgery and recovery

[121] ts 71 ‑ ts 73.

1. On 3 and 20 February 2015 the plaintiff discussed with Dr Chong the possibility of a referral to an orthopaedic surgeon in light of the slow progress of improvement in his right shoulder pain.[122]

   [122] ts 82 ‑ ts 83, exhibit 5A, pages 49 ‑ 50.

2. The plaintiff was referred to Dr Peter Campbell, and saw him on 2 June 2015.[123]  The plaintiff said in evidence that at this time he was still suffering pain in his back and neck.[124]

   [123] ts 82 ‑ ts 83, exhibit 5A, page 49.

   [124] ts 35.

3. On 2 June 2015 Mr Campbell reported that the plaintiff complained that after the accident he had suffered pain in his neck and back, which had settled, and pain in his right shoulder, which had not.  Mr Campbell noted an MRI of the right shoulder showed a compression fracture of the greater tuberosity with a full thickness tear of the rotator cuff indicative of the mechanism of injury.  Mr Campbell recommended surgery.[125]

   [125] Exhibit 15 page 300, ts 157.

1. On 1 July 2015 Mr Campbell carried out an acromioplasty and rotator cuff repair of the plaintiff's right shoulder, and a decompression of the joint between the collar bone and the acromion.[126]

   [126] Exhibit 15 page 300, ts 157.

2. The plaintiff said he was in hospital for a couple of days.[127]  He said that he was in a lot of pain after the surgery and took pain killers, and his arm was in a sling for about six weeks.[128]  He then underwent a program of physiotherapy at Beaufort Physiotherapy with a couple of physiotherapists.[129]

   [127] ts 35.

   [128] ts 35 ‑ ts 36.

   [129] ts 36.

3. In a report to the plaintiff's income protection insurer dated 14 August 2015, Dr Chong said 'aiming for full duties and hours' in answer to a question 'what pre-illness and hours can the claimant return to when s/he is work ready', and that the plaintiff's current level of incapacity was 'not full capacity'.[130]  The plaintiff accepted that he was fit for light duties, but not fit for work as a scaffolder, from 14 August 2015, six weeks after the operation on 1 July 2015.[131]

   [130] Exhibit 5A, plaintiff's book at pages 81 ‑ 83.

   [131] ts 86 - ts 88.

4. On 30 March 2016 the plaintiff was reviewed by an orthopaedic surgeon, Mr Barrie Slinger, at the plaintiff's request.  In his report of 6 April 2016 Mr Slinger noted with respect to the right shoulder that there was a minor degree of periscapular wasting and movements of that shoulder were limited, with flexion 160°, abduction 90°, adduction 20°, external rotation 70° and internal rotation 50°.  He said that the plaintiff was incapacitated from his usual employment at that time.[132]

   [132] Exhibit 16A, page 16 defendant's book.

5. On 1 April 2016 Dr Chong wrote to the plaintiff's insurer and said 'light duties/not for scaffolding', in answer to the question, 'what is the patient's current level of functional incapacity'.[133] Dr Chong repeated this in reports to the insurer dated 9 May[134] and 17 July 2016.[135]  The plaintiff accepted that he was still fit for light duties on 1 April 2016 two weeks after his employment with Laing O'Rourke had ceased.[136]

   [133] Exhibit 5A, plaintiff's book at pages 97 ‑ 99.

   [134] Exhibit 5A, plaintiff's book at pages 87 ‑ 89.

   [135] Exhibit 5A plaintiff's book at pages 77 ‑ 79.

   [136] ts 86 ‑ ts 88, exhibit 5A pages 117 ‑ 119 and pages 97 ‑ 99.

6. On 24 May 2016, the plaintiff was reviewed by Mr John Wright, a consultant orthopaedic surgeon, at the defendant's request.[137]  In his report of that date Mr Wright said that the plaintiff was unfit to return to work as a scaffolder because of his right shoulder stiffness and pain.  Mr Wright anticipated that the plaintiff might be able to return to work as a scaffolder in six months or thereabouts.[138]

   [137] ts 236.

   [138] Exhibit 18B, page 23 defendant's book.

7. On 15 September 2016 Dr Chong noted that the plaintiff's right shoulder was 90% back to normal and its power was 4/5.[139]  The plaintiff accepted that his right shoulder was recovering well at this time.[140]

   [139] Exhibit 5B, page GP14.

   [140] ts 103.

8. Mr Slinger reviewed the plaintiff again on 4 October 2016 and said, in his report of 11 October 2016, that the plaintiff was unfit to return to his pre-accident employment, but was capable of light sedentary activities such as retail sales, customer service or office duties.[141]

   [141] Exhibit 16B, page 29 defendant's book.

9. On 15 November 2016, the plaintiff was reviewed by Dr Carrivick, at the defendant's request.  In his report of 17 November 2016 Dr Carrivick said that:[142]

   The right shoulder is mostly asymptomatic.  However, aching in the joint is initiated by lifting the right upper arm too far above shoulder height or holding a weight 'too long' with that arm (e.g. carrying his two year old niece).  For this [the plaintiff] occasionally attends his physiotherapist (including for dry needling) or takes Naproxen.

   Unlike preoperatively, [the plaintiff] can lie on the right shoulder for short periods and joint clicking is infrequent.

   [142] Exhibit 17A, page 36 defendant's book.

10. Dr Carrivick said that the plaintiff was restricted from activities involving frequent raising of his right upper arm above shoulder height, lifting more than 5 kg above shoulder height, significant pulling or jarring of the right upper limb and repetitive forceful movements of the right arm.  On that basis he considered the plaintiff was unfit to return to work as a scaffolder, but that this should be reviewed in two years after the operation in July 2015.  Dr Carrivick was of the opinion that the plaintiff was physically fit for work in a full‑time sedentary, semi‑sedentary or ambulatory duties not involving those restrictions.[143]

    [143] Exhibit 17A, pages 38 and 39 defendant's book, ts 217 and ts 218.

11. Dr Carrivick said that he did not observe anything that suggested that the plaintiff was not committed to his rehabilitation after surgery to his right shoulder. [144] He considered that, although the plaintiff appeared to be recovering from surgery at a slower than usual rate, this could vary significantly between individuals, and the 16 month rehabilitation period was reasonable so long as there was improvement and no evidence of a re-tear.[145]

    [144] ts 222.

    [145] ts 222.

12. Mr Campbell said in evidence that the surgery was a success.[146]  In his report dated 13 December 2016, Mr Campbell said that there had been a 95% recovery and that he would not put any restrictions on the plaintiff's return to work saying:[147]

    If he believes that he is comfortable enough to return to his job as a scaffolder I would totally support this.  There are not long term medical restrictions on his future employment.

Findings in relation to the right shoulder injury

[146] ts 158.

[147] Exhibit 15 page 306, see also ts 158.

1. It is not in dispute that the injury to the plaintiff's right shoulder and the need for surgery were a consequence of the accident.[148]  Accordingly, I find that the plaintiff suffered the injury referred to in [95], and required the surgery referred to in [96], as a result of the accident.

   [148] Exhibit 15 pages 306 and 307.

2. The defendant submits that any injury, loss or damage suffered by the plaintiff as a result of the accident had resolved or significantly resolved by 30 March 2016.[149]  However, this is inconsistent with the contents of Mr Wright's report of 24 May 2016, and Mr Slinger's report of 11 October 2016, referred to in [101] and [103] above respectively.  This evidence is consistent with the plaintiff not recovering sufficiently from his right shoulder surgery to return to work as a scaffolder until late in 2016.

   [149] Defendant's closing submissions at par 92.

3. I accept, on the basis of Mr Campbell's evidence referred to in [107] above, that the plaintiff had recovered from that surgery by 13 December 2016 sufficiently to return to work as a scaffolder.  The plaintiff has, essentially, conceded this in any event.[150]  Accordingly, I find that, were it not for the injury to his left shoulder, the plaintiff would have been fit to return to work as a scaffolder by 13 December 2016.

   [150] Plaintiff's closing submissions at par 9.

4. However, I find, on the basis of the evidence, which I accept, in [98], [100], [102], [103] and [105] above, that by 14 August 2015 and thereafter the plaintiff had recovered sufficiently that he had residual capacity for full‑time work, other that scaffolding work, involving activities that may be described as sedentary or light duties and that did not involve overhead heavy lifting.  I deal with this more detail later in these reasons.

Symptoms in the left shoulder after the accident

1. As has been said in [83], [84], [86] and [87] above, there is evidence that the plaintiff complained of pain in both shoulders at SCGH in the evening after the accident, and to his GP the following day, and then again to his GP on 3 and 21 October 2014.  The only other record of a complaint of left shoulder pain after 21 October 2014 until 19 January 2016 appears in Dr Chong's report dated 27 February 2015 referred to in [91] above, in which Dr Chong reported a complaint of pain in the shoulders on 16 December 2014.

2. Dr Chong said in evidence that when he saw the plaintiff, the plaintiff always had pain in both shoulders, although it was predominantly in his right shoulder.[151]  He acknowledged this is not reflected in the GP notes,[152] although he said that he thought that this was because the right shoulder issues were bigger and became the focus.[153]  With respect to the reference to pain in both shoulders, in his report of 27 February 2015, Dr Chong accepted that there was no reference to such pain in the GP notes for 16 December 2014, but said that he thought that reference was from his memory of the consultation.[154]  Although Dr Chong conceded that he had many patients, it was not put to him that his memory was faulty, and that he could not, as he said, have had a positive memory of the plaintiff making a complaint about pain in both shoulders at a consultation on 16 December 2014, when he wrote a report some two months later. He said, in re-examination that he liked to think his memory about what patients told him was good.[155]  It was not put to Dr Chong that he was not telling the truth in his evidence.  Certainly, I formed the view that Dr Chong was a truthful witness.

   [151] ts 124, ts 125.

   [152] ts 131.

   [153] ts 138 ‑ ts 139.

   [154] ts 132.

   [155] ts 138.

3. Mr Campbell recorded that, when asked about his experience of pain in June 2015, the plaintiff said that the most pain he was experiencing was in his right shoulder, but also 'still in my back area and my neck area'.[156]

   [156] ts 35.

4. In his report of 17 November 2015, Mr Wright recorded that the plaintiff had given a history that:[157]

   [The plaintiff's] neck, back and lower limb symptoms had resolved before the shoulder surgery.  He now only has right shoulder discomfort.  There's been a slow but steady improvement.  He still has difficulty elevating and has pain with elevation and also with pulling and pushing.

   [157] Exhibit 18A, page 10 defendant's book.

5. The plaintiff said that he could not recall telling Mr Wright that,[158] and that he did not remember how he was in November 2015.

   [158] ts 91.

6. Mr Anastas' evidence was that, after the appointment on 1 January 2015, the next time he saw the plaintiff was on 19 January 2016.[159]  On that date, he said, the plaintiff was complaining of bilateral shoulder pain, and treatment, in the form of dry needling and ultrasound, was directed at both shoulders.  Mr Anastas also gave some treatment to the thoracic spine.[160]  This is the first record of the plaintiff making a further complaint of pain in his left shoulder after 16 December 2014.  Mr Anastas said he saw the plaintiff again on 21 and 26 January 2016 and administered much the same treatment.[161] 

   [159] ts 142.

   [160] ts 143.

   [161] ts 143.

7. On 21 January 2016 Dr Chong noted that the plaintiff complained of some mild bilateral shoulder flare up, with no preceding trauma, and that he was seeing a physiotherapist.[162]  When it was put to Dr Chong that this was the first time the plaintiff had had a flare up of pain in his shoulders since the surgery (which was on 1 July 2015), Dr Chong said he did not remember.[163] 

   [162] ts 85, ts 123, exhibit 5A page 46.

   [163] ts 85.

8. After the plaintiff's review by Mr Slinger on 30 March 2016, Mr Slinger recorded in respect of the plaintiff's left shoulder that, 'at the left shoulder movements full and painless as indeed they were in the cervical spine'.[164]  When questioned about Mr Slinger's record of that examination, the plaintiff said, 'It wouldn't surprise me if that's how they were'.[165]

   [164] Exhibit 16A, page 14 defendant's book.

   [165] ts 91.

9. Mr Wright reported on 23 May 2016 that the plaintiff had no complaints about left shoulder pain, and there was a full range of left shoulder movement with no discomfort.[166]  He said that the plaintiff had told him he had had physiotherapy after the surgery for a short time for interscapular pain.[167]   Mr Wright said in evidence that this referred to pain between the shoulder blades, and differed from shoulder joint pain, being either muscular pain or sometimes pain arising in the thoracic spine.[168]

   [166] ts 240, exhibit 18B, page 22 defendant's book.

   [167] ts 240, exhibit 18B, page 21 defendant's book.

   [168] ts 239.

10. As has been said, the plaintiff was reviewed by Dr Carrivick on 15 November 2016.  With respect to the plaintiff's left shoulder, Dr Carrivick reported that the plaintiff had bilaterally symmetrical shoulder movements with flexion and abduction to 170°, extension and adduction to 50° and internal and external rotation to 80°, respectively.[169]  Dr Carrivick said in a supplementary report dated 24 October 2018 that in November 2016, the plaintiff recalled a range of general body soreness, which lasted 'a few months' after the accident, and which included soreness in the neck, both shoulders, low back and 'quads', and that later most symptoms began to settle down.[170]

    [169] Exhibit 17A page 37 defendant's book.

    [170] Exhibit 17B, page 56 defendant's book.

11. Dr Carrivick said in evidence that he asked the plaintiff about other symptoms and the plaintiff did not mention any ongoing left shoulder discomfort.[171]

    [171] ts 214.

12. The plaintiff said that he could not specifically remember the conversation he had with Dr Carrivick in November 2016.[172]  With respect to the report of his shoulder movement, the plaintiff said that Dr Carrivick would have tested his shoulders but did not specifically remember.

    [172] ts 93.

13. Mr Slinger reviewed the plaintiff again on 4 October 2016 and said that on that occasion he did not re-examine the plaintiff's left shoulder, and the plaintiff did not complain of any symptoms in that shoulder.[173]  However, Mr Slinger said he did not ask the plaintiff any specific questions about his left shoulder.[174] 

    [173] ts 181.

    [174] ts 190.

14. Mr Anastas' evidence was that he saw the plaintiff on 3 October 2016, 11 January 2017, and 31 March 2017 where he noted the treatment was 'as above' and said he believed this indicated the treatment included both of the plaintiff's shoulders.[175] 

    [175] ts 144.

15. The plaintiff said that in early 2017 he started going to the gym to improve his fitness, with a view to returning to work as a scaffolder, and started to use low weights.  The plaintiff said that, at that point, he started to experience pain in his left shoulder.  The plaintiff described this as different from the pain he experienced in his right shoulder which had been constant, saying:[176]

    This was coming through in waves of pain so I'd be training for a while and then it would start to become painful and it would get progressively worse over a couple of weeks to a point where it'd be like I couldn't sleep, the pain was that bad, I'd go back to the physio. 

    [176] ts 37 ‑ ts 38.

16. The plaintiff said he put his symptoms down to being the consequence of his recovery from a lack of fitness.[177]  He experienced relief from the treatment given by the physiotherapist, and would have a break in training for a week or two, following which the pain would start building up again.[178]

    [177] ts 38.

    [178] ts 38 ‑ ts 39.

17. On 5 April 2017 Dr Chong considered that the plaintiff's right shoulder was now cleared for work as a scaffolder.[179]  Dr Chong also recorded a complaint of left shoulder pain on and off, with no specific injuries and no tender points.[180]

    [179] Exhibit 5B, page GP14, ts 104.

    [180] Exhibit 5B, page GP14.

18. The plaintiff saw Mr Campbell about the symptoms in his left shoulder on 9 May 2017.  Mr Campbell recommended surgery, which the plaintiff has not had.  The plaintiff says that this was because the defendant would not approve payment for that surgery.[181]

    [181] ts 41 ‑ ts 42.

19. In his report of 29 June 2017 Mr Wright said that the plaintiff had told him that his left shoulder had become painful, but was not sure exactly when this happened, and thought it may have been in December 2016, or January 2017, but possibly a little before that.[182]  Mr Wright reported that the plaintiff said that he continued to have left shoulder pain which was aggravated by some movements and he had intermittent episodes when the left shoulder 'seizes up', but it was reasonably comfortable at rest.  The plaintiff said that he was not taking analgesic medicines regularly but when he had increased left shoulder pain he took Panadeine Forte.[183]  Mr Wright reported that on examination of the left shoulder, there was no tenderness on palpation, flexion was 160°, extension was 50°, abduction was 160°, adduction was 50°, internal rotation was 60°, and external rotation was 70°.   He said that there was a sign of positive impingement.[184]

    [182] Exhibit 18C, page 43 defendant's book.

    [183] Exhibit 18C, page 44 defendant's book.

    [184] Exhibit 18C, page 45 defendant's book.

20. The plaintiff said he ceased training, and had cortisone injections which relieved the pain in his left shoulder.[185]

    [185] ts 42 ‑ ts 43.

21. The plaintiff said, in effect, that at the time of trial he had a full range of movement without pain in his left shoulder.[186]  He said that he was not doing anything that would cause pain to his left shoulder.[187]

Findings in relation to ongoing symptoms of left shoulder pain

[186] ts 91.

[187] ts 46.

1. The plaintiff was consistent in his evidence about his experience of pain in the months following the accident including his left shoulder pain.  There was also no challenge to the accuracy of the SCGH notes or the GP notes.   There was no challenge to the accuracy the evidence of Dr Chong or Mr Anastas, who I accept as honest and reliable witnesses.  I accept the evidence referred to in [81] ‑ [91] above.  I also accept Dr Chong's evidence that the plaintiff complained of pain in both shoulders on 16 December 2014, but that by 20 January 2015 the plaintiff was complaining only of pain in the right shoulder referred to in [91] above.  I find that the plaintiff experienced pain in his left shoulder immediately following the accident, and continued to do so until about January 2015.  In light of Dr Chong's record of 20 January 2015, I do not accept the plaintiff's evidence referred to in [92] above to the extent it was to the effect that he was experiencing pain in his left shoulder at the time of that visit.

2. On the unchallenged evidence of Mr Anastas and Dr Chong, I find that sometime after the plaintiff saw Dr Wright on 17 November 2015, referred to in [115] above, and before seeing Mr Anastas on 19 January 2016, referred to in [117] above, the plaintiff was experiencing symptoms of pain in his left shoulder that concerned him sufficiently to seek physiotherapy treatment, and to complain to Dr Chong on 21 January 2016, referred to in [118] above.  I consider that Mr Wright's apparent understanding of this pain as intrascapular was incorrect, in light of the contemporaneous evidence of Dr Chong's note of 21 January 2016.  However, I infer from Dr Chong's reference to a flare up of pain in his notes that the plaintiff had not, in fact, complained of pain in his left shoulder to Dr Chong between 16 December 2014 and 21 January 2016.

3. In light of the lack of complaint of pain in the left shoulder when the plaintiff saw Mr Slinger on 30 March 2016, referred to in [119] above, I find that it is more likely than not that the recurrence of pain had resolved by that date, sufficiently that it was not concerning the plaintiff. 

4. I also accept the plaintiff's evidence, referred to in [126] above, that the pain in his left shoulder increased after he had been cleared for work by Mr Campbell, and had begun to go to the gym and use low weights to increase his upper body strength.  This is consistent with Mr Anastas' evidence that the plaintiff saw him on 11 January and 31 March 2017, referred to in [125] above, and Dr Chong's note of 5 April 2017 referred to in [128] above.

5. With respect to Mr Anastas' evidence that the reason for the plaintiff's attendance on 3 October 2016 also concerned the plaintiff's left shoulder, this may be seen to conflict with the plaintiff's recollection that his left shoulder problems increased in severity in early 2017.  However, the experience of increasing symptoms when starting weight training in 2017 does not exclude the possibility that the plaintiff made a complaint to Mr Anastas of some pain in October 2016, and given the use of the words “as above” also refers to the appointments in January 2016 when I am satisfied that the plaintiff did complain about left shoulder pain to Dr Chong, I consider it is more likely than not that the plaintiff did complain of some left shoulder pain to Mr Anastas on 3 October 2016, which resolved after treatment and then recurred in January 2017.

1. The plaintiff clearly has the intellectual capacity to retrain, having obtained a degree in journalism at the age of 28, after leaving high school in year 10.  However, I have no evidence before me as to how long any period of retraining would take, or how much it would cost.  Additionally, the defendant has not pleaded that the plaintiff has failed to mitigate his loss by undertaking retraining in any occupation.  Accordingly, I make no findings in relation to this.

2. The plaintiff has a long and consistent working history, from the age of 14.  He has demonstrated an ability to earn income in at least two occupations, namely as a journalist and as a car salesman.  There was no suggestion that he is physically unable to work in these occupations which by their nature are sedentary and do not require arm strength when working overhead.  I find that the plaintiff is physically capable of both.   The plaintiff is still relatively young, and with his work history there is no reason to believe that he would have any particular difficulty in obtaining alternative work within his capabilities, even though it had been some years since he last worked as a journalist or a car salesman at the time he recovered from his shoulder surgery sufficiently to do so, in mid‑August 2015.

3. I do accept, however, that the plaintiff intended to return to work as a scaffolder as soon as he was fit to do this and that he would seek the highly remunerative work he had been able to obtain with Laing O'Rourke, after his employment with that company came to an end.  The evidence I have accepted shows the plaintiff was able to obtain scaffolding work consistently.  Given his evidence concerning his prospect of work with Pilbara Access, I accept that he has good prospects of obtaining this work.  However given my view about the difficulty the plaintiff had sustaining fly‑in/fly‑out work long term in [246] above there is obviously some uncertainty about whether the plaintiff would have achieved an income at a rate equal to that at Laing O'Rourke for the whole of the relevant period.

4. In my view, however, it was reasonable for the plaintiff not to attempt to exploit his residual capacity to earn an income between August 2015 and December 2016, at which point he began actively seeking such work, in circumstances where:

   (a)he had, on Mr Campbell's assessment, reason to be optimistic about his ability to return to scaffolding after he recovered from the surgery;

   (b)he continued to be employed by Laing O'Rourke until March 2016:

   (c)no light duties were available with Laing O'Rourke; and

   (d)his recovery took somewhat longer than had been expected. 

5. In addition, I consider that it was reasonable for the plaintiff not to seek alternative forms of work while he investigated the cause of his left shoulder pain, and what could be done to resolve it, in January 2017 until he saw Mr Campbell on 9 May 2017 and was informed that he required further surgery, and further while the prospect of that further surgery being funded by the defendant was explored.

6. However, the plaintiff was informed some time before 2 August 2017 that the defendant would not fund the surgery, when that fact is referred to in the GP notes.[374]  At some time between 9 May and 2 August 2017 it must have been apparent to the plaintiff, given his experience with his right shoulder, that it would be some considerable time before he would be able to have the operation and then work as a scaffolder.

   [374] Exhibit 5B GP10.

7. Accordingly, I find that there should be no deduction to take into account the plaintiff's residual earning capacity until about the end of June 2017.  However I find that from 1 July 2017 at the latest, the plaintiff's lost earning capacity should be assessed taking his residual capacity into account.

8. The plaintiff was asked in cross‑examination whether he considered using a superannuation payment received on 4 July 2018 to pay for the surgery himself, to which he replied he had not because he thought the defendant would pay for it, and then when that did not happen he said that he was waiting for the matter to be resolved after trial.[375]  The issue of whether he was reasonably able to do so without a settlement of his claim was not explored at trial, and the defendant does not claim that the plaintiff should have mitigated his loss by funding the surgery himself.  Accordingly, I make no findings in relation to that.

IMPACT OF THE PLAINTIFF'S INJURIES ON ENJOYMENT OF LIFE

[375] ts 125.

1. The plaintiff said, and I accept and find, that:

   (a)he had been very active prior to the accident, playing a number of physical activities such as golf, tennis, swimming, cycling, and going to the gym;[376]

   (b)his activities after the accident were restricted.  He could not play tennis, or golf, and did not swim, although he could walk in a pool.  He did not ride a bike for quite a while, although he could have returned to this sooner than he did;[377]

   (c)he had never had any trouble dressing;

   (d)he was able to undertake household activities even when he was in a wheelchair as a result of the injury to his heels; and

   (e)he did not have a car so did not drive in any event and was not prevented from doing so by his injuries.[378]

ASSESSMENT OF DAMAGES

Non‑pecuniary loss

[376] ts 43.

[377] ts 43.

[378] ts 94.

1. Section 3C MVA prescribes the calculation of non-pecuniary loss in a claim for damages suffered in a motor vehicle accident.

2. Section 3C(1) defines non-pecuniary loss as pain and suffering, loss of amenities of life, loss of enjoyment of life, curtailment of expectation of life, and bodily or mental harm.

3. The amount of damages to be awarded for non-pecuniary loss is to be a proportion, calculated according to the severity of the non-pecuniary loss, of the prescribed maximum amount on the date the determination is made, with the maximum to be awarded only in 'a most extreme case'.[379]  That expression refers to a class of cases, rather than to 'a case at the apex of the gradation of injuries'.[380]  The prescribed maximum is $425,000.

   [379] Sub-sections 3C(3) and (13) MVA.

   [380] Den Hoedt v Barwick [2006] WASCA 196 [96] (Buss JA).

4. In my view the plaintiff's claim is at the lower end of the range.  He has suffered a serious injury to both his left and right shoulders.  He has gone through the pain and discomfort and rehabilitation from the right shoulder surgery over about 18 months and has the same to face again in relation to his left.  The plaintiff suffered from a period of some months after the accident when he was stiff and sore all over.  The plaintiff also suffered from some short term psychological injury after the accident.  He has recovered from all the injuries suffered in the accident, apart from left shoulder, which is ongoing.  However, whilst it prevents him from working, on his evidence it is apparently not causing him ongoing pain while he does nothing to aggravate pain, and Mr Campbell was very confident that the plaintiff will completely recover from that injury after surgery.  Apart from the impact on his working life, the injuries have had limited impact on the plaintiff's ability to function.  He has, however, had more limited options for physical activity, which I accept is important to his enjoyment of life, and this is likely to go on until he recovers from surgery, a period of seven years after the accident. 

5. Accordingly, I assess general damages at 25% of the maximum being $106,250.

Past loss of earning capacity

1. The plaintiff acknowledges receipt of an advance payment by the defendant of $89,540 on 20 July 2017.  The plaintiff also acknowledges that he received payments from Laing O'Rourke between 14 September 2014 and 30 June 2015 for sick leave, rostered days off and public holiday entitlements totalling $4,966.20 net, with $556.21 superannuation, and that these should be deducted from any award.[381]

   [381] Plaintiff's particulars of damage dated 18 October 2018 at par 1.1(k).  The evidence of these payments is at exhibit 1, pages 402 and 403.

2. The plaintiff also received payments under an income protection policy between 14 September 2014 and 10 September 2016.[382]  The parties agree that these payments are not to be taken into account in calculating damages for past loss of earning capacity.[383]  They do affect the plaintiff's claim for interest on past loss.

   [382] Plaintiff's particulars of damage dated 18 October 2018 at par 14(p).

   [383] It is not in dispute that the plaintiff is required to repay the income protection insurer from any judgment.

3. I consider the appropriate rate for the period to 30 June 2017 is the average weekly rate that the plaintiff would have received from Laing O'Rourke from 5 September 2015, on the basis that the plaintiff was entitled to this rate to March 2016, and I consider that he would have sought and had good prospects of obtaining equally remunerative work had it not been for his injuries, thereafter.

4. I have found that from 1 July 2017 the plaintiff's loss of earning capacity should be reduced to reflect his residual earning capacity.  There is, however, some difficulty in calculating the value of that residual earning capacity.

5. There is no evidence about what the plaintiff had earned, or might be able to earn, as a journalist.

6. There is documentary evidence about the plaintiff's income as a car salesman, that:

   (a)In the 2010 financial year, for Paragon Industries, between 13 October 2009 and 10 June 2010, the plaintiff earned $59,601 gross, which is $1,731 per week gross;[384] and

   (b)In the 2011 financial year, for Melville Toyota, between 6 October 2010 to 7 March 2011, the plaintiff earned $25,936 gross, and for Regent Motors, between 1 July and 4 October 2010, earning $18,316, which is an average of $1,244 per week gross.[385]

   [384] Exhibit 1 page 354; $59,601 ÷ 241 days x 7 = $1,731.

   [385] Exhibit 1 page 365 and 365 [($25,936 + $18,316) ÷ (153 days + 96 days)] x 7 = $1,244 per week.

7. There is also evidence, which I have accepted, that the average weekly earnings for a male working full‑time was:

   (a)In the 2017/2018 financial year $1,543.80 gross per week which is $1,174 net;[386] and

   (b)In the 2018/2019 financial year $1,586.20 gross per week which is $1,201 net.[387]

   [386] 1,543.80 x 52 = $80,277 less tax calculated at the rate of $3,572 + 32.5% of the amount over $37,000, and a Medicare levy of 2% totalling $19,242.  $80,277 - $19,242 = $61,035 ÷52 = $1,173.75.

   [387] 1,586.20 x 52 = $82,472 less tax calculated at the rate of $3,572 + 32.5% of the amount over $37,000 and a Medicare levy of 2% totalling $19,999.  $82,472 - $19,999 = $62,473 ÷52 = $1,201.40.

8. I do not have the average weekly earnings of a male working full‑time in 2009/2010 and 2010/2011, however it is reasonable to infer that they were less than the 2017/2018 figure. The plaintiff's gross average in 2009/2010 was 112% of the 2017/2018 figure, whilst the plaintiff's gross average in 2010/2011 was 81% of the average.

9. There are uncertainties about whether, after a period of six years from 2011 to 2017, the plaintiff would have been able to obtain work as a car salesman and the rate he could, in fact have achieved.  However, there are also uncertainties about whether the plaintiff would have worked consistently as a scaffolder, particularly on a fly-in/fly-out basis, given my finding that the plaintiff had difficulty sustaining fly‑in/fly‑out work long term, his history of changing jobs and having periods where he returned to Perth for less well remunerated employment, and also his history of suffering accidents which caused broken bones, which might warrant a reduction on the assessment of past loss for contingencies.  On balance I consider these uncertainties balance each other out and there should be no further adjustment for contingencies.

10. In light of the findings I have made, and doing the best I can with the evidence before me, I consider that a fair assessment of the plaintiff's past loss of earnings from 1 July 2017 is to be made on the basis of:

    (a)A rate of $2,450 per week net and $3,672 gross from 14 September 2014 to 26 January 2015, when the plaintiff injured his heels, and then again from 27 July 2015 to 4 September 2015;

    (b)A rate of $2,544 per week net and $3,855 per week gross, from 5 September 2015 to 30 June 2017; and

    (c)A rate of $1,300 per week net and $1,730 gross from 1 July 2017 to 24 January 2019, based on the rate the plaintiff would have earned with Laing O'Rourke from 5 September 2015 less the net average weekly wage for a man working full‑time in 2017/2018, with no further reduction for contingencies.[388]  I find reassurance that this is the correct approach from the fact this amounts to approximately a 50% reduction.

    [388] In the 2017/2018 financial year this is $1,389.

11. I therefore calculate the plaintiff's past loss of earning capacity as follows:

Period	Net weekly rate	Total
135 days: 14 September 2014 to 26 January 2015	$2,450	$47,250
40 days: 27 July 2015 to 4 September 2015	$2,450	$14,000
366 days: 5 September 2015 to 4 September 2016	$2,544	$133,015
299 days 5 September 2016 to 30 June 2017	$2,544	$108,665
365 days: 1 July 2017 to 30 June 2018	$1,300	$67,786
365 days 1 July 2018 to 30 June 2019	$1,300	$67,786
208 days 1 July 2019 to 24 January 2020	$1,300	$38,629
Less amount paid by employer	($4,966)
Total to judgment	$472,165

Interest on past loss of income earning capacity

1. The plaintiff accepts that he has no claim for interest between 14 September 2014 and 10 September 2016 on past loss of earning capacity.  The plaintiff claims interest on $16,602 at a rate of 3% between 11 September 2016 and 19 July 2017 (292 days), being the basis that between those dates he received advanced payments totalling $89,540 or $2,146 per week net which is less than the rate of $2,544 by $398 per week.  The plaintiff claims interest on the balance from 20 July 2017 at a rate of 3%.  There is no dispute that is the appropriate rate.

2. However this does not take into account my finding that the plaintiff suffered no loss for a six month period during which he received payment.  I consider that a fair result for the plaintiff is reached by calculating interest on past loss of income from the date on which the total the plaintiff has received from his insurer and by way of the advance payment by the defendant, exceeds the amount of the plaintiff's losses.  The plaintiff received $280,865 from his insurer between 14 September 2014 and 10 September 2016.  He then received a further $89,540 from the defendant between 11 September 2016 and 19 July 2018, totalling $370,405.  The plaintiff's past loss of income did not reach that figure until 28 June 2018 on my calculation in [272] above.[389]  Accordingly, I allow past loss of interest from that date on the balance of $472,265 less the amounts received of $370,405 being $101,860 at a rate of 3% per annum,[390] totalling $4,797.

Past loss of superannuation

[389] The calculation to 28 June 2018 is $370,345.

[390] 574 days to judgment on 24 January 2020.

1. The plaintiff claims superannuation at a rate of 9.5% of gross earnings reduced by a component for costs of administering the fund, taxes and other contingencies, of 15%.[391]  The defendant raises no issue about this and I consider this to be appropriate.  Accordingly, I calculate this loss as follows:

   [391] Jongen v CSR Ltd (1992) Aust Torts Reports 61,706. Plaintiff's opening submissions at par 1.1(m).

Period	Gross weekly rate	Total Superannuation at 9.5%	Less 15%
135 days: 14 September 2014 to 26 January 2015	$3,672	$6,728	$5,719
40 days: 27 July 2015 to 4 September 2015	$3,672	$1,993	$1,694
665 days: 5 September 2015 to 30 June 2017	$3,855	$34,791	$29,573
938 days 1 July 2017 to 24 January 2020	$1,730	$22,023	$18,720
Less amount paid by employer	($556)
Total to judgment	$55,150

1. As these funds would not have been available for the plaintiff's use until retirement in any event, it is not appropriate to allow interest on this amount.[392]  Accordingly, I allow the claim for past loss of superannuation at $55,150.

Future loss of earning capacity

[392] Lowes v Amaca Pty Ltd [2011] WASC 287 [833] (Corboy J).

1. The plaintiff submits that it would not be unreasonable to value the plaintiff's future loss of earnings on the basis of 5 years loss of earnings at the rate of a fly-in/fly-out worker, being $2,543.50 per week totalling $575,594 and then discounting at 6% for contingencies to $541,048.  Alternatively the plaintiff submits that this could be calculated at the rate of a full‑time worker, based on the Australian Bureau of Statistics figures,[393] being $1,653 gross, and $1,244 net, resulting in a discounted figure of $281,517.

   [393] Exhibit 20.

2. The defendant says that, if the left shoulder surgery is attributable to the accident, after the period allowed for recovery from surgery the only allowance should be a modest global sum for the loss of competitiveness due to surgery and time out of the workforce.[394]

   [394] Defendant's closing submissions at par 125.

3. In light of my findings as to the plaintiff's residual earning capacity at [197] above, that it would be more likely than not that the plaintiff would take up to 18 months to recover from surgery sufficiently to work as a scaffolder, but that he would be recovered sufficiently to work in a sedentary occupation after 6 weeks, I consider that it is appropriate that the plaintiff's future loss be calculated (from judgment) on the basis of total incapacity from work for six weeks after the operation, and a further period of 72 weeks calculated at $1,300 net per week. I consider that, in addition, an allowance of $50,000 for the plaintiff's reduced capacity to compete in the workplace, given that he will have had two shoulder surgeries and will have been out of that work for seven years, and is now 45 years of age. I do not consider, on balance and in all the circumstances, particularly the short period contemplated, and the matters referred to in [271] above that it is appropriate to make any further reduction for contingencies.

4. Accordingly, I calculate the plaintiff's future loss of income as $108,864 as follows:

Period	Weekly rate	Total
6 weeks	$2,544	$15,264
72 weeks	$1,300	$93,600
Total	$108,864

1. Discounting this figure at 6% over 18 months,[395] results in a figure of $104,119, to which I would add the amount of $50,000 referred to, totalling $154,119.

Lost opportunity

[395] ($108,864 ÷ 78) x 74.6 being the average of the present lump sum equivalent of an income of $1 per week at 6% per annum over 12 months (50.7) and over 2 years (98.5).

1. The plaintiff pleads a claim for lost opportunity to earn larger amounts of income in the future.  Whilst this claim was not formally withdrawn, no evidence was led in support of it other than the very general evidence referred to in [224] above and the plaintiff does not press this claim in his submissions.  Accordingly, I dismiss the plaintiff's claim to that extent.

Future superannuation

1. The plaintiff claims for future lost superannuation at a rate of 9.5% less 15% for the effect of tax and other expenses.[396]  This amounts to:

   [396] Jongen v CSR Ltd (1992) Aust Torts Reports 81-192, Villasevil v Pickering (2001) 24 WAR 167; [2001] WASCA 143, plaintiff's closing submissions at par 40.

Period	Gross weekly rate of pay	Superannuation at 9.5% of gross weekly rate less 15%	Total
6 weeks	$3,855	$311.29	$1,868
72 weeks	$1,730	$139.70	$10,058
Total	$11,926

1. Discounting this by 6% over 18 months results in a total of $11,406.[397]  Accordingly, I will allow that amount.

Past medical expenses

[397] ($11,926 ÷ 78) x 74.6 being the average of the present lump sum equivalent of an income of $1 per week of 50.7 for 1 year and 98.5 for 2 years at 6%.

1. The parties have agreed outstanding special damages in the sum of $1,010.65 for the neck and right shoulder and $1,800.45 for the left shoulder.[398]  Accordingly, I will allow an amount for past medical expenses in the sum of $2,811 special damages.

Travel expenses

[398] Plaintiff's closing submissions at par 47.

1. The plaintiff submits that he has incurred expenses in travelling to and from medical and associated appointments, and will do so in the future and says it would not be unreasonable to allow $1,500 for this. 

2. I have been provided with no evidence of the plaintiff's travel expenses other than my being able to infer that he has travelled to see the various medical practitioners referred to in the reports, including Dr Chong, whom the plaintiff has seen for other medical issues not the subject of this claim.  I also consider that the plaintiff's future travel expenses will be limited in light of my findings as to the plaintiff's future treatment needs.

3. Doing the best I can in the circumstances I will allow a global amount of $1,000 for past and future travel expenses.

Future Medical Treatment

1. The plaintiff claims a total of $25,000 for future medical expenses including the cost of surgery to repair the plaintiff's left shoulder, which the parties have agreed in the sum of $14,576.[399] 

   [399] Plaintiff's closing submissions at par 43.

2. I accept the plaintiff's evidence that the plaintiff intends to have the shoulder surgery in order to return to his pre-accident occupation as a scaffolder.  In the circumstances it appears the surgery will take place soon after judgment.  Accordingly there is no need to apply a discount to that amount.

3. The plaintiff says in addition that there should be some allowance for some associated medications, reviews, care and treatment.[400]  The basis for this calculation is not provided.  However, I accept on the balance of probabilities the plaintiff will incur some costs after surgery of pain medication, reviews by his GP and specialist and some physiotherapy, as he did after the surgery to his right shoulder.   I have no evidence of the cost of these services.  Doing the best I can I will allow a global amount of $2,500 for these future medical expenses.

   [400] Plaintiff's closing submissions at par 43.

4. Accordingly, I will allow $17,076 for future medical expenses.

Conclusion

1. For these reasons I have determined to award the plaintiff damages in the sum of $735,234, calculated as follows:

1.	Non-pecuniary loss	$106,250
2.	Past loss of earning capacity	$472,165
3.	Past loss of superannuation	$55,150
4.	Past medical expenses	$2,811
5.	Travel expenses	$1,000
6.	Future loss of earning capacity	$154,119
7.	Future loss of superannuation	$11,406
8.	Future medical expenses	$17,076
9.	Interest to date of judgment on past loss of earning capacity	$4,797
Total	$824,774
Less amount paid by the defendant on 20 July 2018	$89,540
Total balance of judgment	$735,234

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

JG
Associate to Judge Vernon

24 JANUARY 2020